IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No.435 of 2004 alongwith FAO Nos.410 & 412 of 2006. Judgment reserved on: 11.12.2009. Date of Decision: 31.12.2009. FAO No.435 of 2004: Dharmender Kumar ….Appellant Versus Smt.Shankari Devi and others ….Respondents FAO No.410 of 2006: Dharmender Kumar ….Appellant Versus Smt.Shankari Devi and others ….Respondents FAO No.412 of 2006: Smt.Neena Devi ….Appellant Versus Smt.Shankari Devi and others ….Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): M/s.B.K. Malhotra and G.R. Palsra, Advocates. For the Respondent(s): M/s.B.R. Verma, K.D. Sood and YPS Dhaluta Advocates. Deepak Gupta, J. These three appeals are being disposed of by one judgment since they arise out of the same accident and common questions of law and fact are involved. 2 Briefly stated the facts of the case are that one Raj Kumar was driving his own Maruti Van Taxi bearing Registration No.HP-02-4010. He was going from Pandoh to Darlaghat on the night intervening 4/5-6-2003. A Fiat Palio Car bearing registration No.CH-13-0575 came from the opposite side. There was a head on collision between the two vehicles. Raj Kumar suffered injuries. He was taken to Hospital but unfortunately succumbed to his injuries. A criminal case under Sections 279, 337 and 304-A IPC was registered against Sh.Dharmender Kumar owner of the vehicle bearing Registration No.CH-13-0575. The widow and children of Raj Kumar filed a claim petition being MAC Petition No.32-S/2 of 2003 before the MACT, Solan. In this claim petition Dharmender Kumar admitted the accident but stated that it was not he but one Sh.Sanjiv Vaidya was driving the same. According to him the accident occurred due to the rash and negligent driving of the driver deceased Raj Kumar. In this case both the parties led evidence. Both Dharmender Kumar and Sanjiv Vaidya appeared as witnesses in the case. The learned MACT, Solan held that the accident had occurred due to the negligence of the driver of Fiat Palio car. He assessed the compensation at Rs.4,40,000/- vide his award dated 28.2.2004. Since the Palio car was insured with 3 the United India Insurance Company the said Company was held liable to pay the same. The Insurance Company has not filed any appeal but Sh.Dharmender Kumar has challenged the award of the MACT by filing FAO No.435 of 2004. Dharmender Kumar himself filed a claim petition against the legal representatives of Sh.Raj Kumar claiming compensation for the injuries suffered by him. He filed this claim petition in the Court of MACT, Mandi. Another claim petition was filed by Neena Devi sister of Dharmender Kumar who was also travelling in the Fiat Palio car. A third petition was filed by Sanjiv Vaidya which has been dismissed on the ground that he had not led any evidence to prove the injuries suffered by him. The MACT, Mandi came to the conclusion that the accident occurred due to the composite negligence of both the drivers and held both liable. He however dismissed the claim petition filed by Dharmender Kumar on the ground that he did not appear in the witness box and no sufficient evidence was led to prove the injuries or the damages suffered by him. In the case of Neena Devi, learned Tribunal assessed the compensation at Rs.9000/- and held the heirs of Raj Kumar as well as Dharmender Kumar and the Insurance Company liable to pay the amount equally. 4 Dharmender Kumar has filed FAO No.410 of 2006 challenging the award of the learned MACT and Neena Devi has challenged the award passed by learned Tribunal in FAO No.412 of 2006. At the outset it may be noticed that the heirs of Raj Kumar had filed the claim petition before the learned MACT, Solan on 24.7.2003. Thereafter, Dharmender Kumar filed the petition before the MACT, Mandi on 1.12.2003. Legally there may not be any bar to filing the petition before the Tribunal at Mandi but once Dharmender Kumar was aware that a petition arising out of the same accident had been filed by the heirs of Raj Kumar and was pending before the learned MACT, Solan it was his bounden duty to have apprised the MACT, Mandi about this fact. This fact was purposely hidden by Dharmender Kumar and it is obvious that this petition was filed as a counter blast to the petition filed by the heirs of Raj Kumar. Before the MACT, Mandi decided the claim petition, the MACT, Solan passed the award on 28.2.2004 in which he held the driver of the Palio car negligent for driving the vehicle. This award was exhibited before the MACT, Mandi as Ext.R-1. In the case filed by Sh.Dharmender Kumar before the MACT no evidence whatsoever was led in regard to the issue of negligence. PW-1 Reena is the wife of Dharmender Kumar. She was admittedly not present when the accident took place. 5 PW-2 Ganga Ram is the Record Keeper from the office of Senior Medical Superintendent Zonal Hospital. This was the entire evidence led on behalf of the claimants before the MACT Mandi in Claim Petition No.91 of 2003. On the other hand, heirs of Raj Kumar had produced Rakesh Kumar as RW-2 who clearly stated that the accident occurred due to the rash and negligent driving of the drive of Palio Car. The FIR was also lodged against the driver of the other car. The learned MACT, Mandi held that since an appeal has been filed before this Court against the award of the learned MACT, Solan he was not bound by the said award. I am constrained to observe that the MACT, Mandi did not observe the propriety expected out of him. An award had been passed in relation to the same accident in a matter relating to the same parties in which it was clearly held that the driver of the Maruti Van was not negligent. Therefore, MACT could not have ignored the award passed by the Tribunal. Once the claimant themselves had led no evidence to prove the negligence on the part of the driver of the palio car there was no material before the Tribunal to show that the driver of the Maruti Van was in any manner negligent. The finding of the learned MACT, Mandi that both the drivers were equally negligent was totally illegal & perverse and not based on any evidence before it. 6 In the case filed by Neena Devi the only witness to the accident examined on her behalf was the claimant Neena Devi herself. She is the sister of Dharmender Kumar. She states that her brother Dharmender Kumar was driving the car. According to her Sanjiv Vaidya also suffered injuries in the accident. Dharmender Kumar in his claim petition as well as in the claim petition filed by the heirs of Raj Kumar had taken a specific plea that it was Sanjiv Vaidya who was driving the vehicle. The statement of his sister Neena Devi is to the contrary and belies his version. Therefore, this is another reason to hold that Raj Kumar was not negligent in driving the Maruti Van. In the case before the MACT, Solan, the photographs of the site of the accident have been marked as Ext.Marked A to F. These have not been proved in accordance with law but it would be pertinent to mention that Sanjiv Kumar who was the alleged driver of the Palio car admitted that they are the photographs of the site of the accident. These photographs clearly reveal that the palio car had gone to the extreme wrong (right side of the road) and had hit the maruti van with such a great impact that the maruti van had been pushed at least 5-6 ft. away from the pucca portion of the road. In view of the aforesaid facts there can be no manner of doubt that the accident occurred due to the rash and negligent 7 driving of the Fiat Palio car be it driven by Dharmender Kumar or Sanjiv Vaidya. Therefore, Dharmender Kumar being the owner of the car was not entitled to any compensation. As far as issue of quantum in Neena Devi’s case is concerned, I find that she has led no evidence whatsoever to show what are the injuries suffered by her. The amount of compensation awarded in her favour is just and reasonable and therefore the award calls for no interference on this count. However, in view of my finding on the issue of negligence given hereinabove the heirs of Raj Kumar are not liable to pay the compensation and only Dharmender Kumar and the Insurance Company are jointly and severally liable to satisfy the award. In view of the above discussion, all the three appeals are dismissed with no order as to costs. December 31, 2009. ( Deepak Gupta ), PV Judge.