IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (MVA) No. 85 of 2006. Date of Decision: 19th May, 2008. Vinod Kumar …..Appellant Versus Sheelan Devi and others …..Respondents. Coram The Hon’ble Mr. Justice Dev Darshan Sud,Judge. Whether approved for reporting?1 For the Appellant: Mr. Ramakant Sharma, Advocate. For the Respondents: Mr. Ajay Sharma, Advocate, for respondent Nos. 1 to 4. Mr. Rajesh Mandhotra, Advocate, for respondent Nos. 5 and 6. Mr. Harish Behl, Advocate, for respondent No. 7 Mr. Romesh Verma, Advocate, for respondent No. 8. Dev Darshan Sud, Judge. This appeal has been preferred by the owner of the scooter which was involved in an accident resulting in the death of Shri Ashok Kumar who was a pillion rider on the scooter on the fateful day. Claimants Smt. Sheelan Devi, Lalit Kumar, Kamna Devi, who are wife, son and daughter and Bisambhri Devi, the mother of the deceased, filed petition under Section 173 of the Motor Vehicles Act,1988 (hereinafter referred to as the Act) 1 Whether Reporters of Local Papers may be allowed to see the judgment? - 2 - claiming compensation to the extent of Rs. 10 lacs along with interest from the respondents in the petition before the Tribunal on the allegations that the deceased had sustained head injuries which proved to be fatal. They have pleaded that on 13.12.2002 the deceased was travelling as a pillion rider on scooter No. PB-08-V- 5410 which was being driven by Vinod Kumar, appellant herein. When they reached near the Government Senior Secondary School Bhumpal in District Hamirpur, the scooter was struck by truck No. HP-23-4449, belonging to Shri Dalip Singh, which was being driven in a rash and negligent manner which resulted in the death of Shri Ashok Kumar. The petition was resisted on a number of grounds by all the contesting respondents. After trial, learned Motor Accidents Claims Tribunal awarded compensation to the extent of Rs. 5,52,000/- to the claimants along with interest etc. The appellant herein was held liable to pay the amount. In this appeal by the owner of the scooter it has been contended that the judgment of the learned Motor Accidents Claims Tribunal is not in accordance with law. Learned counsel for the appellant has urged that the liability, if any, is that of the truck owner and not of the appellant. I have heard learned counsel for the parties and have gone through the record. PW-1 Sheelan Devi has stated in her cross-examination that it was the truck driver who was responsible for the accident. This suggestion was put to her by the counsel appearing for the Insurance Company. RW-2 Vinod Kumar has - 3 - stated in his evidence that the accident has occurred owing to the negligent and rash speed at which the truck was being driven. He has stated in examination-in-chief that scooter was going towards Nadaun at a normal speed and the truck came from Hamirpur at a very fast speed, struck the scooter which resulted in the accident, causing fatal injuries to the deceased. RW-3 Shri Ranjeet Kumar has testified on oath that on 13.12.2002 a fatal accident occurred in Bhumpal between the School and the Hospital. He was an eye witness to the accident. He states that truck involved in the accident was being driven at a very fast speed and was coming from Hamirpur side and the scooter was going to Nadaun from the Hamirpur side at a normal speed. The truck driver lost control on the vehicle which resulted in the accident. He states that Vinod Kumar appellant was the pillion rider. In cross examination, he states that road was quite wide at the place of accident. He witnessed the accident when he was coming back from his work as a daily- paid labourer. A number of people had gathered at the place of accident, which occurred around 7.45 p.m. to 8 p.m. Learned counsel for the appellant submits that RW-3 is the only person who has seen the occurrence, all other being witnesses after the accident had occurred. His testimony has remain unrebutted and clearly establishes on record that it is the truck driver who was at fault. The evidence of both PW-1 and RW-3 having remained unrebutted, there was nothing on the record to establish that it was the appellant who was at fault or that deceased himself - 4 - had contributed to the occurrence of the accident having driven the scooter at a rash and negligent speed. Learned counsel for the respondents has placed strong reliance on FIR Ext. PW-2/A to establish that it was the deceased who was at fault as he was trying to over take another vehicle and struck the truck because of his fault. The submission of the learned counsel for the respondents cannot be accepted. PW-2 is not an eye witness to the accident but after the occurrence, since he states on oath that he heard the noise of the accident and thereafter rushed to the spot. He cannot be termed as an eye witness and his deposition regarding the fact that scooter driver was trying to overtake another vehicle, cannot be accepted. In these circumstances, the evidence on record establishes that the accident has occurred because of the rash and negligent driving of the driver of truck No. HP-23-4449 owned by Dalip Singh, respondent herein. Learned counsel for the respondents submits that in case the liability is held to be that of Dalip Singh, respondent No. 5 herein, in that event it is respondent No. 7 United Insurance Company which is liable to make good the award as the vehicle in question was ensured with them. Learned counsel for the Insurance Company submits that the trial court has rightly held that truck was not insured and no liability can be fastened on it. He submits that testimony of RW-4 has remained unchallenged who has stated from the record that truck was not insured with them. RW-4 B.M. Bhupati, Branch Manager, United India Insurance, Branch Office - 5 - Hamirpur has appeared as RW-4 and has stated that truck was not insured with them. This statement is contrary to the record. Ext. RW-1/B is Cover Note issued by the United India Insurance Company ltd. stating that truck is insured with them from 13.12.2002 till 12.12.2003. RW-4/C is Insurance Policy issued by the United India Insurance Company Ltd. insuring truck in question from 14.12.2002 to mid night of 13.12.2003. In these circumstances, it cannot be held that there was no insurance cover for the truck involved in the collusion. This appeal is therefore, allowed. The judgment and award is modified to the extent that the accident was caused by the driver of the truck No. HP 23-4449 owned by respondent No. 5, which was insured with respondent No. 7 United India Insurance Company Ltd, who shall be liable to pay the awarded amount. The appellant will be entitled to recover the amount from respondent No. 7 if award has been satisfied. This appeal is disposed of. There shall be no order as to costs. 19th May, 2008. (Dev Darshan Sud), (cm) Judge.