IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision:12.2.2009 FAO No. 1565/2008(O&M) Jhumman and another .............Appellants Versus Naveen Kumar and another ..........Respondents Present: Mr. Chaman Lal,Advocate for the appellants. None for respondent no.1-claimant. Mr.DP Gupta,Advocate for respondent no.2-Insurance Co. CORAM: HON'BLE MR.JUSTICE JASWANT SINGH FAO No. 1566/2008(O&M) Jay Singh and another .............Appellants Versus Roshan Lal and another ..........Respondents Present: Mr. Chaman Lal,Advocate for the appellants. None for respondent no.1-claimant. Mr.DP Gupta,Advocate for respondent no.2-Insurance Co. **** JASWANT SINGH,J This order will dispose of FAO Nos. 1565 and 1566 of 2008, as both these appeals arise out of the common award dated 18.5.2007 passed by the learned Motor Accident Claims Tribunal, Faridabad (for short the Tribunal) Appellants-driver and owner of the offending vehicle (Tata 407) are in appeal against the award dated 18.5.2007 passed by the learned Tribunal FAO Nos.1565/1566 of 2008 2 whereby the claim petitions filed by respondents no.1-claimants were partly allowed and they were granted following compensation alongwith interest @ 7.5% per annum from the date of institution of the claim petitions till realisation, for the injuries suffered by them in a motor vehicular accident that took place on 13.9.2002:- FAO No. Name of Respondent- Claimant Amount of Compensation awarded 1565/2008 Naveen Kumar Rs.79,208/- 1566/2008 Roshan Rs.1,08,904/- The delay of 10 days in refiling the appeal and of 259 days' in filing the appeal stands condoned vide order dated 4.11.2008. Despite notice no one has put in appearance on behalf of respondents-claimants. I have heard learned counsel for the parties and perused the record. Learned counsel for the appellants has raised the following contentions to lay challenge to the impugned award :- (i)that the claimants did not discharge the onus to prove that the accident in question which took place on a busy road, was due to rash and negligent driving of the appellant-driver, as no independent witness was summoned or examined. (ii) that the claimants did not produce original bills in respect of expenditure incurred by them on their medical treatment and this aspect, while awarding compensation, was ignored by the learned Tribunal; and . FAO Nos.1565/1566 of 2008 3 (iii) that appellant-Jhumman (driver) was holding a valid driving licence and a copy thereof was furnished by him to his counsel, but his counsel did not produce the same before the learned Tribunal and therefore the appellants have been wrongly held liable to pay the compensation amount. I find no force in this submission of the learned counsel for the appellants, which are point-wise dealt with as under:- (i) A perusal of the impugned award shows that the claimant- respondent Naveen Kumar, PW1 in support of their claim petitions had tendered his affidavit stating therein the manner in which the accident took place due to rash and negligent driving by appellant driver-Jhumman. Similarly, claimant-respondent Roshan also tendered his evidence which corroborated the version put forth by Naveen Kumar-PW1. In addition to that the FIR and DDR relating to the accident in question were also produced by way of Ex.P2 and P3 respectively by PW4 Bishamber, Constable. If no body from general public volunteered to help the claimants by appearing in witness box in support of their claim, it cannot be taken as a failure on the part of the claimants to prove their case, when they tendered sufficient oral as well as documentary evidence in support of their claim. (ii) To prove the expenditure incurred by them on their treatment, claimants examined PW5 Dr.Shabir Khan, R.M.O., who proved the medical bills regarding treatment of Naveen Kumar and Roshan- injured claimants. Besides that they also examined PW2 Nathi, (Staff Nurse)who FAO Nos.1565/1566 of 2008 4 proved the bills, treatment chart etc., in respect of both the claimants. On the other hand, learned Tribunal has recorded a finding that none has stepped into the witness box from the side of the respondents to prove that the alleged amounts were not spent by the respondents-claimants. If the appellants chose not to contest this aspect of the matter before the learned Tribunal, they cannot be allowed to raise any dispute on that count at this stage. (iii)The last argument of the learned counsel for the appellants that driver of the offending vehicle was holding a valid licence,which could not be produced by his counsel, stands belied by finding recorded by the learned Tribunal, in para 15 of the impugned award whereby it was noticed that “ respondent no.1(driver) was having driving licence to drive motor car but he was driving TATA 407 vehicle, and which is a goods carrier and that is not covered under the car”. It is under these circumstances that the respondent no.2-Insurance Company was granted recovery right. Alongwith this appeal the appellants have filed an application under Order 41 Rule 27 of the CPC, to place on record driving licence of the appellant no.1-driver, by way of additional evidence, to show that he was holding a valid driving licence for driving a goods carrier, which, though handed over to their counsel, was not adduced during the trial of the claim petition. After hearing the learned counsel for the appellants and going through the averments made in the application, I find that no case is made out FAO Nos.1565/1566 of 2008 5 to allow the said application, as the appellants have failed to show that the said driving licence, now sought to be placed on record by way of additional evidence, was refused to be admitted as evidence by the learned Tribunal or that said evidence was not within their knowledge, or could not, after the exercise of due diligence, be produced by them during the proceedings of the claim petition. Rather, a vague and totally unacceptable story has been put forth that their counsel did not care to produce the same. It has not been shown before this Court that appellants have taken any action against their counsel for this lapse, which may have lent any credence to the averments contained in the said application. Accordingly, the said application is hereby dismissed. For the reasons stated above,finding no merit in this appeal the same is dismissed with no order as to costs. 12.2.2009. (Jaswant Singh) joshi Judge