F.A.O.No.1096 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.No.1096 of 2009 (O&M) Date of Decision 19.08.2009 Hakam Singh ......Appellant VERSUS Jasvir Kaur and others ......Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Rajbir Singh, Advocate, for the appellant. Mr.Gopal Singh Nehal, Advocate, for respondent No.1. ***** A.N.JINDAL, J(ORAL): This appeal, preferred by the appellant-owner of the offending vehicle, is directed against the order dated 13.12.2008, passed by Motor Accident Claims Tribunal, Fast Track Court, Sangrur (herein referred as 'the Tribunal') awarding compensation to the tune of Rs.3,90,000/- alongwith interest @ 6% per annum in favour of the claimants and against the appellant-respondent No.2 Hakam Singh son of Ujjagar Singh (herein referred as 'the appellant'). Factual background of the case is that on 05.02.2006, Sukhwinder Singh (now deceased) was standing on Ubhawal Road, near cremation ground. In the meantime, a truck bearing registration No.PB-11- D-5427 driven by respondent No.1 Jarnail Singh (herein referred as respondent No.4) rashly and negligently arrived there and while overtaking another truck struck against the deceased, resultantly, the latter fell down on F.A.O.No.1096 of 2009 (O&M) 2 the kachha path and the truck bearing registration No.PB-1-D-5427 passed over the body of the deceased, as such, the interior portion of his skull came out and his face was totally disfigured. The occurrence was witnessed by Subhash Chander. Lateron, Gurbachan Singh and Niranjan Singh also came at the spot and identified the dead body of Sukhwinder Singh. As an aftermath of the accident, FIR No.53 dated 05.02.2006, under Sections 279/304-A I.P.C. was registered at Police Station City Sangrur against Jarnail Singh-respondent No.4. Hence this claim petition for seeking compensation to the tune of Rs.20,00,000/- was filed by the claimants. The said claim petition was contested wherein all the averments of the rash and negligent driving of the offending vehicle were denied and it was stated that no such accident took place on account of the fault on the part of the driver Jarnail Singh-respondent No.4 and the truck of the appellant-owner was not involved in the accident. From pleadings of the parties, following issues were framed:- 1. Whether the claimant is entitled to compensation to the tune of Rs.20,00,000/- alongwith interest @ 18% per annum from the date of accident till the realization of entire decretal amount under Section 166 MVA on account of death of Sukhwinder Singh as prayed for ? OPA 2. Whether the petition is not maintainable in the present form ? OPR 3. Whether the respondent No.2 was holding a valid driving licence at the time of alleged accident ? OPR-2 4. Relief. Though there were no such allegations against the appellant F.A.O.No.1096 of 2009 (O&M) 3 that is the author of the accident, yet the Tribunal held him negligent and responsible for the accident in which Sukhwinder Singh had died. It was also held that the offending vehicle was not insured, as such appellant was personally liable. Heard. The Tribunal appears to have misappreciated the statements of CW1 Jasvir Kaur, CW-3 Subhash Chander and also the statement of Jarnail Singh driver-respondent No.4 while observing something against the facts and holding that the truck bearing registration No. PB-11-D-5427 was being driven by owner Hakam Singh appellant and not by Jarnail Singh driver-respondent No.4, therefore, Hakam Singh appellant was responsible for the accident and was responsible to pay compensation to the tune of Rs.3,90,000/- to the claimants. The prime question to be determined in the instant case is whether the Court could make out a case beyond the pleadings and evidence and whether the accident, as alleged by the claimants, stands established from the evidence. It is worth noticing that there is sole witness namely Subhash Chander in order to establish the accident but he has not supported the factum with regard to the death of the deceased at the hands of Jarnail Singh driver-respondent No.4 or Hakam Singh appellant. The cross-examination of CW-3 Subhash Chander is reproduced as under:- “I have not brought any receipt regarding taking the shop on rent nor I have produced the same earlier. I have not brought any proof regarding the running of STD nor the same has been produced earlier. I have not recorded any truck number in my statement nor I have stated any colour or make in my statement, F.A.O.No.1096 of 2009 (O&M) 4 nor I have recorded name and features of any driver. I have not identified the driver. No one was crushed by truck in my presence. I had seen later. I do not know the person who was crushed. I was sitting inside my shop. It was told to me by a customer that a person is lying dead outside. It is incorrect that I have deposed falsely.” Except Subhash Chand, there is no alleged eye witness to the occurrence. The testimony of Jasvir Kaur-claimant is based on hearsay, as such the same is of no consequence and is not helpful to establish the factum with regard to rashness and negligence of Hakam Singh appellant. Surprisingly, the claimants pleaded rashness and negligence on the part of Jarnail Singh driver-respondent No.4 but the Tribunal had his own reasons to observe that appellant was driving the vehicle and was responsible for the accident. It is well settled by now that the Court is to go by the pleadings and evidence before it and to reach the conclusion after appreciating such material as is before it and it could not go beyond the pleadings and evidence and construct a new case which was never set up by either of the parties. Thus, the observations made by the Tribunal while going beyond the pleadings and evidence are not only perverse but also stinking and smelling some ulterior motive. The learned Tribunal not only ignored the pleadings before it but also ignored the material documents i.e. FIR and report under Sections 173 Cr.P.C. Ex.CW4/C. As a matter of fact, the Tribunal has shown his ignorance to the law while framing issues No.1 and 3 as have been reproduced earlier. The Tribunal should not have framed issue No.1 in the manner as framed by it. In this petition under Section 166 of the Motor Vehicle Act, one issue F.A.O.No.1096 of 2009 (O&M) 5 should have been with regard to the question of negligence and other with regard to the grant of compensation but composite issue framed by the Tribunal also tarnishes the capability of the officer. Similarly, though the onus of issue No.2 was placed on respondent No. yet it has not been framed in the negative form. Anyway, when the trial stands over, I need not remit the case back to the Tribunal for segregating the issue as both the parties have already led evidence and knew fully well about the questions to be determined in the instant case. Therefore, the issues so framed stand decided on the basis of the evidence led before the Tribunal. Resultantly, I accept this appeal and set aside the impugned judgment and dismiss the claim petition. However, no order as to costs. (A.N.Jindal) Judge 19.08.2009 mamta-II