IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO No.4614/2008 Date of Decision: 25.5.2009. Smt.Amita and others ..........Appellants Versus Suresh Kumar and others ..........Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr.RS Sharma,Advocate for Mr.Rajiv Sharma,Advocate for the appellants. JASWANT SINGH,J(Oral). Appellants-claimants are the wife and minor sons of deceased Jai Bhagwan, who, during his lifetime, filed a claim petition under Section 166 of the Motor Vehicles Act,1988 (hereinafter referred to as the Act) seeking compensation for the injuries suffered by him in a motor vehicular accident that allegedly took place on 19.7.2004 at about 8 a.m. The said claim petition was filed on 4.1.2005. However, during the pendency of the claim petition, Jai Bhagwan died on 24.1.2005. After his death Jai Bhagwan was substituted by his widow and minor sons. The said claim petition having been dismissed by the learned Motor Accident Claims Tribunal,Gurgaon (hereinafter referred to as the Tribunal) claimants-appellants have filed the instant appeal. Briefly noticed the facts of the claimants in the claim petition was that on 19.7.2004 at about 8 am deceased Jai Bhagwan,aged 39, who was allegedly employed in M/s En Kay Rubber Co.Ltd, Basai Road,Gurgaon FAO No.4614/2008 2 besides running a milk dairy, after parking his cycle was crossing the road to enter the said factory premises when a motor cycle bearing registration no.HR- 26P-6801 (hereinafter referred to as the offending vehicle) being driven in a rash and negligent manner by Suresh Kumar-respondent no.1, owned by Govind-respondent no.2 and insured by respondent no.3, came from Basai side and hit Jai Bhagwan as a result of which he fell down and sustained various injuries including a head injury. He was taken to Kalyani Hospital,Gurgaon where he went in comma and remained admitted there till 31.7.2004. After that he remained under treatment at Government Hospital, Gurgaon, ESI Hospital,Badarpur Delhi and Safdarjung Hospital, New Delhi but he allegedly could not regain consciousness and died in comma on 24.1.2005. Rs. Five lacs were allegedly spent in his treatment at various hospitals, special diet, transportation etc. The claim petition was contested. Owner and driver denied involvement of the offending vehicle. It was further their case that in any case the offending vehicle was insured with respondent no.3 and hence they were liable to be indemnified. Respondent Insurance Company contested the claim petition for (i) want of information about the accident (ii) lack of verification of insurance policy, (iii) non-holding of a valid and effective driving licence by driver of the offending vehicle and (iv) violation of terms and conditions of the insurance policy by owner of the offending vehicle. Learned Tribunal, after hearing both sides and perusing the material on record dismissed the claim petition. Hence the present appeal. FAO No.4614/2008 3 It is contended by the learned counsel for the appellants that the driver of the offending vehicle is facing criminal trial with regard to the accident in question and in view of that the award passed by the learned Tribunal is outcome of mis-reading of the evidence and hence liable to be set aside. After hearing the learned counsel and perusing the impugned award, I find no merit in this contention of the learned counsel for the appellants. The learned Tribunal has found that the FIR in the instant case was registered at the instance of Jagdish Kumar (PW9)-brother of the deceased Jai Bhagwan on 23.8.2004 i.e. after a delay of 33 days. In his cross examination it was admitted by him that he did not witness the accident. With regard to the delay in lodging the FIR it was stated by him that it took time to trace the whereabouts of the driver of the offending vehicle and respondents' assurance to compensate by making the payment of medical expenses, which they later refused. The learned Tribunal has rightly noticed that immediately after the accident the victim was taken to Kalyani Hospital,Gurgaon where he remained admitted upto 31.7.2004. However, in his discharge summary it was only mentioned that the injured had received injuries in a road traffic accident and there was no mention that the accident was caused by a motorcycle. It was also found by the learned Tribunal that lastly the deceased remained admitted at Safdarjung Hospital from 5.8.2004 to 30.10.2004. However, during his cross examination it was admitted by Jagdish Kumar FAO No.4614/2008 4 (PW9) that the deceased died on 24.1.2005 i.e. after about three months of his discharge from the hospital. No post mortem was got conducted on the dead body so as to ascertain the cause of death. In the absence of post mortem report, it could not be said that deceased died due to injuries received by him in the said accident, as his death had taken place three months after his discharge from the hospital. From a perusal of the above, it is amply clear that the deceased had miserably failed to lead any evidence to hold that the deceased had sustained injuries in the motor vehicular accident caused by the offending vehicle, or that he succumbed to injuries received by him in the said accident. Mere pendency of criminal proceedings against driver of the offending vehicle-respondent no.1 in itself cannot be considered as a conclusive piece of evidence to hold that the Jai Bhagwan received injuries in the said accident or he died because of the injuries suffered by him in that accident. Accordingly,finding no merit in this appeal the same is hereby dismissed in limine. 25.5.2009. (Jaswant Singh) joshi Judge