FAO No. 2291of 2007 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No. 2291of 2007 (O&M) Date of Decision : 8.1.2010 United India Insurance Company Limited .......... Appellant Versus Kora Devi & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Ravinder Arora, Advocate for the appellant. Mr. Saurabh Bajaj, Advocate for Mr. Arvind Kashyap, Advocate for respondents No. 1 to 5. Mr. Gurcharan Singh, Advocate for respondent Nos. 6, 7, 9,11 & 12. **** VINOD K. SHARMA, J. (ORAL) This appeal by the Insurance Company is directed against the award passed by the learned Motor Accident Claims Tribunal vide which the claim petition filed by the claimants for compensation on account of motor vehicular accident stands allowed. One of the issues framed by the learned Tribunal, on pleadings of the parties, was the following :- “1. Whether Ramesh Kumar son of Nand Lal died in a motor vehicle accident, as a result of rash and negligent driving of the tractor trolley No. PB-23-A-3827 driven by respondent No.1?OPA” FAO No. 2291of 2007 2 The learned Tribunal on appreciation of evidence decided issue No.1 in favour of the claimants. The findings recorded by the learned Tribunal read as under :- “The onus of this issue is on the claimants. It is for the claimants to prove that Ramesh Kumar died in a motor vehicle accident on account of rash and negligent act of respondent no.1 being driver of the tractor trolley no. PB-23-A-3827. To discharge the onus of this issue, the claimants mainly relied upon the statement of CW1 Ashok Kumar before this Tribunal. CW1 Ashok Kumar has deposed on oath that on 13.12.2002, he accompanied by Ramesh Kumar since deceased was proceeding to Sirhind. That when they reached near village Nulakha at about 9.45 P.M. one tractor trolley loaded with rice straw was standing on the road and the number of the tractor was PB-23-A-3827. He further stated that it was standing without making any arrangement of indicators or reflectors. That Ramesh Kumar deceased could not see the parked tractor trolley on the road due to the lights of the coming vehicle from the opposite side. He further stated that the scooter being driven by Ramesh Kumar struck against the trolley. That Ramesh Kumar and he sustained injuries. That they were removed to Rajindera Hospital, Patiala by Rajinder Singh respondent no.1. That Ramesh Kumar died at PGI on 18.12.2002. This witness has stated in categorical terms that the accident was caused due to negligent act of the driver of the above referred tractor as he parked the tractor trolley on the road carelessly without making any FAO No. 2291of 2007 3 arrangement for indicators or reflectors. This witness was cross examined at length. The counsel for respondents no. 1 to 4 only gave suggestions to this witness. The cross examination has been conducted elaborately by the counsel for respondent no.5 insurance company. He admitted that the lights of their scooter were on and the lights of the coming vehicle were also on. This witness deposed that he mentioned the number of the offending tractor in the DDR but the police has not mentioned the same. He further stated that he cannot tell the width of the road where accident took place. He further admitted that the deceased Ramesh Kumar was driving on the correct side of the road and the trolley was also parked on the correct side. CW2 is Suman Rani, she is not a witness of accident consequently, her statement on the point of rash and negligent act of respondent no.1 would not be of much importance, in the determination of this point by this Tribunal. RW3 is Rajinder Singh respondent no.1, driver of the alleged offending tractor. He has denied the fact that he drove, the tractor in question on 13.12.2002 bearing no. PB-23-A-3827 or that it met with the accident. He stated in the cross examination that the written statement filed before the Tribunal is not signed by him. That he did not know if he filed any written statement or not. Consequently, he has not admitted his written statement. He further admitted that Amarjit and Pal Singh are cousins and Jasbiri Singh is his father. He denied the suggestion of respondent no.5 that the tractor was already living in the FAO No. 2291of 2007 4 Khatans. Ld. Counsel for the respondent no.5 insurance company argued that in FIR CW1/A which was recorded on the statement of Ashok Kumar CW1, it is recorded that International Tractor had fallen in the pits and the trolley loaded with straw was parked on the road. Ex. CW1/A has been lodged by the CW1 Ashok Kumar and he has also admitted that fact and proved Ex. CW1/A in his statement before this Tribunal. The first version appeared in CW1/A FIR No. 79 that the tractor had fallen in the pits and the trolley was standing on the road. The claimant cannot get out of the version as contained in the FIR Ex. CW1/A which was the earliest. Now this Tribunal is required to determine the point as to whether there is any rash and negligent act of respondent in not taking proper care of the parked tractor trolley on the road at the night time. Ld. Counsel for respondent no.5 referred to law laid down in Pepsu Road Transport Corporation Vs. Gurdial Singh and others 1990 ACJ 448. This is a judgment of our own High Court to the effect that the scooterist died when he hit the stationery bus alleged to have been parked on the metalled portion of the road without any indicators or parking lights during the night hours. That the bus driver was not negligent. This authority has been over ruled by the Division Bench of our own High Court in Gurdial Singh VS Pepsu Roadways Transport Corporation, reported in 1992(2) PLR 71, wherein it has been observed that the responsibility of the drivers of the trucks and buses to take care is not only while driving their FAO No. 2291of 2007 5 vehicles but also while parking them on the road side. Consequently, respondent no.5 cannot get any benefit from this authority which has been over ruled by the Division Bench of our own High Court. The next reliance of counsel for the respondent no.5 is on the law laid down in Bimla and others VS Dev Dass, 1993 ACJ 321, a judgment of Madras High Court. This authority has arisen out of the circumstances where a bus hit a stationery truck parked on the left side on the kacha portion of the straight road at night time. Truck was parked without switching on the parking lights on its rear and the bus driver was held solely negligent in the above authority. The said authority is distinguishable from the facts of the case in hand as in the cited authority the truck was parked on the left side on the kacha portion of a straight road and not on the road as in the instant case. The trolley was standing on the road as appeared on the record wherein late Ramesh Kumar rammed in with his scooter and as such the authority would not be helpful to the respondent. No evidence has been led on the record by the respondents side to rebut the evidence of the claimants. RW3 Rajinder Singh has totally denied the case. RW3 Rajinder Singh is facing criminal trial in this case which is pending in the court of JMIC Fatehgarh Sahib. Consequently, this Tribunal while placing reliance on the statement of Ashok Kumar holds that the respondent no.1 is responsible in this accident on account of his rash and negligent act by not making the arrangement of parking lights, indicators, reflectors of the parked trolley on the FAO No. 2291of 2007 6 road at the night time. The sole liability in causing the accident is of respondent no.1 as deceased Ramesh Kumar could not see the parked tractor trolley on account of glare of the coming vehicles lights. Issue no.1 is accordingly decided in favour of the claimants by holding that Ramesh Kumar died on account of the rash and negligent act of the respondent no.1.” The learned counsel for the appellant has challenged the findings recorded by the learned Tribunal on the ground, that in the FIR the number of the tractor was not mentioned, therefore, the learned Tribunal was not right in answering issue No.1 against the appellant and in favour of the claimants. The contention of the learned counsel for the appellant, therefore, was that the vehicle was wrongly planted, to claim compensation, and further that this important aspect has been over looked by the learned Tribunal while recording findings on issue No.1. On consideration, I find no force in the contentions of the learned counsel for the appellant. The findings recorded by the learned Tribunal would show that the learned Tribunal recorded the findings on appreciation of evidence adduced before it. The learned counsel for the appellant has not been able to point out any defect in the finding with regard to evidence recorded before the learned Tribunal. If vehicle number was not mentioned in the FIR but was duly disclosed, by the witness while appearing before the learned Tribunal, it can not be said that the learned Tribunal committed any error in accepting the evidence. It is well settled law, that the learned Tribunal has to decide FAO No. 2291of 2007 7 the case independently of criminal proceedings, on the basis of the evidence led. Once the evidence was led to connect the vehicle in question with the accident, it cannot be said that the findings recorded by the learned Tribunal are perverse, or could not be arrived at on appreciation of evidence, which may call for interference by this Court in exercise of appellate jurisdiction. No merit. Dismissed. 8.1.2010 ( VINOD K. SHARMA ) 'sp' JUDGE