FAO No. 3036 of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO No. 3036 of 2001 Date of decision : December 17, 2008 * * * * * Smt. Chandro and others ............Appellants Versus Ramesh and another ...........Respondents * * * * * CORAM: HON'BLE MR. JUSTICE JORA SINGH * * * * * Present: Mr. Pritam Saini, Advocate for the appellants. Mr. Gopal Mittal, Advocate and Mr. V.M Gupta, Advocate for respondent-Insurance Company. * * * * * JORA SINGH, J. Smt. Chandro and others filed this appeal, who are LRs of Lakhmi Chand against the award/order dated 14.12.2000, whereby claim petition under Sections 140 and 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as `the Act') was dismissed on the allegation that Lakhmi Chand did not receive injuries in the accident alleged to have been caused by respondent no.1 while driving three wheeler. Initially, Lakhmi Chand filed petition under Section 166 and 140 of the Act against Ramesh and others on the allegation that on 7.11.1994 at about 8:00 A.M while present near Peer Baba G.T Road, Siwan, he was waiting for vehicle to visit FAO No. 3036 of 2001 2 Panipat. In the meantime, three wheeler bearing No. HR-6-8849 came from the side of Village Siwan. Three wheeler was being driven rashly and negligently and was struck against the claimant. In the accident claimant fell down and was run over by the three wheeler. Claimant received multiple grievous injuries in the accident. Accident was due to rash and negligent driving of three wheeler by the respondent. Claimant was 45 years old and as a tailor master was earning Rs.3000/- per month. Respondent no.1 filed the written statement and contested the claim petition on the ground that the petition is not maintainable. It was pleaded that there was no accident as alleged by the claimant. No FIR was got registered. Respondent no.2 filed separate written statement by admitting this fact that three wheeler was insured at the time of the alleged accident but the driver of the three wheeler was not holding a valid license. From the pleadings of the parties following issues were framed: 1. Whether the accident took place due to rash and negligent driving of respondent no.1 as alleged? OPP. 2. If issue no.1 is proved, whether the petitioner is entitled for compensation, if so, how much and from whom? OPP. 3. Whether respondent no.1 was not having any valid driving licence as alleged: OPR. After hearing learned counsel for the parties and from the perusal of the evidence on file, learned MACT while discussing issue FAO No. 3036 of 2001 3 No.1 opined that there was no accident as alleged by the claimant. Ultimately petition was dismissed vide order dated 14.12.2000. Feeling aggrieved by the order dated 14.12.2000, appeal was preferred by LRs of Lakhmi Chand because during the pendency of the claim petition, Lakhmi Chand had expired. Notice was issued to the respondents. I have heard learned counsel for the parties and have gone through the evidence on file. Learned counsel for the appellants argued that Lakhmi Chand while appearing as PW-2 and Satbir Singh as PW-3 on oath stated that there was an accident on 7.11.1994. Accident was due to rash and negligent driving of respondent no.1 and in that accident, Lakhmi chand received serious injuries. But learned Tribunal did not appreciate the evidence on file. Statement of Satbir Singh was recorded on 11.1.2000 whereas the accident was on 7.11.1994. After the expiry of six years, there was a possibility of minor discrepancies qua the accident. Injured remained under treatment. Respondent no.1 had compromised with Lakhmi Chand. If there was no accident, then there is no question of compromise . As per compromise, injured made a statement before the police to withdraw the claim but there was no payment as per compromise. Then, another complaint was made to the police. If no action was taken by the police to register a case, then injured is not to be penalized. Learned counsel for the appellants requested to set aside the impugned order. Learned counsel for the respondents argued that FAO No. 3036 of 2001 4 occurrence as per the injured was on 7.11.1994 but no FIR was registered. If Lakhmi Chand had received injuries in the accident, then why no MLR has been placed on the record. If there was a compromise, then the same should have been placed on record. Learned MACT rightly opined that there was no accident as alleged by Lakhmi Chand. Evidence on the file shows that as per Lakhmi Chand, deceased on 7.11.1994 at 8:00 A.M, he was present near Peer Baba G.T Road, Siwah to visit Panipat. In the meantime, three wheeler came from the side of Village Siwan. Vehicle was being driven rashly and negligently by respondent no.1 and there was an accident and in that accident, Lakhmi Chand received grievous injuries. But if there was an accident then matter should have been brought to the notice of the police. Till today, no FIR has been registered. There is no explanation as to why FIR was not got registered. As per the injured, namely, Lakhmi Chand, on account of injuries he became unconscious and was shifted to G.C Gupta Nursing Home, HUDA, Panipat. His wife had moved an application before the police qua the accident but no action was taken by the police. But, if injured was shifted to a private hospital and was later on shifted to G.C Gupta Nursing Home then, why no MLR was placed on record. Record of G.C Gupta Nursing Home could easily be summoned to state that on 7.11.1994, Lakhmi Chand was admitted in the Hospital and up to a particular date he remained admitted in the hospital and number of injuries were noted on the person of Lakhmi Chand when he was brought to Nursing Home. If Lakhmi Chand was shifted to G.C FAO No. 3036 of 2001 5 Gupta Nursing Home then Doctor of G.C Gupta Nursing Home was expected to report the matter to the concerned police station for registration of a criminal case. But no evidence on the file shows that intimation was given by G.C Gupta Nursing Home to the concerned police station regarding admission of Lakhmi Chand. However, if police was not taking action then Lakhmi Chand or his close relations were expected to file complaint against the police officials but no complaint was filed against any police official. PW-3, Satbir Singh stated that he had witnessed the accident and in the accident, Lakhmi Chand received injuries and was shifted to G.C Gupta Nursing Home where he remained admitted for about a month. But as discussed earlier, if Lakhmi Chand was unconscious then he could have reported the matter to the police. No explanation as to why Satbir Singh did not report the matter to the police. Next allegation of Satbir was that there was a compromise amongst injured and respondent no.1 i.e the driver of the offending vehicle. But compromise was not brought on the file. If original compromise was with V.S Kadiyan, MLA, then MLA could easily be summoned with original compromise. No explanation as to why original compromise was not brought on the file. If original compromise was not available then a copy of the same could easily be produced. Permission should have been sought to lead secondary evidence to prove the copy of the compromise. File further shows that on 30.11.1994, Lakhmi Chand had moved an application to the police against respondent no.1 but that application is not on the file. Application could easily be summoned from the FAO No. 3036 of 2001 6 concerned police station. As per Chandro Devi, PW-4 report was lodged with the police under the thumb impression of Lakhmi Chand but again original was not summoned. Statement of injured, Lakhmi chand is contrary to the statement of Satbir Singh, alleged eye witness. According to the injured i.e Lakhmi Chand, on 7.11.1994 at 8:00 A.M, he was present near Peer Baba G.T Road, Siwah to visit Panipat. In the meantime, three wheeler came from the side of Village Siwan. Driver of the three wheeler had struck three wheeler against Lakhmi Chand, whereas Satbir Singh stated that Lakhmi Chand was travelling in the three wheeler and three wheeler was at a distance of one kilometer from Peer Baba, Siwan. Three wheeler was overturned and in the accident, Lakhmi Chand received injuries, meaning thereby that Satbir Singh did not witness the occurrence. Either Lakhmi Chand is not telling the truth or Satbir is not telling the truth. When statement of the injured is contrary to the statement of the alleged eye witness particularly when no FIR or MLR on the file then I am of the opinion that learned Tribunal rightly opined that there was no accident as alleged by the appellant. File further shows that after the accident on 7.11.1994, injured remained admitted in G.C Gupta Nursing Home for about a month. As per Dr. G.C Gupta, admission was on 8.11.1994. If injured became unconscious after the accident on receipt of injuries then, where he remained on 7.11.1994. As per evidence on the file complaint before the police was withdrawn. If there was no payment as per the compromise with respondent no.1, then there was no idea to withdraw the complaint. Satbir Singh, PW-3 was a relative of Lakhmi Chand. In the absence FAO No. 3036 of 2001 7 of MLR/FIR, story was concocted with the connivance of respondent no.1 simply to get compensation from the company. In the compromise or application before the police, not even a single word has been mentioned that the accident was due to rash and negligent driving of three wheeler by respondent no.1 and in that accident, Lakhmi Chand received injuries but with the intervention of the relatives, a compromise was effected and as per that compromise, medical expenses were borne by respondent no.1. When no FIR, MLR, then it is very easy to file petition under Section 166 by impleading a close relative owning a vehicle which is insured and impleading it as driver of the said vehicle. In view of the all discussed above, there is no infirmity and illegality in the impugned order and the same being without merit is dismissed. December 17, 2008 ( JORA SINGH ) ritu JUDGE