IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No. 159 of 2004 Date of Decision: 7th November, 2008 Krishna Devi Appellant Versus Bipan Kumar Malhotra and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr. Ajay Sharma, Advocate. For respondent No.3: Ms. Devyani Sharma, Advocate. Sanjay Karol, J. (Oral) Claimant has filed the present appeal assailing the legality of award dated 1.7.2003 passed by the Motor Accident Claims Tribunal (I), Kangra at Dharamshala, in MACP No. 9-J/II-2000, titled as Krishna Devi vs. Bipan Kumar Malhotra and others. Claimant filed a petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) claiming compensation for the reason that she sustained injuries in an accident which took place at Trilockpur, Tehsil Jawali, District Kangra, H.P., between two vehicles a Jeep and a Maruti Car No. HP-38-5300. The incident allegedly occurred due to negligence of Bipan Kumar, respondent No.2, the driver of the Maruti Car. Respondent No.1 the owner had get the Car insured with Whether the reporters of Local Papers are allowed to see the Judgment? 2 respondent No.3- National Insurance Company Limited. The claimant sustained injuries for which she had to incur expenditure for medical treatment, as such, she claimed compensation of Rs. 2 lacs. In reply the owner admitted the accident but denied any negligence of the driver and further pleaded that in fact it was the driver of the Jeep, who was negligent and, therefore, the petition was bad for non- joinder of necessary parties. The Insurance Company chose not to file any reply. On the basis of pleadings of the parties, the Tribunal framed the following issues:- 1. Whether the accident took place on 7.5.99 at 4.15 p.m near Trilockpur, due to rash and negligent driving of Maruti Car No. HP-38-5300 by respondent No.2, in which the petitioner suffered injuries, as alleged? OPP 2. Whether the petitioner is entitled to compensation on account of injuries sustained by her in the accident? If so, to what amount and from which of the respondents? OP Parties 3. Whether the petitioner is bad for non-joinder of necessary parties and vehicle was being driven by Deepak s/o Tarsem Paul, as alleged? If so, its effect? OPR-1. 4. Relief. Opportunity to lead evidence was given to the parties. Replying on the material on record (oral and documentary), the Tribunal decided the issues holding respondent No.2 driver of Maruti Car No. HP-38- 5300 to be not negligent. Negligence was in fact that of the driver of the 3 Jeep in which the claimant was travelling. Consequently, the claim petition was dismissed. I have heard learned counsel for the parties and perused the record. Shri Vishesh Kumar (PW-1) has proved on record FIR (Ext.PW-1/A) from which it is evident that it was on the complaint of respondent No.2 that a case was registered showing the negligence of the driver of the Jeep. It has come on record that the driver of the Jeep, immediately after the occurrence of the accident, fled away from the spot. No doubt, Smt. Krishna Devi (PW-3) and Smt. Radha Devi (PW-4), have deposed that they were travelling in the Jeep when all of a sudden Maruti Car bearing No. HP-38-5300 being driven by respondent No.2 came at a high speed and collided with the Jeep. But, however, it is a matter of fact that driver of the Jeep fled away from the spot and the FIR had to be registered against him. In the said accident, the claimant unfortunately sustained injury on her arm and lost her teeth. Not only that, the owner of Maruti Car Shri Bipan Kumar Malhotra (RW-1) of Maruti Car and its driver (RW-2) have deposed that they were travelling in the Car and when they saw the Jeep in question come from the opposite direction at high speed, RW-2 immediately stopped the vehicle by applying the brakes. But, however, since the Jeep was being driven at a high speed and in a rash and negligent manner it collided with the Car thus causing the accident. The respondents version appears to more convincing for the simple reason that as per Insurance Policy (Ext.RW-1/A), the vehicle was 4 insured and both RW-1 and RW-2 were having valid and effective driving licenses (Ext.RW-1/B and Ext.RW-1/C). In my view, the Tribunal has rightly held that the vehicle being fully insured and none of the terms of the policy being breached, respondents No.1 and 2 had no reason to falsely depose. The FIR was registered against the driver of the Jeep. Further it has come on record that the Jeep in question was not bearing any registration number. Apparently it is for this reason that the claimant did not implead the driver of the Jeep inspite of the specific objection taken by the respondents in their pleadings. Perhaps they were not even aware of the whereabouts of the said driver. Version of PW-3 and PW-4 stands uncorroborated as they ought to have examined the driver or the owner of the Jeep to corroborate their version. The record proves that no case was registered against the driver of the Car. Even during investigation the police did not find respondent No.2 to be negligent. Therefore, it cannot be held that respondent No.2 had been driving the Car in a rash and negligent manner. The Tribunal has considered the entire material while arriving at its conclusion. I find no reason to interfere with the findings returned as there is no illegality or impropriety in the same. The appeal is accordingly dismissed. 7th November, 2008 (Sanjay Karol) (C) Judge. 5