IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No. 61 of 2005 Date of Decision: 24th April, 2009 Satish Kumar and others Appellants Versus Rajesh Kumar and another Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Mr.Ajay Sharma, Advocate. For respondent No.1: Mr.N.K.Thakur, Advocate. For respondent No.2: Mr.G.D.Sharma, Advocate. Sanjay Karol, J. (Oral) The appellants, who were claimants before the Motor Accident Claims Tribunal, have assailed the award dated 1.12.2004 passed by Motor Accident Claims Tribunal, Una, in MAC petition No.1 of 2003 on the ground that the Tribunal has wrongly dismissed their petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act). Brief facts giving rise to filing of the present petition are as under:- The claimants being the legal representatives of deceased Mulkh Raj son of Shri Beli Ram, filed a petition under Section 166 of the Act, claiming compensation of Rs.2,50,000/-. Shri Mulkh Raj, 89 years of age, was alleged to have been hit with scooter No.HP-19A-3456 driven by Shri Rajesh Kumar, respondent No.1 herein. The alleged accident took place on 23.9.2002 at Bus Stand, Mawa Kahloan, Amb, H.P. in which Shri Mulkh Raj sustained injuries and had to be admitted initially at CHC, Daulatpur Chowk, from Whether the reporters of Local Papers are allowed to see the Judgment? 23.9.2002 to 29.9.2002 and thereafter at Satyam Hospital Trauma Central, Jallandhar. The owner filed the reply and while denying the occurrence of the accident pleaded that he had been falsely implicated in the case. The vehicle was insured with United India Insurance Company, respondent No.2, and by way of separate reply they opposed the petition on similar grounds and also disputed their liability on the ground that the owner was not possessing a valid and effective driving licence to drive the vehicle in question. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether the respondent No.1 was driving scooter bearing No.HP-19-3456 on 23.9.2002 at 9 a.m. near bus stand Mawa Kaholan in a rash and negligent manner resulting in death of Mulkh Raj as alleged? OPP. 2. If issue No.1 is proved whether the petitioner are entitled to compensation, if so to what amount? OPP 3. Whether the respondent No.1 was not having valid and effective driving licence to drive scooter No. HP-19- 3456 at the time of accident and the said vehicle was being driven in violation of the insurance policy as well as terms and conditions of the Motor Vehicle Act? OPR2 4. Whether the petition is not legally maintainable? OPR 5. Whether the petition is vague and incomplete, as alleged? OPR. Opportunity lead evidence was afforded to the parties. Appreciating the material on record, the Tribunal came to the conclusion that Shri Mulkh Raj did not sustain injuries or died as a result of the same due to the accident alleged to have taken place on 23.9.2002 with Scooter No.HP-19-3456. Consequently, the question of negligence of respondent No.1, to have driven the vehicle in a rash and negligent manner did not arise. The driver was held not to have possessed with a valid and effective driving licence and the petition was dismissed without awarding any compensation. I have heard learned counsel for the parties and also perused the record. The claimants has examined the following witnesses:- Dr.Ashish Lekh (PW-1), Shri Ashok Kumar (PW-2) and Shri Satish Kumar (PW-3). From the statement of Dr.Ashish Lekhi, it is evident that Shri Mulkh Raj, who had undertaken medical treatment died on 29.9.2002, but, however, from the combined reading of statements of PW-3 as also PW-4, it cannot be made out conclusively, that the alleged accident took place in which Shri Mulkh Raj sustained injuries. PW-3 is not a spot witness. The Tribunal rightly took into account the circumstance that no FIR was got registered by the deceased/claimants to corroborate the fact that the accident in question took place. The deceased undertook medical treatment for quite some time. It was not a case of hit and run where the injured died on the spot. On the other hand, the driver Shri Rajesh Kumar as RW-2 has categorically deposed that no alleged accident took place with his scooter. Importantly, this version was not challenged in his cross-examination. Therefore, the Tribunal rightly held that the statement of the witness, if on a particular aspect is not challenged in his cross-examination that part of his version needs to be taken as accepted unless there is inherent lack of probability in such a version (Rajinder vs. Darshni Devi, AIR 2001 SC 3207 and Smt.Shyama Kaushal vs. Ram Lal, Latest HLJ 2001 HP 1070). This not the case in hand. The another mitigating circumstance to dispel the claimants’ theory of accident is the statement of Shri Ashok Kumar (RW-1) who has proved on record death certificate Ext.RW-1/A issued by the Gram Panchayat, which reveals the reason of death of the deceased, as recorded in the Gram Panchayat, is heart attack. The Tribunal, therefore, in my view, rightly held that the accident did not take place with the vehicle in question. The Tribunal has rightly appreciated the material in its entirety. There is no perversity or illegality with the findings returned. Hence, there is no merit in the appeal. I may add that without prejudice to their rights and contentions, the parties, at some stage had tried to resolve the dispute amicably purely on humanitarian grounds and to put an end to the litigation, the owner offered payment of Rs.11,000/- towards full and final settlement of all claims made by the claimants. The money was also deposited in the Court vide diary No.4587 dated 16.4.2009. Even though it has been held that the claimants are not entitled to any compensation under the Act, but, however, learned counsel for private respondent has graciously agreed that the aforesaid amount be permitted to be released in favour of the claimants. Consequently, it is ordered that the claimants shall be entitled to have the same released in their favour by moving an appropriate application. With the aforesaid observations, the present appeal is disposed of. 24th April, 2009 (Sanjay Karol) (C) Judge.