IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(MVA) No._212 of 2005. Judgment reserved on: 24.3.2009 Date of decision: 27.3.2009 Jai Ram …….Appellant Vs. Sohan Singh and Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Virender Singh Chauhan, Advocate. For the Respondents : Mr. Deepak Bhasin, Advocate, for respondents No.3 and vice Mr. Harsh Khanna, Advocate, for respondents No.1& 2. Kuldip Singh, Judge. The injured-claimant Jai Ram is in appeal for enhancement of compensation against the award dated 2.3.2005 passed by learned Motor Accident Claims Tribunal-II, Solan in M.A.C. Petition No.17-S/2 of 2003, awarding Rs.30,000/- compensation to the appellant along with interest at the rate of 9% per annum from the date of filing of the petition till its realization, with the direction that respondent No.3-insurer shall deposit the award amount after adjustment of interim compensation amount, if any. 2. The facts in brief are that appellant had filed claim petition, claiming Rs.10,00,000/- compensation along with interest Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 against the respondents. The pleaded case of the appellant is that on 22.11.2000 at about 2.45 p.m. he was going along with his son on scooter bearing registration No.HP-15-2239 towards Parwanoo. He was talking with his son Naveen Tomar by stopping the scooter by the side of the road near Jabli railway crossing on Kalka-Shimla highway, the respondent No.1 was driving car bearing registration No.CH-01-Z-3087 in rash and negligent manner and was coming from opposite direction from Chandigarh side. The car came on the wrong side of the road and struck against the petitioner and his son and caused the accident, as a result of which appellant sustained multiple grievous injuries. The son of the appellant also sustained injuries. The appellant was attended by the doctors at E.S.I. Hospital, Parwanoo, Govt. Medical College, Hospital, Chandigarh as well as at District Hospital, Solan. The appellant remained admitted in Govt. Medical College, Hospital, Chandigarh from 23.11.2002 to 6.12.2000. He spent more than Rs.1,00,000/- on his treatment. The appellant suffered 20% permanent disability due to accident, an FIR No.151/2000 under Sections 279,337,338 IPC was registered at Police Station, Dharampur on 22.11.2000. The appellant was 45 years of age and working as Liaison Officer in M/s. Morepen Laboratories Ltd. and was earning Rs.10,000/- per month and Rs.5,000/- per month from agriculture. The respondent No.2 was the owner and respondent No.3 was insurer of the car at the time of the accident. 3. The respondent No.2 owner of the car contested the petition by filing reply and took preliminary objections that accident took place due to rash and negligent driving of scooter 3 No.HP-15-2239, the appellant was not holding valid and effective driving licence at the time of the accident, the appellant has concealed material facts and has distorted the factual position. On merits, it has been pleaded that car was going uphill on low speed. The scooter came on the wrong side and hit the car. The respondent No.2 denied the claim of the appellant. 4. The respondent No.3 has also contested the claim petition by filing reply by taking preliminary objections that car driver was not holding valid and effective driving licence at the time of the accident, the car was being driven in violation of the Motor Vehicles Act, 1988. The injuries were caused to the appellant due to his own negligence. On merits, the respondent No.3 has also denied the claim of the appellant. The income, injuries and expenses on treatment of appellant were also denied. The learned Tribunal had framed the following issues:- 1. Whether on 22.11.2000 at about 2.15 p.m. near Jabli Railway Crossing respondent No.1 was driving the Car bearing No.CH-01-Z-3087, rashly and negligently and as such caused multiple injuries to the petitioner? …...OPP 2. If issue No.1 proved to what amount of Compensation the petitioner is entitled to and from whom? ….OPP 3. Whether driver of the Car bearing No.CH-01-Z- 3087 did not have valid and effective driving licence at the time of accident? ……OPR 4. Whether accident was caused due to rash and negligent driving of the petitioner? …….OPR 5. Relief. 4 5. The issues No.1 and 4 were answered partly in affirmative, the son of the appellant and respondent No.1 were found jointly liable for causing accident and their negligence was held to be 70% and 30% respectively, issue No.3 was answered in negative and under issue No.2, Rs.30,000/- were awarded to appellant, hence this appeal. 6. I have heard Mr. Virender Chauhan, learned counsel for the appellant and Mr. Deepak Bhasin, Advocate who appeared on behalf of the respondents and have also gone through the record. On behalf of the appellant, it has been submitted that learned Tribunal has erred in returning the findings that accident was caused due to negligent driving of the scooter by the son of the appellant and his contribution for causing the accident was 70%. It has been submitted that the accident took place entirely due to the negligence of respondent No.1. The learned counsel for the appellant has also submitted that the learned Tribunal has awarded less compensation and he has prayed for enhancement of compensation. The learned counsel appearing on behalf of the respondents while supporting the impugned award has submitted that in fact appellant is not entitled to any amount in as much as accident took place due to the faulty driving of the son of the appellant who was not holding a licence. The respondents have not filed appeal against the impugned award, in this situation, learned counsel appearing on behalf of the respondents has prayed for dismissal of the appeal. 7. The first version of the accident was given in FIR Ex.PW-3/A which was lodged by Naveen Tomar son of Jai Ram. In 5 FIR, it has been stated that complainant was studying in 10th class and he had gone to Dharampur along with his father on 22.11.2000. He and his father were returning to Parwanoo at about 2.45 p.m. and when they reached Jabli railway crossing, a car bearing registration No. CH-01-Z-3087 came from Chandigarh side in high speed and the right side of car struck against scooter No.HP-15- 2239, as a result of which, he and his father fell down and sustained injuries. PW-1 Jai Ram has tendered his affidavit in evidence and has stated that on 22.11.2000, when he and his son reached near Jabli railway crossing and were talking on the side of the road after parking the scooter, a car came from Chandigarh side and hit the scooter. He sustained injuries, he was treated in hospitals where he had spent about Rs.1,00,000/- on his treatment. The accident took place due to negligence of car driver. In cross-examination he has stated that he does not know who lodged the FIR, the car was coming towards uphill, he had the licence which he had lost in the accident. He denied that the car driver was not negligent. 8. PW-2 Naveen Tomar in his affidavit has stated that on 22.11.2000 he was going with his father on scooter from Parwanoo to Dharampur, at Jabli railway crossing the scooter was stopped, he and his father were talking. A car came from Chandigarh side in high speed and struck against his father, as a result of which his father sustained injuries on his leg and other parts of the body. The accident took place due to the negligence of the car driver. He denied that the FIR was got registered by him. The police proceeded against him. He admitted that the case was proceeded against him because he was driving the scooter in high speed. 6 9. PW-3 MHC Dharampur has proved FIR Ex.PW-3/A. PW-4 Dr. Anil Bansal, Orthopedic Surgeon has stated that he had examined Jai Ram and issued disability certificate Ex.PW-4/A, showing 20% permanent disability in relation of right lower leg. In cross-examination he has stated that disability qua the whole body would be 10%. Ex.R-1 is the Policy of car No.CH-01-Z-3087 from 27.9.2000 to 26.9.2001. 10. PW-2 Naveen Tomar in his statement in the Court has denied that he lodged the FIR after the accident. PW-1 Jai Ram has stated that he does not know who lodged the FIR but he has also not stated that FIR was not lodged by his son Naveen Tomar. PW-2 has stated that police proceeded against him. PW-1 Jai Ram in his affidavit as well as statement in the Court has not specifically stated that on the date of accident he was driving the scooter. On the contrary PW-2 Naveen Tomar in his cross-examination in the Court has stated that police proceeded against him as he was driving the scooter fast. In other words. PW-2 has admitted that he and his father were going from Dharampur to Parwanoo and he was driving the scooter. PW-2 has taken a false stand that the FIR was not lodged by him. The reason for taking this stand is obvious, in the FIR, year of birth of Naveen Tomar has been mentioned 1982, accident took place on 22.11.2000 and it is quite possible on the date of accident PW-2 Naveen Tomar was not having a licence. Therefore, the appellant took the plea before the learned Tribunal that the accident took place when he and his son were talking on the side of the road and the scooter was in standing position. This stand of appellant is in total contradiction to the facts narrated in FIR 7 Ex.PW-3/A where it has been specifically stated that accident took place when scooter as well as car were moving. The pleaded case of the appellant is in contradiction to the factual position which has come on record by way of FIR Ex.PW-3/A. It is not the case of the appellant that some unknown person got the FIR registered and the FIR was got registered on wrong facts. There is variation between the pleadings and the proof and therefore, it cannot be said that accident took place in the manner as projected by the appellant in the claim petition. The car was coming uphill, the scooter was gone downhill, therefore, it cannot be assumed that the car was in high speed and was being driven rashly and negligently. 11. The learned Tribunal has recorded a finding that son of the appellant was a major contributor to the accident but without recording a specific finding regarding the negligence of the respondent No.1 the learned Tribunal has recorded a finding that the contribution of negligence of respondent No.1 is to the extent of 30%. The later part of the finding that the car driver was negligent to the extent of 30% is without critical examination of the evidence and pleadings on record and without recording a specific finding how the car driver was negligent in driving the car at the time of the accident. 12. The petition has been filed under Section 166 of the Motor Vehicle Act, 1988. It has been found that the son of the appellant was driving the scooter and was negligent, the appellant is the owner of the scooter, therefore for the negligence of his son own who was driving the scooter, appellant cannot take any benefit by filing a claim petition. The learned Tribunal has already allowed 8 some amount to appellant, to which he was not entitled in the facts and circumstances of the case. The respondents have accepted the award as they have not filed any cross-objections in the appeal or otherwise separate appeal against the impugned award. In this situation, the respondents cannot take benefit in the appeal filed by claimant. In the appeal the question involved is for enhancement of the compensation, but other connected material cannot be ignored. In view of above, the appellant is not entitled to enhancement of compensation. 13. No other point was urged. 14. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge March 27, 2009 (sks)