FAO No. 172 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 172 of 2010 Date of decision May 23, 2011 Virender and another ....... Appellants Versus New United India Insurance Company and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. V. D. Sharma, Advocate for the appellants. Mr. D. P. Gupta, Advocate for Mr. Gopal Mittal, Advocate for respondent No.1. Mr. R. S. Dhull, Advocate for respondent No.3. **** 1. Whether reporters of local papers may be allowed to see the judgment ?No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest?No K. Kannan, J (oral). 1. The appeal is by the owner of a motor cycle against whom an award was passed on a finding that he had been responsible for causing collision and causing serious injuries that resulted ultimately in the death of another motor cyclist. The accident was said to have taken place on 10.11.2004. The deceased was a boy aged 20 years. 2. PW-1 who was a father merely spoke about the fact that his son gave the information that another motor cyclist hit against FAO No. 172 of 2010 2 him but PW-2 who was said to be a relative of the deceased stated that he had a shop near Sadar Police Station, Narwana and he was an eye witness to the accident when he was standing outside the shop. It was reported that both the motor cyclists fell down and suffered injuries and both of them had been taken to the hospital for treatment. He was cross examined on whether he accompanied either one of them but he admitted that he did not. He also gave evidence that he could not say who got them admitted in the hospital. PW-3 was the mother and was examined only with reference to the status and the extent of dependence. PW-4 was a Police constable who brought DDR enteries that the accident had resulted by collision of two motor cycles making reference to the registration number of the vehicles. PW-4 has given evidence with reference to three other entries namely DDR No.44 of 2004, DDR No.19 dated 11.11.2004 and DDR 35 dated 20.11.2004. The original files have been burnt and I am unable to secure any help on the nature of entries made on various dates made on the respective DDRs. Learned counsel states that reference to the appellant's vehicle was made without referring to his own name in DDR No.35 and that was only on 20.11.2004. It is not elicited in the cross examination that the entries made on 10.11.2004 and 11.11.2004 and other DDRs have no relevance to this accident. Judging from the nature of cross objection made in the admission of the appellant only to say that there was no negligence on his part, I will take the evidence of PW-4 as wholly sufficient establishing the involvement of the appellant's vehicle. The case was closed on a provisional conclusion that no one was at fault for the accident. 3. The Tribunal relied on the evidence of PW-2 to find that the accident was really caused only by the involvement of appellant's motor cycle and since the petition had been filed under Section FAO No. 172 of 2010 3 163-A of the Motor Vehicles Act, the Tribunal reasoned that it was not necessary to examine the issue of negligence of the appellant. Learned counsel appearing for the appellant would contend that it was most artificial that there could have been an accident involving the appellant's vehicle if only the collision had taken place before the Police Station, it ought to have been reported at the Police Station immediately. It is also argued that if appellant had also been injured and taken to the hospital the claimant should have produced documentary proof for the fact that he had been admitted in the hospital and administered some treatment. PW-2's presence itself was grossly suspect for he had not taken either the deceased or the appellant to the hospital. His own interestedness comes through admission that he was a relative of a member of the family of the deceased. 4. As artificial as the evidence is but there is one aspect of the case which cannot be ignored namely the accident was immediately recorded on the same day on 10.11.2004 and in the cross examination the admission by the appellant was only to elicit that no body had been responsible for the accident. The appellant was not prepared to take courage to come as far as even to make suggestion that the appellant was not at all involved in the accident. I cannot treat this to be an accidental let-up. The substantial defence must have been put to a witness who had registered the DDR and what the recitals contained. If we are examining a case of a claim under Section 163-A, we are surely discarding the need for proof of rashness and negligence. The attempt in the cross examination of PW-4 was only to the effect that the accident had been per chance and no rashness and negligence could be attributed. It was not even suggested to PW-4 that the accident did not take place. It is just still likely that the accident was only in proximity of the Police station and that FAO No. 172 of 2010 4 was why an entry was also found in the DDR. If it was a police perception that the appellant was not guilty of rashness and negligence that it thought for not registering or proceeding further, it would be wholly a different matter and it is also irrelevant for consideration of claim under Section 163- A of the Motor Vehicles Act. 5. The contention of the learned counsel appearing for the appellant that PW-2's evidence is most artificial for the fact that the appellant himself was not shown to have been treated at the hospital or not irrelevant but if there is a finding of the Tribunal that the vehicle had been involved it was just still a possibility on the qualify of evidence led and particularly with reference to PW-4's evidence and what was found in DDR, I will not find any reason to disagree with and take a different view from the given facts and circumstances. I uphold the finding of the Tribunal and hold that there is no scope for interference with the Tribunal's award. 6. The award is confirmed and the appeal is dismissed. (K. KANNAN) JUDGE May 23, 2011 archana