IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO No.4424/2008 Date of Decision:17.2.2009 Raj Dulari and others ..........Appellants. Versus Walideen and another ..........Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr. Krishan Singh,Advocate for the appellants-claimants. JASWANT SINGH,J Appellants, dependents of deceased Gobind Ram, who died in a motor vehicular accident on 31.12.2005 involving the tractor trolley being driven by respondent no.1-Walideen and owned by respondent no.2-Kherdeen, have filed the present appeal against the award dated 30.7.2008 passed by the learned Motor Accident Claims Tribunal, Yamunanagar (for short the Tribunal), whereby their claim petition stood dismissed. Facts in brief are that on 31.12.2005 Gobind Ram since deceased, working as Assistant Lineman in UHBVN Operation, Sub Division No.1, Yamunanagar, alongwith his co-employee Jai Bhagwan-PW1 was returning to their office on motorcycle No.HR-02M-2510 being driven by said Jai Bhagwan, while deceased Gobind Ram was pillion riding. At about 3.30 p.m., when they reached the bank of Panjupur canal in the area of Village Shadipur, a sugarcane laden tractor trolley being driven by respondent no.1-Walideen was going ahead of them. Jai Bhagwan-PW1 blew horn in order to overtake FAO No.4424/2008 -2- the said tractor trolley. It is alleged that initially Walideen-driver of the tractor trolley gave side to them to overtake but while the motorcycle being driven by Jai Bhagwan was crossing the said tractor trolley, it hit right side of the tractor against the motorcycle due to alleged rash and negligent driving, as a result of which Jai Bhagwan PW-1 and deceased Gobind Ram fell down from the motorcycle and in the process latter was run over by tyre of the trolley. He suffered injuries and became unconscious. The driver of the tractor trolley took both the injured to Gaba Hospital, Yamunanagar where Gobind Ram was declared dead. Thereupon, Walideen-respondent-driver of the tractor trolley slipped away. At the instance of Jai Bhagwan-PW1 FIR no.300 dated 31.12.2005 under Sections 279/304-A IPC was registered at PS Sadar, Yamunanagar. Upon notice respondents 1 and 2 being driver and owner contested the claim petition. The learned Tribunal framed three issues out of which issue no.1 was regarding the alleged rash and negligent driving of offending vehicle (tractor trolley), which was required to be proved by the appellants-claimants. Both sides led evidence. After hearing both sides and on the basis of evidence led by the parties the learned Tribunal returned finding on issue no.1 against the appellants-claimants and in favour of respondents-driver and owner. I have heard the learned counsel for the appellants and perused the paper book carefully. In my considered opinion, it was correctly found by the learned FAO No.4424/2008 -3- Tribunal that the accident in question took place due to negligence of Jai Bhagwan-PW1, who was driving motorcycle as he did not take requisite care and caution while overtaking the tractor. As averred by the claimants in their claim petition itself the tractory trolley was laden with sugarcane. The learned Tribunal rightly believed the version of the respondent-driver-Walideen that tractor trolley was being driven at a speed of 8-10 kms. per hour. Driver of the motorcycle namely Jai Bhagwan- PW1 had deposed that after he blew horn, the driver of the tractor trolley gave way, but while they were crossing the tractor trolley, its right side hit their motorcycle as a result of which they fell down resulting into ther death of Gobind Ram (the pillion rider). This further strengthens the finding of the learned Tribunal, as noticed above as after the driver of the tractor trolley had given way for overtaking, it is not acceptable that he knowing fully well that motorcyclist was overtaking him, he would still swerve his vehicle towards right side, which was bound to have hit the motorcycle. It is also not the case of PW-1 Jai Bhagwan that the tractor driver did so because some other vehicle was going ahead of the tractor on its left side. It is also not disputed that width of the road on the bank of the canal was narrow and the tractor trolley was laden with sugarcane. Therefore, it is apparent that the motorcycle, which was being driven without due care and caution and due to shortage of available space, while overtaking the tractor trolley struck against its body. The learned Tribunal, while holding that the driver of the tractor trolley was not responsible for the accident, unmistakably drew inference from the fact that claimants had moved an application for amendment of the claim FAO No.4424/2008 -4- petition so as to implead Jai Bhagwan, driver of the motor cycle alleging that he was driving the motorcycle in a rash and negligent manner. They also wanted to convert the claim petition from under Section 166 to Section 163-A of the Motor Vehicles Act,1988 (for short the Act). But since deceased Gobind Ram was drawing a salary of more than Rs.13,000/-, the petition being not maintainable under Section 163-A of the Act, the claimants withdrew the said application for amendment. No other point has been raised by the learned counsel for the appellants. For the reasons stated above,finding no merit in this appeal the same is hereby dismissed in limine. 17.2.2009. (Jaswant Singh) joshi Judge