FAO No. 2379 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 2379 of 2011 Date of decision: 31.10.2011 Mahabir Appellant vs. Sarabjit Singh and Another Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. R.K.Kataria, Advocate for the appellant Mr. B.S.Mittal Advocate for the respondents .... JITENDRA CHAUHAN.J This appeal has been filed by the appellant-petitioner against the Award dated 9.10.2010 passed by the Motor Accident Claims Tribunal, Kaithal (for short the Tribunal). The brief facts of the case are that appellant-claimant filed a claim petition under section 166 of the Motor Vehicles Act, 1988 (for short the Act) against the respondents claiming compensation for the injuries suffered in a motor vehicular accident, which allegedly occurred on 10.3.2004. Further, case of the claimant is that he along with Manoj Kumar were coming from village Harsola to Kaithal on a motor cycle bearing registration No. PB-64-9816. Ram Kumar (brother of claimant) and Surjit Singh, occupants of other motor cycle were following them. When the claimant and Manoj Kumar reached in the area of Jind Road Bye Pass, one Ambassador car bearing registration No. DL-3CA-7145 came from opposite FAO No. 2379 of 2011 2 side and struck against the motor cycle of claimant and Manoj Kumar. The said car was being driven by respondent No. 1 in a rash and negligent manner. Appellant-Mahabir and Manoj Kumar sustained injuries in the accident. Manoj Kumar was taken to General Hospital, Kaithal by Ram Kumar. It was the case of the appellant that he suffered 100% disability and he be awarded compensation to the tune of Rs. 10 lacs. Upon notice, respondents No. 1, driver-cum-owner of Ambassador car bearing registration No. DL-3CA-7145 denied the said accident. It was pointed out in the written statement that respondent No. 1 has been acquitted in the criminal case registered against him. Respondent No.2, Insurance Company denied the alleged accident and contested the claim petition on the ground that the same is bad for mis-joinder and non-joinder of necessary parties. It was pleaded that neither the owner nor the Insurance Company of motor cycle No. PB-64- 9816 were impleaded as parties. Respondent No.2 reserved its right to set up all the pleas under the provisions of Sections 140,147,157 and 170 of the Act. From the pleadings of the parties, the following issues were framed:- “1.Whether the claimant sustained injuries in motor vehicular accident which took place on 10.3.2004 in the area of Police Station City Kaithal on account of rash and negligent driving of respondent No.1 by driving Ambassador Car No.DL-3CA- 7145? OPP 2. If Issue No. 1 is proved, what amount of compensation the claimant is entitled to and from whom? OPP FAO No. 2379 of 2011 3 3. Whether there is any violation of terms and conditions of Insurance Policy? OPR-2 4. Relief” While deciding Issue No.1, the Ld. Tribunal, in para No.9 observed as under:- “9. Onus to prove this issue was heavily placed on the claimants. It is relevant to point here that in the entire claim petition it has not been specified by the claimant as to who was driving the motor cycle No. PB-64-9816 at time of accident and the only allegation in the claim petition is that the motor cycle was occupied by the claimant as well as one Manoj Kumar resident of village Songal. When the claimant stepped into the witness box as PW-1, he deposed by way of affidavit as Ex.PW-1/A wherein for the first time the claimant clarified that as a matter of fact at the time of accident the motor cycle No. PB-64-9816 was being driven by him and Manoj Kumar, resident of village, Songal was the pillion rider. When cross- examined over this aspect of the case, claimant as PW-1 took another stand and stated that motor cycle was being driven by Manoj Kumar and showed ignorance whether Manoj Kumar was holding any driving licence for driving the motor cycle. The claimant has put forth in the claim petition that when the claimant and Manoj Kumar were going towards Kaithal on the date of unfortunate accident on 10.3.2004, they were being followed by the brother of the claimant, Ram Kumar, as well as one Surjit on a separate motor cycle. The question comes to the FAO No. 2379 of 2011 4 mind of this Court, as to who was driving the motor cycle when the alleged accident had taken place on 10.3.2004 and this mystery could not be answered by the claimant when he stepped into the witness box. The other witness, who has stepped into the witness box to prove the factum of accident is the brother of the claimant, Ram Kumar, son of Ujjagar. In his affidavit by way of examination-in-chief, Ex.P3/A, this witness is stating that the motor cycle No. PB-64-9816 was being driven by the claimant and Manoj Kumar was the pillion rider. The First Information Report pertaining to the present accident has been got registered by the police authority on statement of this witness Ram Kumar but when cross-examined this witness stated that were were 2-4 persons in the Ambassador Car which was involved in the accident and he was told about the name of the Ambassador car driver by the police. Witness Ram Kumar also stated in the cross-examination that that the motor cycle No. PB-64-9816 was being driven by Manoj Kumar and thus he took the entire different and contradictory stand than the one deposed in the examination-in-chief. If the entire testimony of the claimant, PW-1 is gone through, then it can be readily made out that he provided a wrong number of the Ambassador car involved in the accident and stated that the car being No. DL-3CA/7145 which in fact is DL-3G/7145. He is not aware of the driver nor he was ever disclosed about the name of the driver. Claimant further stated that the said car was being driven on its own side and the motor cycle occupied FAO No. 2379 of 2011 5 by him on its own side. Thus the identity of the driver of Ambassador car allegedly involved in the accident could not be substantiated by the claimant in any manner and PW-3 Ram Kumar clearly stated that he is not aware of the number of the Ambassador car involved in the accident. All these facts create a doubt in the mind of the Court and the doubt gets strengthened especially when the claim petition has been filed on 4.3.2009 i.e after a gap of five years of the accident. Respondent No.1 took a definite stand in the written statement that the Ambassador Car has been falsely involved in the accident and due to the reasons only respondent No.1 has been acquitted in a criminal case by the Court of Sh. Ashu Kumar Jain, the then learned Judicial Magistrate Ist Class, Kaithal. The copy of the judgment delivered by the Court of Sh Ashu Kumar Jain, the then learned Judicial Magistrate Ist Class, Kaithal is available on the record of the case as mark A and the same reveals that the claimant as well as the eye witnesses had turned hostile and had stated that the motor cycle was struck by some unknown vehicle. This compels this Court to lay down that the claimant is trying to make fortunes out of misfortunes and the claim petition is false. The learned counsel for the claimant stated that where the driver of motor vehicle is tried in a criminal case on the charge of rash and negligent driving, then it would be safe for the Tribunal to conclude that the said driver was rashly and negligently driving the vehicle. Reliance was FAO No. 2379 of 2011 6 placed on the judgment of our own Hon'ble Punjab and Haryana High Court in case Girdhari Lal v. Radhey Shyam as reported in 1993 (2) P.L.R.1009. I have gone through the cited ruling but in this case the respondent No. 1 has already been acquitted of the charges leveled against him. Although, the judgment of the criminal case is not binding on the Tribunal constituted under the Motor Vehicles Act but since from the evidence led in the present case before the Tribunal could not prove accident because of rash and negligent driving of respondent No.1, therefore, the findings are to be returned against the claimant. The judgment of criminal Court may not be binding but earlier statement of the claimant and eye witnesses are certainly relevant when they said that motor cycle was struck by unknown vehicle.” At the end, the learned Tribunal concluded that involvement of respondent No.1 could not be established in this case and dismissed the claim petition. The claimant filed this appeal against the dismissal of the claim petition, which was admitted on 13.10.2011. Learned counsel for the appellant argued that the Ld. Tribunal has erred in dismissing the claim petition. He argued that mechanical report proves the accident. Learned counsel for the respondents supported the dismissal of the claim petition. After going through the Award of the Ld. Tribunal, this Court feels that the Ld. Tribunal has reached to the conclusion after appreciating FAO No. 2379 of 2011 7 the entire evidence on record. The argument of learned counsel for the appellant that the Ld. Tribunal dismissed the claim petition on the basis of some minor discrepancies, finds no force. A perusal of the Award shows that in the entire claim petition, the claimant has no-where mentioned that he was driving the motor cycle on the alleged date of accident. The contradictory statement of the claimant and the witnesses assumed importance and make the case doubtful. Moreover, there is unexplained delay of five years in filing the claim petition. No plausible explanation has been given by the claimant in filing the claim petition after a gap of such a long time. The argument of the learned counsel for the appellant that appellant is an illiterate person and could not file the claim within the prescribed period of limitation, has no basis. The claimant has failed to produce on record any evidence to prove that the accident occurred due to rash and negligent driving of driver- respondent No.1 of the alleged Ambassador Car. Respondent No.1 was acquitted of the charge of accident leveled against him. The claimant and the witnesses turned hostile ( before the C.J.M. Kaithal) and had stated that the motor cycle was struck by some unknown vehicle. The involvement of Ambassador Car is not proved in the alleged accident. No doubt, the judgment of acquittal of driver in the accident case is not binding on the Tribunal, but at the same time, it is a judgment of a competent criminal court, which has some probative value especially when the acquittal finds corroboration from other various factors. In the absence of any cogent evidence on record, the Ld. Tribunal has rightly dismissed the claim petition of the claimant-appellant. In view of the above, no interference is called for in the Award FAO No. 2379 of 2011 8 dated 9.10.2010. The appeal fails and is dismissed. No costs. (JITENDRA CHAUHAN) JUDGE 31.10.2011 MS