F. A. O. No. 1559 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : F. A. O. No. 1559 of 2009 (O&M) Date of Decision : May 01, 2009 M. G. Contractor Pvt. Ltd. and another .... Appellants Vs. Rijwan and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Virendra Verma, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 8157-58-C-II of 2009 : For the reasons mentioned in the application, delay of 44 days in filing the appeal and 37 days in re-filing the appeal is condoned. Main Appeal : This is appeal by owner and driver of the alleged offending vehicle (Paver of Gujrat Apollo Marka-Model 1998) impugning Award dated 14.08.2008 of learned Motor Accident Claims Tribunal, Ambala, whereby two claim petitions filed under Section 166 of the Motor Vehicles Act, 1988 (in short – the Act) have been disposed of. One of the said petitions had been instituted by Rijwan – respondent no.1 herein claiming compensation for injuries suffered by him in motor vehicular accident. As per claimants' version, Rijwan, Mintu, Irshaad and others F. A. O. No. 1559 of 2009 (O&M) 2 were travelling in jeep No.PB-10-BS-1837 being driven by Raman Kumar (respondent no.2 herein) at moderate speed on left side of the road. After crossing the river Markanda in the area of Police Station Mullana, the offending vehicle was seen coming from the opposite direction being driven rashly and negligently by Sanjay Kumar (appellant no.2 herein). Appellant no.2 turned the said vehicle suddenly towards right hand side and the vehicle hit the jeep with great force. Resultantly, the jeep was badly damaged and got broken into two portions separate from each other. Occupants of the jeep suffered injuries. Irshaad succumbed to his injuries. The other claim petition was filed by his parents claiming compensation for his death. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that the alleged offending vehicle is not a vehicle, but is a machine for making roads. The contention cannot be accepted. Section 2 (28) defines `motor vehicle' or `vehicle' as under :- “(28) “motor vehicle” or “vehicle” means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than F. A. O. No. 1559 of 2009 (O&M) 3 four wheels fitted with engine capacity of not exceeding twenty-five cubic centimeters;” In the instant case, Sanjay Kumar (appellant no.2) – driver of the offending vehicle admitted in his cross-examination that the aforesaid machine/vehicle is fitted with four wheels, engine and steering as well and has ten gears and is running on diesel. In view of these admissions, there is no room for doubt that the aforesaid vehicle falls within the definition of motor vehicle/vehicle, as contained in Section 2 (28) of the Act. Learned counsel for the appellants next contended that the claimants failed to prove that the accident occurred due to rash and negligent driving of the aforesaid vehicle. This contention also cannot be accepted. Rijwan claimant appeared as PW-2 and the claimants also examined another eye-witness occupant of the jeep Mintu as PW-3. Both of them stated that the offending vehicle was being driven rashly and negligently by its driver and was turned towards right hand side suddenly and hit the jeep with great impact. On the other hand, Sanjay Kumar (appellant no.2) stated that his vehicle was stationary. However, the Tribunal has believed the evidence of the claimants. The said finding is based on appreciation of evidence and cannot be said to be perverse or unreasonable so as to warrant interference in appeal. Statement of Rijwan claimant is corroborated by independent witness Mintu. The contention on behalf of the appellants that the alleged offending vehicle was stationary at the time of accident cannot be accepted in view of statements of eye- witnesses Rijwan and Mintu. Learned counsel for the appellants next contended that it was a case of contributory negligence. The contention has no merit because there is neither any pleading nor any evidence to this effect. It has to be noticed that if the jeep had struck the stationary offending vehicle, the jeep would F. A. O. No. 1559 of 2009 (O&M) 4 not have got broken into two portions. Moreover, both the vehicles turned turtle, as observed by the Tribunal in paragraph 16 of the impugned Award. It would also show that the offending vehicle, which is a very heavy vehicle, was being driven rashly and negligently and was not stationary. If it had been stationary, it could not have overturned on being hit by a jeep. Learned counsel for the appellants relying on a judgment of this Court in the case of Bhagwani Devi vs. Krishan Kumar Saini and others reported as 1986 ACJ 331, contended that adverse presumption should be drawn against the claimants for not examining Raman Kumar (driver of the jeep) as witness. The contention is misconceived because Raman Kumar was arrayed as one of the respondents in claim petition and therefore, the claimants could not have examined Raman Kumar as their own witness. On the other hand, claimant Rijwan himself stepped into the witness box and the claimants also examined eye-witness Mintu, who was also occupant of the jeep. In view of the aforesaid, I find no infirmity in the finding of the Tribunal that the accident occurred due to rash and negligent driving of the aforesaid offending vehicle. For the reasons recorded herein above, I find no merit in the instant appeal, which is accordingly dismissed. May 01, 2009 ( L. N. MITTAL ) monika JUDGE