IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No. 40 of 2005 with FAO Nos. 41 & 42 of 2005, 280/2006 and 321 & 444 of 2005 Date of Decision : March 23, 2009 FAO No. 40 of 2005 Surjeet Singh …Appellant. Versus: Shamshad Ali & ors. …Respondents. FAO No. 41 of 2005 Jasbir Singh …Appellant. Versus: Shamshad Ali & ors. …Respondents. FAO No. 42 of 2005 Surjeet Singh & Ors. …Appellants. Versus: Shamshad Ali & ors. …Respondents. FAO No. 280 of 2006 National Insurance Co. Ltd., …Appellant. Versus: Surjit Singh & ors. …Respondents. FAO No. 321 of 2005 National Insurance Co. Ltd., …Appellant. Versus: Jasbir Singh & ors. …Respondents. FAO No. 444 of 2005 National Insurance Co. Ltd., …Appellant. Versus: Surjit Singh & ors. …Respondents. Coram: 2 The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No FAO Nos. 40, 41 & 42 of 2005 For the appellants : Mr. Deepak Kaushal, Advocate. For respondent 1 & 2: Mr. Ajay Kumar Dhiman, Advocate. For respondent 3 : Mr. Deepak Bhasin, Advocate FAO No.321 of 2005 For the appellant : Mr. Deepak Bhasin, Advocate. For respondent 2 & 3: Mr. Ajay Kumar Dhiman, Advocate. FAO Nos. 280/2006 For the appellant : Mr. Deepak Bhasin Advocate. For respondents 1to3: Mr. Deepak Kaushal, Advocate. For respondents 4&5 : Mr. Ajay Kumar Dhiman, Advocate FAO Nos. 444/2005 For the appellant : Mr. Deepak Bhasin Advocate. For respondent 1 : Mr. Deepak Kaushal, Advocate. For respondents 2&3 : Mr. Ajay Kumar Dhiman, Advocate Sanjay Karol, J. (Oral) The present appeals arise out of the common impugned award dated 2.11.2004 passed by the Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, H.P. in M.A.C. Petition No. 115-MAC/2 of 2003 titled as Jasbir Singh v. Shamshad Ali & ors. Appeals Nos. 444/2005, 280/2006 & 321/2005 have been filed by the insurer, National Insurance Co. Ltd. and Appeals 1 Whether reporters of Local Papers may be allowed to see the judgment? 3 Nos. 40, 41 & 42 of 2005 have been filed by the claimants seeking enhancement of the awarded amount. Brief facts giving rise to the filing of the present appeals are as under: That on 25.5.2003 while Shri Jasbir Singh was driving Scooter bearing No. HP-17-2226 with one Shri Surjeet Singh and his wife Smt. Banto Devi sitting as pillion riders (total 1+2), Bus No. HP-17-7686 allegedly being driven by Shri Lal Singh in a rash and negligent manner came from the opposite side and hit the scooter as a result of which they fell down and sustained serious injuries. They were taken to Civil Hospital, Paonta Sahib from where they were referred to the Zonal Hospital, Nahan and thereafter shifted to P.G.I. Hospital Chandigarh. While being treated at P.G.I. Chandigarh, Smt. Banto Devi succumbed to her injuries on 29.5.2003. Shri Jasbir Singh filed claim petition No. 115-MAC/2 of 2003 claiming compensation of Rs.2 lacs for the injuries sustained by him in the said accident. Shri Surjeet Singh filed claim petition No. 118-MAC/2 of 2003 claiming compensation of Rs.5 lacs for the injuries sustained by him in the said accident. On behalf of his minor children Master Ashok Kumar and Master Hari Kumar, Shri Surjeet Singh filed another claim petition being No. 116-MAC/2 of 2003 claiming compensation of Rs.5 lacs. 4 Three claim petitions filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) were consolidated with claim petition No.115-MAC-2/2003 and were decided by a common award dated 2.11.2004. The owner of the truck and its driver filed a joint reply attributing negligence to Shri Jasbir Singh, who was driving the scooter. However, the accident and the injuries sustained by the claimants was not denied. The bus was insured by the insurer, who disputed the liability, inter alia for the reason that material terms of the Insurance Policy stood breached. On the pleadings of the parties, the Court below framed the following issues:- Claim Petition No. 115-MAC/2 of 2003 “1. Whether the petitioner has received injuries in the accident when his scooter bearing No.HP-17-2226 was hit by bus bearing No. HP-17-7686 which was being driven rashly and negligently by its driver respondent No.2, if so, its effect? …. OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? ……OPP 3. Whether the petition is bad for non joinder of necessary parties? ……OPR-3 4. Whether the vehicle involved in the accident i.e. bus No.HP-17-7686 was being driven in contravention of the terms and conditions of Insurance Policy, if so, its effect? ……OPR-3 5 Claim Petition No. 116-MC/2 of 2003 1. Whether Smt. Banto Devi died in the accident when scooter bearing No.HP-17-2226 was hit by bus bearing No. HP-17-7686 which was being driven rashly and negligently by its driver respondent No.2, if so, its effect? …. OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? ……OPP 3. Whether the petition is bad for non joinder of necessary parties? ……OPR-3 4. Whether the vehicle involved in the accident driven in contravention of the terms and conditions of Insurance Policy, if so, its effect? ……OPR-3 Claim Petition No. 118-MC/2 of 2003 1. Whether the petitioner has received injuries in the accident when scooter bearing No.HP-17-2226 was hit by bus bearing No. HP-17-7686 which was being driven rashly and negligently by its driver respondent No.2, if so, its effect? …. OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? ……OPP 3. Whether the petition is bad for non joinder of necessary parties? ……OPR-3 4. Whether the vehicle involved in the accident i.e. Bus No. HP-17-7686 was being driven in contravention of the terms and conditions of Insurance Policy, if so, its effect? ……OPR-3” Evidence was led by the parties. The insurer sought permission of the Court under Section 170 of the Act. 6 Issue No.1 being common in all the cases, the Tribunal, after appreciating the evidence on record came to the conclusion that the accident occurred due to the rash and negligent acts of Shri Lal Singh driver of the bus as a result of which claimants sustained injuries and Smt. Banto Devi died. While deciding issues No.3 & 4, it was held that the vehicle in question was insured in terms of the Insurance Policy (Ext.R-1) and that the driver in question did possess a valid and effective driving licence Ext.RW-1/B and as such the insurer was held liable to indemnify the insured. The Tribunal awarded the following compensation in each of the claim petition:- Claim Petition No. 115-MC/2 of 2003 : Rs.25,000/- Claim Petition No. 116-MC/2 of 2003 : Rs.1,68.600/- Claim Petition No. 118-MC/2 of 2003 : Rs.40,000/- The Insurer has assailed the impugned award for the reasons that the statements of the relevant witnesses have been misread and not correctly appreciated and, as such, the findings returned by the Tribunal are perverse and contrary to the record. For determining the same, the statements of the relevant witnesses need to be examined. Shri Jasbir Singh (PW-1) has categorically stated that he was driving scooter No.HP-17-2226 and Shri Surjeet Singh and his wife Smt. Banto Devi were sitting as pillion riders. At about 8.30 AM, when he reached Puruwala, bus which was being driven by Shri Lal Singh in a rash and negligent manner came from the 7 opposite direction and tried to overtake the vehicle, but since the bus was at high speed it hit the scooter. In order to avoid the accident, he did take the scooter on the berm along side the road but however, inspite of his best efforts, the accident could not be avoided. The accident occurred due to the negligence of the driver of the bus. Inspite of cross-examination, there is nothing in his statement from which it can be inferred that he has falsely deposed. As compared to his statement, driver of the bus, respondent Lal Singh (RW-3) has deposed that the accident occurred due to the negligence of Shri Jasbir Singh, who could not control the scooter for the reason that he was driving the same with two persons as pillion riders. It is an admitted case that FIR (Ext.P-3) was registered against Shri Lal Singh, driver of the bus, who prima facie was found to be negligent. Shri Lal Singh driver has not disputed that criminal prosecution was pending against him. They arise out of the said FIR. He has also admitted that he never disputed that the same was wrongly registered against him. It is also not his case that in the criminal prosecution, he had taken a defence that the negligence was that of Shri Jasbir Singh. The Tribunal has considered the entire material and appreciated the evidence led by the parties. There is nothing on record from which it can be even inferred, that it was Shri Jasbir Singh who was at fault. 8 Merely because Shri Jasbir Singh was driving the scooter with two persons as pillion riders by itself would not amount to negligence. This Court in Harbansi Devi & Ors. v. Rakesh Kumar {1998(2) SLC 126}, after considering the decision of other High Courts has held that merely because the scooter carried passengers/pillion riders beyond the permissible limit, the Scooter driver cannot be held guilty of contributing negligence unless there is evidence to show that the scooter driver had one way or the other contributed to the accident. In the instant case, there is nothing which would show that the claimant Shri Jasbir Singh had been guilty of contributory negligence. The finding returned by the Tribunal on issue No.1, totally borne out from the record, are correct and the appeals filed by the Insurance Company are, therefore, dismissed. At this stage, Mr. Deepak Kaushal, learned counsel for the claimants states that in view of the dismissal of the Insurer’s appeals, he has instructions not to press the appeals filed by the claimants. As such, they are disposed of. For the aforesaid reasons, the appeals filed by the Insurance Company are dismissed and the appeals filed by the claimants are disposed of as not pressed. ( Sanjay Karol ), Judge. March 23, 2009. (rana)