IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 91 of 2006 Date of decision 8.12.2009 __________________________________________________________ Pawan Kumar & another ….Appellants Versus Rajesh Kumar. ….Respondent ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. __________________________________________________________ For the Appellant : Shri Anoop Rattan, Advocate. For the Respondent: Shri Vikas Bhardwaj, Advocate. __________________________________________________________ Dev Darshan Sud, J. This appeal has been filed by the appellants namely Pawan Kumar who is the driver of scooter bearing registration No. HP-53-0049 and Suminder Thakur, who is the owner of scooter, against the judgment and award of the learned Motor Accident Claims Tribunal awarding a sum of Rs. 1,02,618/- to the respondent who suffered injuries in the accident involving the scooter of the appellants and another vehicle. It was pleaded before the learned Tribunal that the claimant was working as Constable with the Commandant Home Guards on daily wages and used to earn Rs. 2100/- per month. On 6th August, 2000 when he was coming to his house he was given lift by Vipin Kumar. Around 7 P.M. when the scooter reached near the New School at Dhanotu, it met with an accident with the scooter 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 being driven by appellant No.1. Resultantly, the respondent fell down and sustained injuries. Pawan Kumar, appellant, contested the petition stating that he had no knowledge regarding the ownership of scooter No. HP-53-0049 and it was scooter No.CHL-7811, which was responsible for causing injuries to the respondent-claimant. Suminder Thakur was served and proceeded exparte as he did not contest the case. Issue No.1 settled by the learned Tribunal is crucial to the entire case since it deals with the fact as to whether scooter driven by the appellant was involved. While deciding this issue, the learned Court on the basis of the evidence produced before him held that it was infact this scooter which was involved in the accident. The learned Tribunal also held that another petition being claim petition No. 57/2000 (RBT No. 41/2005) was instituted against Vipin Kumar for causing injuries in the accident on 6th August, 2000 at 8 PM near Dhanotu Government School. This petition was dismissed under Order 17 Rule 3 of the Code of Civil Procedure on 23rd August, 2005. The Court took note of this fact as an undisputed fact by the parties. It was held that the accident had infact been caused by the scooter driven by the appellant herein. Learned counsel appearing for the appellant urges that the learned Court has not considered the evidence on record and has wrongly held the appellant liable for the accident. He submits that the fact that some other petition had been filed could not itself be used for fastening the liability on the appellant as there was no material on record to establish the pleadings in that case. This submission of learned counsel cannot be accepted for the reason that the learned Court notices that this factum has been taken into consideration as an undisputed fact. The statements made before the learned Court cannot be allowed to be controverted in this appeal. It is settled law that the Court record cannot be controverted in appeal. 3 Learned counsel appearing for the respondent has drawn my attention to Ext.PW3/A which is a complaint which has been addressed by the respondent-claimant to the Superintendent of Police, Kangra at Dharamshala giving a brief but detailed description of the accident. I do not find any reason to disbelieve this complaint. The findings of learned trial Court that the scooter was involved in the accident cannot be set aside when considering in totality of the evidence on record and Ext.PW3/A. Learned counsel appearing for the appellant relies upon the decision of the Supreme Court in Nepal Singh Vs. Upender Singh, 2008 (7) SCC 334 to urge that there is no material on record to establish the identity of the vehicle or the person who was driving the scooter or scooter involved in the accident and in these circumstances, no liability can be fastened on the appellants. That authority is based on its own facts. In this case as held by the learned Tribunal, it was the appellant No. 1 who was infact driving the scooter which belonged to appellant No.2. The law cited cannot be made applicable to the facts of this appeal. No other point is urged before me. Therefore, this appeal is dismissed. No order as to costs. December 8, 2009 (Dev Darshan Sud) (ms) Judge