F.A.O.No.4475 of 2007 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.No.4475 of 2007 (O&M) Date of Decision 02.09.2009 Salochna Devi and others ......Appellants VERSUS Madan and others ......Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.U.K.Agnihotri, Advocate, for the appellants. Ms.Amrita Nagpal, Advocate, for Mr.Paul S.Saini, Advocate, for respondent No.3-Insurance company ***** A.N.JINDAL, J: This appeal is directed against the order dated 20.07.2007, passed by Motor Accident Claims Tribunal, Karnal, dismissing the claim petition preferred by the claimants-appellants (herien referred as the 'claimants') for seeking compensation on the death of Kuldeep Singh in a motor vehicular accident. Factual background of the case is that on 07.05.2004, the deceased Kuldeep Singh alongwith one Sher Singh son of Prithi Singh had commenced his journey on a motorcycle from Village Garhi Birbal for going to Yamuna Nagar at 9:30 a.m. When they reached near the turning of village Kharak, in the meantime, respondent No.1 while driving the tractor bearing registration No.UP-12-J-1481 rashly and negligently came from the opposite side and struck against the motorcycle. As a result of which, both the occupants of the motorcycle fell down. Eventually, Kuldeep Singh succumbed to his injuries. First Information Report No.90 was registered against respondent No.1 after 14 days i.e. on 21.05.2004. On the day of accident, the injured Kuldeep Singh was taken to hospital at village Garhi Birbal where he was given first aid and was then shifted to hospital of F.A.O.No.4475 of 2007 (O&M) 2 Dr.Ramesh Aggarwal and thereafter he was admitted in Amritdhara hospital of Dr.Rajiv Gupta where he remained admitted for 4-5 days. Thereafter he was referred to Dr.Miglani's hospital and then on 19.05.2004, the injured was referred to P.G.I. where he remained admitted upto 17.11.2004 where he died. The deceased was 35 years old. Hence, the claimants being the widow, sons , daughter and mother of the deceased, claimed compensation to the tune of Rs.20,00,000/-. The respondents contested the cause by filing joint written statement, wherein they denied all the allegations including that no accident took place as a result of rash and negligent driving of respondent No.1 while driving the tractor bearing registration No.UP-12J-1481. The insurance company has also averred that the vehicle was not insured with it. The rejoinder was also filed. From pleadings of the parties, the Tribunal framed the following issues:- 1. Whether Kuldeep Singh son of Ram Singh had died in a motor vehicular accident due to the rash and negligent driving of tractor No.UP-12J-1481 by its driver-respondent No.1, if so, its effect ? OPP 2. If so, whether the claimants are entitled to receive any compensation, how much and from whom ? OPP 3. Whether driver of the vehicle in question was not holding a valid and effective driving licence at the time of accident, if so, its effect ? OPR3 4. Whether the vehicle in question was being plied in violation of the terms and conditions of the insurance policy, if so, its effect ? OPR3 5. Relief. After hearing both the parties, the Tribunal dismissed the claim petition on the ground that the claimants had failed to establish if the accident took place on account of the fault on the part of respondent No.1 . Arguments heard. Record perused. Learned counsel for the appellants has tried to impress upon the Court, while taking me through the statement of Sher Singh, disclosing that he was a witness to the occurrence and he has supported the case of the claimants, therefore, it cannot be said F.A.O.No.4475 of 2007 (O&M) 3 that the accident did not taken place on account of the fault on the part of respondent No.1. Particularly, his statement stands corroborated the FIR Ex.P4. Having pondered over the aforesaid contentions, it would be needless to say that the burden to prove the rashness and negligence was upon the claimants but they have failed to shift the onus. The accident took place on 07.05.2004 but the FIR in the case was got registered on 21.05.2004. This delay of 14 days in lodging the FIR, when the deceased as well as the witnesses were very much alive, has not been properly explained. Admittedly, Sher Singh was present at the time of occurrence. He also suffered minor injuries but the presence of Sher Singh cannot be believed and he appears to be an introduced witness for two fold reasons. Firstly, Sher Singh did not get himself medically examined for the injuries suffered by him, secondly, none of the records establishes that Sher Singh accompanied the injured went to the doctor. Sher Singh also did not visit the police station to lodge the report against the driver of the offending vehicle. Had it been true to the version, then his first action would have been to lodge the report with regard to the injuries suffered by him and Kuldeep Singh in the accident. His silence also creates a doubt about his presence at the spot. Even otherwise, as per the claimants, after receiving first aid, the deceased was taken to the hospital of Dr.Ramesh Aggarwal and from where he was taken to the hospital of Dr.Rajiv Gupta on 15.05.2004. No record regarding the first aid being given to the deceased on 07.05.2004 and about the treatment given to him at the hospital of Dr.Ramesh Aggarwal has been proved on record. There is no evidence as to by whom the first aid was given immediately after the accident. Notwithstanding the fact that Dr.Ramesh Aggarwal had gone abroad and was not available to lead the evidence yet the documentary evidence with regard to his admission in his hospital could be proved by leading other evidence. The other aspects which need to be noticed in this case are that accident took place on 07.05.2004 and Kuldeep Singh died after six months. No post-mortem report was proved on record from where the cause of death could be ascertained. The Tribunal has also taken note of the testimony of Jasbir Singh RW4 while observing that Jasbir Singh was cited as witness in the criminal case but while appearing as respondent's witness he stated that no F.A.O.No.4475 of 2007 (O&M) 4 accident took place in his presence. Under these circumstances, I have no option but to hold that the impugned judgment does not suffer any illegality much less irregularity suggesting any interference. Findings returned by the Tribunal on all the issues stand affirmed. Resultantly, the appeal, being without any merits is dismissed. No order as to costs. (A.N.Jindal) Judge 02.09.2009 mamta-II