FAO No. 4508 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 4508 of 2009 (O&M) Date of decision: 08.04.2010 United India Insurance Company Ltd. ....Appellant Versus Sham Lal and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. N.K. Khosla, Advocate, for the appellant. Mr. Ramneek Vasudeva, Advocate, for respondent No.1. VINOD K. SHARMA, J.(ORAL) This judgment shall dispose of FAO No. 4508 of 2009 titled United India Insurance Company Ltd. Vs. Sham Lal and others and FAO No. 4509 of 2009 titled United India Insurance Company Ltd. Vs. Chaman Lal and others, as they arise out of the same award. For brevity sake, facts are being taken from FAO No. 4508 of 2009. This appeal, by the Insurance Company, is directed against the award dated 1.5.2009, passed by the learned Motor Accident Claims Tribunal, Rupnagar, allowing petition filed under Section 166 of the Motor Vehicles Act. The case pleaded by the claimant, was that on 14.1.2008 claimant along with his brother Chaman Lal and one Shiv Kumar son of Rakha Ram resident of Kurali, were returning from village Sahauran to Kurali, on scooter No. PB-27-8170, which was being driven by the FAO No. 4508 of 2009 (O&M) -2- claimant. Chaman Lal and Shiv Kumar were the pillion riders. It was the case of the claimant, that though the scooter was being driven at a slow speed, one Indica car bearing No. HR-01-V-3258, which was being driven by respondent No.2, in a rash and negligent manner came on the wrong side of the road, and struck with the scooter of the claimant. The scooterists fell on the road and received multiple grievous injuries, for which they were treated in the Civil Hospital, Kurali, and thereafter referred to the PGI, Chandigarh. The claim petition was contested by the respondents, wherein respondents No.2 and 3 (herein) denied the averments made in the claim petition. It was pleaded that the accident had occurred due to the sole negligence of the scooter driver, namely, Sham Lal, meaning thereby that the factum of accident was admitted by the owner and driver of the Indica car. The Insurance Company contested the claim by moving an application under Section 170 of the Motor Vehicles Act, to contest the claim petition on merit, which was allowed. The plea taken by the Insurance Company was, that the driver of the Indica car did not have valid driving licence at the time of the accident, therefore, the Insurance Company was not liable to pay any compensation. Plea was also taken, that the claim petition was filed in collusion with driver and owner of the offending vehicle i.e. India car, therefore, the petition was not maintainable. The learned Tribunal framed the following issues: - “1. Whether the claimant sustained the injuries in a motor vehicular accident that occurred on FAO No. 4508 of 2009 (O&M) -3- 14.1.208 at about 6-30 p.m. in the area of Focal Point Chanalon, Tehsil Kharar, District Mohali, due to the rash and negligent driving of Indica Car No. HR-01-V-3258, by respondent No.1? OPP 2. Whether the claimant is entitled to the compensation? If so, to what amount and from whom? OPP 3. Whether the respondent No.1 was not holding a valid and effective driving licence issued by a competent authority, at the time of alleged accident? OPR 3. 4. Relief.” In support of issue No.1, claimant appeared in person and examined other eyewitnesses, who supported the factum of accident as disclosed in the claim petition. Reliance was also placed on DDR, which was registered on 16.1.2008. The learned Tribunal, on appreciation of evidence, recorded a finding that the claimant/respondent sustained injuries in motor vehicular accident, which occurred on 14.1.2008. It was further held that the accident occurred due to rash and negligent driving of the driver of the offending vehicle i.e. Indica car bearing registration No. HR-01- V-3258. Issue No.3 was not pressed by the Insurance Company. In view of the findings on issues No.1 and 3, liability was fixed as joint and several. Mr. N.K. Khosla, learned counsel, appearing on behalf of the appellant, challenged the finding of the learned Tribunal on issue No.1, by contending that the learned Tribunal committed an error in deciding FAO No. 4508 of 2009 (O&M) -4- issue No.1 in favour of the claimant, though the first version of the accident as given by the claimant/respondent himself did not show the involvement of Indica car in the accident. Learned counsel for the appellant referred to Ex.PW1/A, wherein it was stated that the accident had occurred due to coming of a stray cow on the road which resulted in falling down of claimant and other passengers while trying to save the stray cow. The contention of the learned counsel for the appellant, therefore, was that the story set up in the claim petition was after-thought in connivance with respondents No.2 and 3, therefore, finding on issues No.1 and 3 deserves to be set aside. Though an attempt was made to challenge the finding on issues No.1 and 3, by referring to the driving licence which was produced by the claimant. However, this cannot be permitted, as the Insurance Company did not press issue No.3 before the learned Tribunal. The finding recorded by the learned Tribunal in issue No.3 reads as under: - “Onus to prove this issue was on the respondent No.3. No evidence has been led by the respondent No.3 on this issue nor during the course of arguments this issue, was pressed for. However, the driving licence of respondent No.1 has proved on file as Ex.R2 which shows that the driver Kala Ram was having a valid and effective driving licence at the time of accident. Hence, this issue is decided in favour of the claimant and against respondent No.3.” On consideration, I find no force in the contentions raised by the learned counsel for the appellant. It may be noticed that this FAO No. 4508 of 2009 (O&M) -5- argument raised by the learned counsel for the appellant was considered by the learned Tribunal, and was rejected in view of the fact that eyewitnesses to the accident had supported the accident as mentioned in the claim petition. Furthermore, the driver of the offending vehicle had chosen not to appear in the witness box to prove the case set up in the written statement. Reading of the written statement itself shows that the factum of accident was admitted, as negligence of the accident was attributed to the claimant/respondent, by the driver of Indica car. It is well settled law that FIR/DDR cannot be sole basis for deciding the claim petition before the learned Tribunal. The learned Tribunal being a civil Court, was to decide the case on the basis of evidence brought before it. Once, the evidence qua the accident went unrebutted, merely because the factum of accident was not depicted in the DDR, cannot be a ground upset the finding of learned Tribunal. Finding no merit in this appeal, it is ordered to be dismissed. (Vinod K. Sharma) Judge April 08, 2010 R.S.