F.A.O.NOs. 1769-1770 OF 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 1769 OF 1993 Date of decision:9th February, 2011 Rampal .......Appellant Versus Om Parkash and another ........Respondents F.A.O.No. 1770 of 1993 K.C.Saini .......Appellant Versus Om Parkash and another .......Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Surinder Gandhi, Advocate, for the appellant. None for respondent No.1. Mr. Raj Kumar Bashamboo, Advocate, for the Insurance Company-respondent No. 2. 1. Whether Reporters of local papers may be allowed to see the judgment? No 2. To be referred to the Reporters or not?No 3. Whether the judgment should be reported in the Digest? No K.Kannan, J.(Oral) 1. The two appeals are against the dismissal of the petition F.A.O.NOs. 1769-1770 OF 1993 2 for compensation. Both the petitions have been dismissed on the failure of the claimants to establish that there had been an accident. The definite contention of the claimants was that the first respondent was driving the tractor in a rash and negligent manner and dashed against the motor cycle which was being driven by one Dr. K.C.Saini. There were two pillion riders on the motor cycle. The statement by the first respondent Om Parkash was that it had been purchased under hire purchase arrangement and the financer had not been impleaded as a party. He was also stated to be a co-owner and co-owner was not made a party. He contended that at the relevant time his brother-in- law Kahar Singh was driving the tractor and the accident had taken place by the motor cyclist and the persons travelling on the motor cycle falling down without any form of collision with the tractor. This version was believed by the Tribunal to dismiss the petition. 2. It is not as if in a case of denial by the owner against a version of two claimants who had both been injured, the first respondent Om Parkash would go as far as to say that the tractor was not any where near the picture at the time of the accident. The contention however, was that his brother drove the tractor and the accident had taken place by the claimants falling from the motor cycle even before coming into contact with the tractor. He was denying the suggestion put to him that Om Parkash himself took the injured persons to the hospital and he was present at the time when they had been admitted. If Kahar Singh was the driver and he had no adverse F.A.O.NOs. 1769-1770 OF 1993 3 interest to the first respondent, there was no explanation as to why the said person was not examined. After all he was as close a relative as brother-in-law and if he had known that the claimants had suffered injuries by fall from the motor cycle, the best evidence was only through Kahar Singh. The fact that no FIR had been lodged there in my view is irrelevant or it was just likely that the claimants themselves had no serious injuries and did not think it necessary to file a case with the police. 3. I would hold that the tractor had been involved in the accident and if the evidence of RW-1 were to be taken, another person was driving the tractor. The non-examination of that person must be taken as adverse to the respondent. I am of the view that Om Parkash was not speaking the truth when he was saying that he had no knowledge of the accident especially when the version of both the claimants was that the first respondent was present at the time when they were admitted in the hospital. I would hold the first respondent tractor as responsible for the collision and first respondent shall therefore, be liable for the consequences of the accident. 4. In the claim for injuries by the claimant Dr. K.C.Saini, which is the subject of appeal in FAO No. 1770 of 1993, I would accord to him `2,000/- as damages for simple injury suffered by him award further sum of `5,000/- damage to the motor cycle. The evidence through PW-2 was that the motor cycle had to be transported through a four wheeler and `300/- had to be given for transporting the F.A.O.NOs. 1769-1770 OF 1993 4 vehicle PW-8 state that he had awarded `450/- for repairs. Bills for `9,126/- had been filed for purchase of spare parts but I will not admit the entire amounts covered through spare parts, since there was no evidence placed by the claimant himself as to the age and year of manufacture of the motor cycle. If it is an old motor cycle, there ought to be a depreciation for the value of the claim for which the claim was to be made. I would still think that a provision of `5,000/- for damages to the vehicle would be appropriate and this shall be in addition to `2,000/- awarded for simple injuries. In all the total claim will be allowed to the extent of `7,000/- with interest at 7.5% from the date of the petition till the date of payment. 5. As regards the claim of compensation for injuries to the other passenger which is a subject of appeal in FAO No. 1769 of 1993, he has also suffered simple injures and evidence was that after the accident, he was rendered unconscious and taken to the hospital. He regained his consciousness 24 hours later and discharged a day later with advice of X-ray. Although he wanted to contend that he had suffered some serious injuries and `10,000 to 20,000/- had been spent on medicines, no evidence had been placed on record for the purchase of medicines. I would therefore, provide for similarly another `2,000/- for the simple injury suffered by the claimants and which had been entered in the hospital records and spoken through the evidence of PW-1. The claim shall be therefore, allowed to `2,000/- with interest at 7.5% from the date of the petition till the date F.A.O.NOs. 1769-1770 OF 1993 5 of payment. 6. Both the appeals are allowed to the above extent and the liability shall be on the insurance company as an insurer for the tractor. [K.KANNAN] JUDGE 9th February, 2011 Shivani Kaushik