IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 60 of 2004 Reserved on: 29.06.2009 Date of decision: 14.07.2009 Oriental Insurance Company Ltd. ... Appellant Versus Het Ram @ Krishan Chand & Anr. … Respondents Coram : The Hon’ble Mr. V.K. Ahuja, Judge. Whether approved for reporting?1 No For the appellant: Mr. Ashwani K. Sharma, Advocate. For the respondents: None. V.K. Ahuja, J.: This is an appeal filed by the appellant/Insurance Company under Section 173 of the Motor Vehicles Act, 1988, against the Award passed by the learned Motor Accident Claims Tribunal-II, Mandi, dated 29.11.2003, vide which the petition filed by respondent No.1/claimant for grant of compensation under Section 166 of Motor Vehicles Act was allowed and the Insurance Company, the appellant and respondent No.2 before the learned Tribunal was directed to deposit the amount of compensation Rs.30,000/- alongwith interest. Briefly stated, the facts of the case are that a petition for grant of compensation under Section 166 of the Motor Vehicles Act was filed by respondent No. 1, in which respondent No. 2 was impleaded as 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 owner as well as driver. The appellant was impleaded as respondent No. 2 being the Insurance Company with which the tractor in question was insured. The claimant alleged that he suffered injuries while he was traveling on scooter No. HP-34-2235 and the tractor owned by respondent No.1 struck with the scooter since he took a sudden turn and the petitioner and the pillion rider fell on the road and suffered injuries. The learned Tribunal held that it has been proved that the accident took place due to rash and negligent driving of respondent No. 1 who had knocked down the scooter and accordingly, the claim was allowed as against the Insurance Company, since the vehicle was insured with the appellant. I have heard the learned counsel for the appellant and have gone through the record of the case. None has put in appearance on behalf of the respondents. The only point raised by the learned counsel for the appellant was that the vehicle in question was never involved in the accident and there was no evidence to prove that this vehicle in question was involved in the accident and the learned Tribunal has wrongly come to this conclusion, which findings are liable to be reversed. It was also submitted that an application had been filed under Section 170 of the Motor Vehicles Act by the Insurance Company to cross- examine the witnesses on merits and as such, the present appeal was sustainable. On appraisal of the record of the case, it is clear that in coming to its finding that the vehicle in question was involved in the question, the learned Tribunal had relied upon the evidence and it had also observed that the mere fact that PWs Roshan Lal and Amar Singh in their statements under Section 161 Cr.P.C. had not named the 3 offending vehicle to be involved in the accident is not sufficient to hold that their statements cannot be relied upon. It was also observed by the learned trial Court and rightly so that the Tribunal is to independently assess the evidence produced before it and even if the criminal case has resulted in acquittal as against the driver, the Tribunal still can come to a conclusion independently based upon the evidence produced in the case. The conclusion drawn by the learned Tribunal is correct to this extent only but it has to be seen as to whether the evidence by the petitioner proves that the vehicle in question was involved in the accident or not. The petitioner had proved the FIR Ext. PA in question lodged by Het Ram, petitioner and a perusal of the same shows that the number of the tractor who suddenly turned and struck with the scooter was not mentioned. It was clearly alleged that the informant could not note the number of the tractor and could not recognize its driver also. The complainant appeared in the witness box as PW-6 but again reiterated that he was going with his uncle Nanak Chand on the scooter and the tractor suddenly turned without any signal and the trolley struck with the scooter. He did not name the driver or gave the number of the tractor in his statement. However, in his further examination he stated that after one month when Amar Singh and Roshan Lal came to enquire about his well being, he learnt from them that tractor involved was having No. HP-31-4038 which was being driven himself by its owner respondent No. 1. He admitted that he could not note down the tractor’s number at that time nor they made any attempt to stop the tractor. He admitted that trolley was not having any number with which the scooter had struck. He stated that he had informed the tractor number to the police after learning from Roshan Lal and Amar 4 Singh, but he does not know if any action was taken by the police against the tractor’s owner/driver. The said Roshan Lal and Amar Singh named in the statement of the petitioner have also been examined by the petitioner. PW-4 Amar Singh has stated that tractor No. HP-31-4038 being driven by its owner Kazi Ram was going in a high speed and in a confused state. He stated that when he reached the main road, after two minutes he saw two persons lying on the road alongwith scooter No. HP-34-2235. On seeing the injured, he attempted to take them to the hospital and they were taken to the hospital in a private bus. He stated that he was told by Roshan Lal that the above mentioned tractor is instrumental in the fall of scooter on the road. He admitted in the cross-examination that the accident had not taken place in his presence. He also stated that Het Ram and Nanak Chand were known to him and were his friends. It is surprising that when the injured and his other pillion rider was known to this witness why he did not tell them the tractor number involved in the accident. His own statement that he had not seen the accident is sufficient to demolish his testimony wherein he also stated that he learnt about the tractor number from Roshan Lal. The said Roshan Lal has been examined as PW-5, who stated that he heard a bang (loud noise) and he saw one tractor negotiating a turn towards Naulakha-Chattar Road and saw that two injured persons alongwith scooter were lying on the National Highway. He gave the number of the tractor and stated that it was owned by Kazi Ram, who himself was driving the same. He stated that Amar Singh was seen by him coming from Chattar side on foot. When he reached the spot, he stated that this accident had taken place with the tractor but he never stated that he saw the tractor striking with the scooter at 5 that time. He stated that he was working in the fields at about 50-60 feet from the main road and was busy in cutting the grass. He clearly stated that the accident has not taken place in his presence. However, when he reached the spot he saw two persons lying on the road injured and saw the tractor speeding towards Naulakha Chattar Road. He stated that his statement was not recorded by the police. The learned trial Court had referred to the evidence of respondents in which the statements of these two witnesses under Section 161 Cr.P.C. were proved as Ext. RW1/C and RW1/B. However, these statements cannot be used as substantive evidence and the witness was required to be confronted with the statement made by him to the police before any benefit could be taken of the improvements made. The learned trial Court had referred to these statements and observed that the mere fact that tractor’s number was not mentioned therein does not lead to the inference that these witnesses cannot be relied upon. RW-2 Suram Singh had admitted that an un- trace report was filed in the case. From the above discussion, it is clear that statements of two witnesses examined by the petitioner or the petitioner’s own statement, does not prove as to the vehicle involved in the accident which had struck with the scooter being driven by the petitioner. The pillion rider, namely, Nanak Chand, his uncle going on the scooter was also not examined by the petitioner to prove that this accident took place with the tractor in question. The above discussion of the evidence led by the petitioner clearly proves that the petitioner has not led any cogent or reliable evidence to show if the vehicle owned by respondent No. 1 i.e. tractor in question was involved in the accident and merely on 6 presumptions no findings can be given that this vehicle was involved in the accident and, therefore, Insurance Company is liable. The findings recorded by the learned Tribunal to the contrary are liable to be set aside. In view of the above discussion, the appeal filed by the Insurance Company is accepted and the petition filed by the claimant shall be deemed to have been dismissed. Parties are left to bear their own costs throughout. ( V.K. Ahuja ), July 14, 2009 Judge (BSS)