FAO No. 1412 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1412 of 2008 Date of decision 17.2.2010. Smt.Murti Devi and another ...... Appellants. versus Jarnail Singh and others ...... Respondents. Present : Mr. Ashish Aggarwal, Advocate for Mr. Ashit Malik, Advocate for the appellants. Mr. Munish Gupta, Advocate for respondent Nos.1 and 2. Mr. Pardeep Goyal, Advocate for the Insurance Company. K.C.PURI. J. This is an appeal directed by the appellants for setting aside of the Award dated 26.9.2007 passed by Shri H.S.Bhangoo, Motor Accident Claims Tribunal, Kaithal vide which the claim petition of the claimants was dismissed. Claimants alleged that on 7.9.2006 Satyewan (since deceased) was going in the jeep with his brother Rajesh. Satyewan was driving the jeep from Kaithal to Kalayat. The jeep was driven at normal speed and on the correct side of the road. At about 9.00p.m. after they had crossed village Kharak Pandwa, a tanker No.HR-05A-9195 came from the opposite side. It was being driven at a very fast speed and in a rash and negligent manner and it struck against the jeep by coming on the wrong side of the road. As a result of which Satyewan received multiple injuries and he was shifted to FAO No. 1412 of 2008 2 Hospital. However, Satyewan died when he was on the way to the Government Hospital, Kaithal. The accused took place because of rash and negligent driving of the tanker by respondent-Jarnail Singh, who had also been challaned for causing the accident. Notice of the claim petition was sent to the respondents. Respondents No.1 and 2 in their written statement have pleaded that no accident involving the tanker in question has ever taken place. It was further alleged that respondent No.1 has been falsely challaned in the criminal case at the instance of claimants only to obtain compensation. Respondent No.3 in its written statement has also denied the accident with the involvement of tanker in question and the claim petition has been filed in collusion with respondent Nos.1 and 2, and so Insurance Company cannot be held liable to pay any compensation. Following issues were framed :- 1. Whether the accident in question resulting into death of Satyewan took place due to rash and negligent driving of tanker No.HR-05A-9195on the part of its driver, respondent No.1, as alleged ?OPP. 2. If issue No.1 is proved, whether the claimants are entitled to compensation, if so to what amount and from whom?OPP. 3. Whether there has been any violation of the terms and conditions, if so to what effect?OPR-3. 4. Relief. The parties had led their respective evidence on the aforesaid issues. The learned Tribunal after appraisal of the evidence, dismissed the claim petition as the claimants failed to produce any medico-legal examination report of the injured and report of post mortem examination of the deceased. FAO No. 1412 of 2008 3 Feeling dis-satisfied with the aforesaid award, the claimant- appellants preferred this appeal. I have heard the learned counsel for the parties and have gone thorough the records of the case. Learned counsel for the appellants has submitted that the Tribunal has given a finding that accident has taken place with tanker No.HR-05A-9195. The finding returned by the Tribunal to the effect that accident has taken place due to rash and negligent driving of jeep by Satyewan is based upon conjectures and surmises. It is further submitted that the claimants in order to prove the fact that accident has taken place due to rash and negligent driving of tanker No.HR-05A-9195 by its driver Jarnail Singh relied upon Ex.P5 against Jarnail Singh It is mentioned in the said FIR that driver of offending tanker was driving the vehicle rashly and negligently and struck against the jeep being driven by Satyewan deceased. Rajesh has lodged the said FIR which has been produced by the claimant as PW-2. Rajesh Kumar, while appearing as claimants' witness has categorically supported the case of the claimants on all material particulars. He was cross-examined at length but nothing could be brought on the file to discard his sworn testimony. The statement of Rajesh Kumar goes unrebutted as Jarnail Singh has not entered into the witness box to depose about the manner of accident. RW-2 Surinder Kumar has admitted the fact that Jarnail Singh was his driver on the offending vehicle and has further stated that he was holding a valid driving licence. Respondents in their written statement before the Tribunal has altogether denied the accident. The tanker in question was taken into FAO No. 1412 of 2008 4 possession from the spot. The mechanical report of the tanker proved the fact that tanker suffered damage on account of accident. It was not the case of any of the respondents that accident has taken place due to rash and negligent driving of Satyewan deceased. The finding of the Tribunal goes beyond the pleading of respondents. The Tribunal has given undue importance to the site plan to arrive at a conclusion that accident has taken place due to negligent driving of jeep by Satyewan deceased. The tanker is a heavy vehicle and what happened at the spot can only be deposed by the witnesses at the spot. Rajesh Kumar, author of the FIR has supported the case of the claimants whereas Jarnail Singh driver of offending vehicle has not come into the witness box. So, in these circumstances, it is submitted that finding of the learned Tribunal be reversed. The other contention of the learned counsel for the appellants is regarding quantum of compensation assessed by the Tribunal while deciding issue No.2. It is submitted that the amount of Rs.3,40,000/- assessed by the Tribunal is on lower side and prayer has been made for enhancement of that amount. Learned counsel for the appellants has further contended that even if the finding of the learned Tribunal regarding negligence of Satyewan is taken as a gospel truth in that case also, the claim petition could not have been dismissed. The Tribunal should have granted compensation by invoking Section 140 of the Motor Vehicles Act. Learned counsel for the respondents on the other hand has supported the Award made by the Tribunal. It is submitted that the Tribunal FAO No. 1412 of 2008 5 has appreciated the evidence on the file in the right prospective. Ex.P-8 is the rough site plan produced by the claimants themselves. From the perusal of the same it is revealed that jeep has gone on the wrong side whereas the truck has been shown at left side. It is further contended that according to the mechanical report Ex.P-10 in respect of tanker in question the driver side rear main leave/indicators were found broken. It is further submitted that from the perusal of Ex.P-11, the mechanical report of jeep HR-23D- 6737, it is clear that front bumper was broken. There was bend in engine bonnet. Front both sides main leave was broken. There was bend in front wheel excel and driver side front wheel. There was bend in body and chassis and tyre tube were burst. So, it is contended that the learned Tribunal has rightly held that Satyewan struck his jeep against the back side (rear side) of the offending vehicle. So, in these circumstances, the finding on issue No.1 does not call for any interference. I have given my anxious consideration to the rival submissions made by both the sides and have gone through the records of the case. The first and fore-most point for determination is whether the finding of Tribunal on issue No.1 sustain the test of legal scrutiny. The claimants have examined Rajesh Kumar and has proved the FIR Ex.P-5 to prove this issue. The Tribunal relying upon the mechanical report of both the vehicles and on the site plan did not believe the testimony of Rajesh. Rajesh Kumar is the real brother of deceased Satyawan. Rajesh Kumar has not proved any injury upon his body. No doubt, Jarnail Singh has not come into the witness box to deny the manner of accident but the fact remains that onus to prove the negligence is always upon the claimants. FAO No. 1412 of 2008 6 Man may tell a lie but circumstances cannot. According to the case of the claimants, Satyewan was going from Kaithal towards Kalayat. It is further case of the claimants that offending vehicle was coming from the opposite direction. From the perusal of site plan produced by the claimants themselves, it is clear that the tanker in question was on the extreme left side of the road. Another fact which militate against the case of the claimants is that the rear portion of tanker has been damaged towards driver side whereas from the perusal of mechanical report of jeep, it is revealed that front portion of jeep has been damaged. So, these facts clearly established that jeep struck against the rear portion of the truck. So, in these circumstances, site plan and mechanical report have been rightly appreciated by the Tribunal. Normally if a party does not appear in that case, the Tribunal depending upon the circumstances of the case, can draw an adverse inference against the said party. However, a fact has to be kept in the mind by the Tribunal, while drawing inference, that driver is facing a criminal trial for offence under Section 304-A, IPC and in those circumstances, he would be reluctant to appear as a witness. So, fact of the present case are not such which makes out a case for drawing adverse inference against the driver of heavy vehicle. The fact remains that onus to prove that accident has taken place due to rash and negligent driving of the offending vehicle always lie upon the claimants. So, the circumstantial evidence available on the file has to be appreciated in the right prospective while deciding the issue of negligence. So, in view of the above discussion, the finding of the Tribunal on issue No.1 does not call for any interference. FAO No. 1412 of 2008 7 So far as the submission made by the learned counsel for the claimants to the effect that the claimants should be awarded an amount of Rs.50,000/- in view of Section 140 of the Act is concerned, that submission carries weight and has to be accepted. Even in the absence of negligence, the claimants are entitled to claim Rs.50,000/- on account of death of Satyewan in a motor vehicular accident. The fact that offending vehicle met with an accident with jeep driven by Satyewan has been admitted by the Tribunal. So, in view of the above discussion, the appeal is partly accepted. The respondents are directed to make the payment of Rs.50,000/- to the claimants in equal shares jointly and severally in view of Section 140 of the Act along with interest @ 7% p.a. from the date of application before Tribunal till payment. The petition stands disposed of accordingly. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE February 17 , 2010 sv