IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No.3304 of 2008 Date of Decision : September 20, 2010 Smt. Sheela and others ....Appellants Versus Surender Kumar and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. R.A. Sheoran, Advocate for the appellants. None for respondents No.1 and 2. Mr. Sandeep Suri, Advocate for respondent No.3. T.P.S. MANN, J. Award passed by Motor Accidents Claims Tribunal, Bhiwani on April 07,2008 while dismissing the claim petition filed by the claimants under Section 166 of the Motor Vehicles Act, 1988 stands challenged by them by filing the instant appeal. The claimants had sought compensation to the tune of Rs.20 lakh alongwith interest due to death of Inder Singh in a motor vehicular accident. The claimants are widow and four children of said Inder Singh. In their petition under Section 166 of the Act, they had alleged that on 13.11.2005, Inder Singh, alongwith his nephew Rahul, went to distribute the invitation cards in connection with marriage of his niece to be solemnised on 16.11.2005. At about 9.30 P.M. when they were coming back and reached near Bhim Stadium, Bhiwani, a car F.A.O. No.3304 of 2008 -2- bearing registration No.HR-01-K-0034 being driven by respondent No.1 at a very high speed, rashly and negligently came from the opposite side and hit Inder Singh, due to which he received multiple injuries and became unconscious. Rahul went to his house and informed his father Ghamandi Singh and thereafter they took Inder Singh in an injured condition to Civil Hospital, Bhiwani. As his condition was serious, he was referred to Post Graduate Institute of Medical Sciences (PGIMS), Rohtak. His treatment continued but he breathed his last on 24.11.2005 at 1.45 P.M. A case punishable under Sections 279 and 304-A of the Indian Penal Code was registered against respondent No.1 at Police Station, Civil Lines, Bhiwani. Regarding compensation, it was alleged that at the time of the accident Inder Singh was 46 years' old. He was working as Agriculture Inspector in the office of Assistant Soil Conservation Officer, Bhiwani. He was getting Rs.7,200/- per month as salary and was also earning Rs.8,000/- per month from agriculture pursuits. The claimants were totally dependent upon him and were not having any other source of income. He would have lived at least for 40 years and would have earned at least Rs.40 lakh. They had also spent Rs. One lakh on his treatment at Rohtak. In their joint written statement, respondents No.1 and 2 pleaded that neither any cause of action had accrued to the claimants nor they were having any locus standi to file this petition. It was filed with a malafide intention to extract money from them. It was vague, indefinite, not filed in accordance with provisions of law and was not maintainable. F.A.O. No.3304 of 2008 -3- A false case was got registered against respondent No.1. The car in question was never involved in the accident. Respondent No.1 was not responsible for the accident as alleged by the claimants. He has never driven the car rashly and negligently at any time. Other averments were also denied and it was alleged that petition be dismissed with costs. Respondent No.3, in its written statement, alleged that the petitioners were estopped from filing the petition by their own act and conduct. It was bad due to mis-joinder and non-joinder of the parties. The insured did not comply with the provisions contained in Section 134 (c) of the Act and it was not liable to pay any compensation. It was a result of collusion in between the claimants and respondents No.1 and 2. Respondent No.1 was not having a valid driving licence and the car in question was being driven in violation of terms and conditions of insurance policy at the time of accident. The income of the deceased was imaginary. The amount of compensation was highly exaggerated. Other averments were also denied and it was alleged that petition be dismissed with costs. On the pleadings of the parties, learned Tribunal framed the following issues :- 1. Whether the accident in question was caused by respondent No.1 while driving his car bearing registration No.HR-10-K-0034 in a rash and negligent manner resulting into death of Inder Singh? OPP. F.A.O. No.3304 of 2008 -4- 2. If issue No.1 is proved, whether claimants are entitled to any compensation on account of death of Inder Singh and if so to what extent and from whom ? OPP. 3. Whether respondent No.1 was not holding a valid and effective driving licence at the time of accident in question ? OPR. 4. Whether insurance company is not liable to pay the amount of compensation ? OPR. 5. Relief. In support of its case, the claimants examined Sheela Devi as PW1, Madan Lal, Accountant in the office of Assistant Soil Conservation Officer, Bhiwani as PW2, Ghamandi Singh, who lodged FIR Ex.P3 as PW3, Rahul, eye witness as PW4 and Satbir Singh, Assistant in the office of JMIC as PW5. On the other hand, the respondents produced copy of statement of Ghamandi as R1, copy of driving licence Ex.R2 and insurance policy Ex.R3. After hearing learned counsel for the parties and going through the evidence, learned Tribunal held that the evidence led by the claimants was not sufficient to come to the conclusion that accident took place due to rash and negligent driving of the car in question by respondent No.1. The claim petition was, accordingly, dismissed with costs, but in order to avoid further delay in the event of its finding aforesaid being reversed, learned Tribunal held that the claimants, other F.A.O. No.3304 of 2008 -5- than Sanjay, would be entitled to receive an amount of Rs.8,59,048/- as compensation in a specified manner. However, in view of the finding on issue No.1, the claim petition was dismissed. I have heard learned counsel for the parties and perused the records. From the side of the claimants, PW4 Rahul deposed about the manner in which the accident had taken place. In his affidavit Ex.PW4/A which was tendered in evidence by way of his examination- in-chief, he stated that on 13.11.2005, he, alongwith his uncle Inder Singh, had left the house for distributing the cards of the marriage of his uncle Jai Parkash's daughters to be held on 16.11.2005. After distributing the marriage cards in their relations, when they were returning to their house at about 9.30 P.M. and reached behind Bhim Stadium, Bhiwani, a car bearing registration No.HR-01-K-0034, which was being driven rashly and negligently and at a very high speed by respondent No.1 struck against deceased Inder Singh and caused the accident. After the accident, the witness apprised his father Ghamandi Singh about the accident, who lodged FIR No.212 dated 24.11.2005 at Police Station, Civil Lines, Bhiwani under Sections 279/304-A IPC against respondent No.1. During his cross-examination, he stated that he had seen the number of the offending car. He returned to the house after the accident, leaving Inder Singh at the spot unattended. After reaching his house at 9.40 P.M., he told about the accident to his father. F.A.O. No.3304 of 2008 -6- He even told the number of the offending vehicle to his father. However, he himself fell ill and on account of fever, he did not go to the spot or to the hospital. He recovered from the fever two days after the accident. He also stated that he knew the driver of the car since 1½ years prior to the accident. He had also informed his father on 13.11.2005 that the driver of the car was known to him as he had been hired by deceased Inder Singh about 1½ years ago. However, the perusal of the FIR, which was lodged by PW3 Ghamandi Singh on 24.11.2005, reveals that neither the registration number of the offending vehicle was mentioned nor it was mentioned that respondent No.1 was driving the said vehicle at the time of the accident. It was stated by Ghamandi Singh in the FIR that the occurrence had been witnessed by his son, namely, Rahul. It is true that according to the FIR Ghamandi Singh, after being informed by his son Rahul, reached the spot and arranged a conveyance for transporting his brother Inder Singh to Civil Hospital, Bhiwani from where he was referred to PGI, Rohtak and it was in PGI, Rohtak that Inder Singh died on 24.11.2005. It was not expected of the first informant Ghamandi Singh to have lodged the report with the police immediately after being informed by his son Rahul as he himself was looking after his injured brother Inder Singh. However, as per testimony of PW4 Rahul, he reached his house on 13.11.2005 at 9.40 P.M. and told about the accident to his father but, thereafter, he fell ill as F.A.O. No.3304 of 2008 -7- he was suffering from fever. He recovered from fever two days after the accident. He did not mention that after recovering from the accident, he was attending upon his injured uncle in the hospital. Apparently, he did not make an attempt to report the matter to the police although as per the case of the claimants, only he, i.e. Rahul, was the sole witness of the accident. Since two days after the accident till 24.11.2005, Rahul did not lodge the report with the police about the accident. At the time of his examination as PW4 which was about one year and one month after the accident, Rahul stated his age as 21 years, besides mentioning that he was a student of ITI. As such he was a mature adult and not a young child who could not have gone to the police himself for lodging the report. As mentioned above, the FIR was lodged at the instance of Ghamandi Singh, father of PW4 Rahul and, that too, on 24.11.2005 after the death of Inder Singh in PGI, Rohtak. It appears that no one had seen the accident in which deceased Inder Singh had received injuries. From 13.11.2005 till 24.11.2005, the family members of Inder Singh were groping in dark about the identity of the offending vehicle as well as its driver. During investigation of the FIR, the claimants were able to arrange the services of respondent No.1 by showing him as the driver of the offending vehicle. As is apparent from the report under Section 173 Cr.P.C., submitted by the police in the aforementioned FIR, respondent No.1 was arrested on 19.12.2005. This assumes significance in view of the testimonies of PW3 Ghamandi Singh and PW4 Rahul when they stated that they knew the driver of the car since last 1½ years prior to the F.A.O. No.3304 of 2008 -8- accident because he had been engaged by them on an earlier occasion of marriage. The car which was said to be driven by respondent No.1 at the time of the accident stood covered by insurance policy Ex.R3 on the date of the accident though the said coverage expired on 17.11.2005, i.e. just four days after the accident. Mere fact that respondent No.1 had been challaned by the police as stated by PW5 Satbir Singh, Assistant Ahlmad, is no ground to hold that he was responsible for the accident. In view of the above, it cannot be said that the claimants have been able to establish that the accident occurred due to rash and negligent driving of Surender Kumar respondent No.1 or that the accident in question had taken place with car No. HR-01-K-0034 of which respondent No.1 was the driver and respondent No.2 its owner. Therefore, no interference is called for in the findings arrived at by the learned Tribunal on issue No.1. The appeal is without any merit and, therefore, dismissed. ( T.P.S. MANN ) September 20, 2010 JUDGE satish