IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH F.A.O. No. 574 and 575 of 2007 (O&M) Date of decision: October 06, 2009 Kuldip Kumar .. Appellant Vs. Naresh Kumar Gupta and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. R.K. Kanwal, Advocate for Mr. Sanjiv Pandit, Advocate for the appellant. Mr. H.S. Bedi, Advocate for the respondents No.3 and 4. A.N. Jindal, J This judgment of mine shall dispose of two connected appeals i.e. F.A.O. Nos. 574-75 of 2007, having arisen out of the same judgment dated 20.2.2006 passed by the Motor Accident Claims Tribunal, Jalandhar, awarding compensation as under :- Case No./ Title Compensation MACT Case No.17 dated 19.2.2003, Naresh Kumar Gupta and another vs. Nitin Dada and others Rs.1,00,000/- MACT Case No.18 dated 19.2.2003, Naresh Kumar Gupta vs. Nitin Dada and others Rs.60,000/- The Tribunal had also awarded interest @ 9% per annum each on the award amount. Brief resume of facts is that on 26.4.2000, at about 10.15 p.m. Udit Gupta son of Naresh Kumar Gupta was returning to his house from Jalandhar city on cycle and reached near Boor Mandi. In the meantime, Naresh Kumar Gupta also came along with his daughter Priyanka and niece Gunjan alias Mittu on scooter bearing registration No.PB-08-T-6838. Naresh Kumar Gupta turned the scooter from the chowk of Boor Mandi for going to Jalandhar Cantt, in the meantime, the appellant Kuldip Kumar while driving Tata Chassis No.412050 CZZ-108041 rashly and negligently came from the side of Rama Mandi. Naresh Kumar Gupta stopped the F.A.O. No. 574 and 575 of 2007 (O&M) -2- *** scooter while taking towards footpath, but Kuldip Kumar while driving the aforesaid Tata Chassis struck against the scooter and dragged it to a distance. Resultantly, Naresh Kumar Gupta, his daughter Priyanka Gupta and Gunjan alias Mittu (non-appellant) suffered injuries. Ultimately, Priyanka Gupta succumbed to her injuries. Naresh Kumar Gupta was shifted to military hospital Jalandhar Cantt, whereas, Priyanka was taken to Guru Nanak Mission Hospital, Jalandhar and Gunjan was admitted in Satyam Hospital, Jalandhar. The accident took place on account of the fault on the part of Kuldip Kumar respondent No.2 (now appellant in FAO No. 575 of 2007). Naresh Kumar Gupta and his wife Veena Gupta claimed compensation on account of the death of their daughter Priyanka Gupta aged about 11 years, stating that she was a medical student and after study, she would have become a doctor. Similarly, Naresh Kumar Gupta also filed a separate claim petition claiming compensation for the injuries suffered by him. Both the claim petitions were contested by the appellant, respondents No.1, 1A, 2 and 3. The respondents No.1 and 1A (now respondents No.3 and 4) contested the claim petition urging that they had already sold the Tata Chassis to Un-Employed Bus Service through its proprietor Jagdish Chand and delivery was given to Kuldip Kumar representative of Golden Body Builders. As such, after the vehicle was delivered through proper documentation to Kuldip Kumar, on the instructions of Un-Employed Bus Service, the respondent No.1 ceases to be the owner/controller of the offending vehicle and is not responsible for the alleged accident. He also pleaded for dismissal of the claim petition being bad for non joinder of necessary parties. It was further reiterated that Jagdish Chand proprietor of Un-Employed Bus Service on whose direction the gate pass was prepared with regard to the vehicle in question for handing over the same to Janak Raj, Proprietor of Golden Body Builders, Bye Pass, G.T. Road, Jalandhar, for building the chassis are the necessary parties. Kuldip Kumar was the representative of M/s Golden Body Builders. The said chassis was purchased by the Un-Employed Bus Service and Kuldip Kumar was taking the chassis on behalf of Jagdish Chand and Janak Raj. Thus, they denied their liability to the pay the compensation. F.A.O. No. 574 and 575 of 2007 (O&M) -3- *** The appellant-Kuldip Kumar in his written statement has submitted that he was not driving the vehicle at the time of accident, as such, he is not responsible for payment of compensation. National Insurance Company (insurer of the scooter bearing registration No.PB-08-T-6838) in its written statement while admitting being the insurer of the scooter in the name of Naresh Kumar Gupta at the time of accident stated that the company is not liable as neither Naresh Kumar Gupta nor Priyanka Gupta comes within the definition of third party. Jagdish Chand did not put in appearance to contest the claim petition. Suraj Dev Dada-respondent No.1-A also contested the claim petition reiterating the facts as submitted by the respondent No.1. From the pleadings of the parties, the Tribunal framed the following issues in MACT Case No.17 dated 19.2.2003 :- 1. Whether Miss Priyanka Gupta died in the motor vehicle accident due to rash and negligent driving of vehicle make TATA bearing Chassis No.412050 CZZ-108041 being driven by respondent No.2 Kuldip Kumar?OPP 2. Whether the applicants are the legal heirs of Miss Priyanka Gupta and are entitled to compensation, if so, to what extent and from which of the respondents?OPP 3. Relief. From the pleadings of the parties, the following issues were framed in MACT Case No.18 dated 19.2.2003 :- 1. Whether the applicant has received injuries in the motor vehicle accident involving the vehicle make TATA bearing Chassis No.412050 CZZ-108041, being driven by respondent No.2 Kuldip Kumar?OPP 2. Whether the applicant is entitled to compensation, if so, to what extent and from which of the respondents?OPP 3. Relief. Both the parties led evidence and ultimately, both the claim petitions were partly allowed in the aforesaid terms. F.A.O. No. 574 and 575 of 2007 (O&M) -4- *** The sole question for consideration is “whether the vehicle was owned by the respondent No.1 and 1-A at the time of accident or it was sold and delivered to Un-Employed Bus Service through Jagdish Chand and delivery was taken by Kuldip Kumar on behalf of Un-Employed Bus Service?” The Tribunal has observed that Kuldip Kumar appears to have not taken the delivery as he being challaned by the police was acquitted by the court. His presence at the time of occurrence has been held to be doubtful by the criminal court. Secondly, the supurdari of the offending vehicle was taken by Suraj Dev Dada respondent No.1-A, on behalf of himself and respondent No.1, therefore, they being the owners are responsible for the payment of compensation. Having perused the records of the case, I need to step back to appreciate the evidence. Naresh Kumar Gupta reiterated the allegations while appearing as PW-1 to prove the accident. However, the crucial question is “whether delivery of the vehicle was given to Jagdish Chand and he became the owner or respondent No.1 and 1-A still remain the owners of the vehicle. It is no denying a fact that the property was not going to the premises of Jagdish Chand but it was going to the premises of “Golden Body Builders”. Kuldip Kumar appeared in the witness box and denied his liability, but he was not cross examined by the respondents No.1 and 1-A that he was the person employed by the “Un-Employed Bus Service” and he had taken the delivery of the Chassis in question for and on behalf of Un- Employed bus Service or Jagdish Chand. Learned counsel for the respondent No.1 and 1-A has contended that from the testimony of Nitin Dada (RW2), Sanjeev Sehgal (RW3) and Arun Sharma (RW4), it has come on the record that the vehicle was purchased by M/s Un-Employed Bus Service through Jagdish Chand. But, this fact stands falsified from the documentary evidence. Documents Ex.R1 to R-3 have been brought on the record to prove the sale of the Chassis to M/s Un-Employed Bus Service, but these three documents do not in any way prove the story as set up by the respondents No.1 and 1-A. From the perusal of Ex.R1 to R-3, it is not established that the offending vehicle was actually delivered to M/s Un- Employed Bus Service or its proprietor Jagdish Chand. From Ex.R-2 it is F.A.O. No. 574 and 575 of 2007 (O&M) -5- *** proved that the vehicle was delivered to Kuldip Kumar but it does not find mention as to in which capacity he had been delivered the offending vehicle. It is also not established that he had taken the vehicle as per direction of Jagdish Chand proprietor of M/s Un-Employed Bus Service or Janak Raj of Golden Body Builders as alleged in the written statement filed by the respondent No.1 on behalf of the respondent No.1 and 1-A themselves. Though, Arun Sharma (RW4) in his affidavit Ex.RW4/A stated that as per the instructions of Jagdish Chand delivery of the vehicle was given to Kuldip Kumar appellant for body building of bus on 24.6.2000, but no document has been proved in order to show that the delivery of the said vehicle was taken by Jagdish Chand or Kuldip Kumar was ever authorised by the respondents No.1 and 1-A to deliver the vehicle to M/s Un-Employed Bus Service. It is also not established that Jagdish Chand after taking the delivery of the vehicle had authorised the respondents No.1 and 1-A to deliver the same to Kuldip Kumar. In the absence of any documentary evidence to the effect that the offending vehicle was ever delivered to Jagdish Chand respondent in lieu of some sale consideration, the fact would remain that the respondents No.1 and 1-A are the owners of the offending vehicle. As a matter of fact, the respondent never parted with the ownership of the vehicle as it is established on the file that the respondents No.1 and 1-A took the offending vehicle on supurdri when it was involved in this case of accident. Nitin Dada (RW2) admitted in the application made for obtaining the order of supurdari that their company was the owner of the offending vehicle. From further perusal of the file it also transpires that the said vehicle was taken on supurdari by Suraj Dev Dada after obtaining orders from the court of Mrs. Rajwinder Kaur, Judicial Magistrate Ist Class, Jalandhar in case FIR No.50 dated 24.6.2000 i.e. the criminal case reistered against Kuldip Kumar. Had they already sold the said vehicle to Jagdish Chand, then Suraj Dev Dada would not have filed the application for taking the vehicle on supurdari. Thus, it stands established beyond doubt that the respondents No.1 and 1-A had taken the delivery of the chassis in question being the owner of the same. F.A.O. No. 574 and 575 of 2007 (O&M) -6- *** As regards the liability of Kuldip Kumar, notwithstanding the fact that he was acquitted in the criminal case vide judgment Ex.R5, but the Tribunal is not bound by the findings as returned by the criminal court. However, ample evidence has come on record that Kuldip Kumar had taken the delivery of the vehicle (may be on behalf of the owners) but it is established that the vehicle was being driven by him at the time of accident. As such he also cannot be exonerated from the liability as fastened by the Tribunal upon him. As such, findings returned by the Tribunal on issues No.1 and 2 stand affirmed. No other point has been raised. Consequently, finding no merit in both the appeals, the same are hereby dismissed. A photo copy of this order be placed on the file of the connected case. October 06, 2009 (A.N. Jindal) deepak Judge