In the High Court of Punjab and Haryana at Chandigarh CM No.21527-CII of 2009 and F.A.O. No.989 of 2009 (O&M) Date of decision: October 07, 2009 Sarla Devi and others .. Appellants Vs. Madan Lal and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Sanjay Vashishat, Advocate for the appellants. A.N. Jindal, J Mahavir Singh (now deceased) having suffered injuries on account of motor vehicular accident which took place on 9.8.2004 filed petition for compensation, but, during the pendency of the said petition, he expired, therefore, the claim petition was got amended and compensation to the tune of Rs.25 lacs was sought by his legal heirs. This claim petition having been dismissed by the Motor Accident Claims Tribunal, Faridabad (herein referred as 'the Tribunal'), the claimants-appellants (herein referred as 'the claimants') have come up in appeal. The allegations, in nut shell, are that on 9.8.2004, at about 9.00 p.m. when Mahavir Singh was in front of Vipul Motors, Sector 16A, G.T. Road, Faridabad, a canter being driven by the respondent No.1 in a rash and negligent manner came from behind and struck against his motor cycle, as a result of which he was dragged and suffered injuries. Thereafter he was shifted to hospital. Om Pal, one of the eye witnesses lodged the FIR after two days i.e. on 11.8.2004 without naming the driver of the truck. The claimants have submitted that, on account of the death of Mahavir, they suffered huge loss therefore, they are entitled to compensation to the tune of Rs.25 lacs. Upon notice, respondent No.1 put in appearance and filed reply whereby denying all the allegations and stating that no such accident took place and he is not responsible for the accident. The FIR was lodged against him on the basis of the false and frivolous allegations. However, in F.A.O. No.989 of 2009 (O&M) -2- *** the alternative, he submitted that he was holding a valid driving licence and the vehicle was insured at the time of accident. Respondents No.2, 3 and 4 also filed their separate written statements denying all the allegations. From the pleadings of the parties, the following issues were framed :- 1. Whether the accident in question was caused due to rash and negligent driving of canter No.HR-38H-9195 by Madan Lal respondent No.1? OPP 2. Whether the petitioner is entitled to compensation? If so, how much and from whom? OPP 3. Whether the petition is not maintainable in the present form? OPR 4. Whether the petitioner has no cause of action to file the present petition? OPR 5. Whether respondent No.2 has knowingly and deliberately violated the terms and conditions of the insurance policy and respondent No.1 was not holding a valid driving licence? If so, to what effect? OPR-3 6. Whether the petition has been filed in collusion with the respondents No.1 and 2? If so, to what effect? OPR-3 7. Whether the petition is bad for non-joinder of necessary parties? OPR 7A. Whether the claim petition filed by Mahavir Singh since deceased has abated and his death has no nexus with the alleged accident? If so, to what effect? OPR-3 8. Relief. In order to prove the issues, the claimants examined Inder Sain Ahlmad of the court of Chief Judicial Magistrate, Faridabad (PW1), HC Lakhi Ram (PW2), C. Sandeep Kumar (PW3), Sarla Devi (PW4), Dr. Ram Bhagat, Medical Officer, B.K. Hospital Faridabad (PW5) and Dr. Ashok Gupta, Neuro Surgeon Sunflag Hospital, Faridabad (PW6). Besides, the F.A.O. No.989 of 2009 (O&M) -3- *** claimants tendered into evidence photo copy of the driving licence (Ex.P1), copy of the FIR No.278 dated 11.8.2004 Police Station Central, Faridabad (Ex.P2), postmortem report of the deceased (Ex.PW5/1) and copy of the medico-legal report (Ex.PW6/A). To the contrary, the respondents also examined Rajender Singh EHC No.1392 as RW-1 and tendered into evidence salary certificate of Mahavir Singh (Ex.R1), record of earned leave of Mahavir Singh (Ex.R2) and insurance policy (Ex.R3). The Tribunal while holding that no such accident took place and the main elements of rashness and negligence for fastening the liability upon the respondents are missing, decided issue No.1 against the claimants, while deciding issues No.3, 6,7 and 7A against the respondent No.3, the Tribunal observed about the maintainability of the petition in positive. Issue No.2 was partly decided in favour of the claimants, whereas issues No.4, 5 and 5-B were decided against the respondents. The prime question to be determined “whether the claimants have been able to lead sufficient evidence in order to prove the negligence of respondent No.1 in driving the offending vehicle and whether he was driving the offending vehicle at the time of accident?” The onus to prove issue No.1 was upon the claimants and in order to shift the onus the claimants placed reliance on the testimony of Sarla Devi (PW4) as well as copy of the FIR (Ex.P2) lodged after two days of the accident. Regarding the statement of Sarla Devi (PW4), she is not an eye witness to the accident. She has testified that she came to know about the accident and about the driving of the vehicle by the respondent No.1 later on through colleague of her husband but no such colleague has been examined who may have seen the occurrence. As regards the FIR (Ex.P2), it may be observed that neither the author of the FIR nor its scribe has been examined. No explanation has been made for lodging the FIR after the gap of two days which may give rise to the suspicion of manipulation and concoction. Any way, the FIR in this case does not contain the name of the driver of the offending vehicle. The eye witness namely Om Pal, who had lodged the FIR, had not been examined. In the FIR it has been mentioned that the driver had fled away F.A.O. No.989 of 2009 (O&M) -4- *** from the spot. In such eventuality when the occurrence had taken place during the night time, it would be difficult to record number of the vehicle. Thus, the identity of the vehicle itself as well as the driver becomes doubtful. At this stage, learned counsel for the appellants has moved the application for leading additional evidence for examining Om Pal in order to prove issue No.1. Having gone through the FIR (Ex.P2) which he wants to prove through Om Pal, his testimony, even if recorded in the court, would not help to improve the case set up by the claimants. Since he has not given the name of the driver in the belated FIR, therefore, it would be difficult to establish after recording his statement that it was the respondent No.1 who was driving the offending vehicle particularly when it is stated in the FIR that the driver had fled away from the spot. Thus, this application for additional evidence if allowed, after five years of the occurrence, would not improve the case. It also cannot be said that this sort of evidence was not in the knowledge and could not be produced despite due diligence of the claimants, as such the application is declined. No evidence worth the name has been led by the claimants in order to establish that the accident took place as a result of rash and negligent act of Mahavir Singh respondent No.1, therefore, findings returned by the Tribunal on issue No.1 stand affirmed. No meaningful arguments have been advanced by the learned counsel for the appellants to rebut the findings on the other issues, therefore, the same are also liable to be affirmed. Consequently, finding no merit in the appeal, the same is dismissed. October 07, 2009 (A.N. Jindal) deepak Judge