IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 76 of 2010 alongwith FAO No. 131 of 2011. Date of decision : 2.8.2011. FAO No. 76 of 2010. The New India Assurance Co. Ltd. …Appellant. Versus Anu Kumar & Others …Respondents FAO No. 131 of 2011. Suresh Kumar & anr. …Appellant. Versus Anu Kumar & Others …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Insurance Company: Mr. Ratish Sharma, Advocate. For the driver & owner: Mr. Ajay Chandel, Advocate. For the claimants: Mr. Virender Rathore, Advocate. Deepak Gupta, J.(Oral) 1. These two appeals are being disposed of by a common judgment, since they arise out of the same accident. 2. Before coming to the merits of the case, it would be appropriate to consider the application for condonation of delay being CMP No. 373 of 2011 filed in FAO No. 131 of 2011. Admitted facts of the case are that the award was announced on 11.12.2009 and certified copy of the award attached with this appeal shows that it was prepared on 22.12.2009. Appeal was, however, filed on 7th April, 2011 and was barred by 383 days. 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 The ground given for condonation of delay is that the appellants who are the owner and driver of the offending vehicle were under the impression that since the liability has been fixed only on the insurance company they need not to file an appeal. They were not advised to file an appeal since the liability was on the Insurance Company. According to them, it was only when they engaged Shri Ajay Chandel, Advocate in this Court, then he advised that they should file an appeal to challenge the finding on the issue of negligence. The delay no doubt is highly excessive and normally this Court could not have condoned the delay but admittedly as per the award the owner would not be responsible but if the latest trend of decision regarding license is taken into consideration then the Insurance Company would either not be liable to pay the compensation or even if held liable to pay the compensation, then it would have the right to recover the same from the owner. Therefore their vital interests are involved in the case. 3. It would be pertinent to mention that an appeal had already been filed by the insurance company. No doubt, the insurance company was not entitled to challenge the award on the issue relating to negligence of the driver but when an appeal of the insurance company is pending and during the pendency of the appeal the owner also files an appeal for proper appreciation of the case, it would be appropriate to hear both the cases. For the aforesaid reasons, the delay in filing the appeal is condoned. 4. Coming to the merits of the case. The claimants who are the widow and two children of the deceased late Shri Chuni 3 Lal. According to them on 24th November, 2007 the deceased, who used to run a vegetable and fruit shop at village Balehar, near Yol, Tehsil Dharamshala, District Kangra, was returning to his village and was on the extreme left side of the road. He was hit by Tata Sumo bearing No. HP-01-D-3043 owned by Shri Vinay Kumar and driven by Suresh Kumar coming from Chamunda side. This vehicle was being driven in a rash and negligent manner and struck the deceased with full force. As a result of this accident Chuni Lal suffered serious injuries. He was shifted to the hospital but died. The stand of the respondents was that the vehicle in question was not involved in the accident. Respondents took the plea that this vehicle had been taken to Kullu on 22.11.2007 and according to the respondents the vehicle was impounded more than 10 months after the alleged accident took place. 5. The FIR has been proved by PW-2. It has been exhibited as Ext. PW-2/A. This FIR was recorded on the information given by one Shri Suresh Kumar Sharma who was not examined during the trial. As per the contents of the FIR the informant heard a noise and came out and saw that Chuni Lal had been hit by some vehicle. A number of people had gathered at the spot and some broken glass pieces of the light of the vehicle were lying on the spot. The informant was told by some of the people present that the vehicle which had hit Chuni Lal was a Tata Sumo vehicle. Thereafter the injured was taken in a vehicle to the hospital. PW-2 also states that the challan against the accused was filed in the Court of the Judicial Magistrate on 18.8.2008. He also admitted that first an untraced report was 4 filed and thereafter the matter was reinvestigated and then the challan was filed. 6. The claimants have examined one witness PW-4 Raj Kumar, who is alleged to be an eye witness to the accident. According to him he resides in Balehar and was standing on the side of the road and one Sumo came in a high speed and hit Chuni Lal, who fell down. According to this witness the registration number of the vehicle was HP-01-D-3043. A suggestion has been put to him that in fact he does not run any shop at Balehar. He states that he did not take Chuni Lal to the hospital but he came to know about the death of Chuni Lal next morning. 7. The respondents on the other hand have produced a number of witnesses to prove their case that the vehicle in question as well as the driver were not at Kangra but were at Kullu when the accident took place. RW-1 Narender Gour is the Youth Organiser of the District Youth Services and Sports at Kangra. According to him vide office order dated 21.11.2007 he was declared to be the head of the youth team which was to attend the State level youth festival at Kullu w.e.f. 23.11.2007 to 25.11.2007. Copy of the order has been exhibited as Ext.RW- 1/A. He was directed that he alongwith the team should reach Kullu latest by 5.00 p.m on 22.11.2007. He was also directed to take all necessary action to ensure that the team reaches Kullu and for their arrangements in Kullu. The witness states that he took the team in a Tata sumo vehicle being driven by Suresh Kumar. According to him Suresh Kumar remained with him from 5 22.11.2007 till 25.11.2007 at Kullu and had no occasion to come back to Dharamshala in between. He in cross-examination admits that in the office order Ext.RW-1/A neither the number of the vehicle nor the name of the driver is written. He has, however, categorically denied the suggestion that the vehicle or Suresh Kumar was involved in the accident. 8. RW-2 Ms. Pooja Bharti took part in the youth festival. According to her she and other members of the team alongwith the team leader Narender Gour RW-1 collectively hired Tata Sumo No. HP-01-D-3043 from Dharamshala and took it to Kullu. Suresh Kumar, driver of the vehicle, remained with them at Kullu during this period from 22.11.2007 to 25.11.2007. Ms. Puja Bharti also produced the certificate Ext.RW-2/A which certificate is regarding her participation in the youth festival. The driver Suresh Kumar also participated in the youth festival. She has been cross-examined but has denied the suggestion that Suresh Kumar did not accompany them to Kullu or that they had not hired the vehicle in question to take them to Kullu. 9. RW-3 Vinay Kumar, respondent No.2, is the owner of the vehicle. His version is that the vehicle in question was hired by Narender Gour for taking the youth team to Kullu and the vehicle as well as the driver Suresh Kumar remained with the team from 22.11.2007 to 26.11.2007. RW-4 Suresh Kumar is the driver of the vehicle. According to him he was at Kullu and his vehicle was never involved in the accident. He also states that he has been wrongly impleaded in the case. According to him he went to Kullu on 22.11.2007 and returned on 26.11.2007. The 6 driver also produced the photocopy of the certificate Ext.RW-4/A regarding his participation in the youth festival. 10. The first question which arises is whether the learned Tribunal was right in holding that the accident occurred due to the rash and negligent driving of the Tata Sumo by Shri Suresh Kumar. Shri Ajay Chandel, learned counsel for the owner and driver contended that there is no reason to discard the testimony of the owner and driver especially when the same has been corroborated by independent witnesses RW-1 and RW-2. On the other hand Shri Virender Singh Rathore, learned counsel for the claimants submits that admittedly a criminal case is going on against the driver Suresh Kumar wherein he has been charged with causing the death of Chuni Lal due to his rash and negligent driving. He also submits that the testimony of Raj Kumar PW-4 inspires confidence and the same should be believed. According to him mere non-mentioning of the name of the driver is of no consequence. 11. Shri Virender Rathore, learned counsel for the claimants has also relied upon two judgements of the Apex court in Saroj and others vs. Het Lal and others (2011) 1 SCC 388, Kusum Lata and others vs. Satbir and others (2011) 3 SCC 646. 12. The evidence of the parties has already been discussed in detail. The claimants have produced an eye witness. The question is whether this eye witness should be believed or not. This Court can take judicial note of the fact that the accident took place in the last week of November at about 7.20 p.m by 7 which time it is quite dark. According to this witness the vehicle was coming at a high speed and fled away immediately after the accident. It would be virtually impossible to note the number of the vehicle if it was in a high speed at the late hours. Even more important is the fact that admittedly this witness came to know that Chuni Lal had expired next morning. If Raj Kumar RW-4 had witnessed the accident and was a neighbour of the deceased natural human conduct would have been that he would have told the family members of the deceased and the police that he had noted down or remembered the number of the vehicle involved in the accident. If that had been done then the police would never have filed an untraced report. Admittedly, the vehicle was impounded after 8 to 10 months later. The police had no clue as to which vehicle was involved in the accident. This casts a grave doubt on the veracity of the testimony of PW-4 Raj Kumar. 13. On the other hand the owner and driver have examined two witnesses i.e RW-1 and RW-2. Even if the statements of the driver and the owner are discarded as being the evidence of interested persons, this Court cannot just wish- away the testimony of RW-1 and RW-2. RW-1 is the District Youth Sports Incharge at Dharamshala. There is no denial to the fact that RW-1 and RW-2 went to Kullu alongwith team representing District Kangra in the State level youth festival. The statement of RW-1 is that all the participants jointly hired a vehicle and Suresh Kumar who was the driver of the vehicle also took part in the youth festival. No written record has been produced by this witness but that by itself is not a ground to 8 discard the testimony of the witnesses especially when the claimants have not shown that these witnesses are either inimically disposed towards the claimants or that they have some special affinity with the driver or the owner and are deposing falsely to help the owner and the driver. Both these witnesses are proved to be independent witnesses. The question is why should they lie in Court? No suggestion has been put to these witnesses that they have any special affinity with the driver and the owner. They have clearly stated in the testimony that from 22.11.2007 to 25.11.2007 the vehicle No. HP-01-D-3043 alongwith driver Suresh Kumar remained with them. They returned only on 26.11.2007. If the vehicle was with them at Kullu then obviously it could not have been involved in the accident which led to the death of Chuni Lal on 24.11.2007 near Dharamshala. 14. There is no manner of doubt in my mind that Chuni Lal did receive injuries in a motor vehicle accident. It appears that it was a case of hit and run accident where no body could see which was the vehicle. At best, it was a Tata Sumo vehicle as is apparent from what is recorded in the F.I.R. I am constrained to observe that the learned tribunal shifted the burden of proving the manner of the accident on the driver. This may be possible where the accident is admitted. In such eventuality, the driver must state how the accident occurred. But when the accident itself is denied and the driver alleges that he was not present at the spot how can he lead evidence in the negative. The claimants must stand on their own feet. No doubt, normally in 9 compensation cases under the motor vehicles act this Court and indeed most Courts take a liberal view with regard to the negligence. At the same time, Courts are required to be careful that no innocent person is fastened with the liability to pay the compensation. The statement of Raj Kumar, who was neither examined by the police nor disclosed the number of the vehicle to anybody immediately after the accident, cannot be accepted at its face value as discussed above. There is no reason to disbelieve independent witnesses RW-1 and RW-2 and therefore, I am of the considered view that the vehicle and the driver Suresh Kumar were at Kullu at the relevant time and therefore, could not have been involved in the accident. 15. As far as the judgement cited by Shri Virender Rathore, learned counsel for the claimants are concerned, in Saroj’s case the question involved was totally different. That was a case where the owner had admitted the accident but the driver denied that the accident had taken place. It was in this context that the Apex Court held that the admission of the owner regarding the involvement of the vehicle in the accident is itself a ground to discard the testimony of the driver who denied the accident. As far as Kusum Lata’s case is concerned the Apex Court laid down that the standard of proof required in a claim petition under the Motor Vehicles Act is that of civil cases i.e. preponderance of evidence and not proved beyond reasonable doubt. There can be no quarrel with this proposition of law. There can also be no hard and fast rule that in every case of accident the number of the vehicle or the name of the driver 10 must be mentioned in the F.I.R. However, as stated above in the present case the preponderance of evidence especially the evidence of the two independent witnesses clearly shows that the vehicle and the driver were at Kullu and not at Dharamshala. 16. Accordingly, it is held that the claimants have failed to prove that the accident occurred in a manner as alleged by them. Therefore, the claim petition is rejected on this ground. The appeal filed by the owner and driver is allowed and the award of the learned Tribunal is set-aside. As far as the appeal of the Insurance Company is concerned the same has to be allowed because the Insurance Company cannot be held liable to pay the compensation. Both the appeals are disposed of accordingly. No costs. 2nd August, 2011 ( Deepak Gupta ) ™ Judge.