FAO No. 348 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 348 of 1989 Date of decision 22.2.2010. Smt. Mewa Devi ...... Appellant. versus Union of India and another ...... Respondents. FAO No. 389 of 1989 Som Parkash and others ...... Appellants. versus Pritpal Singh and others ...... Respondents. Present : Mr. M.S.Rakkar, Senior Advocate with Mr. A.G.S.Dhillon, Advocate for the appellants in both cases. Mr. Ram Chander, Advocate for UOI in both cases. K.C.PURI. J. Vide this judgment, I intend to dispose of two FAOs, i.e. FAO No. 348 of 1989 preferred by claimants Smt. Mewa Devi versus Union of India and another and FAO No. 389 of 1989 Som Parkash and others versus Pritpal Singh and others preferred by Som Parkash and others for FAO No. 348 of 1989 2 grant of compensation as their claim petitions were dismissed by the learned Motor Accident Claims Tribunal, Ambala. The facts recapitulated from the record is that on 15.6.1987 at about 1-45 p.m. Ashwani Kumar was going on his scooter to his village Thamber from Ambala side along with Rajesh sitting on the pillion. When they reached within the area of village Khudda Khurd, then one truck belonging to the AIR Force bearing registration No.4118, being driven by Prithipal Singh respondent rashly and negligently, came from the side of village Saha and struck against the scooter, due to which both the occupants of the scooter alongwith scooter came underneath the Air Force Vehicle and died at the spot. Nihala Ram Chowkidar lodged report in the police station, who along with Sham Lal and Pushpinder Kumar witnessed the occurrence. The claimants, therefore, filed claim petitions for grant of compensation. The claim petitions were contested by the Union of India and Prithipal Singh driver. They filed written statement and denied the allegations of the claimants and stated that on 15.6.1987 at about 1-30p.m., when the service vehicle was crossing the nullah bridge near Chhotta Khudda village then a civil bus bearing No. UHN-2049 came from the opposite direction; that 3/4th part of the bus had crossed the Air Force Vehicle Karj then suddenly scooter bearing registration No.HNE-6098 emerged from behind the bus and it was occupied by two persons, since there was no place between the Air Force Vehicle and the civil Bus, therefore, the scooterist hit the Air force Vehicle head on and went underneath the front excel and this resulted in the death of both the persons i.e. driver and the pillion rider as well as damage to the scooter. It has FAO No. 348 of 1989 3 been further alleged that Flt. Lt. N.C.Gupta and Flt. Lt. R.S.Sachdev were also sitting along with the driver witnessed the occurrence that the driver of the AIR force vehicle was driving the vehicle at a speed of 30 to 35 k.m. per hour and had applied brakes and tried his best to save the scooterist but could not do so and as such the accident had taken place clearly due to the rash and negligent driving of the scooterist. Following issues were framed :- 1. Whether the accident on 15.6.1987 at about 2 p.m. On Ambala Jagadhri road near village Khudda Khurd took place due to rash and negligent driving of truck No.4118 by respondent No.2 Prithipal Singh ?OPP. 2. If issue No.1 is proved, whether the petitioners are entitled to compensation, if so, to what amount and from whom?OPP. 3. Relief. The parties have led their respective evidence. The Tribunal returned the findings on issue No.1 against the claimants and therefore dismissed the claim petitions. Feeling dis-satisfied with the aforesaid award, the petitioner- appellants preferred these appeals for grant of compensation. I have heard the learned counsel for the parties and have gone thorough the records of the case. The controversy in the present appeals bearing Nos.348 of 1989 and 389 of 1989 is resolved around issue No.1 The case of the claimants set forth is that Ashwani Kumar deceased was driving his scooter and Rajesh Kumar was a pillion rider. When they reached within the area of village FAO No. 348 of 1989 4 Khudda Khurd, a truck belonging to the AIR Force bearing registration No.4118, which was being driven by Prithipal Singh came from the side of village Saha rashly and negligently. Prithipal Singh was driving the truck without blowing the horn struck his truck against the occupants of scooter, resulting in death of both Ashwani Kumar and Rajesh Kumar. Nihala Ram Chowkidar lodged the report against the driver of the offending vehicle. To support these case, the claimants examined Nihala Ram (PW-1) and Pushpinder Kumar (PW-2), Sham Lal (PW-3), Smt.Krishana Devi one of the claimants (PW-4), Smt.Mewa Devi, one of the claimants (PW-5), RavinderKumar (PW-6) and Sham Lal (PW-7) (already examined as PW-3). The stand of the respondent is that accident has taken place due to rash and negligent driving of the scooter. To prove their case, respondents examined Dharapal, Conductor of Bus No.UNC 2049 as RW- 1, Manjit Singh passenger of the above said bus as RW-2, Sqr.Ldr N.C.Gupta as RW-3 and Prithipal Singh respondent himself appeared as his own witness as RW-4. The learned Tribunal after appraisal of the evidence on the file returned the finding on issue No.1 holding that accident has taken place due to rash and negligent driving of scooter by Ashwani Kumar deceased. In view of findings on issue No.1, the claim petition was dismissed. Shri M.S.Rakkar, learned Senior Advocate has submitted that Nihala Ram (PW-1) and Pushpinder Kumar (PW-2) have categorically stated that Air Force truck was being driven by Prithipal Singh at a fast speed. The learned Tribunal has wrongly discarded their sworn testimony. The accused in this case is an Air Force official. He has manipulated the things by procuring the testimony of Dharam Pal Conductor and Manjit Singh alleged passenger. Sq. Ldr. N.C.Gupta (RW-3), being officer of FAO No. 348 of 1989 5 respondent No.4 was introduced in saving him. Needless to say that Prithipal Singh has stated wrong facts in order to save himself from the criminal cases as well as to avoid the payment of compensation. So, the prayer has been made for acceptance of the appeal and for grant of compensation. It is further contended that even if negligence of respondents is not proved in that case also the Tribunal has not granted any amount in respect of no fault liability under Section 92-A of the Motor Vehicles Act (in short- the Act). The learned counsel for the respondent has supported the judgment of the Tribunal. It has been contended that none of the Pws have stated that accident has taken place due to rash and negligent driving of Prithipal Singh-respondent. Both of them have stated that they do not know how the accident has taken place. However, in rebuttal the respondents have produced the convincing evidence that accident has taken place due to suddenly overtaking the bus by Ashwani Kumar resulting in death of Ashwani Kumar and Rajesh Kumar. However, counsel for the respondents could not show anything why the prayer of the claimants for grant of amount under no fault liability under Section 92-A of the Act could be accepted. I have given my thoughtful consideration to the rival submissions and have gone through the records of the case. The onus to prove that accident has taken place due to rash and negligent driving always lies upon the claimants unless the principles of res ipsa liquitor is attracted. In this case, the claimants examined Nihala Ram (PW-1), who FAO No. 348 of 1989 6 stated that he could not know who was negligent in the accident. Pushpinder Kumar (PW-2) has stated that truck was being driven on its side. The accident took place just by chance. So, the evidence of both these witnesses fall short to prove the fact that at whose fault accident in question took place. However, the respondents have produced convincing evidence to prove that accident has taken place due to rash and negligent driving of scooter by Ashwani Kumar resulting in his death and death of Rajesh Kumar. RW-1-Dharam Pal conductor of bus No. UHN 2049 and he has categorically stated that Rajesh Kumar was coming behind the bus and he tried to overtake at the culvert and struck against the truck of Air Force. Similar is the statement made by Manjit Singh driver of the offending vehicle. Prithipal Singh-respondent-driver has also stated in the same manner as stated by RW-1 and RW-3. So, the preponderance of the evidence tilt in favour of respondents. So on re-appreciation of evidence no ground for interference in the finding on issue No.1 is made out. Consequently, the same stands affirmed. However, the Tribunal has not granted any amount in respect of no fault liability under Section 92-A of the Act. Under the said provision of law, even if person driving the vehicle is negligent, the owner of offending vehicle is liable to pay the amount of Rs.15,000/- in respect of accident. Consequently, both the appeals stand partly accepted. The respondents-Union of India is directed to pay the amount of compensation of Rs.15,000/- to the each set of claimants in each case along with interest @ 9% p.a. (interest prevailing at the time of occurrence) from the date of filing the petition till realization. FAO No. 348 of 1989 7 A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE February 22nd, 2010 sv