IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (MVA) 78 of 2005. Date of decision November 11, 2009. Sh. Rakesh Kumar … Appellant. Versus Smt. Raj Kumari & others … Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellant Mr. Bhupender Gupta, Sr. Advocate, with Mr. Neeraj Gupta, Advocate. For respondents 1 to 4 Mr. Dinesh Thakur, Advocate. For respondent No. 5 In person. For respondent No. 6 Mr. G.D.Verma, Sr. Advocate, with Mr. B.C.Verma, Advocate. For respondent No. 7 Mr. B. M. Chauhan, Advocate. Dev Darshan Sud, J. (Oral) This appeal has been preferred by the owner of the Scooter involved in the accident. The brief facts of the case are that respondents - petitioners Raj Kumari, Shri Arjun, Shri Surjan and Parwati, being the widow, sons and mother of the deceased Ram Kumar, preferred this petition for compensation 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - pleading that on 22.11.2002, the deceased was a pillion rider on Scooter No. HP-23-2030 owned and driven by the appellant herein. The case set up was that the scooter collided with Jeep bearing No. HP-01-8384 on National Highway-88 at Dakri Chowk at around 7.30 P.M. Compensation to the extent of Rs.20 lakhs was claimed by the claimants pleading that the deceased was a shopkeeper who was earning about Rs.10,000/- per month. The appellant herein who was the owner and driver of the scooter pleaded that the fault was entirely that of Shri Gulam Mohammad Wani who was the owner of the Jeep, as according to the appellant, he was driving the jeep in a rash and negligent manner. The Insurance Company denied its liability to compensate the owners of the vehicle / deceased. On the settled issues, issue Nos. 1 and 4 were relevant so far as the question of apportionment of liability is concerned. The learned Tribunal while considering the evidence on record considered the statements of PW-2 Shri Jai Ram and PW-3 Shri Keshwa Nand who were eye witnesses to the accident. The appellant appeared as RW-1 and denied any wrong doing or act of negligence on his part. PW-1 Smt. Raj Kumari is the widow of - 3 - the deceased who stated that her husband died on 22.11.2002. He was a pillion rider of the scooter owned by Shri Rakesh Kumar. PW-2 Shri Jai Ram states that on the fateful day, at about 7.30 P.M., he was returning after attending the marriage of one of his relations at village Panol. He witnessed the accident which according to him took place due to rash and negligent driving of both the scooterist and the driver of the jeep as both were driving at a fast speed. In cross examination, he stated that the accident was witnessed by many persons. He states that FIR was lodged by one Shri Suresh Kumar. A suggestion was put to this witness that the deceased was in fact crossing the road at the time when the accident took place which suggestion was denied. PW-3 Keshwa Nand, who is also an eye witness, corroborates the evidence of PW-2 and states that the accident was the result of rash and negligent driving of both the drivers. Again a suggestion was put to this witness that the deceased was walking on foot at the time of accident, which he denied. RW-1 (appellant herein) appeared as his own witness and denied that the accident was the result of any rash and negligent act which could be attributed to him. RW-2 Jagdish Ram says that he was not present at the spot but he saw two - 4 - boys had fallen on the road and the spot where accident occurred and there was also a jeep at the spot. He says that he removed the injured boys. This is the totality of the evidence in so far as the witnesses are concerned. The learned Tribunal, after taking into consideration the entire facts, apportioned the liability 50:50 between the drivers of the two vehicles and granted compensation to the extent of Rs.3,36,000/- along with interest @ 9% per annum. Learned counsel appearing for the appellant submits that the learned Court below is not correct in assessing evidence and no liability could be fastened on the appellant as there was no evidence on record to show or establish that there was any negligence on his part. He submits that the learned Court was wrong in attributing 50% negligence to the appellant as the evidence of PW-3 is not clear as he himself admits that both the vehicles were traveling at a normal speed. Learned counsel has argued that FIR could not be taken on record as it was not proved on record but simply tendered in evidence. I have heard the learned counsel for the parties and gone through the record. I am unable to accept the contentions urged on behalf - 5 - of the appellant. I do not find any contradiction in the evidence of the witnesses. When the evidence of PW-2 and PW-3 is read in its totality, there is nothing material which can take away from the veracity of the facts established by both these witnesses, namely that the appellant as also the driver of the jeep were equally responsible for the accident. I do not find from the record that the learned Tribunal has based his judgment solely on the FIR. In the facts and circumstances of the case, I do not find any merit in this appeal which is accordingly dismissed. Pending application(s) shall also stand dismissed. There shall be no order as to costs. Cross Objection No. 101 of 2006. These have been preferred by Shri Sunil Kumar Gupta, respondent No. 4 before the learned trial Court and driver of Jeep No. HP 01-8384 which was involved in the accident. The submissions made are that there was no evidence on record to justify the finding that he was guilty of contributory negligence or that any fault can be attributed to him. I have already discussed the evidence on the issue while dealing with the appeal. I do not find that the learned Tribunal has erred - 6 - in any manner in considering the evidence of PW- 2 and PW-3. There is no evidence which has been led on behalf of the cross objector before the learned Court below to establish the contentions which he now seeks to raise. The cross objections are accordingly dismissed. There shall be no order as to costs. November 11, 2009 (PC). (Dev Darshan Sud), J.