F.A.O.No. 787 of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O.No. 787 of 2000 Date of Decision :7.1.09 Sat Parkash and others Appellants. VERSUS Brijesh Kumar and another. Respondents. CORAM : HON'BLE MR. JUSTICE JORA SINGH. --- Present:- Mr. Ashok Gupta, Advocate, for the appellants. Mr.Gopal Mittal, Advocate, assisted by Mr.Baljit Singh, Deputy Manager, for United India Insurance Company. --- 1.Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the digest? JORA SINGH,J. Sat Parkash and others preferred this appeal against the award/order dated 24.12.1999, whereby claim petition filed by them under Section 166 of the Motor Vehicle Act, 1988 was dismissed by Motor Accident Claims Tribunal, Ambala. Sat Parkash and others filed a claim petition on the allegation that on 30.3.1994, respondent No.1 Brijesh Kumar was driving scooter No. DL-35C-3088. Sunil Kumar was on the pillion of the scooter. According to the appellants, when they reached near the Masjid of Azadpur, Brijesh Kumar-respondent No.1, who was driving the scooter rashly F.A.O.No. 787 of 2000 2 and negligently struck the same against a three wheeler and in the accident, Sunil Kumar fell down and received multiple grievous injuries. Sunil Kumar was shifted to Hospital but on 31.3.1994 Sunil Kumar had succumbed to his injuries. Accident was due to rash and negligent driving of Scooter No. DL-35C-3088 by its driver Brijesh Kumar . Upon notice, respondent No. 1 filed written statement by admitting this fact that he was driving Scooter No. DL-35C-3088 and Sunil Kumar was on the pillion of the scooter, but the accident was not due to his fault. Respondent No.2 filed separate written statement and contested the claim petition inter-alia on the ground that there was no accident. False First Information Report was got registered simply to get compensation. Scooter was being driven without having a valid driving licence. From the pleadings of the parties, following issues were framed:- 1. Whether the accident in question had taken place on account of rash and negligent driving of scooter No. DL-35C-3088 by its driver respondent No.1 Brijesh Kumar ?OPP 2. To what amount of compensation the claimants are entitled to and from whom?OPP 3. Whether the respondent No.2 Insurance Company is not liable to pay any compensation in view of the preliminary objections raised by it in the written statement ?OPR F.A.O.No. 787 of 2000 3 4. Relief. Evidence was led by both the parties. After hearing learned counsel for the parties and considering the evidence on the file, claim petition was ultimately dismissed vide order dated 24.12.1999. Feeling aggrieved against the Award dated 24.12.1999, appeal was preferred by Sat Parkash and others. Notice was issued to the respondents. I have heard learned counsel for the parties and have gone through the evidence on the file very carefully and thoroughly. Learned counsel for the appellants argued that Sunil Kumar deceased was on the pillion of Scooter No. DL- 35C-3088 and the scooter was being driven rashly and negligently by Brijesh Kumar-respondent No.1. In the accident, Sunil Kumar received injuries and was shifted to Hospital, on the next day i.e. 31.3.1994. Sunil Kumar had succumbed to his injuries. First Information Report was registered. Respondent No.1 was the best witness to state on oath that he was not at fault. Due to non-appearance of respondent No.1 an adverse inference has to be drawn against the respondent. Rajesh Kumar is the eye witness. He was supported to the version of the respondents by stating that accident was due to rash and negligent driving of scooter No. DL-35DC-3088 by respondent No.1. Death of Sunil Kumar was in the hospital. Injuries were suffered in road F.A.O.No. 787 of 2000 4 side accident, but learned Tribunal did not appreciate the legal and factual position and the claim petition was wrongly dismissed. Learned counsel for the respondents argued that there was no accident as alleged by the appellants. Rajesh Kumar is not the eye witness. No FIR. No post mortem examination. Evidence was led contrary to the pleadings. Rajesh Kumar when cross examined admitted that scooter was hit from back side by a three wheeler, whereas appellants pleaded that scooter driven by respondent No.1 was struck against TSR driver, therefore, the petition was rightly dismissed. According to the appellants, Scooter No. DL-35C- 3088 was being driven by respondent No.1 Brijesh Kumar. Sunil Kumar (deceased) was on the pillion of the scooter. When scooter was opposite to Maszid then it was struck against three wheeler but there is no First Information Report. No post-mortem report on the file. As per claim petition, accident was not witnessed by Rajesh Kumar. But Rajesh Kumar when appeared as PW1 then stated that he was on a scooter No. DLIS B 8751 and was near Azadpur. He was following a scooter driven by Brijesh Kumar and Sunil Kumar was on the pillion of the scooter. One three wheeler came from back side and was struck against the scooter driven by Brijesh Kumar. Statement of Rajesh Kumar is contrary to the pleadings. There is not a word in the claim petition that Rajesh Kumar was on a separate scooter and F.A.O.No. 787 of 2000 5 was following the scooter of Brijesh Kumar. Scooter of Brijesh Kumar was near the crossing of Azadpur. One three wheeler came from the back side and had struck against the scooter of Brijesh Kumar. If Rajesh Kumar is the eye witness, then he should have reported the matter to the police. No explanation why report was not lodged. Smt. Sushila Rani (PW2) is the mother of the deceased but she is not the eye witness. If Sunil Kumar had received injuries in the accident and was shifted to hospital, then why no post- mortem examination. Ex.P-2 is the certificate issued by Dr. Sanjeev Aggarwal, but the question is whether accident was due to rash and negligent driving of scooter No. DL-35C-3088 by Brijesh Kumar or the accident was due to rash and negligent driving of three wheeler by its driver. Till today, no complaint to any authority that matter was reported to the police, but no First Information Report was registered with the connivance of driver of the three wheeler. If the accident was due to rash and negligent driving of three wheeler, then driver of the three wheeler should have been impleaded as one of the respondents. No explanation why driver, owner and Insurance Company of the three wheeler were not impleaded as one of the respondents. Respondent No.1 was impleaded as driver of the scooter but he did not appear as his own witness. Respondent No.1 filed written statement by admitting the claim of the appellants but respondent No.1 failed to appear intentionally to avoid cross examination by the Insurance Company. Claim petition seems to have been F.A.O.No. 787 of 2000 6 filed by impleading respondent No.1 simply to get compensation from the Insurance Company. If the accident was witnessed by Rajesh Kumar, then why this fact was not mentioned in the claim petition. As per claim petition, Sunil Kumar was shifted to hospital. Rs.15000/- was spent on his treatment, but complete address of the hospital was not mentioned. Receipts regarding purchase of medicine etc are not on the file. No plea that after the accident, Sunil Kumar was shifted to a private hospital of Dr. Sanjeev Aggarwal. In case death was in the hospital of Dr. Sanjeev Aggarwal and the injuries were suffered in road side accident then why the matter was not reported to the police and why dead body was not shifted to the Civil Hospital for post mortem examination. All this shows that there was no accident as alleged by the claimants and in the accident, Sunil Kumar did not receive injuries. So, finding of the Tribunal on issue No.1 is upheld. No other submission was put forward. In view of all discussed above, there is no infirmity and illegality in the impugned award and the same is upheld. Appeal without merit is dismissed. 7.1.09 ( JORA SINGH) Anoop JUDGE