F.A.O. No. 3852 of 2010 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 3852 of 2010 (O&M) Date of Decision: December 09, 2011 Kuldeep .... Appellant Versus Smt. Kanta Devi and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present Mr. O.P.Sharma, Advocate, for the appellant. Mr. Naveen Bhardwaj, Advocate, for respondents No. 1 to 4. Mr. Neeraj Khanna, Advocate, for, Mr. Ravinder Arora, Advocate, for respondent No.5-Insurance Company. VIJENDER SINGH MALIK, J. This is an appeal brought by the driver of the offending vehicle who alone has been held liable to pay compensation in a sum of ` 2,41,000/- to the claimants, who are dependents of Jhandu Ram (deceased), by the Motor Accidents Claims Tribunal, Bhiwani (for short, "the Tribunal") vide award dated 18.2.2010. The claimants had brought the claim petition under section 166 of the Motor Vehicles Act, 1988 (for short, “the Act”). Their F.A.O. No. 3852 of 2010 2 .. case is as under: On 16.9.2008, Jhandu Ram purchased window panes from Tosham as construction work was going on of his house. He was accompanied by his brother Bir Singh. They loaded the window panes in a pick-up dala bearing registration No. HR-61- 8228, which was driven by respondent No.1. Respondent No.1 started driving the same in a rash and negligent manner. Jhandu Ram and Bir Singh requested respondent No.1 to drive the vehicle at a moderate speed but he did not pay any heed to their request. At about 5.00 p.m. when the pick-up dala was in between villages Bushan and Rodha, respondent No.1 suddenly applied brakes on account of which, Jhandu Ram fell down and suffered multiple injuries. Bir Singh also suffered minor injuries. Jhandu Ram died before he could even be shifted to General Hospital, Bhiwani. A case was got registered regarding this accident with Police Station, Behal. Jhandu Ram is claimed to have been aged 35 years at the time of accident and he was earning ` 10,000/- per month by working as carpenter and doing agricultural work. A sum of ` 30,000/- is claimed to have been spent on transportation of the dead body and last rites. Therefore, a sum of ` 25,00,000/- is claimed as compensation by the claimants. Respondent No.1 has denied the accident to have taken place as alleged by the claimants. According to him, the deceased was taking articles to his village Gopalpura in the pick-up and he was sitting with his goods therein. It is further F.A.O. No. 3852 of 2010 3 .. averred that the vehicle was being driven at a normal speed but as the road was badly damaged and there were pits in the road, the deceased fell down on account of a jerk suffered by the vehicle and suffered multiple injuries. It is, therefore, denied that the accident took place due to rash and negligent driving of the vehicle. The other averments of the claimants are denied. Respondent No. 2, the insurer has pleaded collusion between the claimants and respondent No.1. It is also averred that the deceased was not earning any thing. The expenses alleged to be incurred in the last rites are also denied. Respondent No.1 is denied to have a valid driving licence at the time of accident. Consequently, it is pleaded that the insured had violated the terms and conditions of the insurance policy at the time of accident. It is also averred that no information was given by the insured to the answering respondent about the accident. The amount claimed as compensation is said to be highly exaggerated. On the pleadings of the parties, the following issues were framed the Tribunal. 1. Whether the accident took place due to rash and negligent driving of pick-up Dalla bearing registration No. HR61/8228 by respondent No.1 Kuldeep, resulting into death of Jhandu Ram as alleged? OPP 2. If issue No. 01 is proved, whether claimants are related to deceased Jhandu Ram as F.A.O. No. 3852 of 2010 4 .. alleged? OPP 3. If issue Nos. 01 and 02 are proved, whether claimants are entitled for compensation, if so, to what amount and from whom? OPP 4. Whether petition is vague, indefinite, not filed in accordance with provisions of law and is not maintainable? OPR 5. Whether petitioners are estopped from filing this petition by their act and conduct? OPR 6. Whether petitioners are estopped from filing this petition by their act and conduct? OPR 7. Whether petition is bad for non-joinder and mis-joinder of parties? OPR 8. Whether petition is result of collusion in between petitioner and respondent No.01? OPR-02 8(A) Whether respondent No. 01 was not having a valid driving licence and vehicle in question was being driven in violation of terms and conditions of insurance policy at the time of accident? OPR-2 9. Relief.” Parties led their respective evidence. Hearing learned counsel representing them, learned Tribunal awarded compensation in a sum of ` 2,41,000/- to the claimants vide the F.A.O. No. 3852 of 2010 5 .. impugned award. However, the liability to pay the compensation has been held to be of respondent No.1 -appellant because of the finding recorded by the Tribunal to the effect that the deceased was a gratuitous passenger in a goods carriage and, consequently, the insurance company could not be held liable to indemnify the insured. Aggrieved by the aforesaid award, whereby liability has been fixed on him, the owner-cum-driver of the pick-up has brought this appeal. I have heard Mr. O.P.Sharma, learned counsel for the appellant, Mr. Naveen Bhardwaj, learned counsel for respondents No. 1 to 4 and Mr. Neeraj Khanna, learned counsel for respondent No.5-Insurance company. I have gone through the record carefully. Learned counsel for the appellant has submitted that on 17.9.2008, Bir Singh, the brother of the deceased, lodged the First Information Report (Ex. P4) in which he had mentioned two facts. According to him, he had named Bhim Singh son of Dalip Singh as driver of the offending vehicle and had described the pick-up as displaying “A/F” (applied for) in the name of number plate. According to him, after about 2-1/2 months, i.e., on 4.12.2008, Bir Singh made a statement to the police claiming that the vehicle was actually driven by Kuldeep and not Bhim Singh. According to him, Bir Singh could not have committed a mistake in naming the driver of the pick-up if it was Kuldeep and not Bhim Singh, if he was travelling in the vehicle at the time of F.A.O. No. 3852 of 2010 6 .. accident and had even requested the driver to drive the vehicle slowly. He had further submitted that the vehicle and the driver were subsequently changed as it was found that Bhim Singh did not have an insurance cover taken on his vehicle and so, search was made for a pick-up, which was insured at the time of accident and the same was substituted later on with the help of the police. He has submitted that in these circumstances, respondent No.1 could not be held responsible for causing this accident by rash and negligent driving of pick-up no. HR-61- 8228. It is a case where respondent No.1, who is now before me as appellant, has admitted in his written statement involvement of his vehicle in the accident, though he has denied himself to be rash or negligent in driving the same at the time of accident. It is his plea in the written statement that he was driving the pick-up at normal speed but as the road was badly damaged and there were pits in the road, the deceased fell down on account of jerk suffered by the vehicle and sustained multiple injuries. After taking this plea in the written statement, learned counsel for the owner-driver cannot be heard arguing that the accident did not take place involving the vehicle of Kuldip - appellant. The finding of learned Tribunal that the deceased was not carrying goods in his vehicle and that the story about the same had been cooked up later on just to get compensation has not been questioned before me. Learned Tribunal found F.A.O. No. 3852 of 2010 7 .. contradictions between the initial story and the evidence produced before it. Learned Tribunal noticed the statement of Bir Singh PW-2, the lodger of the FIR, who had stated in the FIR that he was coming back along with Jhandu Ram from Khanak and that some other passengers numbering 10-12 were also travelling in the pick-up. This stand of Bir Singh comes in conflict with the later plea that Jhandu Ram was carrying window panes in the pick-up and was travelling with his goods. Once the finding of learned Tribunal that the vehicle involved in the accident is goods carriage and the deceased was travelling in the same and was a gratuitous passenger, the insurance company cannot be held liable to pay the compensation. In these circumstances, I find no force in the submissions made by learned counsel for the appellant. Consequently, the appeal is dismissed. (VIJENDER SINGH MALIK) JUDGE December 09, 2011 som