IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 354 of 2005 alongwith FAO No.359 of 2005. Judgment reserved on:22.12.2008. Date of decision : 1st January,2009. FAO No.354 of 2005: Oriental Insurance Company Ltd. Appellant Versus Smt.Savitri Devi and others Respondents FAO No.359 of 2005: Sh.Partap Singh Appellant Versus Smt.Savitri Devi and others Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1. Yes. In FAO No.354 of 2005: For the Appellant: Mr. Ashwani Kumar Sharma, Advocate. For the Respondents: Mr. M.S. Guleria, Counsel for respondents 1 to 4. In FAO No.359 of 2005: For the Appellant: Mr.G.C.Gupta, Senior Advocate with Mr.Amardev Advocate. For the Respondents: Mr.M.S. Guleria, counsel for respondents No. 1 to 4. Mr.Ashwani Kumar Sharma,Advocate for respondent No. 5. Deepak Gupta, J . By this judgment the aforesaid two appeals are being decided since they arise out of a common award delivered by the 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 learned Motor Accident Claims Tribunal, Mandi,H.P. in claim petition No. 59 of 2002 decided on 3.6.2005. 2. A claim petition was filed under Section 166 of the Motor Vehicle Act for grant of compensation in respect of the death of deceased Mast Ram by his widow , two minor sons and mother. In the claim petition it was alleged that when the deceased Mast Ram was going from village Baloh to Barmana on his Scooter bearing No. HP-23-3111 on 6.2.2002, he was hit by Tractor No. HP- 23-3453 which was owned and driven by Partap Singh. According to the claimants this accident was caused due to the rash and negligent driving of the driver of the tractor. 3. This petition was contested by Shri Partap Singh and by the Oriental Insurance Company which was the insurer of the tractor. One of the main grounds raised by the present appellants was that no such accident had taken place with the tractor in question. The learned Motor Accident Claim Tribunal held that the deceased had died due to negligent driving of Shri Partap Singh and awarded compensation of Rs.7,01,200/-. The Insurance Company was held liable to pay compensation on the ground that the vehicle was duly insured by them. This award has been challenged by the Insurance Company in FAO No. 354/2005 and by the owner Partap Singh in FAO No. 359/2005. 4. I have heard Shri Gian Chand Gupta, learned Senior counsel appearing on behalf of the owner, Shri Ashwani Sharma, 3 learned counsel appearing on behalf of the Insurance Company and Shri M.S. Guleria, learned counsel appearing on behalf of claimants. 5. The main ground of attack to the impugned award is that though the accident is alleged to have taken place on 6.2.2002, the FIR in relation to the accident was lodged on 28.3.2002. This FIR was lodged at the instant of claimant No.1. According to the appellants this FIR was lodged with the ulterior purpose of grabbing compensation even though no motor vehicle accident had taken place. The appellants contended that no reliance can be place on the statement of PW4 Dharam Singh since he is an interested witness and it is apparent that he was not present on the spot. On the other hand, Shri M.S. Guleria contended that the award of the learned Tribunal is just and calls for no interference. He submits that claimants have given plausible reasons for the delay in lodging the FIR and the claim petition should not be rejected on technical grounds. 6. To appreciate the rival contentions of the parties it would be appropriate to refer to the relevant evidence on record. PW1 Smt. Savitri Devi is the widow of the deceased. She states that her husband died on account of an accident which took place on 6.2.2002. According to her FIR could not be lodged earlier since her husband was under treatment at Dehar, then at Bilaspur and finally at PGI, Chandigarh. 7. PW4 Shri Dharam Singh states that on 6.2.2002 he was going to Ghumarwin via Dehar on his own scooter and a tractor 4 was going ahead of him which was driven by Partap Singh at a high speed. The deceased Mast Ram came from the opposite side driving a scooter and the tractor driver hit the scooter and Mast Ram fell on the road. Thereafter, he and Partap Singh owner of the tractor took the injured Mast Ram to PHC, Dehar where the injured was given first aid. 8. In cross examination he admits that the petitioner is his wife’s sister. He states that a jeep was brought by Partap Singh from Dehar to take the injured to the dispensary but he could not give the name of the person whose jeep was brought. According to him he thereafter, went to inform the claimant about the accident and did not go to the police station to lodge the FIR. It has been suggested to him that he was not present on the spot and he did not witness the accident. He states that 10 to 20 other persons gathered on the spot and out of them 5/7 persons accompanied them in the jeep. He could not name any of these persons. He also states that he did not accompany the injured to Bilaspur Hospital. 9. This is the entire oral evidence led by the claimant. Certain documents have been tendered in evidence including the so called post mortem report Ext. P5. Shri Partap Singh owner and driver of the tractor appeared as RW1. According to him no accident took place with his tractor. His version is that when he was going to his house from Dehar the deceased came on the scooter from the opposite side. The scooter skidded and the deceased fell down and suffered injuries. Shri Partap Singh then went to Dehar on his tractor, 5 brought a jeep to the spot where Mast Ram was lying unconscious, and then took him to Dehar hospital in the jeep. From Dehar the deceased was referred to Bilaspur. He has denied the presence of PW4 Dharam Singh on the spot. He states that the wife and brother of the deceased reached Bilaspur. In cross examination he has admitted that a criminal case for rash and negligent driving is pending against him and his tractor was impounded by the police. RW2 is another Mast Ram. This witness states that on 6.2.2002 Partap Singh was travelling on a tractor ahead of him and no accident took place in his presence. He states that Partap Singh took the injured to Dehar hospital for treatment. He also states that deceased did not strike against the tractor of Partap Singh and that the scooter skidded. He has also denied the presence of Dharam Singh on the spot. In cross examination by the petitioner he states that he does not know whether deceased Mast Ram struck against the tractor of Partap Singh since he was at some distance at that time. 10. The only explanation given for the delay in lodging the FIR by the widow is that her husband remained under treatment and was unconscious from the date of accident till his death. The death of the deceased was took place in PGI on 11.3.2002. Surprisingly, neither in the FIR Ext. P7 nor in her statement before the learned Motor Accident Claims Tribunal there is any mention as to from where the widow derived the knowledge that her husband died in an accident involving the tractor in question. Admittedly, she was not present on the spot. She was bound to give the name of a person 6 who informed her about the accident. The name of Dharam Singh does not find mention in the FIR. A perusal of the FIR shows that the widow lodged the FIR because at the time of settlement of some life insurance claim of the deceased, she was asked to lodge an FIR. A bare reading of the FIR does not disclose any offence since there is no allegation of rash and negligent driving by the owner/driver of the tractor. The only allegation is that a collision took place between the Tractor and the Scooter 11. The presence of PW4 Shri Dharam Singh on the spot is extremely doubtful. If he had been present on the spot and had gone to the hospital he would have definitely told the doctor that Mast Ram had suffered injuries in an accident. In that event the doctor was bound to issue a medico legal certificate and would have also informed the police. The petitioners for reasons best known to them have not produced the record from the PHC, Dehar, the hospital of Bilaspur or the hospital of Sundernagar. The only document produced is Ext.P5 which shows that the deceased was admitted in PGI, Chandigarh on 10.3.2002 and died on 11.3.2002 at 6.00 a.m. This is not a post mortem report. There is no proof as to where Mast Ram had been treated from 6.2.2002 till 10.3.2002. Even, assuming that he was under treatment and unconscious there is no reason why the family members could not have informed the medical authorities that the injured suffered the injuries in a motor vehicle accident, especially, when according to petitioner No.1, he had himself witnessed the accident and had gone with the injured to the hospital . 7 12. Non filing or delayed filing of the FIR is not fatal in MACT Claim cases. However, the claimants must prove by leading some cogent and reliable evidence that in fact the accident did take place. In this case, other than the testimony of Dharam Singh there is no other evidence. As discussed above, the testimony of Dharam Singh is not believable. He has given false evidence just to help his relatives. There is no other contemporaneous evidence proved on record to show that an accident did take place. Even according to the claimant a number of people had gathered at the spot. Deceased Mast Ram was shifted to the hospital at Dehar in jeep. There is no explanation as to why the doctor from this hospital was not examined. Why was the medical record withheld by the claimants? There is also no explanation why no efforts were made to trace out the driver of the jeep in which Mast Ram was taken from the spot of the accident to Dehar. Dehar is a small village and it would not have been to difficult to trace the person in whose jeep Mast Ram was shifted to hospital. The claimants have not been cared to prove any record of the alleged life insurance claim on account of the death of the deceased. Who was the person who asked the widow to lodge the FIR has not been mentioned. Version of the claimants is totally unbelievable and it appears that one and half months after the accident took place the FIR was lodged only with a view to grab some compensation. I am therefore, clearly of the view that the accident had not taken place with the tractor in question and, therefore, there is no question of any compensation being awarded to them. 8 13. It has been urged by Shri M.S. Guleria that the appeal on behalf of at the insurance company and the owner is not maintainable. According to him, the insurance company can not be permitted to challenge the award on the issue of negligence or quantum. He also submits that the owner cannot be said to be an aggrieved party, since, the Tribunal had directed the insurance company to pay the compensation. 14. On the other hand, Sh. Ashwani Sharma submits that since insurance company is raising a plea that the accident itself did not occur. It is not challenging the award on the issue of negligence but is specifically challenging the jurisdiction of the Motor Accident Claims Tribunal to make the award. Shri Gian Chand Gupta, the learned counsel for the owner submits that the owner is an aggrieved party and is entitled to file the appeal under Section 173 of the Motor Vehicle Act,1988. 15. So far as the appeal of the insurance company is concerned I am of the considered view that the same is not maintainable. When the petitioner files the claim petition alleging that the victim suffered injuries or died in an accident involving a motor vehicle, the jurisdiction to decide whether such an accident took place lies with the Tribunal. If the Tribunal holds that the accident did take place the insurance company can not be permitted to challenge the same. 16. However, as far as the appeal of the owner is concerned I am of the considered view that the same is maintainable. The Apex Court in V. Subbulakshmi & Ors Vs. S.Lakshmi & Anr.(2008)(2) 9 Scale -218 has considered the entire law on the subject. After considering the earlier judgements of the Apex Court in Narendra Kumar and Anr. Vs. Yarenissa and Ors.(1998)9 SCC 202); Chinnama George and Ors. Vs. N.K.Raju & Anr.(2000) 4 SCC 130 National Insurance Co.Ltd., Chandigarh vs. Nicolletta Rohtagi and Ors.,(2002) 7 SCC 456 and held as follows:- 12. “…In Chinnamma George, the owner did not challenge the findings of the Tribunal that the bus was being driven by the driver in a rash and negligent manner. It was therefore, held that the owner was not an aggrieved person to maintain an appeal. It was in the aforementioned context this Court observed that none of the grounds as laid down under sub-Section (2) of Section 149 of the Act having been satisfied, an appeal by the Insurance Company was not maintainable, observing that an insurer having a limited area to defend the claim petition, it cannot circumvent the same by associating itself with the owner/driver in an appeal when the owner/driver is not an aggrieved person and, thus, cannot be allowed to mock at the law. 13. In the instant case, the owner of the us was an aggrieved person. He could maintain an appeal of his own. Section 173 of the Act confers a right on any aggrieved person to prefer an appeal from an award. 14. In the present case, it is not necessary for us to go into the larger question as to whether having regard to the bar contained in sub- 10 Section(2) of Section 149 of the Act, the second respondent could have preferred an appeal questioning the quantum of compensation, as the High Court held that the appeal, even after deletion of the second respondent from the array of the parties, the appeal preferred by the first respondent was maintainable…” 17. In the present case the owner has not only challenged the quantum but has also challenged the occurrence of the accident itself. He is, therefore, an aggrieved party as held by the Apex Court in V. Subbulakshmi’s case (supra). Therefore, the appeal filed by the owner was maintainable. In view of the aforesaid discussion, it is held that the appeal filed by the Insurance Company is not maintainable. However, since I have held that no accident had taken place, the appeal filed by the owner is allowed and the award of the learned Tribunal dated 03.06.2005 in claim petition is set aside and the claim petition filed by the claimants is dismissed as they failed to prove that Mast Ram died in a motor vehicle accident involving the Tractor owned and driven by Shri Partap singh. Since, the claim petition has been dismissed, the insurance company cannot be held liable to indemnify the owner of the Tractor. In view of the peculiar facts of the case that there shall be no order as to costs. January 1st 2009 ( Deepak Gupta ), J. Rita