IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: FAO.No. 73/2005. Date of Decision:4th December, 2008. Gopal Dass. …Appellant. Versus: Asis Sethi and others. …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 . For the appellant: Mr.S.D.Gill Advocate. For Respondent-1&2. Mr. Ramakant Sharma, Advocate. For respondent No.3. Mr.Harish Behl, Advocate. Sanjay Karol, J(Oral) . The present appeal arises out of the award dated 1st December, 2004 passed by the Motor Accident Claims Tribunal, Hamirpur, H.P. in MAC Petition No. 37 of 2002 titled as Gopal Dass Vs. Asis Sethi and others. The appellant-claimant filed a petition under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as the ‘Act’) claiming compensation for the injuries suffered by him in a road accident. On 22nd August, 2001 claimant allegedly was hit at Nadaun, H.P. by scooter No. HP- 55-3350 owned and driven by Sh. Asis Sethi-respondent No.1 herein. The said vehicle was insured by M/s United India Insurance Company Ltd-respondent No.3 herein. On the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 pleadings of the parties, the Tribunal framed the following issues: 1. Whether the petitioner received the injuries on his person in a motor vehicles accident occurred at upper side of Beas Bridge at Nadaun on 22.8.2001 due to the rash and negligent driving on the part of respondent No.1 owner-cum-driver of scooter HP-55-3350? ..OPP. 2. If issue No.1 is held in the affirmative, to what amount of compensation the petitioner entitled and from whom? ..OPP. 3. Whether respondent No.1 was not having valid and effective driving license to drive the scooter involved in the accident, if so, to what effect? OPR-2 4. Whether the petition is not maintainable as alleged?. OPR-1. 5 Relief. Opportunity to adduce evidence was afforded to the parties. Based on the material on record (oral and documentary), the Tribunal dismissed the petition holding that the claimant could not prove that the accident took place with the vehicle in question and that the said vehicle was being driven by respondent No.1. I have heard learned counsel for the parties and also perused the record. 3 Mr.Ramakant Sharma, learned counsel for respondent No.1 has placed on record a copy of the judgment delivered by the Judicial Magistrate, Ist Class, Nadaun, District Hamirpur, H.P. in Criminal Case No. 256-II-2001, RBT No. 325-II-03 titled as State Vs. Ashish Sethi from which it is evident that respondent No.1 against whom F.I.R. pertaining to the accident in question was registered and who was charged with an offence under Sections 279, 337 and 338 I.P.C. read with Section 187 of the Motor Vehicles Act was not only acquitted but it was specifically held that neither the vehicle in question nor the accused were involved in the accident. In order to prove its case the claimant examined seven witnesses. The statements of claimant-Gopal Dass (PW-2) and Sh. Prem Chand (PW-4) are relevant for the purpose of adjudication of the appeal. In rebuttal the respondent No.1 examined himself as RW-1. From the testimony of PW-1, it is clear that he was not aware of the number of the scooter involved in the accident and it was his relative Sh. Pawan Kumar who had informed him of the same. Importantly, the said Sh. Pawan Kumar was not examined by the claimant. He has further deposed that he did not recognize the person who was driving the scooter. According to him the accident took place in the presence of Sh. Kaushal Singh and Prem Chand. 4 From the statement of Sh.Kaushal Singh (PW-5) it is evident that he has not been able to identify either the scooterist or the scooter. He has categorically deposed that the scooterist had fled away from the site prior to his having reached the place of the occurrence of the accident. Presumably he did not witness the occurrence of the accident. He has further deposed that neither did he know the name nor could he recognize the scooterist. Importantly, he deposed that he never disclosed the number of the scooter to any person. The deposition of PW-4, in fact, renders the entire incident to be doubtful. As per his version the incident took place on 8th June, 2001 whereas as per the statement of PW- 2 the incident took place on 22nd August, 2001. He has deposed that at the place of the accident there was darkness. Be that as it may be even this witness does not disclose the name of the scooterist or the number of the scooter. He knew the number of the scooter yet he did not disclose the same in the Court but, however, only stated that the same was disclosed to the Police. This witness has contradicted the record. The court below has considered copy of the F.I.R. (Ext.PW-3/A) which was got recorded at his instance wherein he has deposed as under: “Today on 22.8.2001 at 8.30 PM when reached on upper side of Nadaun Beas bridge, a scooter came from behind from Jwalaji side and struck against brother Gopal who fell down on the road due to 5 which suffered injuries on head, mouth, left leg. I do not know scooter number. Thereafter, in a jeep trolla brought brother to Nadaun hospital. Accident was caused due to rash and negligent driving of the scooter drive. My brother has been referred to Hamirpur. Action be initiated.” The witnesses are not only closely related to each other but have close relations with each other. From the testimony of the aforesaid witnesses even on the basis of preponderance of probability, it cannot be said that either the vehicle in question or respondent No.1 were involved in the accident. At least the Investigating Officer who investigated the F.I.R. ought to have been examined to prove the factum of involvement of respondent No.1 in the said accident. In any event now there is a judicial finding in favour of respondent No.1 that he was not involved in the accident at all. The Tribunal has considered the entire material and correctly appreciated the same. I see no illegality, infirmity or irregularity in the impugned award. The appeal is accordingly dismissed. (Sanjay Karol), Judge. December 4, 2008(R)