FAO No.345 of 2007(O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... FAO No.345 of 2007(O&M) Decided on : September 04, 2009 Attar Singh ... Appellant VERSUS Rajinder Singh and others ... Respondents CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Ashwani Gaur, Advocate for the appellant. Mr.Mukesh Yadav, Advocate for respondent No.1. Mr.Nirmal Mittal, Advocate for respondent No.3. Mr.V.K.Sandhir, Advocate for respondents No.4 to 8. A.N.JINDAL, J.- Tempo driver Attar Singh (herein referred as the appellant) while challenging the award dated 5.8.2005 passed in favour of the claimants – respondents No.4 to 8 (herein referred as the claimants) awarding compensation to the tune of Rs.5,81,000/- against him, protests that in the absence of any pleadings and evidence against him, the Motor Accident Claims Tribunal, Sonepat (herein referred as the Tribunal) should not have awarded compensation against him. FAO No.345 of 2007(O&M) [ 2 ] Briefly stated the facts as unfolded in the claim petition are that on 8.5.2003, Rishi Parkash (deceased) while travelling in a three-wheeler owned by the appellant bearing Reg.No.HRH-3572 was going to Naina Tatarpur. When the appellant while driving his Tempo on correct side and at a normal speed reached about 1.5 km from Barwashni towards Gohana side, respondent No.1 - Rajinder Singh (herein referred as respondent No.1) while driving Maruti Car bearing Reg.No.DL4CC-5172 rashly and negligently came and struck into the Tempo, as a result of which Rishi Parkash (deceased) as well as other passengers suffered injuries. However, Rishi Parkash succumbed to his injuries on the way to Hospital. His post mortem examination was conducted in General Hospital, Sonepat. Respondent No.1 got lodged the FIR No.77 under Sections 279/304-A of the Indian Penal Code against the appellant. Due to the untimely death of Rishi Parkash, the claimants lodged the claim petition against the owners and insurer of the Maruti Car (respondents No.1 to 3 in the instant appeal) as also the appellant seeking compensation. While alleging that respondent No.1 was negligent and, thus, responsible for the death of Rishi Parkash. Respondents No.1 and 2 filed the written statement, denying the accident and further stating that the accident took place purely because of rashness and negligence of the appellant, the driver of the Tempo. Respondent No.2 is not the registered owner of the Maruti Car. The appellant was facing the trial in the criminal court. Respondent No.3 - Oriental Insurance Company also denied the accident and also disputed if the claimants were entitled to any compensation. FAO No.345 of 2007(O&M) [ 3 ] Vide order dated 5.3.2004, the Tribunal framed the following issues:- “1. Whether respondent No.1 drove Maruti Car No.DL-4CC- 5172 in a rash and negligent manner and caused the death of Rishi Parkash? OPP 2. If Issue No.1 is proved to what amount of compensation the claimants are entitled to and from whom? OPP 3. Whether the driver was not holding a valid and effective licence at the time of accident? OPR 4. Whether the petition is not maintainable? OPR 5. Relief.” In support of the allegations made in the petition, claimants examined Kamlesh (PW1), Ram Parshad (PW2), Devender (PW3), Mukesh Jain (PW4) and tendered the copy of post mortem report Ex.P1, copy of ration-card Mark-A and copy of salary certificate of the deceased Ex.P2. To the contrary, the respondents produced Dr.Varsha (RW1), Parveen Ahlmad (RW2), Rajinder (RW3) and tendered the copies of MLRs Ex.R1 and Ex.R2, copy of report under Section 173 of the Code of Criminal Procedure Ex.R3 and copy of site plan Ex.R4. The appellant Attar Singh also appeared in the witness box as RW4 and tendered his affidavit Ex.RW4/A and copy of the complaint Ex.RW4/B and produced Rajinder Singh ASI (RW5), Naresh HC (RW6), who proved the certified copies of the report Ex.RW5/A and RW5/2. The respondent - Oriental Insurance Company also tendered the copy of statement of Devender Singh Ex.R1, FAO No.345 of 2007(O&M) [ 4 ] copy of statement of Ram Parshad Ex.R6 and copy of the insurance policy cover note Ex.R7. Respondents No.1 and 2 also tendered into evidence the copies of Registration Certificate of the Maruti Car Ex.R8. The Tribunal after appreciating the entire evidence exonerated respondents No.1 to 3 from the liability, whereas, indicted the appellant as responsible for the accident and to pay the compensation. Hence, this appeal. Arguments heard. Record perused. The prime question involved in the case is, “whether the Court could hold the appellant as liable in the absence of any plea of rashness or negligence against him?” The claimants have primarily based their claim on the testimonies of Ram Parshad (PW2) and Devender (PW3) to substantiate the element of rashness and negligence. On the scrutiny of the testimonies of these two witnesses, it transpires that both of them are consistent with regard to the version that the accident took place on account of the negligence of respondent No.1. Rajinder (RW3), who being the driver of the Maruti Car was present at the spot and who lodged the First Information Report has contradicted the statements of the aforesaid witnesses. He while appearing in the witness box has stated that when they reached near the turning between Huleheri and Rattangarh, then the appellant Attar Singh while driving the Tempo rashly and negligently struck against the Maruti Car. Resultantly, all the occupants including the deceased suffered injuries. Further in order to falsify the statement of Devender (PW3) and FAO No.345 of 2007(O&M) [ 5 ] Ram Parshad (PW2), the appellant has proved the statements of Devender (Ex.R5) and of Ram Parshad (Ex.R6) made under Section 161 Cr.P.C, wherein, they got recorded that it was Attar Singh, who was at fault. Besides, the aforesaid documents, the Tribunal has also placed reliance on the report under Section 173 Cr.P.C, (Ex.R3) and the site plan (Ex.R4) to hold that it is the appellant, who was negligent. But on examination of the entire evidence on the record, this Court reaches the conclusion that the Tribunal was not right in holding the appellant responsible for the accident. Mere documents in the shape of report under Section 173 Cr.P.C, (Ex.R3), the site-plan (Ex.R4) and the statements recorded under Section 161 Cr.P.C, pertaining to Ram Parshad and Devender are of no help to prove the case against the appellant, whereas, there is direct evidence of the eye-witnesses that it was Rajinder – respondent No.1, driver of the Maruti Car, who caused the accident. Since the claimants set up the claim against respondent No.1, to have caused the accident and responsible for the death of Rishi Parkash in the motor vehicle accident, therefore, the Tribunal could not make out a new case, which was not on the record and award compensation to the claimants against the appellant. Though respondent No.1 has tried to prove that it was the appellant, who was responsible for the accident, but his testimony does not stand scrutiny of the Court. In any case since the claimants also have not set up any claim against the appellant, therefore, the Court could not hold him responsible, though it could discard the story set up by them. As such, the Tribunal was not justified in granting the compensation against him. At the same time, since the claimants have not FAO No.345 of 2007(O&M) [ 6 ] challenged the findings regarding exonerating respondents No.1 to 3 from the liability by way of filing any appeal, as such, no compensation could be awarded against the said respondents. As a matter of fact, this claim petition appears to have been filed designedly to grab compensation from respondents No.1 to 3 for the reasons that the appellant was not holding a valid driving licence and the Tempo owned by him was also not insured, whereas, respondent No.1, the owner of the Maruti Car, was insured by respondent No.3. Thus, the claimants dared to lodge the claim petition against owners and insurer of the Maruti Car, ignoring the original version regarding the negligence of Attar Singh – appellant, as recorded in the First Information Report. As an upshot of the above discussion, this appeal succeeds and the impugned award is set aside, dismissing the claim petition of the claimants. No order as to costs. September 04, 2009 ( A.N.JINDAL ) `gian' JUDGE