IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 796 of 2006 Master Aasheesh & others ...Appellants Versus Madan Lal and others ...Respondents With Appeal From Order No. 795 of 2006 Sanjay Kumar ...Appellant Versus Madan Lal & others …Respondents Mr. Mohd. Azim, Advocate on behalf of Mr. B.S. Parihar, Advocate for appellants-claimants Mr. V.K. Kohli, Senior Advocate assisted by Mr. I.P. Kohli, Advocate for Oriental Insurance Co. Ltd. Mr. Lalit Miglani, Advocate for respondent no. 3-Smt. Aneeta Dated: 24-04-2009 Hon’ble B.C. Kandpal, J. Since both the appeals arise out of same accident and similar question of fact of law is involved in both the appeals, hence, they are being decided together. 2- A.O. No. 796 of 2006, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellants-claimants against the judgment and award dated 02.09.2006 passed by M.A.C.T./District Judge, Udham Singh Nagar, in M.A.C.P. No. 67 of 2004, Master Aasheesh and others versus Madan Lal and others. 3- A.O. No. 795 of 2006, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant-claimant against the judgment and award dated 02.09.2006 passed by M.A.C.T./District Judge, Udham Singh Nagar, in M.A.C.P. No. 66 of 2004, Sanjay Kumar versus Madan Lal and others. 4- Brief facts of the case as narrated in the claim petition are that on 19.11.2003 at about 9.30 p.m. deceased-Pradeep Kumar along with his younger brother Sanjay Kumar was coming from Bazpur towards his home at Village Mohali Jangal by a Scooter and when they reached near Panchakki Pulia at Bazpur Bairia Road, Truck No. U.P.02A/4225 being driven by its driver rashly and negligently came from the side of Bairiya and hit the scooter from the front, as a result of which Pradeep Kumar died at the spot and Sanjay Kumar grievously injured. According to claim petition, deceased Pradeep Kumar was 31 years of age at the time of accident and he used to earn a sum of Rs.4000/- per month from the business of general merchant and confectionery and also a sum of Rs.1000/- from agriculture. It has been alleged that injured-Sanjay Kumar also used to earn a sum of Rs.4,000/- per month by working in M/s Pradeep Departmental Store. It has also been alleged that in this accident right leg of Sanjay Kumar was amputated and he became disabled. It has further been alleged that about Rs.8,00,000/- has been spent on the treatment of Sanjay Kumar. Thus, the claimants claimed a sum of Rs.10,00,000/- and Rs.15,00,000/- respectively as compensation against the opposite parties. 5- Opposite party no. 1-Madan Lal contested the claim by filing his written statement admitting the factum of registration of truck in question in his name and insurance of truck with Oriental Insurance Co. Ltd. and denied the contents of the claim petition for want of knowledge. In the additional pleas, it has been stated that driver of truck of answering opposite party was Dharmendra Singh, who was having valid driving licence on the date of accident and all the papers of truck in question were valid and therefore liability to pay the compensation, if any, is of insurance company. 6- Opposite party no. 2-Oriental Insurance Co. Ltd. contested the claim by filing its written statement denying the contents of the claim petition for want of knowledge. In the additional pleas, it has been stated that driver of Truck No.U.P.02A-4225 is a necessary party in the claim petition and driver of truck was not having valid driving licence on the date of accident and claim petition is bad for non- joinder of registered owner as well as insurer of scooter as party and on these grounds claim petition deserves to be dismissed. 7- Opposite party no. 3-Smt. Aneeta contested the claim by filing her written statement admitting therein the contents of the claim petition and stated that she was married with Sushil Kumar Mittal and her son Aasheesh is also living with her, therefore, she may also be given compensation. 8- The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties dismissed both the claim petitions (M.A.C.P. No. 67 of 2004 and M.A.C.P. No. 66 of 2004), vide impugned judgment and order dated 02.09.2006. 9- Feeling aggrieved by the aforesaid impugned judgment and award, appellants-claimants (Master Aasheesh & others) have preferred A.O. No. 796 of 2006, whereas appellant-claimant (Sanjay Kumar) has preferred A.O. No. 795 of 2006, before this Court. 10- Heard Mr. Mohd. Azim, Advocate on behalf of Mr. B.S. Parihar, Advocate for appellants-claimants, Mr. V.K. Kohli, Senior Advocate assisted by Mr. I.P. Kohli, Advocate for Oriental Insurance Co. Ltd., Mr. Lalit Miglani, Advocate for respondent no. 3-Smt. Aneeta and perused the record. 11- The main controversy involved in this case is whether the said accident occurred on account of rash and negligent driving of driver of Truck No. U.P. 02A-4225, or not. 12- To prove the above factum, towards the documentary evidence claimants filed copy of the F.I.R. (paper no. 5C/1), copy of post-mortem report, copy of Khatauni and objection (paper no. 35C) and copy of statement of Sanjay Kumar recorded in M.A.C.P No. 66/2004. Opposite party no. 2 filed copy of Final Report (paper no. 25C) and copy of statement of Sanjay Kumar recorded under Section 161 of C.P.C. The record reveals that an F.I.R. was lodged in Police Station Bazpur on 19.11.2003 against an unknown vehicle and thereafter after three days on 22.11.2003 another F.I.R. (paper no. 5C/3) was lodged, in which it has been disclosed the number of Truck as U.P.02A-4225 and in this respect Satyawan Garg and watchman of Laxmi Rice Mills have been enquired and they confirmed that Dharmendra Singh, driver of said truck, without loading rice husk departure from Rice Mill at about 9.15 p.m. on 19.11.2003 towards Bazpur. Subsequently, a third F.I.R. (paper no. 5C/4) has been lodged on 11.2.2004, in which it has been stated that in the accident Sanjay Kumar sustained injuries, due to which he became unconscious and after 2-3 days, on getting consciousness Sanjay Kumar disclosed the number as well as driver of the offending Truck. Sri Satyawan Garg has been produced as PW-2 and Sri Sanjay Kumar has been produced as PW-3. Sri Satyawan Garg (PW-2) has stated in his deposition that said accident was caused by offending Truck NO. U.P.02A/4225, on 19.11.2003, at about 9.30 p.m., near Panchakki Pulia at Bazpur-Baria Road and PW-3, Sanjay Kumar also stated that number of offending Truck was seen by him in the head light of scooter just before the said accident. This witness further stated that Dharmendra Singh, driver of said truck without loading rice husk departured from Rice Mill at about 9.15 p.m. on 19.11.2003 towards Bazpur. PW-3, Sanjay Kumar has also been cross examined and in his cross examination this witness stated that he was sitting on the scooter as a pillion rider and scooter was taken for an urgent work by his elder brother Pradeep Kumar from somebody. He could not tell the name of owner of scooter and he also could not tell the number of scooter as after collision he fell down and became unconscious. The owner of truck, Madan Lal (DW-1) in his cross examination has admitted that neither his vehicle was seized nor any case has been instituted against his driver and this witness denied the factum of accident in his written statement. DW-3 stated in his statement that final report has been produced in Case Crime No. 678/2003 and the Investigator found that accident in question was caused by an unknown vehicle. Sri U.C. Joshi, Investigator has been produced as DW-4 and this witness has stated in his deposition that after investigation he found the colour of truck in question as red, whereas PW- 2 Satyawan Garg mentioned the colour of truck as white. The learned Tribunal after having considered the entire evidence available on record came to the conclusion that accident was not caused by Truck No. U.P.02A-4225, rather it was caused by an unknown vehicle of white colour, and accordingly rejected the claim petitions filed by the claimants. I am also in total agreement with the conclusion drawn by the learned Tribunal with regard to factum of accident. I do not find any infirmity and illegality in the said finding recorded by the Tribunal and same deserves to be confirmed. 13- For the reasons stated above, appeals lack merit and are liable to be dismissed. 14- Accordingly, appeals are dismissed. The impugned judgment and order dated 02.09.2006 is hereby confirmed. 15- Let a copy of this judgment be placed in the file of A.O. No. 795/2006. (B.C. Kandpal, J.) SP