F.A.O. No. 4961 of 2007 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH F.A.O. No. 4961 of 2007 (O&M) Date of Decision : 15.2.2010 National Insurance Company Limited .......... Appellant Versus Amar Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Harsh Aggarwal, Advocate for the appellant. Mr.V. Ramswaroop, Advocate for respondents No. 5 & 6. **** VINOD K. SHARMA, J. (ORAL) The notices issued to respondents No. 2 to 4 have not been received back served or otherwise. On the request of learned counsel for the parties, the service on respondents No. 2 to 4 is dispensed with. The learned counsel appearing on behalf of the parties pray that this appeal be decided at motion hearing. The appellant / Insurance Company challenged the award dated 10.8.2007, passed by the learned Motor Accident Claims Tribunal, Gurgaon (hereinafter referred to as “the Tribunal”), vide which the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act”) by the claimant / respondents stands allowed. The respondent / claimants filed a claim petition under Section 166 of the Act, claiming compensation for the death of Ms. Mukesh in a F.A.O. No. 4961 of 2007 2 motor vehicular accident, which took place on 19.8.2005, due to rash and negligent driving of DTC bus No. DL-1-P-B-3099 by respondent No.2 at about 8.15 A.M. within the jurisdiction of Police Station Malviya Nagar, District South Delhi. The deceased and claimant / respondent No.1 were travelling on the motor cycle bearing registration No. DL-3-S-A-B-4911, when they reached near Red Light crossing Saket on Badarpur-Mehrauli Road in the area of P.S. Malviya Nagar, District South, Delhi, the offending bus driven by respondent No.6 in rash and negligent manner came and hit the motorcycle. As a result of the accident the deceased sustained injuries and later died. The claim petition was contested by the appellant by asserting, that the bus in question was not involved in the accident. It was a case of hit and run. The claim petition was filed in connivance with the owner and the driver of the bus. Respondent No.5 & 6 also contested the petition by raising similar plea, i.e. the bus was not involved in the accident and that respondent No.2 was not negligent. It was asserted, that the bus was never impounded or taken in custody by the police, therefore, the claim petition was not maintainable. On the pleadings of the parties, the learned Tribunal framed the following issues :- 1. Whether the accident in question was caused by respondent No.2 by driving DTC bus No. DL-1-P-B-3099 in a rash and negligent manner?OPP F.A.O. No. 4961 of 2007 3 2. If issue No.1 is proved, whether claimants are entitled to any compensation on account of death of Smt. Mukesh in the accident and if so, to what extent and from whom?OPP 3. Whether respondent No.2 was not holding a valid and effective driving licence on the date of accident?OPR3 4. Relief.” On appreciation of evidence, the learned Tribunal held, that the accident in question was caused by respondent No.2 while driving DTC bus No. DL-1-P-B-3099 in a rash and negligent manner. The claimants were held entitled to compensation of Rs. 1,90,000/- (Rupees one lac and ninety thousand only) along with interest @ 7.5% per annum from the date of filing of the claim petition till realization. Respondent No.2 was held to be holding valid and effective driving licence at the time of accident. The liability was, therefore, fixed jointly and severally. The stand taken by the appellant, as well as respondents No. 5 & 6, was rejected by the learned Tribunal by recording the following finding:- “13. Then it has been urged that the testimony of Mahender Singh taken upon this fact that on the basis of the FIR Ex.P1, RW Mahender Singh is not facing any trial having caused accident due to his rash and negligent driving of DTC bus F.A.O. No. 4961 of 2007 4 proved this fact that the accident was not caused by DTC bus being driven by respondent no.2 Mahender Singh. No doubt, respondent no.2 Mahender Singh had not been challaned on the basis of FIR Ex. P1. However, it is well settled that this Tribunal is to reach its own conclusion on the basis of evidence produced before it. Not it has specifically come into the testimony of Amar Singh that he along with his wife and minor children was going to Noida from Gurgaon on his motorcycle at moderate speed on the correct left hand side of the road and when they reached near Red Light Crossing, Saket on Badarpur Mehrauli Road in the area of P.S. Malviya Nagar, District South Delhi at about 8.15 A.M., then a DTC bus bearing Regn. No. DL-1P-B- 3099 being driven by respondent no.2 Mahender Singh came at a very high speed and in a rash and negligent manner and hit the motorcycle of the petitioner. Now this witness was duly cross- examined and he well stood the test of cross- examination. However, respondent Mahender Singh has deposed that neither DTC bus nor he were involved in any accident yet there is no evidence on the file to prove the possibility that DTC bus having Mahender Singh being its driver was not on its route at the place where the accident took place. This was the most clinching evidence which would have gone in long way to show that the bus in question having Mahender Singh its driver was not on route at that place at the relevant time i.e. 8.15 A.M. Now it has specifically come in the testimony of Amar Singh that he was driving the motorcycle at a moderate F.A.O. No. 4961 of 2007 5 speed and on the correct left side of the road and respondent no.2 Mahender Singh while driving the DTC bus at a very high speed and rash and negligent manner hit his motorcycle.” Mr. Harsh Aggarwal, learned counsel appearing on behalf of the appellant challenged the finding of the learned Tribunal by contending, that the finding recorded by the learned Tribunal is result of misreading of evidence. There was no evidence showing the involvement of the bus in the accident, therefore, the award deserved to be set aside. The contention of the learned counsel for the appellant was, that once it was proved that respondent No.2 i.e. driver was not challaned in FIR Ex. P-1, it could not, therefore, be said that bus was involved in the accident. This contention of the learned counsel for the appellant cannot be accepted. The learned Tribunal rightly held, that the Tribunal was to decide the claim on the basis of evidence led before the Tribunal, and was not bound by the decision of the Criminal Court. The learned Tribunal held, that positive evidence was led to connect the bus with the accident. The learned counsel appearing on behalf of respondents No.5 & 6 did not challenge the findings recorded by the learned Tribunal, and admitted, that in view of the evidence led, it could not be said that the bus was not involved in the accident and that respondent No.2 was not driving the bus. The contentions raised by the learned counsel for the appellant deserves to be noticed to be rejected. The findings recorded by the learned Tribunal cannot be said to be perverse or capable of not being arrived at in F.A.O. No. 4961 of 2007 6 view of the positive evidence on record, only for the reason that the bus driver was not challaned in criminal case or was not arrested at the spot. The learned Tribunal was to decide the claim petition on the basis of evidence led, by the parties and was not bound by the finding of the criminal case. No merit. Dismissed. 15.2.2010 ( VINOD K. SHARMA ) 'sp' JUDGE