IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 6833 of 2010 Date of decision: 20.12.2011 Mohit Sharma ......Appellant. Versus Rajesh Kumar & Anr. ......Respondents. CORAM: HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Anuj Sharma, Advocate for the appellant. Mr. Gopal Mittal, Advocate for respondent No.2-Insurance Company. Jora Singh, J. Mohit Sharma filed this appeal to challenge the award dated 08.04.2010 in MACT No. 46 dated 04.03.2006 whereby his claim petition under Section 163-A of the Motor Vehicle Act was dismissed. Claim petition was presented on the allegation that on 26.01.2006, appellant-petitioner alongwith his maternal uncle travelling on scooter bearing registration No.PB-11N 2095 was in front of Mehmoodpur near Bahadurgarh. Scooter was being driven by respondent No.1-Rajesh Kumar. Suddenly a buffalo came in front of scooter. Respondent No.1-Rajesh Kumar tried to stop the scooter but he could not control the same and they fell on the road. They both received injuries. His leg was fractured. Appellant-petitioner was taken to Klair Orthopaedic Center Punjabi Bagh, Patiala. DDR No. 24 dated 26.01.2006 was also recorded. FAO No. 6833 of 2011 Allegation of respondent No.1-Rajesh Kumar was that he was driving the scooter on low speed by obeying the traffic rules. The accident occurred as a buffalo came suddenly in front of his scooter. So, scooter fell on the ground and they suffered injuries. Allegation of respondent No.2-Insurance Company was that scooter bearing registration No. PB-11N 2095 was not insured. Driver was not holding valid and effective driving licence at the time of alleged accident. From the pleadings of the parties, following issues were framed:- 1. Whether the accident caused due to rash and negligent driving of vehicle No. PB-11N 2095 by respondent No.1, if so, whether Rajiv Sharma received injuries in the accident? OPP. 2. If issue No. 1 is decided in favour of claimant whether claimant is entitled for any compensation, if so, how much and from whom? OPP. 3. Whether the respondent No.1 was not holding valid and effective driving licence at that time, if so, its effects? OPR-2 4. Relief. Learned counsel for the appellant argued that appellant-petitioner was on the scooter as a pillion rider and the same was being driven by respondent No.1-Rajesh Kumar, suddenly a buffalo came in front of scooter then Respondent No.1-Rajesh Kumar tried to stop the scooter but he could not control the same and they both fell on the road and received injuries but evidence on the file was not properly appreciated by the Tribunal. He further argued that though learned Tribunal held 2 FAO No. 6833 of 2011 that there was an accident however, wrongly held that the appellant-petitioner had not received injuries. Learned counsel for respondent No.-2-Insurance Company argued that according to the story, accident was taken place on 26.01.2006, respondent No.1-Rajesh Kumar was driving the scooter No. PB-11N 2095, suddenly a buffalo came in front of scooter. Respondent No.1-Rajesh Kumar tried to stop the scooter but he could not control the same and they fell on the road as a result they both received injuries but no medico legal report is on the file. Ex.P-3 is the copy of DDR but DDR no where shows that the accident was taken place on 26.01.2006. In case, there was an accident on 26.01.2006 then in the accident appellant- petitioner should have received injuries. No MLR or record of the hospital on the file to show that the injuries were noticed on the person of the appellant-petitioner. No driving licence and Insurance Policy on the file and in the absence of driving licence and insurance policy, Company is not liable. After going through the file, I am of the opinion that there is no illegality in the impugned award. According to the story on 26.01.2006, appellant-petitioner alongwith his maternal uncle was traveling on scooter bearing registration No.PB-11N 2095 was in front of Mehmoodpur near Bahadurgarh, scooter was being driven by respondent No.1-Rajesh Kumar, suddenly a buffalo came in front of scooter. Respondent No.1-Rajesh Kumar tried to stop the scooter but he could not control the same and they fell on the road. They both received injuries. No medico legal report of the appellant-petitioner and respondent No.1- Rajesh Kumar on the file to show that injuries were noticed on the 3 FAO No. 6833 of 2011 person of the appellant-petitioner and respondent No.1-Rajesh Kumar. Respondent No.1-Rajesh Kumar was driving the scooter bearing No.PB-11N 2095 at the relevant time but he failed to appear before the Tribunal to state that on the day of accident, he was driving the scooter and appellant-petitioner was pillion rider. When they were near village Mehmood Pur, Bahadar Garh, a buffalo suddenly came in front of scooter, respondent No.1-Rajesh Kumar tried to stop the scooter but he could not control the same and they fell on the road and they both received injuries in the accident. However, father of the appellant-petitioner appeared in Court but he is not the eye witness. As per story appellant- petitioner received injuries in the accident, his leg was fractured but no medico legal report on the file to show that appellant- petitioner received injuries. Record of the hospital was also not summoned, where the appellant-petitioner was admitted and remained under treatment. Ex.P-3 is the copy of DDR but DDR no where shows that the accident had taken place on 26.01.2006. Submission of the appellant-petitioner is that he remained under treatment in Klair Orthopaedic Center Punjabi Bagh, Patiala due to fracture of his leg but no record of the hospital was summoned to show that on 26.01.2006, appellant- petitioner was admitted in the abovesaid hospital with fractured leg and was operated upon and `15,000/- was spent on his treatment. No x-ray report on the file to show that the leg of the appellant-petitioner was fractured. ExP-2 is the copy of receipt of payment, which was deposited in the hospital. No MLR or x-ray report on the file and record of the hospital was also not 4 FAO No. 6833 of 2011 summoned to show that appellant-petitioner was admitted in the hospital with fractured leg and was operated upon. Respondent No.1 was driving the scooter bearing No. PB-11N 2095 at the relevant time, but no driving licence is on the file. Insurance Policy was also not produced. Specific allegation of the insurance company is that at the time of alleged accident vehicle was not insured and driver was not holding valid and effective driving licence. It was the duty of respondent No.1 to produce the copy of driving licence and insurance policy and after that Insurance Company was to rebut that driving licence was not valid and the vehicle was not insured. In the absence of driving licence and policy the Company can not rebut that at the time of accident driver was not holding a valid driving licence and vehicle was not insured. Respondent No.1 is the maternal uncle of the appellant-petitioner. Petition was filed simply to claim compensation with connivance of respondent No.1. If respondent No.1 was also injured in the accident then he could produce his medico legal report but no explanation on the file as to why MLR of respondent No.1 was not produced on the file. If petitioner and respondent No.1 fell down from the scooter then scooter was also expected to be damaged in the accident but no report of mechanic to show that in the accident scooter was damaged. In view of the receipt i.e. Ex.P-2 and copy of DDR (Ex.P3), it is not safe to opine that there was an accident on 26.01.2006 and in the accident petitioner received injuries. Petition is under Section 163-A of Motor Vehicle Act but he was to lead evidence that in the accident petitioner had received injuries. 5 FAO No. 6833 of 2011 If we presume that there was an accident then there is no evidence on the file that petitioner had received injuries. For the reasons recorded above, I am of the opinion that evidence on the file was rightly scrutinized by the learned Tribunal. I find no reason to interfere with the decision of the learned Tribunal. FAO without merit is dismissed. 20.12.2011 (JORA SINGH) Sham JUDGE 6