F.A.O.No. 1193 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O.No. 1193 of 2001 Date of Decision : Smt.Sunderi Devi Appellant. VERSUS Bir Singh and others. Respondents. CORAM : HON'BLE MR. JUSTICE JORA SINGH. --- Present:- Mr.H.S.Sharma, Advocate, for the appellant. Mr. Gopal Mittal, Advocate assisted by Mr. B.K.Singal, Manager, and Mr. Baljit Singh, Deputy Manager, for United India Insurance Company Limited. --- 1.Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the digest? JORA SINGH,J. This single judgment shall dispose of F.A.O.Nos. 1193 of 2001 (Smt. Sunderi Devi Vs. Bir Singh and others) and 1194 of 2001 (Amit Vs. Bir Singh and others), as both the appeals are against the Award/judgment dated 27.1.2001 arising out of the same accident, whereby the claim petitions filed by Smt. Sunderi and Amit were dismissed. The case of the appellants, in brief, is that on 26.5.1998, they were traveling from Haridwar to Hisar in a bus bearing registration No. RJ-31P-0412. At about 4 P.M., when their bus reached on Saharanpur-Yamunanagar road, a F.A.O.No. 1193 of 2001 2 bus of Haryana Roadways bearing registration No. HR-3PA- 151 came from the back side. Haryana Roadways bus had overtaken the bus of the appellants and then applied brakes suddenly. Driver of bus No. RJ-31P-0412 could not control his bus and the bus had struck against Haryana Roadways bus from behind. Accident was due to rash and negligent driving of bus by the driver of Haryana Roadways bus No. HR-3PA- 151. In the accident, both the appellants had received multiple grievous injuries. Respondents No. 1 and 2 filed joint written statement and contested the claim petition, inter-alia on the ground that there was an accident on 26.5.1998 of bus No. RJ-31P-0412 being driven by respondent No.2. The above said bus was ahead of Saharanpur. In the meantime, Haryana Roadways bus came from back side and the bus was being driven rashly and negligently. After overtaking bus No. RJ- 31P-0412, driver of Haryana Roadways bus had suddenly applied brakes with full force. Respondent No.2 had also applied brakes to avoid the accident, but all in vain. The bus had struck against Haryana Roadways bus from behind. Respondent No.2 was not responsible for causing the accident. Respondent No.3 filed separate written statement and contested the claim petition, inter-alia on the ground that there was no accident with bus No. RJ-31P-0412. If there was an accident, then the same was due to rash and negligent driving of bus of Haryana Roadways, driven by respondent F.A.O.No. 1193 of 2001 3 No.4. Respondent No.4 filed separate written statement by pleading that he was driving bus No. HR-3PA-151 and the bus was near Saharan Pur. In the meantime, bus No.RJ-31P- 0412 was cited while coming from back side. One animal came on the road. Brakes were applied to save the animal. Driver of mini bus did not control his bus and the mini bus had struck against the Haryana Roadways bus No. HR-3PA- 151. Accident was due to rash and negligent driving of mini bus. There was a compromise amongst the driver of Haryana Roadways Bus and Mini Bus driver. Mini bus driver had paid Rs.2200/- to respondent No.4 on account of damage to the Haryana Roadways bus and the payment was deposited with the Haryana Roadways vide receipt No.311315 dated 27.5.1998. Respondents No. 5 and 6 also filed separate written statement and contested the claim petition on the similar allegations as put forth by respondent No.4. From the pleadings of the parties, the following issues were framed:- 1. Whether the petitioner received grievous injuries due to rash and negligent driving of buses by respondent No.1 and respondent No.4 ? OPA 2. Whether the petitioner is entitled to compensation, if so to what effect and to what amount?OPA F.A.O.No. 1193 of 2001 4 3. Whether respondent No.1 was not duly licenced driver at the time of accident, if so to what effect?OPR3 4. Relief. Evidence was led by both the parties. After hearing learned counsel for the parties and considering the evidence on the file both the claim petitions were dismissed vide order dated 27.1.2001. Feeling aggrieved against the Award dated 27.1.2001, separate appeals were preferred. Notice was issued to the respondents. I have heard learned counsel for the parties and have gone through the evidence on the file very carefully and thoroughly. Learned counsel for the appellants argued that Amit and Sunderi Devi on 26.5.1998 were travelling from Haridwar to Hisar in a bus No. RJ-31P-0412. At about 4 P.M., bus was on Saharanpur Yamunanagar Road. In the meantime, Haryana Roadways Bus No. HR-3PA-151 came from back side and after overtaking the bus No. RJ-31P- 0412, driver of Haryana Roadways bus had applied brakes suddenly. Driver of bus No. RJ-31P-0412 could not control the bus and the bus had struck against the Haryana Roadways bus from behind. Both the appellants had received injuries in the accident. Opposite party has admitted the factum of accident. Only dispute is whether the accident was F.A.O.No. 1193 of 2001 5 due to fault of driver of Haryana Roadways or due to the fault of mini bus. Learned Tribunal did not appreciate the evidence on the file. Both the petitions were dismissed without any reason. Learned counsel for the opposite party argued that appellants did not receive injuries in the accident. Accident was between the Haryana Roadways bus and mini bus. As per documentary evidence on the file, driver of mini bus was at fault. Driver of mini bus had paid Rs.2200/- to the driver of Haryana Roadways bus. Payment was deposited with the department. There is nothing on the file that the appellants had received injuries in the accident. Case of the appellants is that they were traveling in bus No RJ-31P-0412 and the bus was near Saharanpur. In the meantime, a bus of Haryana Roadways HR-3PA-151 came from back side and after overtaking bus No.RJ-31P-0412, driver of Haryana Roadways had applied brakes suddenly. Driver of bus No. RJ-31P-0412 had also applied brakes but in that process, bus had struck against the bus of Haryana Roadways from behind. Allegation of the respondents is that when bus No. RJ-31P-0412 was near Saharanpur, a bus of Haryana Roadways came from behind. Haryana Roadways Bus No. HR-3PA-151 was being driven by respondent No.4. Bus was ahead of Saharanpur, then a mini bus come from back side, suddenly one cattle was noticed. Brakes were applied to save the cattle. Driver of mini bus could not control his bus and the bus was struck against the bus of Haryana F.A.O.No. 1193 of 2001 6 Roadways from back side. Accident was due to rash and negligent driving of mini bus. That means there was an accident. Only dispute is whether the accident was due to rash and negligent driving of bus of Haryana Roadways or mini bus. Evidence on the file shows that there was a compromise amongst the driver of Haryana Roadways and the driver of the mini bus. Mark R-1 is the compromise on the file and as per compromise, driver of mini bus had paid Rs.2200/- to the driver of Haryana Roadways bus. Rs. 2200/- and the same was deposited by the department. No appeal by the respondents against the finding of Tribunal. Next question is whether the appellants received injuries in the accident or not but to answer this question there is no cogent and convincing evidence on the file. Firstly, no First Information Report qua the accident. No MLR. In case, the accident was due to rash and negligent driving of the Haryana Roadways bus and in the accident, appellants had received injuries, then the report should have been lodged with the police. If due to some un-avoidable circumstances appellants had failed to lodge the report then they should have produced the copies of the MLR’s. No oral or documentary evidence to show that the appellants had received injuries in the accident or the appellants remained admitted in any hospital. No medical bill on the file to show that something was spent by the appellants on their treatment. Evidence on the file rather shows that the accident was due to the fault of driver of mini bus. Damage F.A.O.No. 1193 of 2001 7 was caused to the bus of Haryana Roadways. Rs.2200/- was paid by the driver of mini bus and the payment was deposited by the driver of Haryana Roadways with the department. Sunderi appellant pleaded that in the accident, her right hand was fractured and she was shifted to Civil Hospital, Yamunanagar and then to Goyal Hospital, Yamunanagar. Next day, she was brought to Civil Hospital, Hisar and after two-three days, she was shifted to Chawla Nursing Home, where she remained admitted upto 11.6.1999, but no record of Civil Hospital, Yamunanagar, Goyal Hospital,Yamunanagar, Civil Hospital, Hisar and Chawla Nursing Home, Hisar was summoned that the appellant (Sunderi) had received injuries in the accident and due to injuries, she remained admitted in different hospitals. When the record was very much available then question is why the same was not produced before the Learned Tribunal. Regarding purchase of medicine there is no proof on the file. Only disability certificate Ex.PA is on the file proved by Mr. S.K. Chadda but Sunderi did not receive treatment from any doctor of Hansi, whereas the disability certificate is by Civil Hospital, Hansi and not from Civil Hospital, Yamunanagar or Hisar. In the absence of First Information Report , question is on which part appellant Sunderi received injuries in the accident and whether any one had received injuries in the accident or not. No MLR on the file to show as to how many injuries were on the person of Sunderi and what was the location of the injuries. If as per MLR. no injury was of right F.A.O.No. 1193 of 2001 8 humorous then the disability certificate Ex.PA showing fracture on right humorous is without any evidentiary value. Amit is the son of appellant Sunderi Devi, who stated on oath that in the accident he received injuries and was shifted to Civil Hospital, Hisar and then to Chawla Nursing Home,Hisar . Later on he got treatment from Dr. Kheterpal but no record of Civil Hospital, Hisar, Yamunanagar, Chawla Nursing Home, Hisar or Kheterpal Hospital, Hisar was summoned. If the injured was shifted to different hospitals i.e. Civil Hospital, Hisar, Yamunanagar, Chawla Nursing Home, Hisar or Kheterpal Hospital, Hisar then there was no hitch to summon the record from the concerned hospitals to show that on the relevant date i.e. 26.5.1998 injured was brought to the hospital and remained in the hospital. Ex.P-7 to Ex.P21 on the file shows that Amit got treatment from Dr.Kheterpal but as an out door patient from 21.9.1998 to 10.4.1999. Whereas the accident was on 26.5.1998. Doctor was not examined to prove Ex.P-7 to P-21. If the appellants had received injuries on 26.5.1998, then why treatment from Dr. Kheterpal from 21.9.1998 to onwards. Appellants are to explain where they remained from 26.5.1998 to onwards if they had suffered injuries in the accident. Ex.P-31 is the certificate by Agnihotri Eye Hospital, but no case of the appellant that Amit was ever admitted in Agnihotri Eye Hospital, on account of injury in the eye. Ex.P-30 is the certificate issued by Lamba Nursing F.A.O.No. 1193 of 2001 9 Home, but the certificate is from 30.9.1998 to 7.9.1998. This certificate is also not helpful to the appellants because no case of the appellants that they got treatment from Lamba Nursing Home. Ex.P-32 show that Amit had gone to Chawla Nursing Home as our door patient on 27.5.1998 but the appellant was not admitted in the Hospital as indoor patient. Dr. Chawla was not summoned to prove Ex.P-32. Father’s name of Amit was not mentioned in Ex.P-32. When no MLR, then question is whether Amit suffered fracture of proximal tibia in the accident. If Amit had suffered fracture of proximal tibia in the accident, only then Ex.P-32 is relevant. MarkR-1 was the compromise amongst the drivers of both vehicles but in Mark R-1, no reference that in the accident, appellants had received injuries. Till today, no complaint to any authority by the appellants that in the accident they had received injuries but case was not registered against the driver of the offending vehicle. If the appellants had received injuries in the accident then question is why they remained silent and did not approach the concerned police station to register case against the offending vehicle. No complaint against any Doctor that they were not admitted in the hospital but they were medico legally examined. Appellants are to get compensation, if they had received injuries in the accident. That means the evidence on the file was rightly appreciated by the learned Tribunal. No other submission was put forward by the learned counsel for the appellants. F.A.O.No. 1193 of 2001 10 In view of all discussed above, there is no infirmity and illegality in the impugned award and the same is upheld. Appeal without merit is dismissed. .12.2008 ( JORA SINGH) Anoop JUDGE