IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 368 of 2005 Judgment reserved on: 16.3.2009. Date of Decision: 24.3.2009 Dharam Paul ..Appellant. Versus. Sh.Kala Ram and another ..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Appellant: Mr. G.R. Palsra, Advocate. For the Respondents: Mr. Shrawan Dogra, counsel for respondent No.1. Mr.Ashwani Sharma, counsel for respondent No.2. Deepak Gupta, J. This appeal by the claimant is directed against the award of the learned Motor Accident Claims Tribunal, Mandi, H.P. dated 1.8.2005 in Claim Petition No.25 of 2001 whereby he dismissed the claim petition filed by the claimant. Briefly stated the facts of the case are that the appellant (hereinafter referred to as the claimant-petitioner) filed a petition under Section 166 of the Motor Vehicles Act praying for grant of compensation. It was alleged in this petition that on 27th March, 1999 the claimant was going towards Jawahar Park Sundernagar on National Highway No.21 on his scooter No.HP-33-2714. The respondent No.1, owner and driver of three wheeler Scooter Rickshaw - 2 - No.HP-05-1101 was going ahead of the petitioner. According to the petitioner, the respondent No.1 without giving any signal suddenly turned the three wheeler towards the right side and resultantly there was a collision between the scooter and the three wheeler as a result of which the petitioner sustained grievous injuries. The petitioner was taken to the civil hospital Sundernagar and on examination it was found that he had sustained fracture on his left leg and left hand. The petitioner remained admitted as indoor patient in civil hospital, Sundernagar for 4 days and according to him later on he received treatment at Sanjeevan Hospital, Mandi. Compensation of Rs.5 lakhs was claimed. The owner was proceeded against ex-parte before the learned Tribunal. The respondent No.2 i.e. the Insurance Company filed reply in which many defences were taken and one of the defences was that the three wheeler in question was not insured with the respondent No.2. The learned Tribunal came to the conclusion that the petitioner had failed to prove that the accident occurred due to the rash and negligent driving of the respondent No.1. Though the compensation was assessed at Rs.25,000/- the claim petition was dismissed on the ground that the accident had not occurred due to the rash and negligent driving of respondent No.1. It was further held that the three wheeler was not insured with the Insurance Company. At the outset, I may state that till date the respondent No.1 has failed to prove or place on record any document to show that the three wheeler was insured. As far as negligence is concerned, the petitioner appeared as PW-2. He stated that the three wheeler was ahead of him and they were both going from Mandi side towards Sundernagar side and were - 3 - near the Jawahar Park. The petitioner states that when he wanted to overtake the three wheeler the same suddenly turned to the right side without giving any signal and as a result the scooter struck the three wheeler. A suggestion has been put to him that the three wheeler’s driver had given a signal to turn the three wheeler right. A suggestion has also been put to this witness that two ladies and one child were sitting as pillion rider on the scooter which he has denied. He also denied that he was driving the scooter at a high speed. He however admits that a police challan has been filed against him. PW-5 is one Chuni Lal who runs a shop near Jawahar Park, Sundernagar. He has stated that the three wheeler turned towards the right without giving any signal and therefore the scooter struck with the three wheeler. According to him, there was one lady and a child sitting along with the petitioner on the scooter. In cross examination he states that his statement was not recorded by the police. In cross examination he also states that he cannot say whether the three wheeler driver had given signal for turning the three wheeler or not. On behalf of the respondents, the owner and driver of the three wheeler appeared as RW-2. He admits that he had turned the three wheeler to the right side to enter Jawahar Park. According to him, the petitioner was driving a scooter on which two ladies and one child were sitting along with the petitioner. He states that the scooterist came from behind and hit the three wheeler. RW-4 Roshan Lal is a person on whose instance the FIR was recorded. He states that there were four persons sitting on the scooter driven by the petitioner and that the scooterist suddenly turned his scooter and struck with the three wheeler and therefore he lodged the FIR with the Police Station, Sundernagar. - 4 - From the evidence on record, it is clear that the accident took place while the three wheeler was turning right from the main road towards Jawahar Park. This fact has been admitted by the driver of the three wheeler also. The scooterist was just behind the three wheeler. When a person driving the vehicle on the left side of the road wants to go across the road to the other side he is not only required to give signal but he must also ensure that there is no other traffic immediately behind him and that there is clear passage to cross the road. In the present case, it is apparent that the three wheeler’s driver was aware that the scooter is behind him. Therefore, he should not have turned the three wheeler all of a sudden even if he had given an indicator. On the other hand the statement of the scooterist is that he was hit while he was overtaking the three wheeler. The scooterist has not stated that he took a pass from the three wheeler before attempting to overtake him. Both the three wheeler’s driver as well as the scooterist did not follow the basic rules of driving and therefore, in my opinion, both of them were equally negligent in causing the accident. The learned Tribunal while holding that the three wheeler’s driver was not negligent has placed great reliance on the FIR. The learned Tribunal has not taken into consideration the fact that RW-4 the author of the FIR has given a totally different version in Court where he has stated that the scooterist suddenly turned his scooter and struck with the three wheeler. This is not stated in the F.I.R. This was not the case set up by the three wheeler’s driver also. Therefore, the finding of the learned Tribunal on the issue of negligence is set-aside and it is held that both the scooterist and - 5 - the driver of the three wheeler were equally negligent in causing the accident. As far as the compensation is concerned, the learned Tribunal has assessed the reasonable compensation at Rs.25,000/-. The petitioner alleged that he had spent Rs.30,000/- on his treatment but no evidence in this regard has been led. The disability certificate Ext.PA only shows that the petitioner has suffered disability of 6%. This disability certificate has been proved by PW-1 Dr.Harish Behal. The petitioner claims that he could not attend Court due to this injury for about two years. His statement is totally belied from the statement of Sh.Shiv Ram, Advocate with whom the petitioner was allegedly working who states that the petitioner did not come for his work for about 9-10 months. The learned Tribunal has virtually accepted the fact that the petitioner could not attend Court for 10 months. I am afraid, this finding cannot be upheld. There is no medical evidence on record to show as to how long the petitioner could not attend the work. According to the petitioner, he was thereafter examined at Sanjeevan hospital but he failed to lead any evidence in this behalf. From the material on record it cannot be said that the petitioner could not attend work for 9 or 10 months. An adverse inference will have to be drawn against the petitioner since he has not led the best evidence which was available with him. The injury and disability in question has not led to any diminished earning capacity also. In the absence of any medical or other evidence it cannot be said that the earning capacity of the petitioner has been affected by the injury. The evidence with regard to medical expenses is wholly absent and therefore the matter has to be decided more on the basis of conjecture than on evidence. - 6 - Therefore, I for the purpose of this appeal shall assume that the petitioner could not attend work for about 2 to 3 months leading to loss of about Rs.6000/-. He would also be entitled to Rs.5000/- for pain and suffering and a sum of Rs.4000/- for medical expenses. The total compensation payable to the petitioner works out to Rs.15,000/- and since he has contributed equally to the same he is entitled to Rs.7500/- only. In view of the above discussion, the appeal is partly allowed. Award of the learned Tribunal is set-aside and the claimant-appellant is held entitled to Rs.7500/- as compensation from respondent No.1 alone. The claimant shall also be entitled to interest @ 7.5% p.a. on this amount from the date of filing of the claim petition i.e. 3.5.2001 till payment/deposit of this amount. Since the insurance policy has not been produced it is the respondent No.1 alone who shall be liable to pay this amount. The appeal is disposed of in the aforesaid terms. No costs. March 24, 2009. ( Deepak Gupta ), PV Judge.