IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No. 449 of 2005 Date of Decision : January 8, 2010 Meera Devi & Ors. …Appellants Versus: Kanta Sharma & Ors. …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting? No For the appellants: Mr. Neeraj Kumar Sharma, Advocate For respondents 1 & 2 : Mr. Vishal Panwar, Advocate. For respondent No.3: Mr. G. C. Gupta, Sr. Advocate with Ms. Madhvi Singh, Advocate Sanjay Karol, J. (Oral) The claimants/appellants are aggrieved of the impugned award dated 28.7.2005 passed by the Motor Accident Claims Tribunal- II, Solan, District Solan in M.A.C. Petition No. 3-S/2 of 2003 titled as Meera Devi & Ors. vs. Kanta Verma & Ors. In terms of the impugned award the claimants petition stands dismissed. The claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) seeking compensation of a sum of Rs.10 lacs. The claimants are the legal heirs of deceased Nand Lal who is alleged to have died as a result of the injuries suffered in a 2 motor vehicle accident. The relevant portion of the claim petition narrating the occurrence of the accident is reproduced as under:- “10. Was the person in respect of whom compensation is claimed traveling in the motor vehicle involved in the accident? Yes. The deceased was traveling in the ill fated vehicle/truck No.HP-15-4501 and had boarded the truck on 28.9.2002 and loaded his goods i.e. agricultural produce comprising of tomatoes, packed in crates for transportation from his village to Chandigarh. The deceased had hired the truck alongwith other villagers for transportation of goods and return journey alongwith empty crates upto his native village. At the time of occurrence the deceased was sitting and traveling in the truck and his goods i.e. empty crates of vegetables were loaded in the truck. 24. Cause of accident with brief description: That the accident had taken place due to sole rash and negligent driving of the driver of the vehicle /canter i.e. respondent No.2. The respondent No.2 who was driving the vehicle at a very high speed. Owing to high speed, rash and negligent driving, reckless and carelessness, the respondent No.2 caused the accident and hence the accident had occurred due to sole rash and negligent driving and high speed of the vehicle’s driver i.e. the respondent No.2 which otherwise could have been avoided had the vehicle been driven slowly and cautiously. Hence the respondents are liable to compensate the petitioners jointly as well as severally.” Respondent No.1, the owner and respondent No.2 the driver of the vehicle opposed the petition by filing a joint reply inter alia pleading that the vehicle in question was never involved in the 3 accident, hence there was no occasion for the deceased to have suffered any injuries in a motor vehicle accident. The petition was not maintainable. In fact FIR No. 70 of 2002, in connection with the death of Shri Nand Lal was registered by the police against third persons and not against the driver. It is admitted that deceased Nand Lal had hired the truck for transporting his agricultural produce to Chandigarh and on the return journey did travel in the vehicle carrying his empty crates, but however he along with other persons had got down at a place known as Shaktighat and thereafter the vehicle had proceeded to its destination. Petition has been filed by concocting a story with the sole purpose and motive of claiming compensation. Respondent No.3, the insurer of the vehicle also opposed the petition on various grounds. Based on the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the respondent No.2 was driving the truck No. HP-15-4501 rashly and negligently and resulted in death of Shri Nand Lal? ….OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? ….OPP 3. Whether the petition is not maintainable? …OPR-3 4. Whether the driver of the truck was not having a valid and effective driving licence at the time of the accident? ……OPR-3 5. Whether the truck was being driven without registration certificate, route permit and fitness certificate at the time of accident and was being driven in violation of the policy conditions, if so , what is its effect? ..OPR-3 4 6. Whether the petition is collusive between the petitioners and respondent Nos.1 & 2? OPR-3 7. Relief. Opportunity to lead evidence was afforded to the parties and appreciating the material on record the Tribunal concluded that the vehicle was not involved in an accident nor did deceased Nand Lal sustain any injuries as a result of the accident. Pursuant to the registration of FIR Ext.PW-1/A, under Sections 336, 304-A, 201/34 IPC, challan was presented in the Court of competent jurisdiction in which witnesses S/Shri Bhupinder Singh and Bhag Singh had been arrested as accused persons. Apparently, the deceased had been beaten up by the said persons. The cause of death i.e. rupturing of spleen also suggested that the injuries were not sustained as a result of the motor vehicle accident. All issues were decided in the negative. Heard learned counsel for the parties and also perused the record. From the contents of the petition reproduced hereinabove it is evident that the manner in which the accident took place has not been elaborated. In evidence, through the statement of HC Dharmesh Dutt (PW-1), the claimant herself has proved FIR Ext.PW-1/A. FIR was lodged by none other than the brother of the deceased according to whom, Shri Nand Lal had been beaten up by Shri Bhupinder Singh and Shri Bhag Singh. Undisputedly after investigation challan was also filed against the said persons alone. Investigation did not reveal that 5 the deceased had sustained injuries in a motor vehicle accident. Record also reveals that no proceedings of any kind were ever initiated against respondent No.2 under the Penal Laws of the Land. Claimant Meera Devi (PW-2) was not present at the place of occurrence. According to her when Shri Nand Lal was alive, S/Shri Bhupender Singh and Bhag Singh had brought him home and left him there. Medical treatment was later on given to him. Undisputedly, both S/Shri Bhupender Singh and Bhag Singh are the accused persons. Hence her hearsay testimony cannot be relied upon to prove the occurrence of the accident or the negligence of respondent No.2. Statement of Shri Bhag Singh (PW-3) also cannot be relied upon as he is an accused in relation to the very same offence. Shri Kishori (PW-5) and Shri Somi (PW-6) have narrated the occurrence of the accident and attributed negligence on the part of the respondent-driver. Importantly, these witnesses did not come forward to help the deceased while he was alive and take him to the hospital for medical treatment. Had they witnessed the occurrence of the alleged accident they would have done something to provide immediate medical aid to the injured. They did not do so. This is not the normal conduct of any person. Their presence at the spot is in fact doubtful. They also did not inform the claimant about the accident. They have not placed any material to show that even they had hired the vehicle to transport their goods or had in fact travelled in the vehicle in question at the time of the occurrence of the accident. Their oral statements do not inspire any confidence. Undisputedly, they are 6 known to the claimants and are residents of the same village. Their statements cannot be totally relied upon to hold the respondent No.2 guilty of having driven the vehicle in a rash and negligent manner . There is other contemporaneous material on record which would render the said version to be doubtful. Dr. R. S. Jaswal (PW-4) has categorically deposed that he conducted the post mortem and prepared report Ext.PW-4/A. The deceased died due to the injury of spleen due to trauma and said injury can be caused on account of fight. On the other hand Shri Navin Sharma (RW-1) driver of the vehicle has categorically deposed that Shri Nand Lal along with other persons had alighted the truck at Shaktighat and no accident took place. There is nothing in his statement which would render his version to be doubtful. Further the insurer also got the matter investigated and from the statements of witnesses Shri Mohinder Lal Sharma (RW-2) and Shri Anil Chauhan (RW-3), who have proved the investigation report (Ext.R-5) it is evident that the vehicle in question was not involved in the accident at all. The material on record thus does not even remotely suggest, much less prove that the vehicle in question was ever involved in the accident or that Shri Nand Lal received any injuries in a motor vehicle accident or died as a result of the injuries sustained in the said accident. 7 I find no error in the conclusion arrived at by the Courts below. The claim petition has been rightly dismissed. No ground for interference is made out. There is no perversity, illegality or irregularity in the impugned award. No other point urged. The appeal being devoid of any merit is thus dismissed. ( Sanjay Karol ), Judge. January 8, 2010 (rana)