Punjab And Haryana High Court · 2012

Mr. Gurdev Singh, Advocate for the appellant Mr. T.S.Khaira, Advocate for the respondents ....... JITENDRA CHAUHAN,J. This appeal is preferred by the appellant against the Award dated 17.9.1992, passed by the Motor Accidents Claims Tribunal, Ambala, ( for short the Tribunal) in a claim petition No. 1 of

4.1.1992 filed by the respondents-claimants. The brief facts of the case are that on 3.9.1988 at 4 p.m, Varinder Kumar Tyagi (deceased) was coming on a new scooter from Ponta Sahib side. Sukhdev Singh was the pillion riding. When they reached near Chhachhrauli, respondent No.1,Harbhajan Singh, alongwith his wife, on scooter bearing registration No. HYE-3142 came from the opposite side. It was alleged that Harbhajan Singh was driving the scooter in a rash and negligent manner and it hit against the scooter of Varinder Kumar Tyagi. Both the occupants of two scooters fell on the ground. Varinder Kumar Tyagi suffered multiple injuries on his head, face and other FAO No. 93 of 1993 2 parts of the body. He was taken to Civil Hospital, Chhachharauli and shifted to Civil Hospital, Yamunanagar, where he died. The claimants mother, wife and minor son filed claim petition. It was alleged that deceased along with one Pardeep Kumar was running a shoe business at Ponta Sahib and was earning Rs. 2000/- per month. Upon notice, respondent No.1 Harbhajan Singh filed written statement. It was stated that the accident did not occurr in the manner projected by the claimants. Varinder Kumar Tyagi was driving a brand new scooter, after touching a tractor trolley going from Chahhrauli to Khizrabad, lost control over the scooter and struck against the scooter of respondent No.1. It was alleged that he was a labourer and was earning Rs. 500/- per month. He did not possess a driving licence. The scooter was not registered being new. The claimants were not entitled to any compensation. From the pleadings of the parties, the following issues were framed:-

1. Whether the accident in question and the resultant death of Varinder Kumar Tyagi took place due to rash and negligent driving of scooter No. HYE-3142 by Harbhajan Singh, respondent No.1 as alleged? OPP

2. Whether the claimants are the legal representatives of the deceased? OPP

3. To what amount of compensation, the claimants are entitled to and from whom? OPP

4. Whether the claim petition is not maintainable in present form? OPR FAO No. 93 of 1993 3

5. Whether the petition is bad for mis-joinder and nonp- joinder of parties? OPR

6. Whether the petition is not properly verified? OPR

7. Relief. After appreciation of entire evidence on record, the Ld. Tribunal decided Issue No.1 in favour of the claimants and held that the accident took place due to rash and negligent driving of Harbhajan Singh, respondent No.1. The claim petition was accepted by the Ld. Tribunal and compensation to the tune of Rs. 1,60,000/- was awarded to the claimants. Aggrieved against the same, the appellant filed the appeal. Learned counsel for the appellant submitted that the Ld. Tribunal has erred in recording the finding that the accident took place due to rash and negligent driving of respondent No.1 (appellant). He further submitted that as per the record, the scooter of Varinder Kumar Tyagi was badly damaged and there was no damage to the scooter of the appellant. It shows that the scooter of the deceased, after hitting the tractor trolley directly hit against the scooter of the appellant He stated that it is evident from the record that the deceased was driving a brand new scooter without any registration number and in violation of Section 22 of the Motor Vehicles Act, 1988. He submitted that the copy of licence, Ex. P-5 produced on record is fabricated one as the same was created much after the death of Varinder Kumar Tyagi. His argument is that the deceased did not know how to drive and he was not having any driving licence to drive the scooter. He submitted that the original driving licence of the deceased was produced on record. FAO No. 93 of 1993 4 On the other hand, learned counsel for the respondents has not been able to controvert the arguments raised by learned counsel for the appellant. After hearing learned counsel for the parties and perusing the record, this Court is of the opinion that there is sufficient evidence on record to show that Varinder Kumar Tyagi was driving a new scooter without the registration number. In the cross-examination of PW-5, Sukhdev Kumar Mittal, who was the pillion rider at the time of accident, it reveals that the scooter was not bearing any registration number. This witness was not having knowledge whether the deceased was having any driving licence. The Ld. Tribunal ignored this aspect of the matter. As per Section 22 of the Motor Vehicles Act, 1939, no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods unless the vehicle is registered in accordance with this chapter and the certificate of registration mark displaced in the prescribed manner. Admittedly, the scooter driven by the deceased was new and without any registration number. It hit against a tractor trolley going ahead to him. The deceased lost control over the scooter and hit against the scooter of appellant coming from the opposite side. The scooter of Varinder Kumar Tyagi got totally damaged, whereas the scooter of the appellant was slightly damaged. There is force in the argument of learned counsel for the appellant that the document Ex.P-5 is a fabricated as there is no seal or signatures of the Licensing Authority on the Ex.P-5. Ex.P-5 is not the certified copy of driving licence issued by any authority. Under Section 76 of the Evidence Act, 1972, such a document is FAO No. 93 of 1993 5 not admissible in evidence. A person can not drive a vehicle without having any valid licence to do so. In the present case, it is established that Varinder Kumar Tyagi was not having any driving licence to drive the scooter. In fact, he did not know driving. There is no fault/negligence on the part of the appellant in causing the alleged accident, in which Varinder Kumar Tyagi lost his life. In fact, he himself was negligent and the accident occurred due to his own fault. He was without a driving licence and was driving a new unregistered scooter in violation of Section 22 of the Motor Vehicles Act, 1988. Thus he himself was solely responsible for the accident due to his own rash and negligent driving. The findings arrived at by the Ld. Tribunal are erroneous. Now adverting to the evidence of appellant that there was no fault on his part in causing the accident. A perusal of the statement of the appellant on the record shows that the appellant and his wife were going on the right direction, when the scooter of Varinder Kumar Tyagi after hitting the tractor trolley hit against the scooter of the appellant. As a result, the appellant and his wife fell on the left side of the ground, whereas Varinder Kumar Tyagi and the pillion rider of his scooter fell on the left side of the road. There was no damage to the appellant scooter, whereas the scooter of deceased was badly damaged. It shows that the scooter of the deceased hit against the other vehicle with great force and not with the scooter of the appellant. Learned counsel for the appellant has placed on record a photocopy of acquittal order dated 13.7.1999 of the appellant to show that the appellant was not at fault and the accident occurred due to rash and negligent driving of the deceased. The Award of the Ld. Tribunal being FAO No. 93 of 1993 6 not sustainable is, hereby, set aside. Accordingly the appeal filed by the appellant succeeds. As a necessary consequence, the claim petition filed by the claimants is dismissed. Appeal allowed. No costs.

20.3.2012 MS (JITENDRA CHAUHAN) JUDGE