Dupinder Kaur & Ors. v. Davinder Singh & Ors.

Present : Mr. K.S.Rikhi Advocate for the appellants. Mr. Rahul Garg, Advocate for Mr. Ashwani Talwar, Advocate for the Insurance Company. Mr. P.S.Ahluwalia, Advocate for respondent No.1. Mr. Surender Garg, Advocate for respondent Nos.4 to 6. K.C.PURI. J. The instant appeal has been directed by the appellants for grant of compensation amount against the Award dated 2.1.2007 passed by Shri J.S.Bhatia, Motor accident Claims Tribunal, Muktsar vide which the claim petition preferred by the claimants-appellants was dismissed. The case of the claimants in brief is that on 15.02.1999 Harmander Singh son of Modan Singh along with his brother Darshan Singh, who was employed in a Pesticide Company as Sales Officer at FAO No.2137 of 2007 2 Bathinda and cousin Surjit Singh was coming from Bathinda towards Muktsar in a Jeep bearing registration No.MP 26 F -3428 being driven by Darshan Singh. At 6.15p.m., when they reached near Govt. High School Bhalaina, a bus bearing registratin No. PB 13C-6517 driven by respondent No.1 Davinder Singh in a rash and negligent manner came from the opposite side and struck with the above said jeep. On this respondent No.1 Davinder Singh came down from the bus. They also went near the bus and protested for causing the accident. On this, the parties exchanged hot words. Davinder Singh respondent No.1 called respondent Nos.3 to 6, who came at the spot on the bus belonging to Fateh Transport Company. All the above said respondents gave beatings to Darshan Singh. It has been further averred that respondent No.1 Davinder Singh after driving his above said bus ran over Darshan Singh, who died at the spot. A report was lodged with the police and FIR No.17 dated 15.02.1999 under Sections 304, 427, 279 and 34 of the Indian Penal Code (in short – the IPC) was registered at Police Station Kot Bhai. The above said bus belongs to respondent No.2-company. It has been further alleged that Darshan Singh deceased was aged about 35 years at the time of death and was getting Rs.10,000/- as salary per month and further earning Rs.15,000/- per month from dairy farming. The bus was insured with respondent No.7 company. On notice, the respondents appeared and filed their written statements. In their separate written statement respondent Nos. 1,4 to 6 took up preliminary objections that the claim petition is bad due to misjoinder of parties; it is not maintainable in the present form; they FAO No.2137 of 2007 3 are facing trial on the basis of a false case, got registered against them and the claimants have no locus standi to file the present claim petition. On merits they pleaded that no such accident ever took place and denied other averments of the claimants. In their separate written statement respondents No.2 and 3 also took up similar preliminary objections. On merits, they pleaded that the deceased had not received injuries nor died due to any alleged accident. They denied other averments of the claimants. In its separate written statement respondent No.7 insurance company took up preliminary objections to the effect that the claim petition is vague and does not disclose any cause of action ; respondent No.1 was not holding a valid and effective driving licence at the time of alleged accident, the claim petition has not been properly verified and filed under the provisions of Motor Vehicles Act. On merits, it has been alleged that the cause of death is not accident occurred on account of rash and negligent driving of the vehicle but it was intentional running over the deceased by respondent No.1 which amounts to murder and is not covered under the provisions of Motor Vehicles Act. Following issues were framed :-

1. Whether Darshan Singh died in Motor Vehicular Accident due to rash and negligent driving of bus No.PB 13-C-6517 by respondent No.1? OP Claimants.

2. Whether claim petition is not maintainable in the present form ?OPR2-3.

3. Whether respondent No.1 was not holding a valid driving licence at the time of accident ?If so its effect? OPR-7 FAO No.2137 of 2007 4

4. To what amount and from whom the claimants are entitled to receive compensation, if any ?OP Claimants.

5. Relief. Both the parties led their respective evidence on the aforesaid issues. After appraisal of the evidence, the learned Tribunal held that the claimants failed to produce any evidence to prove that the occurrence took place in the manner it is alleged and dismissed the claim petition of the claimants/appellants. Feeling dissatisfied with the above said Award, the appellants have preferred the present appeal for grant of compensation amount. I have heard learned counsel for the parties and have minutely gone through the records of the case with their help. The learned counsel for the appellants has submitted that the Tribunal has dismissed the claim petition on the grounds that claimants have failed to prove that Darshan Singh died in an accident. It is contended that although no eye-witness has been examined in this case but the copy of the judgment Ex.P-B proved the fact that Darshan Singh died due to use of bus, being driven by Devinder Singh. Although, Darshan Singh and others have been convicted under Sections 304, 279 and 323 read with Section 34 IPC but the said copy of judgment Ex.PB proved the fact that Devinder Singh used the bus for causing injuries to Darshan Singh. The learned counsel for the respondents has supported the judgment of the Tribunal and has submitted that the appellants have failed to prove that Darshan Singh FAO No.2137 of 2007 5 died due to use of the vehicle. It is further contended that judgment Ex.PB cannot be read into evidence. Moreover, in that judgment using of vehicle is not mentioned and it is mentioned that Darshan Singh etc. have caused the injuries. So, the Tribunal has rightly dismissed the application for compensation. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case. The Tribunal has held that appellants have not produced any evidence to prove the fact that Darshan Singh died due to use of the vehicle in question. The claimants before the Tribunal examined one of the claimants as PW-1, who in the cross-examination has stated that she was not present at the time of accident. The claimant examined Kulwinder Singh (PW-2), who has simply stated about the income of the deceased. No other evidence has been produced by the claimants to prove that deceased died due to use of the vehicle. So far as the reliance of the learned counsel for the appellants on copy of judgment Ex.PB is concerned, it is settled law that in a civil proceedings, the Tribunal has to assess the evidence on the file independently than the evidence produced in the criminal proceedings. Otherwise also, from the perusal of the copy of the judgment Ex.PB, it is not clear that injuries have been received by the deceased by use of the vehicle. So, the finding of the learned Tribunal on issue No.1 does not call for any interference and the same stands affirmed. FAO No.2137 of 2007 6 Consequently, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. April 22nd, 2010 ( K.C.PURI ) JUDGE