- (1.) Instant application under Order 41 Rule 19 read with Section 151 of CPC has been filed for restoration of the FAO No. 4811/2011 which was dismissed for non-prosecution vide order dated 9th January, 2012. The application is supported by an affidavit of Counsel for the appellant. For the reasons stated in the application, the same is allowed, the order dated 9th January, 2012 is recalled and FAO No. 4811/2011 is restored to its original number. At the request made by the learned Counsel for the appellant the appeal itself is taken up for hearing. FAO No. 4811/2011 This order shall dispose off FAO Nos. 4811 and 4812 of 2011 as both these appeals arise out of one and the same motor vehicular accident, involving identical facts, which are briefly noticed as under. As per case of the claimant/appellant on 17th March, 2002, claimant along with her husband (Amar Chand) were going from Ambala City to Ambala Cantt to see one Krishan Kumar who was admitted in a hospital at Ambala Cantt. They were traveling on a rickshaw which was allegedly being pulled by Suresh Kumar on left side of the road. At about 11.15 p.m., when the rickshaw covered distance of about 100 metres at Jandli railway over bridge in the area of Ambala City, the rickshaw was hit by one Gypsy bearing registration No. DAV 3967 (hereinafter referred to as the offending vehicle) driven by one Ram Singh (respondent No. 3 herein). As a result of the said collision, both claimant Smt. Bimla and her husband Amar Chand fell from rickshaw and received multiple simple and grievous injuries. They were taken to Civil Hospital, Ambala, where Amar Chand died of injuries suffered by him. Claimant/appellant Smt. Bimla and her children filed two separate claim petitions under Section 166 of the Motor Vehicles Act, one for the death of Amar Chand and the other for the injuries suffered by Smt. Bimla.
(2.) Upon notice of the claim petitions, owner, driver and insurer of offending vehicle contested the claim petitions by filing written statements.
(3.) In their joint written statement, driver and owner of the offending vehicle denied involvement of the offending vehicle in the alleged accident and dubbed the case of the claimant as concocted story.;