- (1.) This appeal has been filed by the appellants against the Award dated 16.2.2010, passed by the Motor Accident Claims Tribunal, Gurdaspur. (for short the Tribunal).
(2.) Learned counsel for the appellant submitted that the learned Tribunal has not taken into consideration the evidence of the witnesses and dismissed the claim petition. It is submitted that the Ld. Tribunal discarded the testimony of eye witness to the accident i.e Basant Masih, brother of deceased. He contended that the Ld. Tribunal wrongly observed that the number and colour of the vehicle involved in the vehicle are different to that of mentioned in the claim petition. Even the claimant Basant Masih in his statement has mentioned wrong number of the car. He submitted that the Ld. Tribunal wrongly disbelieved the statement of the eye witness Basant Masih and rejected the claim erroneously. He contented that different registration No. or different colour of the vehicle, as observed by the Ld. Tribunal are no ground to reject the claim of the claimants. In support of his contentions, he placed reliance on Nikki and Others v. Darshan Singh and Anr., 2005 4 RCR(Civ) 784, Varinerjit Singh v. Tajinder Singh and Others, 2008 1 RCR(Civ) 67. He prays that the award is based on surmises and conjectures and the same may be set aside and appeal may be allowed.
(3.) On the other hand, learned counsel for respondent No. 2 submitted that the Ld. Tribunal rightly analysized the evidence produced on record and passed the Award in right perspective. He further submitted that the testimony of the eye witness was shaky and doubtful, as there was difference of registration number and colour in the statement and claim petition of the witnesses. Therefore, the Ld. Tribunal rightly came to the conclusion that deceased did not die due to rash and negligent driving of respondent No.1. He prays that the appeal deserves to be dismissed. After hearing the learned counsel for the parties and going through the case file, this Court feels that the Tribunal has rightly observed that car of respondent No. 1 was not involved in the accident, in which, deceased was alleged killed. In paras 11 to 15 of the Award, it was observed as under:- "11. The claimants to prove the fact that Jaswant Masih died in a road accident due to the rash and negligent driving of respondent No.1 has examined Basant Masih as AW2. He stated in his affidavit Ex. AW2/A that on 5.10.2004 he alongwith his brother Jaswant Masih and Kashmir Masih were going from village Meede to village Shakla to see their relatives. Jaswant Masih, his younger brother was going on his cycle ahead of him on the correct side of the road. He was following his brother on his own cycle and Kashmir Singh was also going on his own cycle. When they reached near Govt Primary School at Village Mandiala at about 1 p.m one indica Car of sky blue colour bearing registration No. PB-02-5200 came from back side of the road. The said car was driven by respondent No.1 rashly and negligently. The driver of the car struck the car in the cycle of his brother Jaswant Masih after coming to the wrong side of the road. Jaswant Masih fell down on the metalled road and sustained multiple injuries on the various part of his body and he succumbed to the injuries at the spot. The matter was reported to the police Station Ghoman and FIR was lodged on his statement. He proved the copy of the FIR Ex.A-1 on the file. He further deposed in his statement that the dead body of his brother was shifted to Civil Hospital, Batala from the place of occurrence where the post mortem was conducted. He proved the copy of the post mortem as Ex.A2 on the file. 12. The respondent No. 1 who is the driver and owner of the vehicle bearing registration No. PB-02-5200 as pleaded by the claimant in the claim petition appeared in the witness box as RW1 and he stated in his affidavit Ex.RW1 thqt no accident took place with his vehicle. He further deposed that he was discharged by the Court of Shri Jaswinder Singh, learned Judicial Magistrate Ist Class, Batala vide his order dated 13.4.1007, in the criminal case, which was registered against him. He deposed that FIR No. 112 dated 5.10.2004, was falsely registered against him. He met the superior police officials and they made the enquiry and hold that the vehicle on the respondent No. 21 bearing NO. PB-02-AB-5200 was not involved in the alleged occurrence. He further deposed that the colour of the vehicle was mentioned as sky blue colour and the registration number was mentioned as PB-02-5200. He further proved the copy fo the order dated 13.4.2007 passed by Shri Jaswinder Singh as Ex.R1, the copy of the enquiry report of Deputy Superintendent of police, Qadian dated 18.2.2005 as Ex.RB, copy of the insurance cover note as RC, copy of his driving licence as Ex.RD, copy of telephone bill dated 22.10.2004, as Ex.RE copy of railway ticket dated 5.10.2004, as Ex.RF and copy of the RC as Ex.RG. 13. The claimants alleged that Jaswant Msih died in a road accident. Basant Masih AW2 has reported the matter to the police. The FIR Ex.A1 bearing No. 112 dated 5.10.2004, was registered on his statement. He mentioned the colour of the vehicle sky blue and number as PB-02-5200 but in the claim petition the claimants have mentioned the registration number of the vehicle as PB-02-AD-5200. Basant Masih AW2 has mentioned in his affidavit Ex/AW2/A that the accident took place with vehicle bearing registration No. PB-02-5200. He did not state in his affidavit that in fact the accident took place with vehicle bearing registration NO. PB-02-AD-5200 but he has wrongly mentioned the number as PB-02-5200. He further submitted the fact that he did not mention the whereabouts of the driver of the offending vehicle to the police. He further stated that the colour of the vehicle was sky blue colour. The FIR Ex.A1 also mentioned the colour of vehicle as sky blue and registration number as PB-02-5200. The respondent No.1 Jaswant Singh has specifically stated in his examination-inchief that no accident took place with this car. The police registered the FIR No. 112 against Jasmeet Singh and report under Section 173 (2) of the Code of Criminal Procedure was presented in the Court of the Illaqa Magistrate, but Shri Jaswinder Singh, learned Judicial Magistrate Ist Class, Batala vie his orer dated 13.4.2007 discharged the accused on the groun tht the registration number of the car was different and the colour of the car was also different. It find no force in the contention of the learned counsel for the claimants that the claimants have filed a revision against that order which was pending. The respondent No.1 also produced on the file the enquiry report of Deputy Superintendent of Police, Qudian (Ex.RB). The Deputy Superintendent of Police, Quadian held in his enquiry that the respondent NO.1 was not present on the day of occurrence at the place of occurrence as he was at Delhi on that day an the vehicle of the respondent No. 1 was not involved in the accident. The learned Judicial Magistrate, Ist Class, Batala after relying upon the report (Ex.RB) discharged the respondent No.1 from the case which was registered against him. Even the respondent No. 1 has produced on the file ticket Ex.R1 which shows that the respondent No.1 alongwith two other persons was at Delhi at the time of occurrence. The colour of the car is shown to be S.Gold in registration certificate Ex.RG. Basant Masih has stated the colour of the offending vehicle as Sky blue colour in his affidavit and in the FIR Ex.A1. Therefore, in view of the discussion discussed above, this Tribunal is of the considered opinion that Jaswant Masih did not die in a road accident due to the rash and negligent driving of respondent No. 1 as the car of the respondent No.1 was no involved in the accident. Therefore, issue No. 1 is decided against the claimants. The present claim petition is not maintainable as the deceased did not die due to rash and negligent driving of respondent No.1. So issue No. 4 is decided in favour of the respondent and against the claimants. 14. The claimants alleged that they are the legal representatives and dependents upon the deceased One of the claimants Paramjit Kaur appeared in the Court as AW-1 and she stated in her affidavit that they were dependent upon the deceased. No evidence was led by the respondents to disapprove the said fact. Therefore, the claimants were dependent upon the deceased. So issue No. 2 is decided in favour of the claimants and against the respondents. 15. In view of my finding on issue No. 1 and 4, the claimants are not entitled to any compensation. So this issue is decided against the claimants".;