J.K. Ranka, J. - (1.) THE instant appeal is directed against the award dated 29.8.1997 passed by Motor Accident Claims Tribunal, Sambhar Lake District Jaipur, in M.A.C. No. 186/1992.
(2.) IT is the claim of the appellants that one Bhagwan Singh son of Kishan Singh, who was aged about 25 years met with an accident on 27.3.1993 at about 4:15 P.M. on National Highway No. 8 near village Gidani in a Maruti Van bearing No. DDA 1393 in which the deceased was sitting with one Puran Bahadur, who is said to be driving the vehicle, and it is claimed that on account of rash and negligent driving by the offending vehicle, a truck, bearing No. PB 10C 9681, and because of the mistake of the driver/owner of the offending vehicle the truck hit Maruti Van, which was dragged on the wrong side and by hitting of the said vehicle, Bhagwan Singh died while the driver of the Van Puran Bahadur suffered serious injuries. FIR was lodged, but thereafter police was of the view that it was due to the mistake of the driver of Maruti Van, Puran Bahadur, therefore, Final Report was filed and which was not objected to or no protest petition was filed. The Tribunal, after analysing the material and evidence and examination of witnesses, came to the conclusion that the appellants have not been able to prove issue No. 1, and since issue No. 1 was with reference to whether there was a mistake/rash and negligent driving by the truck, and according to the Tribunal which was not proved, accordingly the claim was dismissed by the impugned order which has been assailed. Counsel for the appellants contended that admittedly the accident had taken place and on account of the unfortunate accident by rash and negligent driving of the offending vehicle, truck bearing No. PB 10C 9681, Bhagwan Singh, son of the appellant No. 1, aged about 25 years, died an unnatural death. It is further contended that Puran Bahadur, who is said to be driving the Van, got seriously injured and initially both were carried to a nearest hospital at Dudu, and thereafter Puran Bahadur was taken to the S.M.S. Hospital, but he absconded. 3.1 He contended that two witnesses namely, Simran Singh and Jaipal, who were on another truck, were examined, who were eye -witnesses. They confirmed about the accident having taken place and contended in the statements that it was on account of rash and negligent driving by the offending truck which hit the Van in a wrong direction, and it dragged to the other side and when both the witnesses who are said to be eye -witnesses have affirmed this factum of accident, then the observation of the Tribunal was perverse. He further contended that apart from these two witnesses, there is no other material on record to come to a different conclusion by the Tribunal, and the Tribunal has assumed and presumed merely on the basis of the FIR that the truck was travelling on the right direction, but the Maruti Van was on the wrong direction, and Maruti Van rather hit the truck from wrong side. He further contended that ample evidence is available on record to justify that the truck hit the vehicle from a wrong direction. He contended that the accident is admitted and once the truck was insured, admittedly then the claim is required to be allowed in the light of judgment rendered by Hon'ble the Apex Court in Smt. Kaushnuma Begum & Others v. New India Assurance Co. Ltd. : (2001) 2 SCC 9. He further contended that claim has been incorrectly rejected, and since the issue No. 1 has been decided against the appellants, therefore, the Tribunal has not quantified the amount, if any, to be allowed, and contended that in the facts and circumstances available on record, it is a fit case where the matter deserves to be restored for allowing just compensation on merits.
(3.) PER contra, Mr. Tripurari Sharma, counsel for the Insurance Company, contended that this is a case which deserves to be out rightly rejected, inasmuch as it is a false case and the entire story built up by the appellants has been found to be false and rightly observed by the Tribunal. He contended that the appellants, during the course of pendency of appeal, has themselves dispensed with service upon respondent Nos. 1 and 2, who happen to be driver and owner of the offending vehicle, and once they have been held to be not a necessary party in this case, the claim to say that driver and owner were responsible for driving in a rash and negligent manner, is unfounded. He further contended that a doubt is raised as the two witnesses who claim to be eye -witnesses and the appellants are of the same place, of Faridabad, and even the two witnesses namely, Simran and Jaipal they were not able to justify as to the presence on the spot and for what reason, and even the father of the deceased has stated in the statement which has been taken note of by the Tribunal that even he did not know as to who Puran Bahadur was when the son of appellant No. 1, Bhagwan Singh, was travelling with Puran Bahadur. He further contended that even Puran Bahadur, the so -called driver of the Van, in which the deceased was sitting was even not made a party, neither before the Tribunal, nor before this court. Admittedly, Puran Bahadur had absconded and was not traceable till date as per the report of the police authorities. Therefore, all these facts go against the case of appellants. He further contended that even the vehicle in which the deceased was travelling, has been found in police investigation that the vehicle was stolen by so -called Puran Bahadur in connivance with the deceased, and since it was a stolen vehicle, they were running from the place driving the vehicle in a rash and negligent manner and hit the truck from wrong side on account of their own mistake. He relied upon the judgments rendered by Hon'ble the Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal & Others : 2007 ACJ 1284, and Surender Kumar Arora & Another v. Dr. Manoj Bisla Others : 2012 ACJ 1305, and of this court passed in Kokila Bai & Another v. Abdul Bahav & Others : I (DB) ACC 458 (DB), Mala Ram v. Roopa Ram & Others, 2004 R.A.R. 543 (Raj.), and Bodu Ram v. Kana Ram & Others SB CMA No. 2925/2005 decided on 22.4.2015.;