JUDGMENT Mr. Vijender Singh Malik, J.:- The above said two appeals arise out of the award dated 4.8.2010 passed by learned Motor Accidents Claims Tribunal, S.A.S.Nagar, Mohali (for short, “the Tribunal”). Vide the impugned award, learned Tribunal allowed the claim petition of Phoolpati and others in a sum of Rs. 1,95,000/-. The claim petition had been brought on the death of Dharamveer who was over-run by a vehicle during the night intervening 21st and 22nd June, 2008. While FAO No. 5857 of 2010 is brought by the insurer of truck bearing registration No. PB-12E-9387 challenging the very award on the ground that the accident is not proved to have been an outcome of rash and negligent driving of truck bearing registration No. PB-12E-9387, FAO No. 449 of 2011 has been brought by the claimants for enhancement of compensation. 2. Dharamveer used to sell fruits on a cart. He used to sleep in front of his cart during night. During the night intervening 21st and 22nd June, 2008, at about 2.35 AM, he was sleeping in front of his cart and he was crushed under truck bearing registration No. PB-12E-9387 driven by respondent no.1 in a rash and negligent manner. After the accident, respondent No.1 sped away the truck. The incident was seen by Gian Chand who was coming from Chandigarh towards his house. Gian Chand went to the police to report the matter, but the police did not register the FIR promptly and they went to the spot in the first instance. The police recorded the FIR on the basis of statement made by Rajiv Kumar. Said Rajiv Kumar was not the eye witness of the occurrence. It is further claimed that the police did not take any action against the driver of the aforesaid vehicle under influence of the owner of the vehicle. The claimants are poor persons belonging to district Jind. The claimants accompanied Gian Chand and tried to lodge a complaint with the police, but to no effect. The deceased had been 32 years of age at the time of death and was earning Rs. 15,000/- per month. A sum of Rs. 20.00 lacs was claimed as compensation by the claimants on the death of Dharamveer. 3. Involvement of the truck in the aforesaid accident is denied by respondents No.1 and 2. They have pleaded that a false case has been registered just to get compensation. 15,000/- per month. A sum of Rs. 20.00 lacs was claimed as compensation by the claimants on the death of Dharamveer. 3. Involvement of the truck in the aforesaid accident is denied by respondents No.1 and 2. They have pleaded that a false case has been registered just to get compensation. The insurer has also denied its liability to pay compensation on the ground that the driver of the truck was not holding a valid and effective driving licence and he was not having valid route permit and fitness certificate for plying the truck in question. It is also claimed that false claim petition has been filed by the claimants in collusion with respondents No.1 and 2. 4. On the pleadings of the parties, the following issues were framed by learned Tribunal:- “1. Whether deceased Dharamveer died due to the injuries sustained by him in a roadside accident caused due to the rash and negligent driving by respondent No.2 while driving truck bearing registration No. PB-12E-9387? OPP 2. Whether the claimants are entitled to receive compensation? If so, to what amount and from whom? OPP 3. Whether the driver of the offending vehicle was not holding a valid and effective driving licence at the time of alleged accident? OPR 4. Relief.” 5. Parties led their respective evidence. Hearing learned counsel for the parties, learned Tribunal has held under issue No.1 that Dharamveer [deceased] was himself negligent to some extent as he was sleeping on the roadside. However, he did not exonerate the truck driver of his responsibility in this matter. Therefore, it has been held that the deceased as well as respondent No. 2 were equally responsible towards the cause of this accident and the contributory negligence of the deceased was held at 50%. For this reason, assessing the compensation at Rs. 3,60,000/-, only Rs.1,80,000/- has been allowed along with Rs. 15,000/- under conventional heads. 6. Learned counsel for the insurer has submitted that the accident is of the night intervening 21st and 22nd June, 2008 and the same occurred at 2.30 AM. According to her, the FIR had been lodged in this case by Rajiv Kumar who is not an eye-witness of the occurrence. She has taken the court through Annexure A/1, a translated copy of the FIR to show that Rajiv Kumar did not see the accident. According to her, the FIR had been lodged in this case by Rajiv Kumar who is not an eye-witness of the occurrence. She has taken the court through Annexure A/1, a translated copy of the FIR to show that Rajiv Kumar did not see the accident. According to her, Rajiv Kumar in the FIR has stated that he received a telephone call from the police party that near his shop in front of a fruit cart by the side of the road, a person was lying dead due to injuries suffered in an accident. He is then claimed to have reached the place of occurrence and identified the dead body to be of Dharamveer. 7. Learned counsel for the appellant has further submitted that Gian Chand is examined in this case as an eye-witness of the occurrence. According to her, the statement of Gian Chand can not be believed and in fact, there is no evidence on record to prove the involvement of truck bearing registration No.PB-12E-9387 in the aforesaid accident. She has submitted that statement of Gian Chand is full of incongruities and the same is not reliable. She has submitted that learned Tribunal has fallen in error in accepting the statement of Gian Chand. 8. Learned counsel for the claimants-appellants has submitted that Gian Chand has no where stated that he did not see the accident. According to him, the police did not record his statement and has wrongly prepared an un-traced report in the matter. He has submitted that in a case relating to motor accident claim, the claimants are not required to prove the case as it is required to be done in a criminal trial. To support his argument, learned counsel has relied upon a decision of Hon‘ble Supreme Court of India in Kusum Lata Vs. Satbir, [2011(2) Law Herald (SC) 1169 : 2011(1) Law Herald (Acc.) 372 (SC)] : 2011(0) AIJEL-SC 49493. He has, thus, submitted that the Tribunal has rightly accepted the evidence of Gian Chand and reached the finding recorded under issue No.1. He has further submitted that the entire liability was of the truck driver and the deceased, who was sleeping by the roadside on a 32 feet wide road, was not negligent at all. He has, thus, submitted that the Tribunal was not justified in deducting 50% from the amount found lost by the claimants in the death of Dharamveer. He has further submitted that the entire liability was of the truck driver and the deceased, who was sleeping by the roadside on a 32 feet wide road, was not negligent at all. He has, thus, submitted that the Tribunal was not justified in deducting 50% from the amount found lost by the claimants in the death of Dharamveer. 9. Statement of Gian Chand, though he is not the lodger of the FIR, can be believed if there are no reasons to discard the same. Rajiv Kumar, the lodger of the FIR is not an eye-witness of the occurrence. It is he, in front of whose shop the deceased was keeping his fruit cart and was selling fruits there. He was called by the police after the accident and he identified the dead body of Dharamveer. 10. The question, thus, before this court is as to whether statement of Gian Chand is reliable. Gian Chand states that on 22.6.2008 at about 2.35 AM, he came from Chandigarh to his house after doing his personal work. He has stated that he was with some other persons. He has further stated that Dharamveer was sleeping in front of fruit cart on the kacha portion of the road where a truck came in a zigzag manner and crushed the deceased. He has further stated that he went to the police station and informed the police regarding the accident and instead of registering the FIR, the police went to the spot. He has stated that the police did not record his statement. 11. The statement of Gian Chand so far as it goes as above, shows that the place of accident has been on his way to his house from the bus stand where he alighted from the bus while on his way from Chandigarh. If he is believed to have gone to the police and stated about the accident as well as involvement of truck bearing No. PB-12E-9387, the police could not be believed to have not recorded his statement. Even though, the police instead of recording his statement thought it appropriate to visit the spot, still the police would have visited the spot alongwith Gian Chand and at the spot, instead of recording statement of Rajiv Kumar, the police could have recorded the statement of Gian Chand. Even though, the police instead of recording his statement thought it appropriate to visit the spot, still the police would have visited the spot alongwith Gian Chand and at the spot, instead of recording statement of Rajiv Kumar, the police could have recorded the statement of Gian Chand. Gian Chand says that the police instead of registering the FIR went to the spot which shows that he knew about the police going to the spot and as the spot was located on his way home, he must have accompanied the police to the spot. There was no reason with the police not to have recorded statement of Gian Chand and instead of his statement, to have been recorded the statement of Rajiv Kumar. 12. The statement of Gian Chand in his cross-examination further makes curious reading. He has stated that he and his companions had been coming from Mandi, Sector 26, Chandigarh to Kharar Bus Stand. He has stated that he had gone from Kharar to Chandigarh at about 9.30 PM in a bus and reached Sector 26, Chandigarh at 10.45 PM. He has further stated that at that time, the shops were closed and, therefore, they purchased nothing. He has further stated that the market closes at 10/11 PM and they started back from Chandigarh at 11.15 PM. 13. The aforesaid sequence of events appearing in the statement of Gian Chand shows that it was unfruitful trip for Gian Chand. Gian Chand is a businessman. He cannot be believed to have forgotten that when he would reach Chandigarh, the market would be closed. So, he cannot be believed to have proceeded from Kharar to Chandigarh at 9.30 PM and to have returned at the time when the accident took place. 14. It is a case where Gian Chand has admitted clearly that the deceased was already dead before he reached there. This statement would clearly show that the witness reached the spot after Dharamveer had already died. It is not a case that the truck driver kept the truck standing at the spot so that number of his truck could be noticed by any one. 15. The police as stated by Raja Ram, RW-1 could not find the vehicle responsible for this accident and had prepared an un-traced report. It is not a case that the truck driver kept the truck standing at the spot so that number of his truck could be noticed by any one. 15. The police as stated by Raja Ram, RW-1 could not find the vehicle responsible for this accident and had prepared an un-traced report. Gian Chand has stated in his cross-examination conducted by the counsel for the insurance company that Rajiv Kumar was called by the police after reaching the spot. Had Gian Chand been there with the police, who was telling about the details of the accident, there was no occasion for the police to have called Rajiv Kumar at that hour of the night to make the statement just about the identity of the deceased. 16. Had Gian Chand seen the accident and as he states, he had met the legal heirs of the deceased and told them about the accident, there was no occasion for the relatives of the deceased to have not made a prayer in writing to higher authorities of the police telling that the police was acting arbitrarily in not recording the statement of Gian Chand. No such attempt was made and it appears that Gian Chand has been sounded to become a witness just for the sake of filing the petition in hand. 17. In view of the aforesaid discussion, I find that the statement of Gian Chand is not reliable. So, this can be said to be a case with no evidence at all and, therefore, the law laid down in Kusum Lata’s case [supra] also does not come to the help of the claimants. Resultantly, FAO No. 5857 of 2010 filed by the insurer is allowed setting aside the impugned award. Consequently, FAO No. 449 of 2011 fails and is dismissed. ---------0.B.S.0------------ ———————————