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2017 DIGILAW 2773 (PNJ)

Maghar v. Rohit alias Bunty

2017-11-17

SUDHIR MITTAL

body2017
JUDGMENT Mr. Sudhir Mittal, J. (Oral):- The claimants are in appeal against the Award dated 02.12.2004passed by the learned Motor Accidents Claims Tribunal, Ferozepur,(hereinafter referred to as ‘the Tribunal’), whereby the driver and the ownerof Tata Indica Car bearing registration No.PB-05-H-2601 has beenexonerated from any liability. 2. The undisputed facts are that Prem @ Kala-deceased was goingon a bicycle alongwith his brother, namely, Raj Kumar from villagePiranwala to Khai Phemeki on 27.03.2003 at about 11.00 a.m. Near thebus-stop of village Piranwala, the deceased-Prem @ Kala and his brothercame on to the G.T. Road and met with an accident with a Tata Indica car.Thereafter, the driver of the Tata Indica car took the deceased alongwith hisbrother to Amar Hospital, Ferozepur. The death of Prem @ Kala took placeon 13.06.2003 in Civil Hospital, Ferozepur. 3. The parents of deceased-Prem @ Kala filed a claim petition on01.08.2003 alleging negligence of the driver of the Tata Indica car. Theclaim petition has been rejected vide the impugned award by holding,inter alia, that the claimants have not been able to prove negligence of thedriver of the Tata Indica car nor have they have been able to connect thedeath of Prem @ Kala to the accident. Aggrieved by these findings, theparents of deceased-Prem @ Kala have preferred the present appeal. 4. It has been vehemently contended by learned counsel for theappellants that the record of the case conclusively shows that the Tata Indicacar had hit Prem @ Kala. Reference has been made to the pleadings of theparties to contend that the driver of the Tata Indica car, in his writtenstatement, has admitted the factum of the accident. Reference has also beenmade to the statement of Raj Kumar (AW-2) to contend that the said witness(brother of the deceased-Prem @ Kala) had stated in his examination-inchiefin no uncertain terms that his brother died on account of the rash andnegligent driving of the driver of the Tata Indica car and that he has not beencross-examined on this aspect of the matter. He further submits that thedriver of the Tata Indica car has admitted in his written statement that thedeceased-Prem @ Kala was shifted from Amar Hospital, Ferozepur to SobtiNeuro and Trauma Centre, Ludhiana, and therefore, it is established that thedeceased-Prem @ Kala had suffered serious head injuries resulting in hisdeath. He further submits that thedriver of the Tata Indica car has admitted in his written statement that thedeceased-Prem @ Kala was shifted from Amar Hospital, Ferozepur to SobtiNeuro and Trauma Centre, Ludhiana, and therefore, it is established that thedeceased-Prem @ Kala had suffered serious head injuries resulting in hisdeath. In a nutshell, the arguments of the learned counsel for the appellantsare that: a) the pleadings and the evidence of the parties establishednegligence of the driver of the Tata Indica car and, b) an inference is to be drawn from the fact that the deceased-Prem @ Kalawas admitted to Sobti Neuro and Trauma Centre, Ludhiana, that he died onaccount of head injuries sustained by him in the accident. 5. On the other hand, learned counsel for respondentNo.4-Insurance Company supports the impugned award. He refers to DDRdated 28.03.2003 (Ex.R3) to contend that the first statement ofAW-02 Raj Kumar son of the appellants/claimants exonerates the driver ofthe Tata Indica car. He also relies upon the written statement of the driverand the owner to contend that at no stage any admission has been maderegarding negligence on their part. He further submits that after gettingDDR (Ex-R3) recorded, the claimants have taken a U-turn in the presentclaim petition by contending that the death is on account of rash andnegligent driving of the driver of the Tata Indica car. 6. I have carefully read the contents of the DDR dated 28.03.2003(Ex.R3), which has been produced on the record by respondent No.1/driverof the Tata Indica car. It has been clearly recorded therein that the accidenttook place because the bicycle of the deceased-Prem @ Kala went into apot-hole in the road resulting in loss of control on account of which theaccident took place, despite an attempt being made by the driver of the TataIndica car to reduce his speed and avoid the cyclist. The document was alsosigned by Raj Kumar (AW-2). The statement made by him at the firstinstance after the accident, is clearly at variance with the stand taken by theclaimants in the claim petition. Further, a perusal of the cross-examinationof the said witness reveals that there were three persons travelling togetheron their respective bicycle on the day of the accident. It further shows thatother people had gathered at the spot after the accident took place.However, no other witness has been produced in support of the claim. Further, a perusal of the cross-examinationof the said witness reveals that there were three persons travelling togetheron their respective bicycle on the day of the accident. It further shows thatother people had gathered at the spot after the accident took place.However, no other witness has been produced in support of the claim. Inthis state of evidence, it is difficult to hold that there was any negligence onthe part of the driver of the Tata Indica car. DDR (Ex.R-3) is in the natureof an admission made on behalf of the claimants that there was nonegligence involved and thus, the findings of the learned Tribunal, in thisregard, cannot be faulted. 7. Once, it is held that there was no negligence on the part ofrespondent No.1/driver of the offending vehicle, no relief can be granted tothe claimants, even if it is held that the death of their son was on account ofthe injuries sustained in the accident, although, in my considered opinion,the claimants have failed to establish a clear link between the motorvehicular accident and the death of Prem @ Kala. 8. Thus, the appeal is without any merit and the same is dismissed. Since, the claim petition has been filed under Section 140 of the MotorVehicles Act, 1988, as well, no fault liability of Rs. 50,000/- is fastened on thedriver and owner of the offending vehicle, which the Insurance Companywould be liable to indemnify.