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2019 DIGILAW 2805 (PNJ)

Parminder Singh v. Surinder Mohan

2019-10-18

NIRMALJIT KAUR

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Judgment Ms. Nirmaljit Kaur, J.:-The present appeal has been filed against the award dated 15.10.2012, passed by the Motor Accident Claims Tribunal, Hoshiarpur (forshort, the Tribunal), vide which, the claim petition filed by the respondentagainst the present appellant, was allowed. 2. Learned counsel for the appellant submitted that the respondentfiled claim petition bearing MACT case No.22 dated 23.12.2009, againstthe appellant, claiming compensation to the tune of Rs.2,00,000/- onaccount of damage of Chevrolet Aveo Car bearing registration No.CH-04-6991, alleging a road side accident by the appellant. It was mentioned in theclaim petition by the respondent that he is posted as Additional District &Sessions Judge, Ropar and was recently transferred from Gurdaspur toRopar. It was further mentioned that on 23.06.2009, respondent alongwithhis family was officially shifting from Gurdaspur to Ropar and they weretraveling in their car No.CH-04-6991. Akshay Goel, who is son ofrespondent was driving the car and respondent was sitting on the back seat,whereas, Mrs. Prabha Goel wife of respondent was sitting on the left frontseat of the car. It was further alleged that when the car reached near Nawan Shahar crossing on the bye pass road near Balachaur, a motor cycle bearingregistration No.PB-07U-8958 being driven by the appellant at a very highspeed and negligently came from the side of Balachaur and struck on thefront left door of the car due to which car touched the roundabout of Nawanshahar and it was badly smashed. 3. After hearing learned counsel for the appellant, certain facts asnarrated below have emerged, leaving no choice with this Court but to allow the present appeal filed by the appellant: a) The accident took place on 23.06.2009, in which, the appellantreceived injuries. Accordingly, the appellant filed the claim petition bearing MACT No.39 dated 09.10.2009 titled as Parminder Singh Vs. Surinder Mohan and others, claiming compensation. The Tribunal allowed the said claim petition filed by the appellant, vide award dated 15.10.2012. As peraward, respondent No.3-Insurance Company was held liable topay the entire amount of compensation within two months fromthe date of award. b) Respondent No.1-Surinder Mohan also filed the claim petitionbearing MACT No.22 dated 23.12.2009, claimingcompensation from the appellant damage to his car bearing No.CH-04-6991 in the same accident, that occurred on23.06.2009, which too was allowed by the same Presiding Officer, on the same day. c) Meaning thereby, the Tribunal had granted compensation infavour of the appellant, who suffered injuries in the accidentcaused by Sh. c) Meaning thereby, the Tribunal had granted compensation infavour of the appellant, who suffered injuries in the accidentcaused by Sh. Akshay Goel, son of the respondent and on the other hand, on the same day, the Tribunal allowed the claimpetition filed by the respondent-Surinder Mohan, allowing thecompensation on account of damage to his car to be recoveredfrom the same appellant. Therefore, it is strange that once thefindings have been recorded by the Tribunal in claim petition bearing No.39 dated 09.10.2009 that the accident took place onaccount of the car being driven at the hands of Akshay Goel,the Tribunal could not have allowed the claim petition claimingcompensation on account of damage to the car against theinjured-appellant filed by the owner of the same offendingvehicle, being driven by Akshay Goel, especially when theaccident was on account of negligence of Akshay Goel and nocontributory negligence was raised nor proved.” 4. Learned counsel for the respondent however while justifyingthe award qua the compensation granted to the respondent for the damagedvehicle, to be recovered from the present injured-appellant, submitted thatsince there was no finding recorded in the award dated 15.10.2012, passedin the claim petition No.39 dated 09.10.2009, titled as Parminder Singh Versus Surinder Mohan and others, qua the negligence of the driver Akshay Goel, driver, who was son of respondent-Surinder Mohan, therefore, therewas no bar in allowing the claim petition filed by Surinder Mohan againstthe present appellant qua the damaged vehicle. 5. Learned counsel for the appellant on the other hand pointed outthat the vehicle was being driven by Akshay Goel i.e. son of the respondent& respondent was serving as Additional District Judge. Therefore, whilepassing the award in favour of the appellant under Section 166 of the MACT found that accident occurred on account of the driving by AkshayGoel but purposely did not mention the word ‘negligent’. 6. After hearing, the Court finds that the sufficient evidence wasled by the appellant in the said case to prove the negligence of Akshay Goel, driver of the offending car. The copy of the award is placed on record. Aperusal of the same shows that claimant/appellant Parminder Singh himselfstepped into the witness box as AW-1 and tendered his affidavit inexamination-in-chief and reiterated the version of claim petition. An FIRNo.50 dated 26.06.2009 was also registered under Sections 279/338 IPCagainst the driver Akshay Goel. The copy of the award is placed on record. Aperusal of the same shows that claimant/appellant Parminder Singh himselfstepped into the witness box as AW-1 and tendered his affidavit inexamination-in-chief and reiterated the version of claim petition. An FIRNo.50 dated 26.06.2009 was also registered under Sections 279/338 IPCagainst the driver Akshay Goel. One Harjit Kumar was examined as AW-2as independent witness who also tendered his affidavit in examination-inchief, wherein he has corroborated the incident and stated in no uncertainterms that Akshay Goel was driving the car in a rash and negligent manner.Moreover, the claim petition was allowed taking note of the FIR which wasunder Sections 279/338 IPC-for rash and negligent driving. The claim couldnot have been allowed under Section 166 of the Motor Vehicles Act, 1988,in case the negligence of the driver of the offending vehicle had not beenproved. The claim petition having been allowed under Section 166 of the MACT, there can only be one conclusion i.e. the negligence of the driver ofthe offending vehicle. Moreover, no appeal was filed against the said awardand the said award was accepted by the driver Akshay Goel as well as theowner of the offending vehicle, Surinder Mohan, respondent in the presentappeal. Having accepted the award under Section 166 of the MACT, it is nomore open for the respondents to say that the negligence at the behest ofAkshay Goel was not proved. The Tribunal seems to have been extracautious while ignoring to mention the word negligence for obviousreasons, which is evident on the face of it. Less said, the better! 7. There is another reason as to why the present award deserves tobe set aside. Neither the issue of contributory negligence was raised nor itwas framed and nor argued before the Tribunal in the claim petition bearingNo.39 dated 09.10.2009. In the absence of any finding on contributorynegligence, no claim petition for recovery of damages to the car could havebeen filed against the appellant. Surprisingly, the insurance company of theoffending vehicle, which was impleaded as party was also subsequentlydeleted vide order dated 21.05.2011 on an application filed by therespondent for reasons best known to the respondent himself. Photocopy ofthe same is taken on record. This fact has not been denied by learnedcounsel for the respondent that the name United India Insurance Company,Gurdaspur, insurer of offending car bearing No.CH-04-6991, was subsequently deleted from the array of respondent. Photocopy ofthe same is taken on record. This fact has not been denied by learnedcounsel for the respondent that the name United India Insurance Company,Gurdaspur, insurer of offending car bearing No.CH-04-6991, was subsequently deleted from the array of respondent. Once the Tribunal, whilepassing the award in claim petition bearing No.39 dated 09.10.2009 in favour of the appellant has held that it was proved by the appellant that hesustained injuries in the accident in question, which took place withoffending car No.CH-04-6991 driven by Sh. Akshay Goel, respondent No.2therein, son of respondent, no compensation on account of damage to thecar could have been awarded by the Tribunal in the present case against thesame appellant. The reason is not for to seek. It is both blatant and shocking. 8. In view of the above, the present appeal is allowed and theaward dated 15.10.2012 is set aside keeping in mind the findings recordedin claim petition under Section 166 of the MACT bearing No.39 dated 09.10.2009, against which no appeal was filed by the respondent and inwhich the accident was held to be on account the offending vehicle drivenby Akshay Goel, son of the private respondent in which no issue ofcontributory negligence was either raised nor framed or held.