Santosh Aggarwal and Another Vs Manoj Bhardwaj and Others

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 219 FAO-3838-2012 (O&M) Date of decision: 10.02.2025

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Smt. Santosh Aggarwal & Another

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...Appellant(s)

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Vs.

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Manoj Bhardwaj & Others CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:Mr. Brea Sandhu, Advoca t e for Ms. Deepali Puri, Advoca t e for the appellants. Mr. Ashwani Talwar, Adv o cate for the respondents No.2 and 5. *** NIDHI GUPTA, J.

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...Respondent(s)

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The appellants/claimant s are in appeal before this

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Court again s t the dismissal of their clai m petition bearing No.56 of 2010/2011 f iled under Section 166 of t h e Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”) by M o tor Accident Claims Tribunal, Hisar (herei n after referred to as “the learned Tribunal”) vide Award dated 01.05.2012. The 2 claimants are the pa r ents of the deceased-Vishal Chaudhary w ho was 19 years of age at the time of accident. 2. Brief facts of the case as s et out by the claimants in the claim petiti o n are that on 20.8.2009, dece a sed Vishal Chaudhary son of Dawarka Pa r shad Chaudhary along with V ikas Bhardwaj, Vikas Kaushik

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and Jitende r Verma, were going from Shri Ganga Nagar to Delhi in the alleged offe n ding car bearing registration No. RJ-07-CA/0625 (hereinafter referred to a s ‘the alleged offending vehicl e ’), which was being driven by

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Vikas Bhard w aj. When the car reached near police station Agroha, on G.T. road at abo u t 1.30 a.m., then the driver of the car Vikas Bhardwaj could not see the truck bearing registration No. HR-61/4491, standing in the middle of the road and he could not contr o l his car and struck the same into the sta n ding truck. At that time the c ar was being driven by Vikas Bhardwaj at a very high speed and in a ra s h and negligent m anner. This accident took place due to rash and neglige n t driving of the offending Car no. RJ-07-C A /0625 as well as wrong parkin g of Truck No. HR-61/4491. In the said acc i dent, all the four occupants o f the car died at the spot and their dead b odies were taken to Maharaja Aggarsain Medical College, Agroha, wh e re the post mortem were con d ucted. Although the accident took place o n account of rash and neglige n t driving of the offending car by its drive r Vikas Bhardwaj and the wr o ng parking of the said truck bearing regi s tration no. HR-61/4491, yet t h e owner of the offending car i.e. respon d ent No.1 conspired with th e local police and got the investigatio n of this case closed by the p olice. The claimant Dwarka Prasad Cha u dhary, the father of the deceased Vishal Chaudhary, after recovering from the shock and mental ag o ny, filed a complaint to the Superintend e nt of police, Hisar on 25.3.2 0 10 for reinvestigation of the matter upo n which the present FIR No.95 d ated 9.4.2010 was registered against the d river of the offending car. At the time of the accident, the deceased Vi s hal Chaudhary was in the se r vice of M/s. Shri Ram Tools, Suratgarh R o ad Shri Ganga Nagar, and was drawing a salary of Rs.5,000/-

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per month. Besides that he was also earning Rs.10,000/- per month by doing part time job. In total, he was earning Rs.15,000/- per month. The deceased w a s having a diploma from IT Shri Ganga Nagar (Rajasthan). The claimants w e re totally dependent upon the income of the deceased who was unmarried and was contributing his en t ire income for the welfare of the family. A lthough no amount of compe n sation can fill up the lacuna created in the lives of the claimants, yet they have claimed the compensati o n to the tune of Rs. 60,00,00 0 /-. With these averments the claim petition was filed.

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Upon consideration of the pleadings, and oral & documentar y evidence adduced by the p arties, the learned Tribunal found that the claimants had miserably failed to show that either of the drivers was n egligent or that the accident h a d occurred as a result of their negligence; a nd accordingly dismissed the claim petition of the appellants. 4. Learned counsel for the appellants submits that while dismissing t h e claim petition of the appell a nts, the learned Tribunal has ignored the fact that in respect of the acci d ent dated 20.08.2009, a DDR No.4 was re g istered by eyewitness Manoj/ P W3 on the very next day i.e. 21.08.2009 itself. It is submitted that duri n g evidence, no question was put by the r e spondents to PW3 regarding a n y negligence of the car driver or regarding any Neelgai coming in front of the car in which the deceased was travelling. It is further submitted that t h e deceased was only 19 years of age and w as earning Rs.5,000/- per mon t h at the time of the accident

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and the clai m ants were dependent upon hi m . However, on a Court query it is admitte d that the claimant No.2/fathe r of the deceased was earning Rs.8,000/- p e r month. The claimant No.1/ m other of the deceased was a housewife.

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Learned counsel for th e appellants further submits that the wif e , children and widowed moth e r of deceased-Jitender Verma who had als o died in the same accident, had filed a claim petition before the Motor A c cident Claims Tribunal, Karkar d uma; which was allowed vide Award dat e d 31.03.2014 and compens a tion of Rs.49,12,225/- was awarded with interest @ 9% per annum. Th e appeal filed by the Insurance Company ag a inst the Award dated 31.03.20 1 4 before the Delhi High Court was dismis s ed vide order dated 13.05.2016 (Annexure P1). It is accordingly p rayed that the present appeal b e also allowed. 6. Learned counsel for resp o ndents No.2 and 5/Insurance Company o p poses the prayer made by ld. c ounsel for the appellants and submits tha t there is no error in the imp u gned Award. The appellants have wrongl y relied upon the statement of a lleged eyewitness PW3as the said witness has given seriously contradict o ry and discrepant versions of the events dated 20.08.2009. Learned c o unsel accordingly prays for dismissal of t he present appeal.

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No other argument is ma d e on behalf of the parties.

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I have heard learned c ounsel for the parties and perused the case file in great detail.

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I find no merit in the su b missions advanced on behalf of the app e llants. The accident in quest i on had taken place on the intervening n ight of 20-21.8.2009, when t h e car in which the deceased Vishal Chau d hary and three other perso n s were driving, hit into the stationary truckbearing registration No. HR - 61/4491. All the four persons died on the spot. The accident was allege d to have been witnessed by PW3/one M a noj son of Karan Singh. 10. In his initial statement ( E x.P-2), made by PW3/Manoj before the police, he had stated he was wo r king in a Dhaba on G.T. road. At about 2. 0 0 a.m. on 21.8.2009, he was p resent at the said Dhaba and various vehi c les were parked and the drivers and the conductors were having tea etc. The truck b earing regi s tration No. HR-61/449 1was standing on the katcha portion of road a nd its driver and conductor were taking tea. In the meantime two ant e lopes (stray cattle) Neel Gai, came running on the road and the driver of t he offending car coming from Fatehabad s i de lost its balance and struck the car into the parked truck which was s t anding on its own right side a n d on the katcha portion. PW3 further me n tioned in his initial stateme n t that virtually half of the offending c a r went under the truck and the four occupants died on account of the serious injuries received. H e informed the police station Agroha regarding the accident and his stat e ment was recorded in which he again cat e gorically mentioned that the a c cident had taken place as the driver of the offending car had lost control a nd balance on account of the

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sudden app e arance of two stray cattle on t he road and that no one was responsible f or that. On the basis of this s t atement of Manoj PW3, DDR No.4 dated 2 1.8.2009 was recorded.

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Subsequently, on an a p plication made by Claimant no.2/ father of the deceased the matter w as reinvestigated and an FIR No.95 dated 9.4.2010, came to be register e d under sections 279, 304-A, 427 IPC against Vikas Bhardwaj, driver of the offending car. Since the driver of th e said offending car had expire d in the accident, untraceable report Ex.P4 was filed in respect of the FIR. 12. However, it is notable th a t Manoj/author of the above said DDR no.4, in his evidence as PW3 bef o re the Tribunal gave a wholly different ve r sion from that mentioned in t he DDR which was recorded immediately after the accident. In his swor n affidavit Ex. PW3/A, he now stated that the driver of the car Vikas B hardwaj, could not see the offending tr u ck bearing registration No. H R -61/4491 which was standing in the middl e of the road. It was now stated that the accident had taken placedue to rash and negligent driving of th e car, as well as wrong parking of truck No.HR-61-4491. According to hi m , the driver of the car was careless in d r iving whereas the driver of the truck was negligent in parking the truck in t he middle of the road. There w as no mention of any Neelgai. However, in cross-examination he admitt e d that his initial statement Ex.P2 was recorded by the police.

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From the above evidence of PW3 as recorded before the Tribunal , it is clear that a different version has now been put forth by the said wit n ess. The glaring improvements are that PW3 has now stated before the learned Tribunal that the truc k was wrongly parked in the middle of t h e road - whereas initially PW 3 in his statement Ex.P-2 had stated that t he truck was parked on its correct side of the road on the Kaccha porti o n. The second improvement is that now PW3 has stated that there was n egligence on part of both, t h e car as well as the truck - whereas pr e viously he had stated that neither of the two vehicles was negligent a n d the accident had been c aused due to the sudden appearance of two Neelgai, which had ca u sed Vikas Bhardwaj/driver of the car to l o se balance and hit into the sta t ionary truck. However, in his evidence be f ore the Tribunal, there is no m e ntion of the Neelgai. 14. It may also be pointed out that the inquest proceedings were conducted by the investigating officer in the presence of and signe d by as many as 6 witnesses na m ely Madan Chaudhary son of Om Parkash Chaudhary, Ajit son of Ram N iwas, Chiranji Lal son of Siri Ram, Neeraj Chaudhary son of Ratten Lal, P awan Chaudhary son of Prem Kumar and Harish Chaudhary son of Bha n war Lal, all residents of old Market, Sur a tgarh, Rajasthan. The said wi t nesses also confirmed that it was an acci d ent by chance which occurr e d on account of the sudden emergence o f stray cattle on the road as a result of which the driver of

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the car lost its balance and struck against t he standing truck, which was parked on the katcha portion of the road an d on its right side. 15. It was in view of the abo v e two inconsistent and varied versions of the same incident given by the alleged sole eyewitness/PW3, that the lea r ned Tribunal held that the ras h and negligent driving of the offending vehicle(s) could not be proved an d dismissed the claim petition of the appellant. The Relevant observations and findings of the learned Tribunal are a s under:-

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“29. From the sequence of eve n ts narrated above, it appears to the Tribunal that the present claim petition is nothing but an abuse of the process of the court. At the initial stage, no one raised any whisper with re g ard to the rash and negligent driving of the offending car by i ts driver or the wrong parking of the offending truck in the middle of the road. It is the consistent version of PW3 a n d the witnesses signing the inquest report that the accide n t was by chance and no one was at fault. It was only afte r 7 months that the claimant came out with the complain t of case being not properly investigated by the police and t he FIR was registered against the person who himself died in the accident. It is neither the case of the claimants nor that of PW3, the alleged eye witness of the occurrence, t h at the police obtained the signatures of PW3 and the wi t nesses on the inquest report under section 174 Cr.P.C. und e r some consideration or the pressure of the owner of the o ff ending car. PW3 has taken a somersault while appearing in the court and attributed the cause of death to the rash and negligent driving of the driver of both the vehicles but it is surprising to know that he remained silent for 7 months a nd did not utter any word or did not make any complaint or did not contract the claimant or any family member of th e deceased that the accident occurred on account of the r a sh and negligent act of the drivers of both the vehicles. Th e re is no denial of the fact that the registration of the FIR is not sine qua non for proving the negligence in a claim case but t he claimants are supposed to

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bring cogent and reliable evide n ce on record in order to claim compensation under section 1 6 6 of the Motor Vehicles Act. Under this provision of la w, the factum of rash and negligence is the only ingredient for claiming compensation and in the present case, the cl a imants have failed miserably to show that either of the d r ivers was negligent and the accident occurred as a result of their negligence and even while appearing in the witness box PW3 Manoj son of Karan Singh did not make any utterance to the effect that as to how and under what circumstanc e s his statement Ex.P2 was recorded by the police. There is no cogent and satisfactory explanation for deviating from his earlier stand given by him to the police. In a case Oriental Insurance Co. Ltd. Meena Variyal and others 2007 AC] 1284 it was held by the Hon'ble Apex Court that one the clai m ant approached the Tribunal under section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the ve h icle concerned. In the case in hand, even the driver himse lf succumbed to the injuries sustained in the accident and h e could not come present to contradict the averments of the claim petition and the evidence so adduced by the clai m ants.”

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I find no error whatsoev e r in the above, said reasoning of the lear n ed Tribunal. It is clear that t he different version alleging negligence o n part of both the vehicles/th e truck and the car, has been put forwar d by the appellant-side only in order to claim the compensati o n.

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Further, it is my considered view that the claimant can derive no benefit from the judgment of the Delhi High Court (Annexure P- 1), as in the said Award dated 31.03.2014, a lthough the claimants therein had been gr a nted compensation, the learn e d Tribunal had also held both

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the car dri v er (who had died in the ac c ident) and the truck driver

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(respondent before the tribunal) guilty of c ontributory negligence to the extent of 9 0% and 10% respectively. A d mittedly PW3 in his initial statement m ade before the police had ca t egorically stated that the car had hit into the stationary truck with such f orce that virtually half of the offending car went under the truck. Furthe r, in the FIR untraceable report has been fil e d as the driver of the offendin g car, namely Vishal Bhardwaj has expired.

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In view of the above discussion, I find no ground is made out i n the impugned Award. The p resent appeal is accordingly,

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dismissed .

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Pending application(s) if a ny also stand(s) disposed of.

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10.02.2025 (Nidhi Gupta) Sunena Judge Whether speaking/reasoned: Yes/No Whether reportable: Yes/No

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Santosh Aggarwal and Another v. Manoj Bhardwaj and Others

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Santosh Aggarwal and Another v. Manoj Bhardwaj and Others

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