F. A. O. No. 1559 of 2009 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : F. A. O. No. 1559 of 2009 (O&M)
Date of Decision : May 01, 2009
M. G. Contractor Pvt. Ltd. and another .... Appellants
Vs.
Rijwan and others .... Respondents
CORAM : HON’BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Virendra Verma, Advocate
for the appellants.
* * * L. N. MITTAL, J. (Oral) : C. M. No. 8157-58-C-II of 2009 :
For the reasons mentioned in the application, delay of 44 days
in filing the appeal and 37 days in re-filing the appeal is condoned.
Main Appeal :
This is appeal by owner and driver of the alleged offending
vehicle (Paver of Gujrat Apollo Marka-Model 1998) impugning Award
dated 14.08.2008 of learned Motor Accident Claims Tribunal, Ambala,
whereby two claim petitions filed under Section 166 of the Motor Vehicles
Act, 1988 (in short – the Act) have been disposed of. One of the said
petitions had been instituted by Rijwan – respondent no.1 herein claiming
compensation for injuries suffered by him in motor vehicular accident.
As per claimants’ version, Rijwan, Mintu, Irshaad and others
F. A. O. No. 1559 of 2009 (O&M) 2
were travelling in jeep No.PB-10-BS-1837 being driven by Raman Kumar
(respondent no.2 herein) at moderate speed on left side of the road. After
crossing the river Markanda in the area of Police Station Mullana, the
offending vehicle was seen coming from the opposite direction being driven
rashly and negligently by Sanjay Kumar (appellant no.2 herein). Appellant
no.2 turned the said vehicle suddenly towards right hand side and the
vehicle hit the jeep with great force. Resultantly, the jeep was badly
damaged and got broken into two portions separate from each other.
Occupants of the jeep suffered injuries. Irshaad succumbed to his injuries.
The other claim petition was filed by his parents claiming compensation for
his death.
I have heard learned counsel for the appellants and perused the
case file.
Learned counsel for the appellants vehemently contended that
the alleged offending vehicle is not a vehicle, but is a machine for making
roads. The contention cannot be accepted. Section 2 (28) defines `motor
vehicle’ or `vehicle’ as under :-
“(28) “motor vehicle” or “vehicle” means
any mechanically propelled vehicle
adapted for use upon roads whether
the power of propulsion is transmitted
thereto from an external or internal
source and includes a chassis to which
body has not been attached and a
trailer; but does not include a vehicle
running upon fixed rails or a vehicle of
a special type adapted for use only in a
factory or in any other enclosed
premises or a vehicle having less than
F. A. O. No. 1559 of 2009 (O&M) 3
four wheels fitted with engine capacity
of not exceeding twenty-five cubic
centimeters;”
In the instant case, Sanjay Kumar (appellant no.2) – driver of
the offending vehicle admitted in his cross-examination that the aforesaid
machine/vehicle is fitted with four wheels, engine and steering as well and
has ten gears and is running on diesel. In view of these admissions, there is
no room for doubt that the aforesaid vehicle falls within the definition of
motor vehicle/vehicle, as contained in Section 2 (28) of the Act.
Learned counsel for the appellants next contended that the
claimants failed to prove that the accident occurred due to rash and
negligent driving of the aforesaid vehicle. This contention also cannot be
accepted. Rijwan claimant appeared as PW-2 and the claimants also
examined another eye-witness occupant of the jeep Mintu as PW-3. Both of
them stated that the offending vehicle was being driven rashly and
negligently by its driver and was turned towards right hand side suddenly
and hit the jeep with great impact. On the other hand, Sanjay Kumar
(appellant no.2) stated that his vehicle was stationary. However, the
Tribunal has believed the evidence of the claimants. The said finding is
based on appreciation of evidence and cannot be said to be perverse or
unreasonable so as to warrant interference in appeal. Statement of Rijwan
claimant is corroborated by independent witness Mintu. The contention on
behalf of the appellants that the alleged offending vehicle was stationary at
the time of accident cannot be accepted in view of statements of eye-
witnesses Rijwan and Mintu.
Learned counsel for the appellants next contended that it was a
case of contributory negligence. The contention has no merit because there
is neither any pleading nor any evidence to this effect. It has to be noticed
that if the jeep had struck the stationary offending vehicle, the jeep would
F. A. O. No. 1559 of 2009 (O&M) 4
not have got broken into two portions. Moreover, both the vehicles turned
turtle, as observed by the Tribunal in paragraph 16 of the impugned Award.
It would also show that the offending vehicle, which is a very heavy
vehicle, was being driven rashly and negligently and was not stationary. If
it had been stationary, it could not have overturned on being hit by a jeep.
Learned counsel for the appellants relying on a judgment of this
Court in the case of Bhagwani Devi vs. Krishan Kumar Saini and others
reported as 1986 ACJ 331, contended that adverse presumption should be
drawn against the claimants for not examining Raman Kumar (driver of the
jeep) as witness. The contention is misconceived because Raman Kumar
was arrayed as one of the respondents in claim petition and therefore, the
claimants could not have examined Raman Kumar as their own witness. On
the other hand, claimant Rijwan himself stepped into the witness box and
the claimants also examined eye-witness Mintu, who was also occupant of
the jeep.
In view of the aforesaid, I find no infirmity in the finding of the
Tribunal that the accident occurred due to rash and negligent driving of the
aforesaid offending vehicle.
For the reasons recorded herein above, I find no merit in the
instant appeal, which is accordingly dismissed.
May 01, 2009 ( L. N. MITTAL ) monika JUDGE