FAO/259/2018 on 29 December 2022

1. Whether the accident was result of rash and negligent driving of the offending vehicle by the respondent No.2 and the petitioner sustained injuries in the said accident? OPP.

2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to compensation. If so, to what amount and from whom? OPP.

3. Whether the petition is not maintainable? OPD.

4. Whether the petition is bad for non-joinder of necessary of parties? OPR.

5. Whether the petitioner has no cause of action to file the present petition, as alleged? OPR.

6. Whether the petitioner is estopped by his act and conduct to file the present petition? OPR.

7. Relief:-

6. Subsequently, vide impugned award dated 7.11.2017 learned Tribunal below while holding respondent No.1/claimant entitled to compensation to the tune of Rs. 5,54,103/- alongwith interest at the rate of 6% per annum from the date of filing of this petition till the realization, held appellant herein liable to pay aforesaid amount of compensation. Learned Tribunal below arrived at a conclusion that accident occurred on account of rash and negligent driving of appellant, who at that relevant time was driving Scooter No. HP-12-A-1259. In the aforesaid background, appellant has approached this Court in the instant proceedings, praying therein to set-aside aforesaid award inasmuch as he has been saddled with liability to pay the compensation.

7. Mr. Udit Shaurya Kaushik, learned counsel representing the appellant, vehemently argued that impugned award is not sustainable in the eye of law inasmuch appellant, who was owner-cum-driver of the scooter No.HP-12-A-1259 came to be saddled with liability to pay compensation. He submitted that though in the case at hand, FIR No.62 of 2009, dated 5.11.2009, under Sections 279 and 337 of IPC was registered against the appellant at police Station Kasauli, District Solan, H.P., but prosecution was unable to prove rash and negligent driving, if any, by the appellant and as such, he stands acquitted vide judgment dated 2.11.2013 (Annexure RA). He submitted that since after being hit by HRTC bus being driven by respondent No.3, both driver as well as pillion rider fell on the ground and suffered injuries, conductor of HRTC bus informed the police, who thereafter on the basis of statement made by respondent No.3, driver of the bus that scooter was being driven rashly and negligently by appellant, proceeded to register case under Sections 279 and 337 against the appellant. He submitted that though after recording of the judgment of acquittal in favour of the appellant, there was no occasion for the court below to conclude rash and negligent driving, if any, by the appellant, but even if reason assigned by the Court below that acquittal in criminal case has no bearing on civil case are presumed to be correct, tribunal below ought not have ignored statements of eye witnesses i.e. PW-1 and PW-3, who categorically deposed that accident occurred on account of rash and negligent driving of driver driving HRTC bus No. HP-07-4814. He submitted that save and except FIR mark

D-1, no concrete evidence, worth credence, ever came to be led on record on behalf of respondent No.3 to prove rash and negligent driving, if any, by the appellant and as such, court below wrongly held appellant guilty of rash and negligent driving. Lastly, learned counsel for the appellant submitted that at no point of time, claimant/ respondent No.1 alleged rash and negligent driving by appellant, rather he categorically proved on record in accordance with law that accident occurred on account of rash and negligent driving of driver of HRTC bus No. HP-07-4814 i.e. respondent No.3, Sh. Pratap Singh but yet court proceeded to saddle appellant with liability to pay compensation, which is not sustainable in the eye of law.

8. Mr. Ajeet Singh Saklani, learned counsel representing respondent No. 2, while supporting the impugned award, vehemently argued that respondent Nos. 2 and 3 have successfully proved on record by placing on record copy of FIR mark D-1 that the accident occurred on account of rash and negligent driving of scooter being driven by the appellant and as such, no illegality can be said to have been committed by court below while holding appellant liable to pay amount of compensation. He further submitted that no doubt appellant was subsequently acquitted in criminal case, but acquittal in criminal case has no bearing, if any, on the civil liability, which otherwise

stands duly proved on record by respondent Nos. 2 and 3. While making this Court peruse FIR mark D-1, Mr. Ajeet Saklani, argued that it stands duly recorded in the FIR that accident occurred on account of rash and negligent driving of the appellant, who at that relevant time was driving scooter No. HP-12-A-1259 rashly and negligently.

9. Mr. Anirudh Sharma, learned counsel representing respondent No.1/claimant argued that as per the case set up by the respondent No.1/claimant, accident occurred on account of rash and negligent driving of HRTC bus being driven by respondent No.3, Pratap Singh, which fact was duly proved on record by examining independent witness PW-3, Jamna Devi, who categorically stated that accident occurred due to rash and negligent driving of HRTC Bus being driven by respondent No.3.He submitted that aforesaid witness adduced on record by respondent No.1/claimant was sitting in the bus and as such, it cannot be said that she had no occasion to see the accident with her eyes.

10. Ms. Samanta Negi, learned counsel representing respondent No.3, supported the impugned award. She submitted that there is overwhelming evidence adduced on record by respondent Nos.2 and 3 suggestive of the fact scooter being driven by the appellant came in high speed and struck against the bus, which at that relevant time was in very slow speed. She submitted that bare perusal of FIR mark D-1, clearly reveals that accident occurred on account of rash and negligent driving of the appellant and as such, court rightly held him liable to pay the compensation.

11. Having heard learned counsel representing the parties and perused the material available on record, this court finds that there is no dispute qua facts, as have been noticed hereinabove, and as such, there is no necessity to reproduce the same.

12. Precisely, the case of the appellant is that the accident occurred on account of rash and negligent driving of driver of HRTC bus, Sh. Pratap Singh. To prove aforesaid claim of appellant, learned counsel representing the appellant specifically invited attention of this Court to statements of PW-1 and PW-3, wherein they categorically deposed that the accident occurred on account of rash and negligent driving of driver of HRTC bus, respondent No.3. PW-1 i.e. claimant tendered his evidence by way of affidavit Ex.PW1/A. He categorically stated that accident was caused by HRTC bus being driven by respondent No.3. He further deposed that appellant was driving the scooter in slow speed carefully and cautiously and there was no rash and negligent Act on his part in causing the accident. If the cross-examination conducted upon this witness is perused in its entirety, it cannot be said that opposite party was able to extract something contrary to what this witness stated in his examination-in-chief.

13. Respondent No.1/claimant also examined PW-3, Jamna Devi, who at that relevant time was traveling in HRTC bus being driven by respondent No.3. While tendering her evidence by way of affidavit Ex.PW3/A, she categorically deposed that accident occurred on account of rash and negligent driving of HRTC bus by respondent No.3. Cross-examination conducted upon this witness also suggests that opposite party was not able to extract something contrary to what this witness stated in her examination- in-chief.

14. If the statements made by aforesaid witnesses are read in conjunction juxtaposing with each other, there appears to be force in the contention of learned counsel representing the appellant that accident occurred on account of rash and negligent driving of HRTC bus, which at the relevant time was being driven by respondent No.3. Factum with regard to lodging of FIR Mark D- 1, dated 5.11.2009 under Sections 279, 337 of IPC, registered at police Station Kasauli, District Solan, H.P., with respect to accident against respondent No.3 weighed heavily with the tribunal below while holding appellant liable to pay amount of compensation. Learned Tribunal below having taken note of the averments contained in the FIR, wherein it stood recorded that the accident occurred on account of rash and negligent driving of the appellant, proceeded to conclude that accident in question is result of rash and negligent driving of the appellant, who at that relevant time was driving the scooter.

15. No doubt, perusal of copy of FIR reveals factum with regard to rash and negligent driving by respondent but that could not be sufficient for the court below to conclude in the instant proceedings that accident occurred on account of rash and negligent driving of the appellant, especially when FIR was lodged by respondent No.3. If statement of Investigating Officer recorded in criminal case initiated pursuant to FIR No.62 of 2009 is perused, it clearly reveals that after alleged accident appellant as well as pillion rider i.e respondent No.1/claimant had suffered injuries and in the meantime, conductor of HRTC bus informed the police, which after having reached the spot straightway recorded the statement of the driver of bus i.e. respondent No.3, who alleged that accident occurred on account of the rash and negligent driving of the appellant.

16. Since, respondent/claimant while filing claim petition under Section 166 of the Motor Vehicles Act had specifically alleged that accident occurred on account of rash and negligent driving of respondent No.3 i.e. driver of HRTC bus, court below ought not have straightway relied upon contents of the FIR No.62

of 2009, especially when respondent/claimant successfully proved factum with regard to rash and negligent driving of respondent No.3 by leading cogent and convincing evidence. In the case at hand, as has been observed hereinabove, respondent/claimant Neeraj Kumar examined himself as well as PW-3, Jamna Devi to prove rash and negligent driving by respondent No.3. If the statements made by both the witnesses are read in its entirety, it clearly establish rash and negligent driving by respondent No.3, but yet court below merely on the basis of contents of FIR No.62/2009 mark D-1, proceeded to hold that accident occurred on account of rash and negligent driving of appellant. Save and except statement of respondent No.3, Pratap Singh, who was driving HRTC bus, no evidence ever came to be led on record on behalf of respondent No.3, Sh. Pratap Singh to prove rash and negligent driving, if any, by the appellant.

17. Moreover, this Court finds that copy of FIR No.62 of 2009 never came to be exhibited, rather same was simply placed on record by driver, i.e. respondent No.3. Neither any official, who had recorded statement under Section 154 Cr.P.C., on the basis of which FIR mark D-1 came to be lodged was examined nor any record with regard to lodging of FIR was ever produced and as such, there was otherwise no occasion for the court below to place reliance, if any, upon the copy of FIR No.62 of 2009 mark D-1.

18. On the other hand, appellant to prove his innocence successfully placed on record judgment of acquittal dated 2.11.2000 Ex. RA, whereby he was acquitted of the charges framed against him under Section 279 and 337 of IPC in FIR No.62 of 2009. No doubt, acquittal in criminal case may not have much bearing on his civil case, which is otherwise required to be decided on the basis of evidence led in that case but in peculiar facts and circumstances, as have been noticed hereinabove, court below ought to have carefully perused judgment of acquittal recorded by trial Court in criminal case because perusal of the same clearly reveals that prosecution in that case was unable to prove by leading cogent and convincing evidence that accident occurred on account of rash and negligent driving of the appellant, rather appellant in that case successfully examined one witness namely, Baldev Singh(DW-1), who stated that he runs a shop, which is at a distance of about 20 meter from where the accident took place. He stated that scooter was travelling at a speed of 15-20 Km per hour. The bus was travelling at a speed of 60-70 Km. per hour. This witness categorically deposed that bus struck against the scooter and accident took place on account of rash and negligent driving of the bus driver. If the evidence led on record by the prosecution is examined in its entirety, it clearly reveals that prosecution was unable to prove that accident occurred on account of the rash and negligent driving of the appellant. All the material prosecution witnesses, who at the time of the accident were traveling in the bus in question, categorically deposed that they do not know who was at fault at the time of the accident. Even in criminal case save and except respondent No.3 nowhere stated that accident occurred on account of rash and negligent driving of the appellant.

19. Though, this Court finds no quarrel with the findings returned by learned tribunal below that judgment of acquittal in a case does not absolve the offending party from liabilities in civil case, but in that eventuality, court below had to only rely upon the evidence, wherein appellant successfully proved on record by examining himself as well as independent witness namely, Jamna Devi that accident occurred on account of rash and negligent driving of respondent No.3 i.e. driver of HRTC bus.

20. In view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in the appeal inasmuch as finding has been returned by learned tribunal below that accident occurred on account of rash and negligent driving of the appellant.

21. Having scanned the entire evidence available on record, this Court is convinced and satisfied that accident occurred on account of rash and negligent driving of HRTC bus bearing registration No. HP-07-4817 being driven by respondent No.3 and as such, tribunal below ought to have burdened respondent Nos.2 and 3, being owner and driver of the bus with liability to pay the compensation.

22. Consequently, in view of the above, the present appeal is allowed and award dated 7.11.2017 passed by Motor Accident Claims Tribunal, Solan, District Solan, Himachal Pradesh, is modified and appellant herein is exonerated of the liability. Respondent Nos. 2 and 3 being owner and driver of bus are held liable jointly and severally to pay the amount of compensation assessed by the learned tribunal below to the claimant. Rest of the award is upheld. Pending applications, if any, also stand disposed of.

(Sandeep Sharma) Judge 29th December, 2022 (shankar)