IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 30.05.2013 Pranay Sethi son of late Prashant Sethi, C/o Mrs. Renu Sethi, resident of 157, Phase-II, Industrial Area, Chandigarh, minor through his grand mother Mrs. Renu Sethi, and another.

...Appellants versus Bijender son of Ranjit, caste Kashyap, resident of Village Sekhpura, Tehsil Guhana, District Sonipat (driver of Truck), and others.

....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ----

Present: Mr.Ashwani Arora, Advocate, for the appellants.

Mr. Rampal Verma, Advocate, for respondents 1 and 2.

Mr. Paul S. Saini, Advocate, for respondent No.3.

Mr. R. S. Sharma, Advocate, for respondent No.6.

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1. Whether reporters of local papers may be allowed to see the judgment ?

2. To be referred to the reporters or not ?

3. Whether the judgment should be reported in the digest ?

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K.Kannan, J. (Oral)

1. The appeal is filed against the judgment of dismissal for a claim made for death of a male, aged 30 years, in a motor accident.

He was a passenger in a car going towards Delhi from Panchkula.

The accident was said to have taken place when due to an alleged bursting of tyre, the vehicle flipped to the other side of the median and it collided against the truck which was coming from opposite direction. A complaint was immediately given at the instance of the brother of the deceased, who had stated that the car was itself being driven at a high speed and the truck coming from the opposite direction also was coming at a high speed; it dragged the car at some distance before it stopped. In the accident, apart from the father of the first claimant, the mother also died.

2. In a claim for compensation at the instance of the minor child of the deceased and the mother of the deceased, the contention in defence by the owner of the truck insured and the insurer was that the accident was not on account of any negligence on the part of its driver. On the other hand, the negligence, if at all, could be attributed only to the driver of the car who on their own admission has stated in the petition that the vehicle was being driven at a high speed and it had crossed the median to the opposite side in a broad national highway and the truck driver could not be in any way faulted. The claim could not be therefore pursued against the owner and the insurer of the truck.

3. At the trial, a person, who claimed that he was travelling in a bus passing that way at the relevant time, gave evidence to speak about the relative negligence of both vehicles. The Tribunal, however, found that the witness could not have been an eyewitness at all, for, he did not remember the vehicle in which he was travelling but he remembered the vehicle numbers which were involved in the accident. The Tribunal also reasoned that he did not also retain the bus ticket and he was merely introduced as a witness to the incident. The Tribunal took note of the fact that the car itself was tossed to the other side of the road only on account of some mechanical defect and observed that the accident that took place was not on account of negligence of either of the drivers. Accordingly, it dismissed the petition.

4. The learned counsel for the appellants would contend that the Tribunal failed to take note of the fact that the accident took place in broad day light at 10:30 AM and there was no tree or structure obstructing the view for the vehicle coming from the opposite direction. The truck driver, if he had been in any way applying caution, must have been able to stop the vehicle and prevent a collision. The fact that the car was dragged to some distance by the truck was itself according to him a proof of negligent driving of the driver. The counsel would also argue that the driver of the truck was brought as a witness in Court by the insurer but strangely no evidence was elicited about him about the nature of accident. He could have been the best person to even join issue on the negligence attributed to him. The counsel would s