RAJBIR Vs. SANJU AND OTHERS

JUDGEMENT

(1.) The appeal has been filed belatedly by 25 days. An application seeking condonation of delay in filing of the appeal has been moved. Considering the fact that the delay is not on very high side and it is always desirable to decide a lis on merits rather than shutting the doors of contest on a particular party, the application is accepted and delay in filing of the appeal stands condoned.

(2.) Briefly stated the facts of the case are that on 5.1.2008 at about 8.00 P.M., Bhim Singh (deceased) was travelling in Car No. DNB-1761 being driven by respondent No. 1 Rajbir and owned by respondent No. 2 Kailash Kumar. The car was going from Hisar towards village Durjanpur. When the Car reached near Airport Chowk, Hisar then an unknown truck came from Hisar side and by going on wrong side struck against the Car. Resultantly occupants of the Car including Bhim Singh suffered grievous and serious injuries. Bhim Singh was shifted to Metro hospital, Hisar and subsequently shifted to Neuro Care Hospital, Hisar, however, he succumbed to injuries on 11.1.2008. Post mortem examination on his dead body was conducted at General Hospital, Hisar. F.I.R. No. 16 dated 6.1.2008 for offences under Sections 279 , 337 and 427 IPC was registered against the driver of the unknown truck with Police Station City Hisar. Smt. Sanju, widow and master Vivek-minor son of Sh. Bhim Singh deceased had brought a claim petition under Section 163-A of the Motor Vehicles Act, 1988 against the respondents i.e. Rajbir driver-cum-owner and Kailash Kumar registered owner of Car bearing registration No. DNB-1761.

(3.) On notice, only respondent No. 1 put in appearance and filed written reply contesting the claim petition denying the material assertions in the petition stating that the accident had taken place due to rash and negligent driving of an unknown truck by its driver and for that reason F.I.R. had been registered against the driver of the offending truck; that the claim petition was not maintainable because a similar claim petition filed by the claimants was dismissed as withdrawn on 19.3.2012; that the clam petition was bad for mis-joinder and non-joinder of necessary parties because the driver, owner and Insurer of the truck in question had not been impleaded though they were necessary parties; that claimant-respondent No. 1 was not dependent upon deceased since she had remarried with one Baljit of Village Kharak Ramji. Refuting remaining assertions, such respondent prayed for dismissal of the claim petition. Respondent no. 2 had not appeared despite service as such they was proceeded against ex-parte. Issues on merits were framed. The parties were afforded adequate opportunities to lead evidence.