Kamlesh and Another vs Shyamlal and Others

P.K. Jaiswal, J.—This order shall govern the orders in both the appeals as they arise out of the common accident.

Misc. Appeal No. 195/05 is filed by the claimants against the award dated 19th November, 2002 passed by IIIrd Additional Motor Accident Claims Tribunal, Dabra in Claim Case No. 23/02. Misc. Appeal No. 194/ 05 is filed by the claimant against the award dated 19th November, 2002 passed by Ilird Additional Motor Accident Claims Tribunal, Dabra in Claim Case No. 29/02.

Facts of the case are that the claimant Kamlesh and his daughter Poonam, aged 7 years were going to their home at Bujurg Basti by bicycle. When they were coming down from the railway over-bridge, it is alleged that a tempo bearing registration No. M.P.H. 04214 was driven in a rash and negligent manner by driver of the vehicle, non-applicant No. 2/Shyamlal had dashed the bicycle of the appellant Kamlesh from the rear and ran away from the place of the accident. Due to accident appellant Kamlesh and his daughter Poonam both were seriously injured. The appellant No. 1 fell from the bicycle and could not note the tempo number. Narayan Singh and Narendra Shrivastava eye-witnesses of the accident, who saw the accident came to the spot, and Poonam was taken to the hospital where she was declared dead. The appellant No. 1 immediately after the accident lodged F.I.R. at Police Station Dabra and offence was registered against the driver of the vehicle vide Crime No. 538/99. In the F.I.R. appellant Kamelsh very specifically stated that he had not seen the tempo number and after ascertaining the number he will intimate the tempo number. However, he stated that colour of the tempo was black and one head light was broken. Narayan Singh and Narendra Shrivastava (eye-witnesses) in their statement stated that they had not seen the tempo number nor they noted the number of the tempo. They after two days came to know about the tempo number and intimated the same. Respondent No. 1 driver of tempo number M.P.H. 04214 in his deposition deposed that on 8th November, 1999 he was not well and his tempo was stationed at Tempo Stand. After appreciating the evidence on record, the Claims Tribunal came to the conclusion that tempo was driven in a rash and negligent manner and dashed the bicycle on 8th November, 1999 which resulted into injuries to Kamlesh and Poonam. Poonam was seriously injured and died at hospital. But, whether tempo number M.P.H. 04214 was involved in the accident or not has not been proved and due to the aforesaid reason both the claim petitions were dismissed by the Claims Tribunal vide order dated 19th November, 2003.

Misc. Appeal No. 195/03 is filed by the mother and father of the deceased Poonam. Misc. Appeal No. 194/03 is filed by the appellant No. 1 Kamlesh. Learned Counsel for the appellants contended that claims Tribunal committed error in rejecting both the claim petitions on the ground that tempo number M.P.H. 04214 is not involved in the accident and reasons assigned by the Claims Tribunal is contrary to the evidence adduced by the eye-witnesses of the accident and appellant No. 1. in support of the said submission he placed reliance on the following decisions:

Bhanwarlal v. Sardar Kabulsingh, reported in 1989 M.P.W.N.S.N.15.

2 Virat Sama Vs. Mohan Lal and Others,

Dhanwanti (Mahila) and Ors. v. Kulwant and Ors.

On the other hand learned Counsel for the Insurance Company raised preliminary objection regarding maintainability of the appeal on the ground that both the appeals are filed without depositing the amount awarded by the Claims Tribunal and by reasons of the provisions of proviso to Section 173 of Motor Vehicles Act, 1988 appeals are not maintainable. This Court in the case of Anil Saraf Vs. Namboodas and Others, has laid down that Section 173(1) first proviso lays down that the amount as required by Section 173(1) must be deposited before filing of the appeal. He further submitted that Kamlesh (AW 1) in para 2 very specifically admitted that he had not seen the tempo number and only after two days he came to know about the number. In paras 6 and 7 of his cross-examination he admitted that at the time of accident he had not seen the tempo number. Counsel for Insurance Company submitted that Claims Tribunal has not committed any error in dismissing the appeals (sic. petitions).

I have heard the learned Counsel for the parties and perused the record of the case. Kamlesh (AW 1) in para 2 of his deposition very specifically stated that he has not seen the tempo number, but colour of the tempo was black and after two days he came to know that the number of the tempo was M.P.H. 04214. In the F.I.R. Exts. P-1 and P-2 is lodged by the father of the deceased. In the F.I.R. also it is a mentioned that he has not seen the tempo number and after ascertaining the tempo number he will intimate the same. But in the F.I.R. he stated that tempo was in black colour and one head light was broken. He simeply stated that tempo has caused the accident but no number of vehicle was mentioned by him. In para 7 he stated that Narayan Singh and Narendra Shrivastava at the time of report intimated the number of the tempo. He further stated that late on on the same day they gave the number of the tempo to the police authorities. The claimants after two days came to know about the number of the vehicle. Narendra Shrivastava (AW 2) one of the eyewitnesses of the incident in para 2 of his statement deposed that immediately after the incident he read the number of offending tempo. He further stated that in his presence no report was lodged. He and Narayan Singh in Dabra Hospital gave a vehicle number to the police authorities. From the above evidence it is clear that no number of the vehicle was mentioned by the claimants. Driver of the vehicle after hitting the bicycle, fled away with the vehicle. He further stated that colour of the vehicle was black, but he could not see the number of vehicle, later on he came to know that number of the vehicle was M.P.H. 04214. Narendra Shrivastava (AW 2) in his deposition admitted that he was not present along with Kamlesh at the time d of lodging of the F.I.R. Kamlesh (AW 1) admitted that he had lodged a complaint and he admitted that in the F.I.R. number of the vehicle was not mentioned. Thus, in view of the clear admission of Kamlesh (AW 1) and Narendra Shrivastava (AW 2) the colour of the tempo was black and no number was mentioned in the F.I.R. and they had not seen the vehicle number. Thus, the Claims Tribunal has not committed any error in holding that the accident was not caused by the vehicle bearing registration No. M.P.H. 04214. There is no infirmity in the order passed by the Claims Tribunal. Since identity of the vehicle is not proved the Claims Tribunal has rightly dismissed the claim petition as driver of the vehicle which was not involved in the accident cannot be compelled to pay the compensation.

In the case of Virat Santa (supra) this Court held that in an accident case F.I. R. is often lodged in a haste and the same cannot be substitute for the evidence giving exhaustive version of the occurrence. The statements before the Tribunal are made on solemn affirmation, whereas the F.I.R. is never lodged on solemn affirmation. In the case of Bhanwarlal (supra), this Court has held that it is settled law, even in the criminal trials, the F.I.R. is not a substantive piece of evidence, the object of the F.I.R. is to set the criminal law in motion and after the lodging of the F.I.R. it is the duty of the police to investigate the offence. Further, the F.I.R. can be used either for the purpose of contradicting the lodge of the F.I.R. or fox the purpose of corroboration. The F.I.R. is not an encyclopedia, where all the details can be given nor it is like a plaint in the civil suit, where the complete case has to be pleaded. The fact of this case are different from the present case. The truck number deposed by the claimant was duly corroborated by the independent witness whereas in the present case both the witnesses had stated that they had not seen the number of offending vehicle. Thus, the above decision will not be applicable in the present face and circumstances of the case. In the case of Dhanwanti (Mahila) and Ors. (supra) the Division Bench of this Court has held that F.I.R. is not a substantive piece of evidence and it can be used only for the purposes of corroboration or contradiction of the maker. There is no dispute regarding to the principle law laid down by the Division Bench of this Court. In the present case the Tribunal has recorded a finding that the identity of the offending vehicle was not proved. The said finding is recorded on the basis of evidence on record. Claims Tribunal has rightly held that identity of the vehicle is not proved and vehicle was not involved in the accident and as such respondents cannot be compelled to pay the compensation. In view of the above no case is made out by the appellants. Even otherwise in view on non-depositing of the amount under the proviso to Section 173 of the Act which is a condition precedent, the appeals are not maintainable for want of pre-requisite deposit of the amount. From the above facts and circumstances of the case I do not find any merit in these appeals. The appeals fail and are dismissed without any order as to costs.