Kishan Singh and Others vs Surjeet Singh and Others

J.K. Ranka, J—The instant appeal is directed against the award dated 29.8.1997 passed by Motor Accident Claims Tribunal, Sambhar Lake District Jaipur, in M.A.C. No. 186/1992.

It is the claim of the appellants that one Bhagwan Singh son of Kishan Singh, who was aged about 25 years met with an accident on 27.3.1993 at about 4:15 P.M. on National Highway No. 8 near village Gidani in a Maruti Van bearing No. DDA 1393 in which the deceased was sitting with one Puran Bahadur, who is said to be driving the vehicle, and it is claimed that on account of rash and negligent driving by the offending vehicle, a truck, bearing No. PB 10C 9681, and because of the mistake of the driver/owner of the offending vehicle the truck hit Maruti Van, which was dragged on the wrong side and by hitting of the said vehicle, Bhagwan Singh died while the driver of the Van Puran Bahadur suffered serious injuries. FIR was lodged, but thereafter police was of the view that it was due to the mistake of the driver of Maruti Van, Puran Bahadur, therefore, Final Report was filed and which was not objected to or no protest petition was filed. The Tribunal, after analysing the material and evidence and examination of witnesses, came to the conclusion that the appellants have not been able to prove issue No. 1, and since issue No. 1 was with reference to whether there was a mistake/rash and negligent driving by the truck, and according to the Tribunal which was not proved, accordingly the claim was dismissed by the impugned order which has been assailed.

Counsel for the appellants contended that admittedly the accident had taken place and on account of the unfortunate accident by rash and negligent driving of the offending vehicle, truck bearing No. PB 10C 9681, Bhagwan Singh, son of the appellant No. 1, aged about 25 years, died an unnatural death. It is further contended that Puran Bahadur, who is said to be driving the Van, got seriously injured and initially both were carried to a nearest hospital at Dudu, and thereafter Puran Bahadur was taken to the S.M.S. Hospital, but he absconded.

3.1 He contended that two witnesses namely, Simran Singh and Jaipal, who were on another truck, were examined, who were eye-witnesses. They confirmed about the accident having taken place and contended in the statements that it was on account of rash and negligent driving by the offending truck which hit the Van in a wrong direction, and it dragged to the other side and when both the witnesses who are said to be eye-witnesses have affirmed this factum of accident, then the observation of the Tribunal was perverse. He further contended that apart from these two witnesses, there is no other material on record to come to a different conclusion by the Tribunal, and the Tribunal has assumed and presumed merely on the basis of the FIR that the truck was travelling on the right direction, but the Maruti Van was on the wrong direction, and Maruti Van rather hit the truck from wrong side. He further contended that ample evidence is available on record to justify that the truck hit the vehicle from a wrong direction. He contended that the accident is admitted and once the truck was insured, admittedly then the claim is required to be allowed in the light of judgment rendered by Hon''ble the Apex Court in Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, (2001) 1 ACC 152 : (2001) ACJ 428 : AIR 2001 SC 485 : (2001) 1 JT 375 : (2001) 1 SCALE 1 : (2001) 2 SCC 9 : (2001) 1 SCR 8 : (2001) 1 UJ 464 : (2001) AIRSCW 85 : (2001) 1 Supreme 5 . He further contended that claim has been incorrectly rejected, and since the issue No. 1 has been decided against the appellants, therefore, the Tribunal has not quantified the amount, if any, to be allowed, and contended that in the facts and circumstances available on record, it is a fit case where the matter deserves to be restored for allowing just compensation on merits.

Per contra, Mr. Tripurari Sharma, counsel for the Insurance Company, contended that this is a case which deserves to be out rightly rejected, inasmuch as it is a false case and the entire story built up by the appellants has been found to be false and rightly observed by the Tribunal. He contended that the appellants, during the course of pendency of appeal, has themselves dispensed with service upon respondent Nos. 1 and 2, who happen to be driver and owner of the offending vehicle, and once they have been held to be not a necessary party in this case, the claim to say that driver and owner were responsible for driving in a rash and negligent manner, is unfounded. He further contended that a doubt is raised as the two witnesses who claim to be eye-witnesses and the appellants are of the same place, of Faridabad, and even the two witnesses namely, Simran and Jaipal they were not able to justify as to the presence on the spot and for what reason, and even the father of the deceased has stated in the statement which has been taken note of by the Tribunal that even he did not know as to who Puran Bahadur was when the son of appellant No. 1, Bhagwan Singh, was travelling with Puran Bahadur. He further contended that even Puran Bahadur, the so-called driver of the Van, in which the deceased was sitting was even not made a party, neither before the Tribunal, nor before this court. Admittedly, Puran Bahadur had absconded and was not traceable till date as per the report of the police authorities. Therefore, all these facts go against the case of appellants. He further contended that even the vehicle in which the deceased was travelling, has been found in police investigation that the vehicle was stolen by so-called Puran Bahadur in connivance with the deceased, and since it was a stolen vehicle, they were running from the place driving the vehicle in a rash and negligent manner and hit the truck from wrong side on account of their own mistake. He relied upon the judgments rendered by Hon''ble the Apex Court in The Oriental Insurance Company Limited Vs. Meena Variyal and Others, (2007) ACJ 1284 : AIR 2007 SC 1609 : (2007) 137 CompCas 116 : (2007) 5 JT 65 : (2007) 5 SCALE 269 : (2007) 5 SCC 428 : (2007) 4 SCR 641 , and Surender Kumar Arora and another Vs. Dr. Manoj Bisla and Others, (2012) ACJ 1305 : AIR 2013 SC 1918 : (2012) 4 SCC 552 : (2012) 3 TAC 353 , and of this court passed in Smt. Kokilabai and Another Vs. Abdul Bahav and Others, (2003) 3 ACC 526 , Mala Ram v. Roopa Ram & Others 2004 R.A.R. 543 (Raj.), and Bodu Ram v. Kana Ram & Others SB CMA No. 2925/2005 decided on 22.4.2015.

I have considered the arguments and perused the record as also the judgments cited by the counsel. In my view, the Tribunal has rightly come to a conclusion that no case is made out of rash and negligent driving by the driver of the offending vehicle, truck bearing No. PB 10C 9681. Admittedly, the accident is not denied, but the way the witnesses have come on record, FIR and site-plan, which has been prepared by the police of the actual site of the accident, in my view, it goes to an irresistible conclusion that it was rash and negligent driving by the so-called Puran Bahadur, who was driving the vehicle, Maruti Van, in which the deceased Bhagwan Singh was also travelling.

It may be relevant to observe that appellant No. 1 herein, who is the father of deceased Bhagwan Singh, in his statements clearly mentioned that even he was not aware as to who Puran Bahadur was, and even he was not aware (when the deceased, who is son of the appellant), as to why the deceased was going from Jaipur to Ajmer, rather coming from Faridabad on this highway. It may be that father may not be aware of the travel plan of the son, but certainly at least father or the other family members ought to know, as to who Puran Bahadur was.

6.1 I have perused the statements of Simran as well as Jaipal. Both of them say that they were eye-witnesses, but in the manner in which they have stated so, creates certain doubts in the mind of this court as well. These two witnesses, on the one hand they say that the appellants and they are almost of same place and they were at the site when the accident took place, but despite knowing to each other they did not take any action for carrying the injured Bhagwan Singh and Puran Bahadur to the nearest hospital when they are also stated to be in their own vehicle. Even an outsider would certainly take immediate action at least to inform the nearest police station about the incident, rather in the instant case when both are known to the family of the appellant/deceased, they left the site without informing even the police authorities or to carry the injured to the nearest hospital, which is unbecoming of a person known to each other. It is equally important to observe that even Simran, in his statement says that he was in another truck. However, even Jaipal was not aware, when he was sitting in another truck, as to who the driver of the truck was, and even he was not aware of the number of the vehicle in which he was travelling, and even they were not aware about the driver when they were standing outside the truck as to who the person was. In my view, after going through the statements of the two so-called eye-witnesses, Simran and Jaipal, it appears that they have been planted and that their evidence is worth rejection and rightly rejected by the Tribunal.

6.2 It has also come on record that the vehicle on which the deceased and Puran Bahadur were travelling, has been found to be stolen, and the number-plate of the said Maruti Van has been found to be fake and forged one and these are findings of fact recorded by the police authorities, gone uncontroverted, and as observed by the Tribunal and in view of this court as well, that Puran Bahadur and Bhagwan Singh, the deceased, had stolen the Maruti Van and to come out of the place from where they had stolen the Van, they travelled upto Gidhani in high speed, which is almost 300 kms. from Faridabad, from where they hail. For whatever reasons, even Puran Bahadur, who was driving the Van, was not made a party by the appellants, and rather police investigation also proves that he was not traceable even thereafter, and even Final Report was filed by the police.

6.3 Now, in view of the irresistible conclusion that the Maruti Van in which the deceased and Puran Bahadur were travelling, was rather driven in a rash and negligent manner, which went on the wrong side and hit the truck instead of the claim as made by the counsel for the appellants on the contrary.

In my view, the order of the Tribunal is just and proper and does not suffer from any illegality or perversity calling upon interference by this court.

Consequently, the appeal being devoid of merit is dismissed.