Ram Karan vs Zile Singh

R.L. Anand, J.—Unfortunately for the appellants, it is a un-proved case and, therefore. I have no hesitation in dismissing this appeal.

Some facts can be noticed in the following manner. The claim-petition was moved u/s 166 of the Motor Vehicles Act by Shri Ram Karan, husband of Smt. Phulwati, Rampal, Ganjroop Singh, Kamal Singh, major sons of Shri Ram Karan, Jaipal minor son of Ram Karan and Suit. Savitri Devi daughter of said Ram Karan, against Zile Singh, Dhoop Singh, Ganpati Finance Limited and United India Insurance Company and the case set up by the claimants before the Tribunal was that Smt. Phulwati deceased was the wife of appellant No. 1. She was aged about 50 years. She was working as an agriculture labourer and she used to earn Rs. 1000/- per month. She was returning on 20-10.1992 at about 10.15p.m. after answering the call of nature along with the wife of Ganjroop Singh when a four-wheeler being driven at a high speed came there. It was being driven rashly and negligently. The four-wheeler came from Jhojhu side. The accident took place near the bus stand of village Dagroli when the alleged four-wheeler struck against Smt. Phulwati, who, died at the spot due to the injuries and the driver of the four-wheeler fled away along with four-wheeler from the spot. According to the claimants-appellants the accident was witnessed by Ram Kala son of Hardwari and Randhir son of Sanwal Ram besides the wife of Ganjroop Singh. With these allegations, the claimants made a prayer that they should be awarded rupees two lacs by way of compensation.

It is also the case of the claimants-appellants at the trial that at the lime of the alleged accident the four-wheeler was being driven by Shri Zile Singh, respondent No. 1.

Notice of the claim-petition was given to the respondents. According to respondent No 1 he never plied the four-wheeler on the road in question on 20.10.1992 and the whole story of the accident with the four-wheeler was fabricated. The witnesses colluded with the claimants. United India Insurance Company also denied its liability in the same way as Dhup Singh, the owner of the vehicle.

The Tribunal framed the following issues :-

Whether the accident had taken place owing to the rash and negligent act of respondent No. 1 Zile Singh ?

To what amount of compensation, are the petitioners entitled to and against whom ? OPP

Whether the petition is not maintainable in view of the preliminary objections taken in the written statement ?

Relief.

The claimants-appellants led evidence. However, no evidence was led on behalf of respondent No. 1. While determining the finding on issue No. 1, the Tribunal held that it is not proved on the record that the accident had taken place on account of the rash and negligent act of respondent No. 1 Shri Zile Singh. Issue No. 2 was also decided against the claimants. Similarly, issue No. 3 was decided against the claimants. Resultantly, the claim-petition was dismissed vide judgment dated 2.1.1997 by the Motor Accident Claims Tribunal.

Not satisfied with the finding of the Tribunal, the present appeal has been filed by the claimants.

During the pendency of the appeal, the claimant-appellants filed an application under Order 41 Rule 27 C.P.C. for leading additional evidence. They want to place on record an application moved by Shri Dhoop Singh making a prayer before the Magistrate for the release of the Tempo bearing Registration No. HR-I6-4089 vide which the tempo was given on superdari; the copy of the order dated 25.1.1997 to show that FIR No. 185 dated 20.10.1992 was registered against Shri Zile Singh son of Shri Partap Singh and copy of the charge-sheet dated 22.2.1993 framed against Shri Zile Singh.

I have heard Shri R.S. Sangwan, learned counsel appearing on behalf of the appellants and Shri Suman Jain, Advocate, appearing on behalf of the respondents and with their assistance have gone through the record of this case.

Through this judgment I will dispose of the appeal as well as the application under Order 41 Rule 27 C.P.C.

First of all, I dispose of the application under Order 41 Rule 27 C.P.C. It was argued on behalf of the appellants that the proposed additional evidence is necessary for the adjudication of the case and, therefore, these documents may be read into evidence.

There are two aspects involved in the application under Order 41 Rule 27 C.P.C. Should the appellate Court allow the applicants-appellants to produce these documents. So far as the posit ion of law is concerned, it is contained in Order41 Rule 27 C.P.C. Even, if it is assumed for the sake of arguments that the strict provisions of C.P.C. are not applicable, still the principle in general would apply. A reading of Order 41 Rule 27 C.P.C. would show that appellants cannot lead the additional evidence as a matter of right. The documents sought to be produced were in the knowledge of the appellants. Those documents could be obtained and produced before the Tribunal. Those were not produced and in this situation I will have to see whether for any substantial cause these documents should be taken into evidence or not and the second aspect of the case would be whether the proposed additional evidence advances the case of the appellants or not.

Firstly, I am of the opinion that the additional evidence cannot be led as a matter of course or right. The appellants have not been able to make out a case for additional evidence. Even the proposed additional evidence does not advance the case of the appellants. These documents are, in no way, pointer that Shri Zile Singh was driving the four-wheeler on the relevant time and date or that the accident took place on account of his negligence. Mere framing of the charge will not suffice. Even the judgment of conviction or acquittal of criminal Court is not binding on the Tribunal. The onus of proving negligence is always upon the claimants and they have to discharge it.

Resultantly, I dismiss the application of the appellants under Order 41 Rule 27 C.P.C.

Now, let us see, what evidence has been led by the appellants before the Tribunal to prove the negligence.

With the assistance of the parties I have gone through the evidence.

So far as the oral evidence is concerned, the claimants have only examined two witnesses: one is Ganjroop Singh and the other is Shri Ram Kala. Ganjroop admittedly was not the eye-witness of the accident. As per the averments mentioned in the claim petition, Ram Kala saw the accident. Let us examine his statement. According to this witness on 20.10.1992 it was 10.15 in the night when he was at bus stand of Dagroli. A four-wheeler 2089 came from Jhojhu side at fast speed and rashly. From this statement we are not in a position to know what is the other digits of the registration plate of the four-wheeler. The witness categorically stated that he does not know who was driving that four-wheeler. His statement is to the following effect:-

"I do not know who was driving that four-wheeler" In these circumstances, it is difficult for me to hold that Shri Ram Kala was in a position to identify the driver of the four-wheeler. It is also difficult for me to show that Shri Zile Singh was the driver when the case of Shri Ram Kala is that the four-wheeler did not stop and it and ran away. According to the claimants, this person lodged the report and the copy of the FIR is Ex. PA. Even this document Ex. PA does not advance the case of the appellants. Firstly, FIR is not a substantive piece of evidence. It is only a corroborative piece of evidence to the maker. A reading of Ex. PA would show that even the number of the four-wheeler has not been mentioned. Meaning thereby that the number 2089 mentioned by Shri Ram Kala is an improvement. The wife of Ganjroop Singh has not been examined.

In this view of the matter, I am of the opinion that the appellants have miserably failed to discharge the onus on issue No. 1 and as such the finding of the Tribunal on issue No. 1 is hereby affirmed. I also affirm the findings of the Tribunal on issues No. 2 and 3 as I could not see any illegality in these issues.

Resultantly, I do not see any merit in this appeal and dismiss the same. No order as to costs.

Appeal dismissed.