Smt. Nirmala Devi and Others vs Ashok Kumar and Others

Vijender Singh Malik, J.—This is an appeal brought by Smt. Nirmala Devi and others, the claimants challenging the award dated 12.06.2012 passed by learned Motor Accidents Claims Tribunal, Bhiwani (for short ''the Tribunal'') vide which their claim petition has been dismissed. The claim petition had been brought on the death of Pawan seeking compensation. Learned Tribunal vide the impugned award has found under issue no. 1 that the claimants failed to prove that on 15.04.2011 accident between motorcycle No. HR-16B-6192 and Tempo bearing registration No. HR-61-3749 has taken place because of rash and negligent driving of the motorcycle by respondent No. 1. Since this issue has been decided against the claimants, the claimants were found to be not entitled to any compensation and, therefore, their claim petition has been dismissed. On 15.04.2011, Pawan alongwith his father Ram Niwas was going from Sabji Mandi, Bhiwani to village Dhareru for selling vegetables after loading them in a tempo bearing registration No. HR-61-3749. Ram Niwas was sitting at the back seat of the said tempo. When they were near Palwas turning, a motorcycle bearing registration No. HR-16-B-6192 driven by respondent No. 1 in a rash and negligent manner and at a high speed came from the approach road in front of the tempo and had hit the tempo driven by Pawan Kumar. On account of the same, the tempo turned turtle. Pawan s/o Ram Niwas came under the tempo and suffered injuries, on account of which, he died.

The claim petition is resisted by the respondents. They have denied the averments of the claimants contained in the claim petition. They have even denied any accident to have taken place with the motorcycle in question. The claim petition is said to be false.

Learned Tribunal found two versions about the accident; first appearing in Ex. P-1, the FIR lodged by Ram Niwas, father of the deceased and the other version in the claim petition supported by statement made before learned Tribunal. According to learned Tribunal, the version of Ram Niwas as per the FIR is that Ashok Kumar was coming from the opposite side on his motorcycle bearing registration No. HR-16B-6192 in a rash and negligent manner and as Pawan Kumar applied sudden brakes to save him, the tempo turned turtle in that attempt. Appearing before learned Tribunal, Ram Niwas is said to have changed his version and has stated that Pawan Kumar tried to save the motorcyclist but the motorcyclist struck against the tempo at its middle, on account of which tempo turned turtle. Learned Tribunal also took into account certain decisions of this court where it is laid down that learned Tribunal cannot draw any inference upon the contents of the FIR to foist liability upon the driver of the vehicle involved in the accident and that the Tribunal has to decide the matter on the strength of the evidence led in the case. Taking into account all these things, learned Tribunal found no reason to believe Ram Niwas in his statement made before it.

Learned counsel for the appellants has contended that the statement of facts made on oath before learned Tribunal has to be given precedence over the statement made without solemn affirmation before the police. According to him, the statement made before the Tribunal cannot be ignored or discarded for the reason that it is at variance with the statement appearing in the FIR. He has sought to take help from the decisions cited by learned Tribunal in this regard.

What has been held in the decisions cited by learned Tribunal is that the statement made on oath before the Tribunal is the only evidence which can be relied upon by the Tribunal to return a finding regarding rash and negligent driving. It has been laid down in the decisions, that reliance cannot be placed on the FIR contained version because the same is not lodged on solemn affirmation and the same cannot be a substitute for the evidence. It is not laid down in the decisions that if a version given before the Tribunal is at variance with the FIR contained version, the version given before the Tribunal should be accepted ignoring the version appearing in the FIR.

The value of the FIR contained version is that it is the earliest version about the accident. If a statement is made at variance with that version, the later statement can only be said to be an afterthought and cannot be relied upon unless a valid explanation is given for the change in the statement. Here also this is the position. The version of Ram Niwas given before the Tribunal is an afterthought being at variance with his statement recorded as FIR. In the FIR, there is no collision between the two vehicles and what is stated therein is that looking to the motorcycle driven by Ashok Kumar, Pawan Kumar applied brakes and the tempo turned turtle. It would only show that tempo was being driven at uncontrollable speed and the vehicle could not be controlled while applying brakes. As per the FIR, it is a case of rash and negligent driving of tempo by Pawan Kumar and not a case of rash and negligent driving of a motorcycle by Ashok Kumar. No explanation for the variation is moreover given. In this view of the matter, I do not find any reason to differ from the finding of learned Tribunal on issue no. 1. The appeal is, therefore, found to have no merit and is dismissed in limine.