Thakur Lal vs Arjundas and Others

K.L. Shrivastava, J.—This appeal u/s 110-D of the Motor Vehicles Act 1939 (for short ''the Act'') is directed against the award dated 14-12-1982 made by the Addl. Motor Accident Claims Tribunal Indore (for short ''the Tribunal'') in Claim case No. 187 of 1979 whereby the appellant''s claim petition u/s 110-A of the Act has been dismissed with costs.

None of the material facts is admitted.

The appellant presented the application u/s 110-A of the Act on 24-10-1979 on the following averments. At about 11 p.m. on 6-9-1979 he was proceeding on a bicycle from Shakkar Bazar to Udapur, Indore. When he reached Tayyabali Davakhana situate in Bohra Bazar, the respondent No. 2 Harikishan negligently driving the accident scooter No. CPE 7414 belonging to the respondent No. 1 Arjundas, dashed it against the bicycle from behind. As a result thereof the appellant fell down and sustained injuries including grievous ones. He immediately at 11-15 p.m. lodged a report of the occurrence at the Sarafa police station, Indore. It was recorded in the Rojnamcha at Sanha No. 535 (vide Ex. A-l (c). On its basis first information report (vide Ex. A-3) was also recorded and ultimately the police filed a challan against him and it is pending. A claim for compensation in the sum of Rs. 75,000/- was laid against the respondents.

The respondent No. 1 remained Ex-parte.

The Respondent No. 2 resisted the claim on the ground that he was neither driving the scooter rashly or negligently nor did he dash it against the appellant. According to him the action against him was collusive.

At the conclusion of the trial the learned Tribunal held that the appellant had failed to prove that the accident was occasioned by the act of the respondent No. 2.

The point for determination is whether the learned Tribunal erred in dismissing the claim petition.

It is pertinent to point out that in his report it is not the case of the appellant that at the time of the accident he had identified either the scooter or the person who was driving it. The case, as laid in the report lodged vide Ex. A-l(c) is that a scooter was being driven at excessive speed had dashed against him and had proceeded ahead at the same speed. It has been stated therein that the appellant was told by Purshottam Somani and Laxmansingh Gaur that the scooter was being driven by Harikishan Mittal of the cloth market, Indore. According to the report one of them was sent home to call appellant''s son Satish Chandra and along with him he had come to the police station for lodging the report.

It has specifically been stated in the report referred to above that the victim had not seen the number of scooter which Purshottam and Laxmansingh had seen.

Out of the two eye-witnesses named in the report the appellant has examined only Laxman Singh (AW 2). We have it in the evidence of respondent that Purshottam Somani was a junior student in the school in which he himself was studying. That does not, however, establish that Purshottam was in any way interested in the respondent. As the matter stands, we have on record the evidence of only one of the two witnesses who according to the earliest report at the police station had told the appellant about the person who was driving the scooter and who, according to him, had seen its number as well.

Laxman Singh (AW 2) has stated that the appellant was ahead of them and a scooterist coming from behind had dashed against the appellant. In paragraph 7 of his deposition he has expressly stated that he could not clearly see the person who was driving the scooter and is not in a position to say that it was being driven by the respondent No. 2 Mittal. In his examination-in-chief the witness has stated that the scooterist had not stopped the vehicle on the spot and with two others he (the witness) had taken the victim of the accident from the spot to the Sarafa police station and the report was lodged there.

At the trial the appellant has also examined one Durgasingh (AW 4) in support of his claim. In his version this witness has stated that he was present at the time of the accident. According to him as the scooterist did not stop he could not see his fact but he had made a mental note of the number of the scooter and the same was CPE 7414. According to the witness the police had come to the spot and he had told the police the number of the scooter and thereafter they had gone to the residence of the victim and had informed his son. The respondent No. 2 has denied at the trial that it was his scooter was involved in the occurrence in question.

The fact that in the report, the number of the scooter was not mentioned is indicative of the fact that the number of the accident scooter could not be noted at the time of the occurrence and the evidence of Durgasingh is not entitled to credence.

Learned counsel for the appellant has strenuously urged that looking to the evasive nature of written statement filed by respondent No. 2 and in the context of the fact that his name figures in the report lodged at the earliest by the appellant at the police station regarding the accident, it can reasonably be held that the respondent No. 2 was the tort-feasor.

We are afraid that the contention aforesaid cannot be permitted to prevail. The burden of proving that the respondent No. 2 was the tort feasor was on the appellant. The difficulty of proof would not believe him of this burden. Any conclusion as to the identity of the person or the accident vehicle has to be based on credible and substantive evidence at the trial.

As already pointed out in the instant case out of the two eye witnesses named in the report only one has been examined and he has not supported the version of the appellant that the respondent No. 2 was the tort-feasor. lie has also not deposed about the number of the accident scooter. The testimony dated 21-7-82 of Durgasingh that he had mentally noted the number of the accident scooter is not entitled to credence. According to the evidence, he had disclosed the said number to the police Head Constable who had immediately come on the spot prior to the report. Number of the scooter is significantly missing from the report. In the circumstances, it may be that the respondent No. 2 was suspected to be the tort-feasor but there is no positive evidence to connect him or his vehicle with the accident in question.

From the foregoing discussion we are of the view that no fault can be found with the conclusion arrived at by the learned Tribunal that it has not been proved that the accident was caused by the respondent No. 2. We find that, on the material on record, the claim petition was rightly dismissed.

In the result, the appeal is dismissed with costs. The award under challenge is maintained. Counsel''s fee Rs. 50/- only if certified.

Appeal dismissed.