Allahabad High Court
Bhagwandas And Another vs Smt. Rammi Devi And Others on 5 April, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Reserved A.F.R. Case :- FIRST APPEAL FROM ORDER No. - 965 of 2021 Appellant :- Bhagwandas And Another Respondent :- Smt. Rammi Devi And Others Counsel for Appellant :- Surendra Pal Counsel for Respondent :- Ravinath Tiwari Hon'ble J.J. Munir,J.
1. This is an appeal by the driver and the owner, arising out of an award dated 22.02.2021 passed by Mr. Rakesh Dhar Dubey, Presiding Officer, Motor Accident Claims Tribunal, Pilibhit, allowing Motor Accident Claims Petition No.35 of 2016 and ordering payment of compensation to the claimant-respondents.
2. The facts giving rise to the motor accident claims are these:
On 13th November, 2015, according to the claimants, at about 5:00 o'clock in the evening, the deceased Prem Chand, along with his wife, Rammi Devi, was proceeding on bicycle from his in-laws' place, located in Dehgala, to Village Jagpura in the District of Pilibhit. Following him on a bicycle was his younger brother Bheemsen. Suddenly, a tempo bearing Registration No. UP-26T-0479 appeared from the opposite direction. It was driven at a high speed and negligently by its driver, Bhagwandas. The tempo hit the deceased's bicycle head on. The collision caused the deceased Prem Chand and Rammi Devi to sustain grievous injuries. The accident was witnessed by the deceased's brother and other natives of the village, to name a few, Ram Charan and Puttu Lal. The deceased's condition being serious, he was referred to Dr. S.K. Agrawal at the S.S. Hospital, Pilibhit. The deceased was subjected to an ultrasonographic examination, whereafter he was referred to Ganga Singh Hospital.
3. While on way to the Ganga Singh Hospital, the deceased passed away. An inquest was held by the Police of Police Station Nyuria and the dead body was sent for autopsy. A case was registered by the Police, being Case Crime No.1154 of 2015, under Sections 279, 338, 304A IPC, P.S. Nyuria, District Pilibhit against the driver, Bhagwandas. It is then said in the claim petition that the deceased had agricultural land, upon which he toiled to earn a sum of Rs.15,000/- per month from agricultural produce. In addition, he had seven cattle heads, five buffaloes and two cows that yielded milk, which he sold for Rs.10,000/- a month. The deceased had a total income of Rs.25,000/- per month that he utilized to provide for his wife and children, including the children's education. The deceased was a young and hard working man, who would go on to earn more from his exertions. It is also said in the claim petition that the deceased's wife would also aid him in productive work. Prem Chand's untimely demise plunged the family's future into an abyss of darkness. They faced financial crisis, which led them to sell off their milch cattle. The couple's three children are all pursuing educational courses. The entire finances of the family, including the education of the children, has been imperiled by the unfortunate accident. The family have also incurred debt. The deceased's wife has been deprived of her spousal consortium, and so have the children of the love and affection of their father. The claimants have asked that they be awarded compensation in the sum of Rs.68,32,000/- together 18% annual interest from the date of accident until realization.
4. Bhagwandas, the driver of the offending vehicle, who is appellant no.1, was arrayed as opposite party no.1 to the claim petition. He shall hereinafter be referred to as 'the driver'. The driver filed a written statement, denying his involvement in the accident. He has asserted that by setting up a false claim, the claimants desire to recover compensation. It is also pleaded that the driver has been wrongly impleaded. He is not answerable to pay any compensation. He did not cause the accident and was not present at the place of accident at all. He has no connection at all to the offending vehicle, that is to say, tempo bearing Registration No. UP-26T-0479 nor had he ever had any connection with the said vehicle. A false and malicious First Information Report (for short, 'the FIR') has been lodged against him. He is not at all responsible for the accident. He has a valid licence, that was valid on the date of accident also.
5. Niranjan Lal is the owner of the offending vehicle and the second appellant here. He was arrayed as opposite party no.2 to the claim petition. Niranjan Lal, appellant no.2 shall hereinafter be referred to as ''the owner'. The owner has filed a written statement, denying the accident and the entitlement of the claimants to recover compensation. He has said that burden lies upon the claimants to establish the accident involving the offending vehicle. There is plea raised in his written statement that in the Amar Ujala Hindi Daily dated 14th November, 2015, there was a news item published, reporting that Prem Chand, a resident of Jatpura, was riding his motorcycle along with his wife and proceeding to Jatpura, when he met with an accident involving a tempo. It has been raised as a plea by the owner that the claimants' case that the deceased was riding a bicycle is false.
6. It is also said by the owner that on the date of occurrence, he was not the owner of tempo bearing Registration No. UP-26T-0479 nor was the said vehicle under his control. The driver was never hired by the owner. It has also been pleaded in the written statement by the owner that he purchased the tempo under reference in the year 2011 after securing finance from Mahindra Alfa Shriram Transport Finance Company. The vehicle was registered on 22.01.2011. The owner got the vehicle plied for sometime, but it suddenly broke down. The vehicle's axle broke and it had to be parked at the owner's home. It was no longer road-worthy. In the circumstances, the owner sold the tempo in question to one Rizwan son of Natthu, a native of Mohalla Peelkhana, P.S. Kotwali, District Pilibhit for a sum of Rs.52,000/- on 30.05.2014. It was sold as scrap.
7. An affidavit sworn before a Notary Public was filed about the aforesaid fact. The tempo was not in an operational state and, therefore, no longer a motor vehicle. Rizwan had taken it away after the purchase, not moving on its wheels. After 30.05.2014, the entire control of the vehicle passed on to Rizwan. The entire responsibility about the vehicle was his. The owner has been wrongly impleaded. The so called offending vehicle bore a false number plate. The offending vehicle bearing the number plate of the tempo, that was once the owner's vehicle, was not that vehicle at all. Its engine number and chassiss number were different. The driver, Bhagwandas, who has been shown to be driving the offending vehicle, was not a driver employed by the owner. Rizwan had not been impleaded as a party to the claim petition. For the said reason, the claim petition was bad for non-joinder of necessary party. The owner is not liable to pay any compensation. If the deceased Prem Chand had sustained any injury in a motor accident, that was on account of his riding a motorcycle negligently and at a high speed, the way it is reported in the Amar Ujala Hindi Daily dated 15.11.2015. On the basis of these facts, the owner prayed that the claim petition be rejected.
8. Upon the pleadings of parties, the following issues were framed (translated into English from Hindi):
"(1) Whether on 13.11.2015 at 5:00 in the evening hours when the claimant's husband, the deceased Prem Chand along with his wife, the injured-claimant was proceeding on the main road at Dhankuna Adda on his bicycle returning from his in-laws at Village Dehgala to Village Jatpura, he was hit head-on by tempo bearing Registration No. UP-26T-0479, that was driven at a high speed and negligently, in consequence of which Prem Chand and his wife sustained injuries, that led to Prem Chand's death? If yes or no, its effect?
(2) Whether on the date of accident, the driver of vehicle No. UP-26T-0479 had a valid and effective driving licence? If yes, its effect?
(3) Whether on the date of accident, Rizwan son of Natthu, resident of Mohalla Peelkhana was the owner of tempo No. UP-26T-0479 and the vehicle was under his control? If yes, its effect?
(4) Whether the claim petition is bad for mis-joinder? If yes, its effect?
(5) Whether the claimants are entitled to any compensation? If yes, how much and from which party?"
9. In support of the claim petition, the claimants examined PW-1, Smt. Rammi Devi, PW-2, Bheemsen and PW-3, Puttu Lal. The opposite parties to the claim petition, that is to say, the owner and the driver, examined themselves as DW-1 and DW-2 in that order.
10. The claimants also led documentary evidence that comprises a certified copy of the FIR, a photostat copy of the bail order relating to Bhagwandas, a photostat copy of the postmortem report, medical papers relating to treatment of the deceased, Prem Chand, medical bills of the deceased's ultrasonography, a letter of reference to the higher centre, medico-legal reports relating to Rammi Devi, that includes a CT Scan report and blood test reports. Further documents have been filed, such as the Aadhar Card relating to Rammi Devi and her identity card. Papers relating to medical expenses involved in Rammi Devi's treatment have also been filed. The claimants also filed through a list bearing paper No. 32ग, a certificate about sale of milk by the deceased issued by one Raj Kumar. The claimants also filed through list 52ग, a certified copy of the charge sheet filed by the Police in the criminal case against Bhagwandas.
11. The driver through a list bearing paper No. 21ग has filed his driving licence. The owner through a list bearing paper No. 23ग has filed a newspaper clipping of Amar Ujala Hindi Daily of 14.11.2015 and an affidavit dated 30.05.2014 sworn by Rizwan son of Natthu. The owner also filed through a list bearing paper No. 62ग, a photostat copy of the insurance cover-note, bearing paper No. 62ग/2.
12. Heard Mr. Surendra Pal, learned Counsel for the the driver and the owner, and Mr. Ravinath Tiwari, learned Counsel for the claimants.
13. The foremost point for determination that arises in this appeal is whether the offending vehicle bearing Registration No. UP-26T-0479 was involved in the accident. This point assumes some seriousness in this matter because there is distinct and specific pleading by the owner that the said vehicle was not at all involved and the allegations have been brought against the said vehicle in order to recover compensation. The driver too has taken a specific stand, which is more to the effect that he is not at all connected to the vehicle bearing Registration No. UP-26T-0479, of which he has never been the driver. The burden of proof and, particularly, evidential burden, would certainly lie upon the claimants to adduce some evidence, on the basis of which, a reasonable inference about the offending vehicle's involvement can be drawn. After some evidence by the claimants is brought in to show the involvement of the offending vehicle, of course, the purpose and object of the Motor Vehicles Act, insofar it relates to accident claims, that is to secure just compensation to the victim or victims of a motor accident, would require a holistic consideration of the evidence to find out if the offending vehicle is indeed involved. The owner of the offending vehicle, particularly, that is not insured, or even one that is insured, is not permitted to raise fanciful doubts about the involvement of a motor vehicle that has apparently caused an accident, resulting in injury to life or limb.
14. It has been argued with much vehemence by Mr. Surendra Pal, learned Counsel for the driver and the owner that there is not a shred of evidence to prove that the offending vehicle was at all involved in the accident. He has drawn the Court's attention to the fact that the accident occurred on 13.04.2015, whereas the FIR relating to the accident was lodged on 21.11.2015, that is to say, after a lapse of eight days of the accident. During this time, the claimants virtually conjured up the identity of the owner's vehicle from some source, which he had already sold in scrap to Rizwan. The latter had scrapped the vehicle and its number plate was fixed to some unknown tempo, that did not bear the engine number or the chasis number of the owner's vehicle, already scrapped. All these eight days in lodging the FIR were spent in searching for a vehicle that could be held out as the offending vehicle, so as to recover compensation from its owner. Learned Counsel for the driver and the owner has taken the Court through the testimony of the claimants' witnesses urging that it does not even remotely establish the offending vehicle's identity as the one responsible for the fatal accident.
15. Mr. Ravindra Nath Tiwari, learned Counsel for the claimants, on the other hand, submits that the driver is named in the FIR, that was lodged as soon as the family could have emerged somewhat from the trauma. During the relevant period of time, that is to say, between the accident and the lodging of the FIR, the deceased's wife was also hospitalized in a precarious condition and all that has contributed to the delay. He submits that delay in lodging an FIR in a motor accident claim does not cast doubt about the veracity of the claimants' case against the offending vehicle. The driver of the offending vehicle, after investigation by the Police, has been charge-sheeted. He has also been released on bail. That apart, there is a dependable account of three eye-witnesses, including the deceased's wife, who sustained injuries in the accident, that all point unmistakably to the involvement of the owner's vehicle in the accident. He submits, therefore, that the Tribunal has taken a holistic view of the evidence and rightly found the owner's vehicle involved in the accident and ordered him to pay compensation.
16. It is, no doubt, true that the mere fact of delay in lodging the FIR cannot lead at all to the inference that the claimants' case is doubtful. What is of importance, in a matter involving a motor accident, that is, at once an offence and a cause of action for compensation under the Motor Vehicles Act, is the authenticity of the claimants' case. If the FIR belatedly reports an accident, truthfully pointing out to the identity of the offending vehicle, the delayed registration of the FIR cannot be a ground to doubt the veracity of the claimants' case. There could be innumerable reasons for the delay in lodging the FIR and the most commonplace of these is the trauma that the family goes through, particularly, where there is a survivor, still struggling for his/ her life in the hospital. This position of the law is adumbrated by the Supreme Court in Ravi v. Badrinarayan and others, AIR 2011 SC 1226. In Ravi (supra), it has been held:
"20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.
21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons."
17. Therefore, by reason of delay alone in lodging the FIR, the claimants' case cannot be viewed with an eye of suspicion. But, at the root of the inquiry, lies the fact, whether the claimants' version carried in the FIR and the claim petition about the identity of the offending vehicle is truthful and genuine. In the present case, mostly, like many other claims, there is an eye-witness account. There are three eye-witnesses, who have been examined by the claimants. PW-1, Smt. Rammi Devi is a victim of the accident alongside the deceased. This witness in her examination-in-chief has described the accident as she must have experienced it until the traumatic event and has referred to the offending vehicle with its registration number. In her cross-examination on behalf of the driver, this witness has stated thus:
"मैं साढ़े चार बजे अपने घर से चली थी। टक्कर लगते ही मैं नीचे गिर गई थी। जब मुझे होश आया मैं अस्पताल में थी। मुझे करीब नौ-दस दिन के बाद पता चला था कि मेरे रिश्तेदारों में रिपोर्ट लिखा दी है। मुझे भीमसेन ने बताया था कि हमने भगवानदास के विरुद्ध रिपोर्ट दर्ज करा दी है। रिपोर्ट में उन्होने बताया कि भगवानदास का नाम लिखाया है और टैम्पू का क्या नम्बर लिखाया यह देवर भीमसेन को पता होगा। जब मैं अस्पताल में थी तब भीमसेन व मेरे रिश्तेदार अस्पताल में आये इन लोगों ने मुझसे पूछा कि कौन टक्कर मार गया तो मैने बताया कि टैम्पू वाला टक्कर मार गया।"
18. There is no reason to disbelieve that it was a tempo that hit the unfortunate couple, but there is equally no reason to believe the evidence of this witness that it was the offending vehicle that did the evil deed. It is apparent that as soon as the accident happened, this witness fell off of the bicycle and lost consciousness. She regained it in the hospital. In her cross-examination, she has specifically said that on being hit by the offending vehicle, she fell down. When she regained consciousness, she was in the hospital. In this sequence of events, it is difficult to credit this witness with a first-hand account about the registration number or the identity of the offending vehicle. She can be believed to the extent alone that it was a tempo, which hit the victims while they were moving on the bicycle at the date, time and place of occurrence. The further admission of the witness in her cross-examination, that it was Bheemsen, who told her that they have lodged an FIR against Bhagwandas (the driver) and that it is her brother-in-law (Bheemsen), who would know about the registration number of the tempo, makes it pellucid that this witness never had occasion to know the number of the offending vehicle for herself, or identify it by any other means.
19. PW-1, Smt. Rammi Devi has also said in her cross-examination at the instance of the owner that the offending vehicle bears a registration plate in the english language and she does not know english. The evidence of this witness across the length and breadth of it, is of no consequence in ascertaining the identity of the offending vehicle by reference to its number or otherwise.
20. The other most important witness is Bheemsen, PW-2. He is the author of the FIR, reporting the occurrence. In his examination-in-chief, he has said about his presence on the spot and the identity of the offending vehicle thus:
"महीने का मुझे ध्यान नही है। करीब 14 महीने पहले की बता है। दुर्घटना के समय मेरे भाई साईकिल चला रहे थे व भाभी पीछे बैठी थी। यह दहगला अपनी ससुराल से आ रहे थे। मै इनसे करीब आधा कि०मी० पीछे-पीछे आ रहा था। धनकुना अड्डा पर पहुँचने पर मै अपनी भैया से थोड़ा पीछे था। यह दुर्घटना मेरे सामने हुई थी। भैया की साईकिल मे पीछे से भगवानदास ने टक्कर मारी थी। टैम्पो से टक्कर मारी थी। टैम्पो का नम्बर UP T 26/ 079 था। फिर कहा कि 0479 है। यह नम्बर टैम्पो का U.P. 26 T/0479 गवाह के हाथ पर भी लिखा है। टैम्पो का असली नम्बर 0479 सही है। एक्सीडेंट के समय घटना स्थल पर कौन कौन आ गया था उनके नाम मुझे नही पता। फिर कहा कि- पुत्तूलाल, राम चरन व भीमसेन आ गये थे। टैम्पो वाले को मौके पर नही पकड़ पाये, वह मौके से भाग गया था।"
21. This witness has read up to Class-VIII as he says himself in his cross-examination on behalf of the owner. He has spoken thus about the number of the offending vehicle:
"टैम्पो का नम्बर मेरे घर पर डायरी मे लिखा है। आज मै डायरी नही लाया हूँ। हाथ पर नम्बर मैने अपने आप लिखा है। मै सीधे हाथ से लिखता हूँ व टैम्पो का नम्बर भी मेरे सीधे हाथ पर ही लिखा है।
टैम्पो में लाईट नही जल रही थी। सूरज छिप चुका था। मै दुर्घटना के समय पुलिया के पास दक्खिन मे था। यह पुलिया वहां से करीब 20 कदम दूर होगी। दुर्घटना होते ही टैम्पो भाग गया। टैम्पो पीलीभीत की तरफ भाग निकला था।
हमारी धनकुना चौकी पर सूचना पहुँच गयी थी। वह सूचना वैसे ही दी थी कि दुर्घटना में प्रेमचन्द्र की मृत्यु हो गयी है। लिखकर नही दी थी।
दुर्घटना के आधे घंटे के बाद मेरे भाई मदन लाल धनकुना चौकी पर सूचना दे आये कि दुर्घटना मे प्रेमचन्द्र की मृत्यु था।
यह कहना गलत है मै आज झूठी गवाही दे रहा हूँ। यह कहना गलत है कि जिस नम्बर का टैम्पो मैने बताया है उससे दुर्घटना न हुई हो बल्कि दुर्घटना कही और हुई हो।
टैम्पो का पता चला थाना न्युरिया में है। मैने खुद टैम्पो को ढूढ़ा था। मझोला पकड़िया मे झाड़ी के पीछे खड़ा हुआ था। यह कहना गलत है कि मै सब फर्जी बाते बता रहा हूँ। यह कहना गलत है कि मेरे भाई मोटर साईकिल से गिरे हो।"
22. It is further stated by this witness, in answer to the cross-examination on behalf of the driver, thus:
"जब मैं टैम्पो को ढूढ़ता हुआ मझोला पहुँचा तो मुझे एक टैम्पो झाड़ियो में खड़ा मिली। यह टैम्पो मुझे पांच दिन के बाद मिला था। उसी टैम्पो का नम्बर मैने अपनी डायरी मे नोट किया। और यही नम्बर मैने अपनी तहरीर में लिखकर थाने मे दे दिया था।
दिन शनिवार को लगभग 11 बजे मै अपने घर से दहगला के लिए निकला था। साढ़े 11 बजे मै दहगला पहुँच गया था। वहां से पीलीभीत नही आया था। मेरी वापसी वहां 4.15 पर वापसी हो गयी थी।
जब मै घटना स्थल पर पहुँचा तो ड्राईवर टैम्पो लेकर भाग चुका था। जब मै वहां पहुँचा तो भाभी मेरी वहां पर बेहोश पड़ी थी। वहां पर बहुत भीड़ लगी थी। वहां पर मदन लाल नही आये थे। मै अपनी भाभी को देखने अस्पताल गया था। उनको आठवें दिन होश आया था। तब मैने अपनी भाभी को बताया कि एक टैम्पो मुझे लावारिस हालत में मिला है। उसका नम्बर मैने रिपोर्ट मे लिखा दिया है।
घटना वाले दिन मै रिपोर्ट लिखाने नहीं गया था। घटना को दूसरे, तीसरे, चौथे, पांचवे, छठे, सातवें, आठवे, नौवे दिन तक मै रिपोर्ट लिखाने नही गया क्योंकि मै टैम्पो तलाश करता रहा जब टैम्पो मिला, उसका नम्बर नोट किया तब मुकदमा दर्ज कराया।
मै आकर तहरीर अपने वकील साहब से लिखायी और वहां पर सब घर वालो ने बैठकर तय किया कि यदि क्लेम लेना है तो इसी टैम्पो के खिलाफ रिपार्ट लिखा दो।"
(emphasis by Court)
23. From the testimony of this witness like PW-1, it is vivid that he saw the occurrence, but could not note down the number of the vehicle as it escaped. By the time the accident occurred, darkness had already set in and the offending vehicle did not have its lights on, much less a light that would be illuminating the number plate. To expect a number plate light on a tempo plying in the hinterland is a far-cry. What is beyond doubt is that the offending tempo escaped immediately after the accident, and evidently, there was not enough time for anyone to note down its number.
24. This is all the more evident from the fact that the deceased's inquest and postmortem reports show that the Police took that action on the basis of G.D. Entry No.5 lodged at 50 minutes past midnight on 14.11.2015 at Kotwali, Pilibhit. Apparently, this G.D. Entry was made on the basis of an oral information that PW-2 has spoken about, that was given to the Police after Prem Chand passed away while on way for medical aid to a higher centre at Bareilly. If by that time, PW-2, the deceased's brother had noted down the number of the offending vehicle, it is possible that it might have figured in the G.D. Entry based on the oral information to the Police. In any case, it would have figured in police investigation very early. In all eventualities, the FIR would have been lodged early, mentioning the vehicle. It could be said that in the crisis and trauma that ensued, PW-2 was not left with time or attention to pay to the legal niceties of lodging an encyclopedic written first information or at least one that mentioned the offending vehicle's registration number or other identities. But, that possibility is obviated by what PW-2 has said in his cross-examination. He has stated that he proceeded to Majhaula, where he found the offending tempo parked behind some bushes. This was five days after the occurrence. He has very candidly said that he noted down the number of that tempo in his diary and mentioned it to the Police in his written information lodged later. He has stated in his cross-examination that he lodged the FIR on the ninth day of the occurrence, because he was searching out the offending tempo. He has said that after he had searched out the offending tempo, he noted down its number and got an FIR registered.
25. It has also been said in his cross-examination by PW-2 towards the tail-end of it that after noting down the parked tempo's number, he went to his Counsel and asked him to draft the FIR and there, all members of the family sat together and expressed opinion that if compensation had to be claimed, then an FIR has to be lodged against this tempo (the one discovered by PW-2 in the bushes at Majhaula).
26. This Court is mindful of the fact that in hit-and-run cases, some kind of a private investigation to ascertain the identity of the offending vehicle is undertaken or has to be undertaken by those who are the unfortunate victims of the accident, or the survivors of the deceased. If they go about the task gathering with reasonable certainty, the identity of the offending vehicle, a mere belated report of the incident to the Police, would not cast any doubt about the claimant's case. Here, the identity of the tempo, going by the words of PW-2, who is an eye-witness, has been ascertained by him. He did not know its identity, when the accident occurred and the offending vehicle escaped. It took him some five days to discover the offending vehicle parked behind some bushes at a place called Majhaula.
27. Remarkably, there is nothing in the testimony of PW-2 to indicate the basis on which he inferred that the vehicle that he found parked behind some bushes at Majhaula was the offending vehicle. The assertion that PW-2 found the offending vehicle behind the bushes at Majhaula is nothing more than pure conjecture, with no basis to the inference. It is not said that there was some feature about the vehicle that this witness had noted at the time of accident, that led him to identify it or that he was informed by someone, who knew about the identity of the offending vehicle. Of course, in the latter case, the person informing him would also have to be examined, but there is no such case. Rather, the closing part of this witness's cross-examination virtually says that after he had searched out the offending vehicle, as if it were by gut feeling, he sat together in conference with other relatives and decided to lodge an FIR against the offending vehicle for the sake of preferring a compensation claim. It is very difficult to accept on the basis of this witness's evidence that the offending vehicle identified by him was indeed the one involved in the accident.
28. The third witness, who has been examined on behalf of the claimants is Puttu Lal, PW-3. He has testified in his examination-in-chief that he was an eye-witness to the accident, about which he broadly says that it was a tempo that hit the deceased and his wife as they were moving on the bicycle. The tempo had proceeded on the wrong side to cause the accident. He has further said in his examination-in-chief that the tempo was being driven by Bhagwandas son of Nandram. The driver is a native of Village Dhankuna. The driver is not a prior acquaintance of the witness or otherwise known to him. It is then said by this witness in his testimony:
"जिस टैम्पो से टक्कर हुई थी उसका नं० U.P.26T/0479 था। उसके बाद टैम्पो चालक को मय टैम्पो के तीन चार लोग चौकी पर ले गये।"
29. In his cross-examination at the instance of the owner, this witness has stated:
"टैम्पू चालक व टैम्पू को मैं थाने नहीं ले गया था। टैम्पू चालक व टैम्पू को मैं चौकी पर नही ले गया था कौन ले गया था मुझे नहीं पता जो ब्यान आज मैं दे रहा हूँ वह सही है पहले वाला गलत है। यह गलत ब्यान मैने जान बूझकर नही दिया था। मैने टैम्पू के आगे वाला नम्बर देखा था उसका इन्जन नम्बर नही देखा था। यह टैम्पू मैने घनकुना अड्डे पर देखा था वहाँ से कौन ले गया मुझे नहीं पता वहां पर बहुत से लोग इकट्ठे थे वही लोग टैम्पू चालक को ले गये। मैं चौकी पर नही गया था यह पता है कि टैम्पू किसका है। टैम्पू पर नम्बर प्लेट सफेद रंग की काले अक्षर लिखे थे। यह कहना गलत है कि मैं झूठी गवाही दे रहा हूँ।"
30. In his cross-examination at the instance of the driver, PW-3 has stated thus:
"मैं विद्याराम को जानता हूँ। विद्याराम वकील साहब है। गांव के प्रधान हैं। इसी गांव का मै कोटेदार हूँ जिस गांव के विद्याराम प्रधान है मृतक प्रेमचन्द्र विद्याराम के गांव बस्ती के भतीजे थे। कोटा ग्राम प्रधान सत्यापित करता है। मेरे सामने टैम्पू चालक को भीड़ पकड़ कर ले गयी थी। यह बात सही है कि जिस टैम्पू से घटना हुई थई उस टैम्पू के चालक को व टैम्पू को लोगों ने मौके पर ही पकड़ लिया था।
यह कहना गलत है कि मैं अपना राशन का कोटा बचाने के लिए प्रधान विद्याराम के दबाव में झूठी गवाही दे रहा हूँ। यह भी कहना गलत है कि मैं सिखाए से झूठा प्रतिकर दिलाने के लिए गलत ब्यानी कर रहा हूँ।"
31. Now, so far as this witness is concerned, he has largely spoken about the tempo being apprehended on the spot by the crowd and taken to the Police Chowki and then to the Police Station. He says that he had seen the number of the vehicle on the front plate at the Dhankuna Stand. It is beyond understanding that if the offending vehicle was apprehended by the crowd on the spot and taken to the Police Chowki, why an FIR would be lodged by the deceased's brother nine days later after searching out the tempo, five days after the accident, parked behind some bushes at Majhaula. Even if one were not to look at the irreconcilable contradiction between the evidence of PW-2 and PW-3, an apprehension of the vehicle on the spot by the public would have led to a prompt FIR and immediate arrest of the driver. It does not appear to be the case in the FIR also, pursuant to which the driver surrendered in Court and secured bail. On a comparison done of the two eye-witness accounts of PW-2 and PW-3, the only ones available, the two cannot be reconciled. One speaks about the offending vehicle causing the accident and escaping, whereas the other says that it was apprehended on the spot by the crowd and handed over to the Police at the Police Chowki. There is also no such G.D. Entry brought to the notice of this Court that the vehicle was apprehended and handed over to the Police immediately after the accident. The two versions, when compared and also evaluated individually, do not show a hint about the involvement of the offending vehicle in the accident.
32. So far as the evidence of the driver Bhagwandas is concerned, he has entered the witness-box as DW-2 and asserted in his cross-examination that he does not do the job of a driver. He had no connection whatsoever with the offending vehicle. He had never functioned as its driver. He was at home on the date of accident and never driven it. He was not about the place of accident. In his cross-examination, he said that he had read about the accident the following day in the newspaper. The locals know him at Dhankuna, where he was born. He did not know the deceased and bore no ill-will or grudge against the deceased or his family members. The witness and Bheemsen were not at all inimical. He had a driving licence for a motorcycle and a four wheeler, that was valid. It has been said further in his cross-examination that he got himself bailed out 25 days after the accident and is still facing trial. He had not complained in any Court that he was falsely implicated.
33. The owner of the vehicle, DW-1, Niranjan Lal also entered the witness-box and testified in support of his case. He has said in his examination-in-chief that he had sold off the vehicle to Rizwan son of Natthu Bux for a sum of Rs.52,000/-. A sale letter had been written, which is on record as paper No. 25ग. The sale has been done on 30.05.2014. He has stated that the tempo was not in a motorable condition and was scrap. It was also said that when he came to know about the case, he went to Rizwan, who told him he had got the tempo dismantled as scrap. At the police station, he was told that the number plate of his tempo was affixed to some other vehicle and that the engine and chassiss number were different from those of the owner's vehicle. It was also said that the witness did not know, whether the number plate was genuine or fake, but the number on it was that of his vehicle. He did not know the driver at all and also that the driver had never been employed by him to operate his tempo.
34. In his cross-examination, this witness has said that he did not know that it was necessary to get a transfer of the vehicle registered with the R.T.O. after permission by the Finance Company. He had sold the vehicle to Rizwan and some part of the consideration was due. It is further said that Rizwan had told the witness that after the tempo was transferred to his name, he would pay the balance, but before that could be done, he got the tempo scraped and dismantled. The witness has also said that he did not know the deceased or the claimants. The claimants could not be inimical to him, as they never knew him. It has also been said by this witness that when he was summoned to the police station, he saw the number plate of his tempo on another vehicle, but did not complain about it to the Police or the Court. He did complain about the fact to Rizwan, but did not get any notice served through his Counsel or proceed in the matter before the Court.
35. There is no doubt about the fact that the accident took place involving a tempo, where Prem Chand perished in the accident, leaving behind the claimants. But, in this Court's opinion, the evidence that has come on record does not remotely establish that it was the owner's vehicle, that was involved in the accident. There is no admission on the part of either the owner or the driver, even slightly, that the offending vehicle could be the one involved in the accident.
36. The two witnesses for the claimants, whose evidence alone is material, are PW-2 and PW-3. Both of them have given an utterly contradictory account about the identity of the vehicle, though not about the factum of accident. While PW-2 has spoken about the offending vehicle escaping immediately after causing the accident, PW-3 says that it was apprehended by the crowd gathered on the spot and handed over to the Police. There is absolutely no evidence about the vehicle being handed over to the Police immediately after the accident. The identity of the vehicle surfaced nine days after the event through the FIR that was lodged by PW-2. PW-2 in his evidence does not indicate, by as much as a hint as to how he could identify that the vehicle that he found parked behind some bushes at Majhaula, was the one that had caused the accident. He has not identified it by reference to anything that he might have noticed at the time of the accident or the driver's identity. He did not know the driver beforehand. He has admitted in his evidence that he had noted down the number of the offending vehicle at the spot, where he found it parked and recorded it in his diary. Later on, he had sat in consultation with other relatives and decided to lodge an FIR against the vehicle that he discovered parked behind some foliage at Majhaula. He has gone to the extent of saying with the utmost candor that after noting down the number of the vehicle at Majhaula, he visited his Counsel, where the other family members sat together and decided that if compensation had to be claimed, a report would have to be lodged against this tempo.
37. The learned Judge in the Tribunal has found the identity of the offending vehicle established by remarks to the effect that PW-2 and PW-3 are eye-witnesses and there is nothing in their evidence or cross-examination to disbelieve them. Apart from it, the fact that an FIR was lodged against the driver of the vehicle, that was registered in the owner's name, on 21.11.2015, where the driver secured bail and a charge sheet filed in Court, all go to prove the involvement of the offending vehicle. It has then been remarked by the Trial Court that though the owner says that he had transferred the offending vehicle to Rizwan, but the insurance policy, that has been filed on record, valid from 28.03.2014 to 27.03.2015, shows that the vehicle was registered in the owner's name. There was no transfer recorded on the basis of the sale letter dated 30.05.2014 in favour of Rizwan by the R.T.O. The Tribunal has taken note of the sale letter, which says that the owner would have to obtain an NOC and then realize the balance consideration of Rs.5000/-, whereafter transfer of ownership would take place. There is no evidence offered by the owner, according to the Tribunal, that shows that the agreed NOC was obtained by him and the transfer recorded in Rizwan's name. The Tribunal has also remarked that though the owner says that his vehicle was sold as scrap, but in the sale letter, there is no mention of the fact that the vehicle was being sold as scrap. The Tribunal has laid great emphasis on the fact that the claimants and their family on one hand and the owner and the driver on the other, are not on any kind of inimical terms. From this fact, the Tribunal has ruled out a case of malicious implication of this vehicle in the accident.
38. It has also been remarked by the Tribunal that if it were a case of involving the vehicle for the purpose of realizing compensation, there would be prior concert with the owner and the driver, where it would be ensured that the vehicle had valid papers. No one for the purpose of realizing compensation would proceed against a vehicle on the basis of a false case that had no valid papers. The reasoning of the Tribunal appears to proceed on the basis that if it were a case of merely recovering compensation on false allegations, a duly insured vehicle would have been chosen as the subject with prior understanding with its driver and owner. It has also been reasoned by the Tribunal that after investigation, the Police have filed a charge sheet against the driver, which buttresses the fact that it was the offending vehicle that was involved in the accident.
39. The moot question here, as already noticed, is that there is not shred of evidence aliunde led on behalf of the claimants to establish that the offending vehicle was the one involved in the accident. The Tribunal has, in the opinion of this Court erred in holding the identity of the vehicle established by ruling out possibilities of a false implication. The learned Judge has adopted what may be called a method of elimination of sorts. That, in the opinion of this Court, is a wrong approach altogether. Merely, because the parties are not on inimical terms and the fact that the vehicle was not insured, cannot lead the Court to draw a positive inference about the vehicle's involvement in the absence of some evidence aliunde, showing that involvement. This is not a case where there is a mere delay in lodging the FIR, but the involvement of the vehicle is otherwise sufficiently established. Here, it is not even remotely established. The question about the vehicle being sold as scrap or dismantled, is also irrelevant so long as there is no positive evidence to indicate its involvement. The fact that the owner did not complain to the Police or the Court that the number plate of his vehicle was affixed to a different vehicle is also of no consequence, unless involvement of the offending vehicle is established by positive evidence. All these circumstances would become material, if some evidence were let in to show that it was the offending vehicle that caused the accident. Unfortunately, there is none forthcoming.
40. On the evidence appearing here, it is a hard case, where the accident has turned a blind hit and run. The suffering of the claimants is indeed one that evokes all sympathy, but that cannot lead the Court to order compensation from a party against whom there is absolutely no evidence about the involvement of his vehicle. The claimants would have to rest content by availing their remedy under Section 161(2)(b) of the Motor Vehicles Act, 1988, that is applicable in a case of hit and run.
41. In the result, this appeal succeeds and is allowed. The impugned judgment and award passed by the Presiding Officer, Motor Accident Claims Tribunal, Pilibhit is set aside and the claim petition stands dismissed. The statutory deposit made before this Court shall be permitted to be withdrawn by the appellants.
42. In case, the claimants prefer a claim under Section 161 of the Motor Vehicles Act, their case may be considered in accordance with law giving due allowance to the pendency of the present proceedings.
Order Date :- 5.4.2022 Anoop