Rajasthan High Court - Jaipur
Ram Pyari And Ors. vs Bharat Singh And Ors. on 22 November, 1995
Equivalent citations: 2(1996)ACC162, 1996(2)WLC718
JUDGMENT Rajendra Saxena, J.
1. This appeal filed Under Section 110-D of the Motor Vehicles Act, 1939 has been preferred against the award dated 27.1.87 passed by the Motor Accident Claims Tribunal, Tonk (in short the "Tribunal"), whereby the claim petition filed by the appellants was dismissed on the ground that they had failed to prove that the accident in question wherein Kana died was caused by Truck No. RRR-9327.
2. Stated in succinct, the relevant facts are that on the night intervening 6th and 7th November, 1981 deceased Kana was travelling from Tonk and going to Village Ghas in a camel cart alongwith AW 2 Mohar Pal and AW 3 Jaipal. At about 4.00 a.m., when they reached ahead of Rustumganj, Truck No. RRR-9327, which was coming on a very high speed from Uniyara side and going towards Tonk hit their camel cart with the result that Kana fell down, sustained multiple severe injuries and died instantaneously. It is alleged that at the time of the accident the camel cart was going on its left side on the Kachha Path way and that the offending truck after coming on the wrong side had dashed with the said camel cart. It is further alleged that since a wooden plank of the camel cart had entangled into the truck as such it stopped at a distance of about one furlong and that Jaipal went near that truck and jotted down its number. On 7.11.81 at about 8.25 a.m., Jaipal lodged a written report at Police Station Kotwali, Tonk, whereupon FIR Ex. 1 was drawn, Crime No. 241/81 was registered and after usual investigation a challan was filed against the driver Bharat Singh (respondent No. 2) for the offences Under Sections 297, 337 and 304A, IPC. Appellant Smt. Ram Pyari the widow, two minor sons and parents of the deceased filed a claim petition before the learned Tribunal claiming a compensation of Rs. 2,41,200/-.
3. Respondent Nos. 1 & 2 in their joint reply denied the factum of accident and asserted that no accident had taken place by the Truck No. RRR-9327, that Bharat Singh was not the driver of the said truck at the time of the alleged accident, that deceased Kana had no permanent source of income and that he used to graze his cattle folk in the Jungle. They also pleaded that a false criminal case has been filed by the police against Bharat Singh.
4. The learned Tribunal framed as many as three issues and after assessing the oral and documentary evidence adduced by the parties held that the statements of eye-witnesses AW 2 Moharpal and AW 3 Jaipal were replete with material contradictions and that from the documentary evidence adduced by the respondents, it appeared that the said truck, which was carrying cement bags from Sawaimadhopur to Jaipur, had passed from the Octroi Post Tonk on 16.11.81 at about 9.30 a.m. and reached the Sanganer Octroi Post at 12.10 a.m. on 17.11.81 and, therefore, the claimant petitioner had miserably failed to prove that the offending vehicle, which dashed with the camel cart was Truck No. RRR-9327. He accordingly without quantifying any compensation, dismissed the claim petition. Hence this appeal.
5. I have heard Mr. Vimal Kumar Jain, the learned Counsel for the appellants and Mr. Rinesh Gupta the learned Counsel for the respondents at length and carefully perused the record of the Tribunal as also the oral and documentary evidence adduced by the parties.
6. At the very out set, I may point out that the learned Tribunal has scanned and assessed the evidence of claimant-appellants in a manner as if it was deciding a criminal case. It will suffice to add that the standard of proof and appreciation of evidence in an enquiry by Motor Accident Claims Tribunal, which is almost a summary enquiry, are not akin to strict standard of proof as is required during a trial. On the other hand, the Tribunal has to weigh and evaluate the evidence on the basis of preponderance of evidence. In the claim petitions filed under the Motor Vehicles Act the claimant is not required to prove the carelessness, negligence or the guilt of the driver of the offending vehicle to its hilt or without any reasonable doubt. It has simply to analyse and assess the evidence adduced by the parties and applying the principle of preponderance of evidence find out as to which of the evidence is more weighty, credible and trustworthy.
7. In the case on hand, the learned Tribunal has discussed, analysed and evaluated the evidence applying a strict standard of proof as is required in a criminal case and unnecessarily made out a mountain out of a mole hill on the basis of minor, immaterial, insignificant and irrelevant contradictions in the statements of Moharpal and Jaipal, and has committed a grave error in ignoring the material and substantial facts, which stand duly proved from their sworn testimony. Immediately after the accident, a written report was lodged by AW 3 Jaipal on the same day at Police Station Kotwali, Tonk, which is situated at a distance of about 7-8 kms from the place of accident. In FIR Ex. 1, Jaipal had specifically mentioned that at about 4.00 a.m. he alongwith Kana and Moharpal were coming from Tonk and going to Village Ghas on Moharpal's camel cart, that Truck No. RRR-9327 came from Uniyara side with a high speed and hit their camel cart, that Kana received severe injuries and died on the spot, that Moharpal, who was driving the said camel cart also sustained injuries and that the camel cart was also damaged. It was also mentioned therein that the truck driver had speeded away the truck. AW 5 Ram Singh ASI, who investigated the case had prepared the site plan (Ex. A 5/2) and recorded the statements Under Section 161, Cr.P.C. of Jaipal and Moharpal Exs. A 5 & A 6 respectively on the same day wherein number of the offending Truck No. RRR-9327 finds mention. Thus, immediately after the said accident, the number of the offending truck was known to Jaipal as also to the police, but the learned Tribunal has completely ignored this material fact and disbelieved the testimony of AW 3 Jaipal and AW 2 Moharpal high-lighting some minor contradictions to the effect that Jaipal had stated that the truck had stopped at a distance of about one furlng while as per statement of Moharpal since a wooden plank of the camel cart had struck up, the truck had stopped then and there at the site of accident and in the FIR Ex. P1 it was mentioned that after the accident the driver had driven away the said truck. I do not find any substantial incongruity, inconsistency or contradiction in the statements of these two witnesses. Another ground which the Tribunal has taken for disbelieving the testimony of these witnesses is that in the month of November in the early hours of night or at about 4.00 a.m., it was not possible for Jaipal to have read over the number of the truck. AW 1 Jaipal deposed that after the accident the truck had stopped at a distance of about one furlong, that he reached there running, that the truck driver alighted from the truck and stayed there for about 15-20 minutes and that at the time he had noted down the number of that truck from its rear side. AW 2 Moharpal has also stated that after the accident the truck stopped and the truck driver had assured them that he was not running away and that it took 15-20 minutes in taking out the wooden plank of the camel cart from the truck. Both these witnesses have also stated that the truck driver had conversation with them. Respondents NAW 1 Shyam Singh and NAW 2 Bharat Singh have simply stated that no accident took place from their truck. In such circumstances, it is abundantly apparent that the learned Tribunal has misread the evidence and his finding on this count is palpably perverse and against the record.
8. The learned Tribunal has also committed an illegality in relying on the copy of transit pass of Nagar Parishad Ex. A 1, certificate issued by the Office Superintendent, Nagar Parishad, Jaipur Ex. A 2, certifying that on 17.11.81 truck No. RRR-9327 had reached Octroi Post, Sanganer Road at 12.10 a.m. and a photostat copy of transit pass of Nagar Parishad, Jaipur Ex. A-1-A. All these documents have not been duly proved by the persons, who had issued them. NAW 3 Kaluram, Zamadar-Nagar Parishad, Jaipur has simply produced the receipt book containing transit pass No. 90693 EX. A 1. He has specifically stated that the said document was not ascribed by him. He has also pleaded his ignorance as to who had signed certificate Ex. A 2. Therefore, by his testimony, documents Ex. A 1 & A 2 do not stand proved.
9. NAW 4 Gopal Das Chaubey, Nakedar, Nagar Parishad Tonk, has filed the original letter Ex. A3 issued by the Commissioner, Nagar Parishad, Tonk, wherein he informed the Court that the Octroi record for the year 1981-82 had already been auctioned after audit. Therefore, the certificate Ex. A3 does not help the respondents.
10. Before the Tribunal this Court's judgment dated 27th September, 1984 passed in S.B. Civil Misc. Appeal No. 99/1980, Mst. Ganga Prabhu etc. v. Hanuman Singh and Ors. was cited by the appellants. In that case the number of the offending vehicle (truck) was mentioned in the FIR which was lodged immediately after the accident. It was held that mentioning of the number of offending vehicle in the FIR immediately after the accident leads to a conclusion that the FIR contains true facts and that it was that truck which was involved in the accident. Another judgment dated 19th October, 1984 passed by this Court in Alladin and Ors. v. Sompati and Ors. S.B. Civil Misc. Appeal No. 100/1980 was also relied upon by the appellants, wherein it has been held that in summary proceedings of the accident claims cases, unless something is elucidated in the cross-examination of a witness, the FIR which contains the number of the truck and which is lodged immediately after the accident is a proper proof and that the statement of the informant witness is of great importance.
11. The learned Tribunal employing fake, frivolous and hypertechnical reasons has committed a grave error in distinguishing those judgments and ignoring the principles of law laid down therein.
12. I am, therefore, of the considered opinion that the learned Tribunal has not correctly scanned, examined and assessed the evidence recorded in this case. It has rather mis-read the evidence and committed a grave illegality of fact as also of law in holding that the appellant failed to prove that the accident in question had occurred by Truck No. RRR-9327 and in rejecting their claim petition. The impugned award, therefore, cannot be sustained. In my considered opinion from the evidence it stands fairly established that the accident in question had been caused by the careless and negligent act of the respondent-Bharat Singh, who was driving the offending Truck No. RRR-9327, resulting in the death of Kana. Hence issues No. 1 is decided in favour of the appellant and against the respondent.
13. In the premise of the above discussion, this appeal is allowed, the impugned award dated 27th January, 1987 passed by the learned MACT, Tonk, is hereby quashed and the case is remanded to it with the direction that it should decide Issues No. 2 & 3 on the basis of the evidence already adduced by the parties in accordance with law. The parties are directed to appear before the Tribunal on 18.12.95. The Tribunal will ensure that this old claim petition is decided within a couple of months from the date of receipt of this order.