Madhya Pradesh High Court
Ashok Kumar Gupta vs Kishanlal And Ors. on 10 July, 1990
Equivalent citations: 1991ACJ702
JUDGMENT T.N. Singh, J.
1. For last ten years, this hopeless appeal has awaited a short order and that is made here and now.
2. The claimant/appellant described himself as an artist and at that, a film artist. He came from Bombay to Gwalior and on the fateful night, on 25.5.1977, at around 11.00 p.m., the car which he was driving met with an accident near Tekanpur.
3. His case is that from the opposite side, a truck, fully loaded, coming at a very high speed, at around 50/60 km. per hour, suddenly dashed against his car which got damaged and he also sustained some injuries. In the car, he was accompanied by two witnesses, CWs 2 and 3, but the owner of the car did not enter the witness-box. Admittedly, the position on facts is that the claimant had borrowed the car which he was driving himself when the accident took place. Nothing has come on record to suggest that any claim has been lodged for damage caused to the car. It has not been proved by any reliable and independent evidence that the car suffered any serious damage. Neither any mechanic has been examined undertaking spot inspection; nor any other person from the workshop where it must have been repaired if the car really suffered serious damage as needed treatment at any workshop.
4. The claimant's case has been disbelieved by the Tribunal. His evidence has been rejected as also of the other two witnesses, CW 2 and 3. In so far as CW 3 is concerned, he was a first cousin of claimant himself and was rightly regarded as an interested witness. He deposed that he was sitting by the claimant's side in the front seat but admitted that he suffered only slight injury. Claimant has also admitted in his evidence that he did not receive any treatment at Gwalior and preferred to take treatment in Bombay. His own case is that he got first aid at Dabra Primary Health Centre after the accident and was discharged from there the same day.
5. Although the driver came into the witness-box and deposed as DW 1, nothing has been brought out in his cross-examination as would lend support to the deposition of the witnesses of claimant. He deposed that he went to the Police Station to report the occurrence, but his F.I.R. was not recorded and, on the other hand, when sometime later the claimant reached the Police Station and rang up from there the 'bosses' in Gwalior, something happened as a result of which F.I.R. lodged by the claimant was recorded. He also admitted that he was prosecuted and he was prevailed upon to admit his guilt on being told that he will have to suffer a sentence of fine of Rs. 20/- to Rs. 25/- only.
6. The version of the occurrence given by DW 1 found favour with the Tribunal. He deposed that at the time of accident, he saw the car at a distance of about 100 yards coming in a zigzag fashion. He stopped his truck, but the car driver could not control his vehicle and the car continued to move before stopping at a distance of 5 to 10 paces after grazing against the truck. His evidence is also that the person driving the car appeared to be drunk and that his eyes were red. Strangely enough, this piece of evidence was not challenged in cross-examination. The Tribunal has accordingly accepted the "theory of drunkenness" and it found support for the same in the evidence of CW 2, who admitted that on being scared by the erratic driving of CW 1, he had unbolted the car's door for a probable dive.
7. It is too late to restate today the well-settled proposition of law that onus lies on the claimant to prove his own case that not only there was an accident, but the tortfeasor was negligent in driving the offending vehicle which gave rise to the cause of action for the claim. Accordingly, the appellant had to prove his case by adducing other reliable evidence as would carry conviction. Admittedly, there being police investigation on F.I.R. lodged, documentary evidence was available, but that has not been brought in the claim case for corroboration. Indeed, by that courts have also been deprived of the opportunity to test the evidence of claimant and the versions of his witnesses and also which he had given in his F.I.R What was found by the investigating agency at the place of occurrence should have come on record and duty to bring that on record was that of the claimant. He failed to do that and it is, therefore, rightly submitted that the Tribunal and even this court can legitimately draw adverse inference against the claimant. It would be presumed that the evidence which was crucial not being produced, the reason for that could only be of that evidence positively negativing claimant's case.
8. We fully agree with the view expressed by the Tribunal that the spot-map was not only relevant piece of evidence, but that was a crucial piece of evidence, in the facts and circumstances of the case. That would have spoken the truth and that would have been the touchstone to test the different versions given by the two sides. It was plaintiffs burden to bring that on record to corroborate his testimony that he was not only on the right side of the road, but he was, all through and all along, acting within his rights and the culpability lay with the truck driver. Not only that has not come on the record, the F.I.R. which the claimant himself lodged has also not been brought on record. We accept the view of the Tribunal, therefore, that the claimant has failed to prove his own case by adducing reliable and trustworthy evidence.
9. However, we would also observe that the claimant's version of the accident is intrinsically unconvincing and therefore, unacceptable. If the truck driver was at fault, the impact of the accident would have been severe producing disastrous result. Admittedly, on the other hand, the accident was a tame affair,but an effort has been made unsuccessfully to blow up the event in the manner of a film story to prop up the claim for an astronomical sum of Rs. 2,50,000/-. The fact that the claim was lodged after about five months of the accident is a reliable index of what must be termed as a miscalculated adventure.
10. For all the aforesaid reasons, we find no merit in this appeal and it is dismissed. But we make no order as to costs.