Punjab-Haryana High Court
Sunder Lal Alias Sunder Singh vs Smt. Kesri Devi And Ors on 11 September, 2013
F.A. O. No. 712 of 2011
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IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
F.A.O. No. 712 of 2011
Date of decision:-11.09.2013
Sunder Lal alias Sunder Singh
....... Appellant
Versus
Smt. Kesri Devi and ors.
........ Respondents
CORAM:HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
Present: Mr. Himanshu Puri, Advocate
for the appellant.
Mr. Sandeep Jasuja, Advocate for
Mr. Kapil Khanna, Advocate
for respondents No. 1 to 7.
None for respondents No.8,10 and 11.
Ms. Vandana Malhotra, Advocate
for respondent No.9.
Mr. D.P. Gupta, Advocate
for respondent No.12
---
Vijender Singh Malik, J.
This is an appeal brought by the claimant against the award dated 26.04.2010 vide which his claim petition brought under section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') has been dismissed by learned Motor Accidents Claims Tribunal, Gurgaon (for short 'the Tribunal'). Sunder Lal alias Sunder Singh, the claimant sought compensation by way of this petition in a sum of Rs.10,00,000/- for the Kumar Dinesh 2013.09.18 11:38 I attest to the accuracy and integrity of this document High Court,Chandigarh F.A. O. No. 712 of 2011 -2- injuries he suffered in a road side accident that took place on 19.11.2003.
On 19.11.2003 the claimant was coming from Bilaspur to Bhiwadi in a Maruti car bearing registration No. DL-1CD-3273 driven by respondent No.4. At about 10.00 AM when they were near Gurjar Ghatal turning , a truck bearing registration No. RJ-02G-3654 driven by respondent No.1 came in a rash and negligent manner and had hit the car. As a result of this accident, the claimant and respondent No.4 suffered injuries. They were taken to Raman Munjal Memorial Hospital, Sidhrawali where they took treatment.
While respondent No.2 was proceeded against ex-parte, the other respondents have resisted the claim petition. They have denied the allegations of the claimant and have claimed that the claimant has concealed the material facts. Respondent No.3 has, however, added that earlier to this petition, the claimant filed a petition under section 163-A of the Act, in which he had stated that the accident took place while saving a cow that suddenly came on the road.
Learned Tribunal found under issue no.1 that the self serving statement of the claimant is contradicted by copy of daily diary report and the contents of the claim petition filed by him earlier to this petition. For these reasons, the claimant was found to have failed to prove that the accident is an outcome of rash and negligent driving of truck No. RJ-02G-3654 by respondent No.1.
Kumar Dinesh 2013.09.18 11:38 I attest to the accuracy and integrity of this document High Court,Chandigarh F.A. O. No. 712 of 2011 -3-
Learned counsel for the appellant has contended that while the claimant-appellant has supported his case on oath, respondent No.1, who was driving the offending truck did not step into the witness box and adverse inference is available against his case. He has submitted that the statement of the claimant , thus, supported by adverse inference is sufficient to prove that the accident has been an outcome of rash and negligent driving of the truck in question.
Learned counsel for respondent No.9 has submitted, on the other hand, that the statement of the claimant recorded as PW-8 is an afterthought and as the same is contrary to what he had claimed in his earlier petition and the report made to the police, the same cannot be believed. According to her, learned Tribunal has been fully justified in rejecting the statement of the claimant as unreliable.
Soon after the accident, report was lodged with the police and a copy of the same is Ex.P5. This was lodged by respondent No.4, who was driving the Maruti car , in which the claimant was travelling. He had stated in the report made to the police that when they were near Gurjar Ghatal turning, a cow suddenly came on the road and in order to avoid hitting the said cow, he applied brakes to the car and while he was in the process of applying brakes, a truck bearing registration No. RJ- 02G-3654 came from the side of Bhiwadi and the car had hit the said truck. He has concluded his narration of the occurrence by stating that the accident occurred by chance while saving a cow and no one was at fault in the same.
Kumar Dinesh 2013.09.18 11:38 I attest to the accuracy and integrity of this document High Court,Chandigarh F.A. O. No. 712 of 2011 -4-
Before filing this petition under section 166 of the Act, the appellant had filed a petition under section 163-A of the Act. The said petition was withdrawn by him because his income claimed in the same was above the one which took the claim petition beyond the provisions of section 163-A of the Act. Ex.R-1 is the copy of the said petition. In the same, it is clearly mentioned that on 19.11.2003 at about 10.00 AM when they were travelling in a car and were near turning to Gurjar Ghatal a cow suddenly came on the road and in order to save the said cow brakes were applied and as in the meanwhile truck bearing registration No. RJ-02G-3654 driven by respondent No.1 came from Bhiwadi side, the front side of both the vehicles collided. There is no word in the petition to the effect that the accident has been an outcome of rash or negligent driving of the truck in question.
The version appearing in DDR Ex.P-5 and the claim petition Ex.R-1 is sought to be ignored by the claimant while appearing as PW-8. He could not give any reason for making the earlier statements to the effect that the accident occurred by chance and no one was at fault for the same. In these circumstances, the statement of the claimant/petitioner which are contrary to his own stand taken in his earlier petition as also against the contents of the DDR is not believable. When the statement of the petitioner is not believable, his case cannot stand proved only for the fact that the respondent failed to appear in the witness box in support of his own cause. Kumar Dinesh 2013.09.18 11:38 I attest to the accuracy and integrity of this document High Court,Chandigarh F.A. O. No. 712 of 2011 -5-
For the aforesaid reasons, I find that the claim petition has been rightly dismissed by learned Tribunal. I find no exception to the finding recorded by learned Tribunal on issue no.1. Consequently, finding no merit in the appeal, I dismiss the same.
(VIJENDER SINGH MALIK) 11.09.2013 JUDGE dinesh Kumar Dinesh 2013.09.18 11:38 I attest to the accuracy and integrity of this document High Court,Chandigarh