Shanti Devi v. Shiv Kumar & Anr.

Present : Mr. Nilesh Bhardwaj, Advocate, for the appellant. Mr. Inderjit Sharma, Advocate, for the Insurance Company. K. C. PURI, J. (ORAL) This is an appeal preferred by widow against the award dated 27.01.1989 passed by the Motor Accident Claims Tribunal, Hissar, vide which the claim petition preferred by her seeking compensation on account of death of Ram Lal, was dismissed. The case as set forth by the claimant is that on

17.07.1987 at about 9:00 P.M, Ram Lal was coming on his bicycle from village Dewan to Hisar on Rajgarh-Hissar road. When he was coming towards Hissar, a four-wheeler bearing registration No. HYF-3387 being driven by respondent No.1-Shiv Kumar in a rash and negligent manner, came from the opposite F.A.O NO. 510 OF 1989 -2- direction and struck against the left side of the bicycle Ram Lal. Respondent No.1 did not blew the horn as a result of which the accident took place in which Ram Lal received multiple grevious injuries. The occurrence was witnessed by Naresh Kumar s/o Ram Baksh r/o Hissar, who was the driver of three-wheeler auto- rickshaw bearing registration No. HYN-2704. Shiv Kumar shifted Ram Lal in the four-wheeler with the help of Naresh Kumar and started for Civil Hospital, Hissar. On the way, Shiv Kumar stopped one four-wheeler bearing registration No. HYT-1938 being driven by one Suresh Kumar and shifted Ram Lal in that four-wheeler. Later on Ram Lal succumbed to his injuries at Medical College, Rohtak. It is further stated that Shiv Kumar-respondent No.1 made extra-judicial confession before Mehta Lakshman Dass and Hari Chand, admitting his guilt and told them about the accident. The claim petition was contested by Shiv Kumar- owner-cum-driver of the offending vehicle as well as by the Insurance Company. Shiv Kumar admitted the accident but claimed that the accident had taken place due to negligence of Ram Lal as he was coming from wrong side in zig-zag manner in a drunken condition. He denied of having made any extra-judicial confession. From the pleadings of the parties, following issues were framed by the Tribunal : F.A.O NO. 510 OF 1989 -3-

1. Whether Ram Lal died as a result of rash and negligent driving of four wheeler HYF-3387 driven by respondent ? OPP

2. Whether the petitioner is entitled to claim compensation in respect of death of Ram Lal. If so, how much and against whom ? OPP

3. Whether the petition is liable to fail on the preliminary/additional objections taken by respondents No.1 and 2 in their replies filed to the petition ? OPP

4. Relief. The claimant examined Des Raj, Photographer as PW1, Naresh Kumar as PW2, claimant examined herself as PW3, Lachhman Dass Mehta as PW4 and closed the evidence after tendering certain documents. Respondents examined Dr. S. K. Goel as RW1, Shiv Kumar as RW2, R. K. Bhatia as RW3 and also tendered certain documents. The learned Tribunal, after appraisal of evidence from the file, determined the findings on Issue No.1 against the claimant and it is held that claimant has failed to prove that the accident had taken place due to rash and negligent driving of four-wheeler HYF-3387 by respondent No.1-Shiv Kumar. The remaining two issues were decided against the claimant and consequently, the claim petition was dismissed. F.A.O NO. 510 OF 1989 -4- Feeling dissatisfied with the above said award, the claimant/appellant has preferred the present appeal. Learned counsel for the appellant has submitted that in this case the accident has taken place due to rash and negligent driving of Shiv Kumar-respondent. In order to save himself, this witness has lodged the D.D.R Exhibit R6. It is further contended that from the photographs Exhibit P2, it is clear that the offending vehicle was damaged from the left side. It is further contended that PW2 Naresh Kumar eye witness has supported the case of prosecution on all material particulars. PW4 Lacchhman Dass Mehta has also proved the accident as he has stated that Shiv Kumar made extra-judicial confession before him. Shiv Kumar while appearing as his own witness, has stated that the accident has taken place but has denied that it is on account of negligence of deceased Ram Lal. A prayer has been made for setting-aside the findings on Issue No.1 and for accepting the claim petition. It is further contended that the finding of Tribunal that there is a collusion between Shiv Kumar and claimant, is based upon no evidence. Learned counsel for the Insurance Company has supported the judgment of the Tribunal. I have considered the submissions made by both the sides and have gone through the records of the case. F.A.O NO. 510 OF 1989 -5- The decision of the appeal resolve around Issue No.1. In case the said issue is decided in favour of the claimant in that case the appeal has to be accepted. However, in case the findings of Tribunal on Issue No.1 are affirmed in that case, the appeal is likely to be dismissed. The first version in this case was given by Shiv Kumar by making statement Exhibit R6 on 18.07.1987 i.e on the next date of occurrence. In the statement he has stated that on

17.07.1987, he was taking his four-wheeler bearing No. HYT- 1938 and was going from Hissar to Sewani. Suresh Kumar was also driver on the said vehicle. At about 8:45 P.M, when he reached ahead the cotton factory, he found one person, whose name was Ram Lal s/o Gurdial, in an injured condition. A bicycle in a broken condition was also lying there. Ram Lal disclosed him that he met with an accident 15/20 minutes earlier. Shiv Kumar with the help of Suresh Kumar shifted Ram Lal to Civil Hospital, Hissar. Some unknown vehicle had hit Ram Lal. Now, Shiv Kumar in the written statement has taken a stand that the accident has taken place with his four-wheeler bearing No. HYF-3387. It so seems that the vehicle bearing No. HYT-1938 was not validly insured and on that account, another vehicle i.e HYF-3387 has been introduced by Shiv Kumar. The learned Tribunal has appreciated the testimony of Naresh Kumar in right prospective. Had he been a witness to the occurrence, he must have reported the matter to the police. The F.A.O NO. 510 OF 1989 -6- Tribunal, after appreciating the evidence, reached to the conclusion that there is collusion between Shiv Kumar and the claimant to get the compensation. That fact is crystal clear from the evidence on record. Statement of PW4 Lachhman Dass Mehta has also been rightly discarded by the Tribunal, as discussed in para 13 of the judgment. So in these circumstances, findings on Issue No.1 stands affirmed. Consequently, the appeal is without any merit and the same stands dismissed. FEBRUARY 18, 2010 shalini (K. C. PURI) JUDGE