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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
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J U D G M E N T
CIVIL MISC. APPEAL No. 267 of 1996
RAJA RAM
V/S
PARASH RAM & ORS
Date of Judgment : 17.3.2009
HON'BLE SHRI N P GUPTA,J.
Mr. RK MEHTA, for the appellant / petitioner
BY THE COURT :
Heard learned counsel for the appellant.
This appeal has been filed by the claimant against
the award of the Motor Accident Claims Tribunal, Jodhpur
dated 9.2.1996, dismissing the claim, which was filed for
personal injury sustained by the appellant in the road
accident.
The necessary facts are that the appellant filed a
claim petition on 17.7.1992, alleging in para 11, that the
claimant along with his friend Radheyshyam were going from
Court to Nagori Gate, the claimant was driving. The jeep,
being delinquent jeep No.RNS 4151 was moving ahead. The
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appellant asked for side to overtake, which was duly given
by the jeep driver, and as soon as the appellant took the
motorcycle ahead, the jeep driver swerved the jeep towards
right, as a result of which the right rear wheel of the
jeep dashed against the motorcycle, the motorcycle lost
balance, and both the occupants fell down, the appellant
became unconscious, and was carried to hospital by
Radheyshyam. Then details, of the injuries sustained, have
been given.
A reply has been filed by the driver Paras Ram,
pleading that of course he was driving the jeep, but he was
driving on the correct side, the claimant’s motorcycle came
at a fast speed, and banged in the jeep from behind, as a
result of which, the motorcycle lost balance, and fell
down. After falling they were hail and hearty, the claimant
did not become unconscious, did not receive any grievance
injures, the rear light of the jeep got damaged, and the
rear side of the iron sheet of the jeep received dent.
Thus, it was pleaded that the accident occurred on account
of the own negligent driving of the motorcycle by the
claimant. Then in para 25 it was pleaded, that the two
occupants of the motorcycle were moving while talking to
each other, unmindful of the road, and in that process,
banged in the jeep. Another reply has been filed by the
owner, wherein also, identical plea has been taken.
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Learned Tribunal framed 4 issues. Issue No.1
related to the question of negligence. In the trial, the
claimant examined himself as P.W.1, and also examined
Radheyshyam as P.W.2, while the owner and driver appeared
as D.W.1 and D.W.2 respectively. In documentary evidence,
the claimant produced copy of FIR, site inspection note,
site plan, medical papers, bills of medicines etc. He has
also produced some documents from the file of criminal
case, like the judgment, and evidence recorded therein.
The learned Tribunal decided issue No.1 against
the appellant, by holding, that from a reading of the
evidence of the two witnesses, it appears that they have
not properly given the description, as to how the accident
occurred, and are avoiding to disclose true facts, and are
resorting to falsehood. It was observed, that according to
Raja Ram, jeep hit from behind, and at the same time, also
states, that the rear side of the jeep was hit by the front
side of the motorcycle. Then he also denies about the jeep
moving ahead of the motorcycle, while in FIR he has given a
different version, about the accident having occurred in
the process of overtaking, and thus, in the opinion of the
learned Tribunal, it appeared, that despite little space
being available, the motorcyclist tried to overtake, and
accident occurred, and thus, the accident was a result of
negligence in driving of the motorcycle itself. Thus, the
issue No.1 was decided against the claimants.
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Learned counsel for the appellant assailed this
finding, by contending inter-alia, that the finding is
clearly contrary to the contents of the FIR, and the site
inspection note, and site plan. It is submitted that FIR
was immediately lodged, and therein it is clearly alleged,
that they were going from Sojati Gate towards Nagori Gate,
the delinquent jeep was moving ahead, and when they reached
near the Court gate, they thought that there is enough
space in between the jeep, and the road divider, therefore,
they proceeded ahead to overtake the jeep, and had also
blown horn some twice or thrice. Thereupon the jeep driver
took the jeep towards the left, and gave side to them to
pass, however, as soon as they proceeded ahead at the point
of rear side of the jeep, the jeep driver suddenly swerved
the jeep towards the right side, as a result of which, the
rear portion of the jeep dashed against the head light of
the motorcycle, resultantly, motorcycle lost balance, and
both of them fell down and he suffered injuries. In the
site plan, road is going from South to North, and there is
divider in the width of 3 to 4 feet, the place of incident
is said to be about 4 feet away from the eastern edge of
the road, while on the western side, 32 feet wide portion
is available.
In my view, of course, the things are so mentioned
in the FIR, and have been accordingly pleaded in the claim
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petition also, but then, a look at the statement of the two
occupants of the motorcycle, being the claimant and the
pillion rider, shows, that all that has been deposed by
them is, that on 26.2.92 at about 1-2 in the noon, as soon
as they came out of the Court gate /Collectorate gate, the
accident occurred. Raja Ram was going along with
Radheyshyam, and accident occurred with jeep No.4151, jeep
came from behind, and the rear portion of the jeep hit
against the front portion of the motorcycle, and he fell
down. Then he has detailed the injuries, which were
received by him, and has proved the FIR, site plan etc. as
Ex.P20, 21, 22 etc. What is significant to note is, that in
the entire statement, it is nowhere deposed, that they
desired to overtake the jeep, or that finding enough space
to pass, they proceeded ahead, and had blown horn, as a
result of which, the jeep driver moved his jeep towards the
left, providing clear passage to them, and then he suddenly
swerved the jeep towards right, resulting into causing of
accident. Rather a wholly different story has been deposed,
about the accident having occurred as soon as they came out
of the Collectorate gate. The Collectorate according to the
site plan is situated in the west side of the road.
Obviously the substantive evidence is the
statement given in the Court by the injured, and the eye-
witnesses, and simply because from that statement, which is
substantive evidence, the negligence of the jeep driver is
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not spelt out, the claimant cannot be allowed to fall back
upon the earlier version, given in the FIR, which is at
complete variance with the story as deposed in the Court.
If the matter were to be examined on the anvil of the
evidence led before the Court, it is required to be
comprehended, that when the claimant emerged from the
Collectorate gate on the main road, he was supposed to be
cautious about the on-moving traffic on the main road, and
if in that process, he came out of the Collectorate gate
unmindful of the traffic, and accident occurred, it cannot
be said that the accident was a result of any negligence on
the part of the jeep driver. Thus, I do not find any error
in the finding of the learned Tribunal on issue No.1.
The appeal thus, has no force, and is dismissed.
(N.P.GUPTA),J.
/tarun/