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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
(1) CIVIL MISC. APPEAL No. 153 of 1998
CHANDU
V/S
LILU ALIAS AMIN & ORS
(2) CIVIL MISC. APPEAL No. 154 of 1998
NIMA
V/S
LILU ALIAS AMIN & ORS
(3) CIVIL MISC. APPEAL No. 155 of 1998
SHISHA PAL & ORS.
V/S
LILU ALIAS AMIN & ORS
(4) CIVIL MISC. APPEAL No. 156 of 1998
SARWANI & ORS.
V/S
LILU ALIAS AMIN & ORS
Date of Judgment : 14.9.2009
PRESENT
HON'BLE SHRI N P GUPTA,J.
REPORTABLE
Dr. Mrs. PRAMILA ACHARYA, for the appellant / petitioner
Mr. SANJEEV JOHARI, for the respondent
BY THE COURT :
These four appeals have been filed by the claimants,
against a common judgment of the learned Motor Accident Claims
Tribunal, Nohar Camp Bhadra, deciding six claim petitions.
Appeal No. 153 arises out of claim petition no. 120/93 which
was filed for personal injuries received by the claimant
Chandu, Appeal No. 154 arises out of claim petition no. 118
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which was also filed for personal injury sustained by the
claimant Nima. Then, Appeal No. 155 arises out of claim no.
123/93 which was filed by the legal representatives of Smt.
Badami on account of death of Smt. Badami, and Appeal No. 156
arises out of claim petition no. 124 which was filed by legal
representatives of Raji Ram on account of death of Raji Ram.
The necessary facts of the case are, that all the
victims were travelling in goods vehicle no. HR 20/B/357.
According to the claim petitions when this vehicle reached
near Patwa Bus Stand, the driver tried to overtake another
goods vehicle RJ 13/G-674, by driving it rashly and
negligently, and in that process it dashed against truck no.
RJ 13/1148, coming from the opposite side, as a result of
which two persons died as above, and other persons were
injured.
Reply was filed on behalf of owner and driver,
contending that the victims were not travelling in the said
goods vehicle no. 357, and they have nothing to do with the
accident. It was also pleaded that his vehicle was hired by
Badami and Raji Ram deceased, for carrying on some dowry
goods, and in the process when the vehicle was going, vehicle
no. RJ 13 G-674 tried to overtake vehicle from the left hand
side i.e. wrong side, and in that process severely hit the
truck no. 357, pushing it on the wrong side, and in that
process truck no. 357 hit against vehicle no. 1148, coming
from opposite direction. It was pleaded that driver tried his
best to avert the accident unsuccessfully.
The insurer also filed reply, contending that it has
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not been pleaded in the claim petition, as to in what capacity
occupants were travelling in the vehicle, but it appears that
they were travelling as passengers, while the vehicle was not
authorised to carry passengers. Various other grounds have
been taken, and the liability of the insurer was denied.
The claim petition has been filed only against the
driver, owner and insurer of vehicle no. 357.
The learned Tribunal framed five issues. Issue no. 1
related to the question about negligence of the driver of
truck no. 357. Then, issue no. 2 was as to whether the
defendant no. 1 was in employment of the defendant no. 2.
Then, issue no. 3 was about quantum of compensation. Issue no.
4 was about effect of pleadings taken in additional pleas in
the claim petitions, and issue no. 5 was about relief.
During trial claimants examined seven witnesses, and
produced various documents and tendered them in evidence,
including site plan Ex. 4, and site inspection note Ex. 5. No
evidence was led on the side of the defendants, so much so
that even defendant no.1 driver, did not choose to appear in
the witness box.
Learned trial court after simply recapitulating
resume of the evidence produced on the side of the claimants,
concluded that the evidence does not establish or indicate
negligence on the part of the defendant no.1. It found, that
it is not clear from the evidence that the driver of truck no.
357 negligently drove it, and hit against the vehicle no.
1148, coming from the opposite direction resulting into
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victims receiving injuries and dying. Issue no. 2 was decided
against the defendants. Then, issue no. 3 was decided against
the claimants solely on the basis of findings arrived at on
issue no.1. Then, issue no. 4 was also decided against the
claimants, on the ground, that it is not clarified as to in
what capacity the victims were travelling in the goods
vehicle. In the result all the claim petitions had been
dismissed. Aggrieved of it only four appeals have been filed.
Be that as it may.
Arguing the appeal it was contended, that the
finding of the learned Tribunal on issue no. 1 is not
sustainable, as it is out come of improper appreciation of
evidence, and not properly looking into the material on
record.
Learned counsel for the insurer, on the other hand,
supported the findings.
I have considered the submissions, and have gone
through the record.
I may straightway first of all come to the record.
Coming to the claim petition, a look at the record shows, that
the claim petition is not signed by the claimants, inasmuch as
it is at the bottom in the last page only the mere thumb mark
of the claimant/s are there, otherwise all pages of the claim
petition do not bear any signature or thumb mark of the
claimant. It is a different story, that according to Rule 10.2
of the Rajasthan Motor Vehicles Rules, 1990 the claim petition
may be presented to the Claim Tribunal, and shall be signed by
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the applicant.
It is again a different story, that it has become
more or less a rampant practice, practically in all the Motor
Accident Claims Tribunals, that the claim petitions are
presented unsigned by the claimants. It is high time that the
Tribunals should grasp the provisions of Rule 10.2, and start
insisting upon the claim petitions to be received only when
they are signed by the claimants.
The grave consequences flowing there-from are that
for the purpose of examining the aspect of variance between
pleading and proof, or for holding the claimant to their
pleading, the Court is handicapped in absence of signature of
the claimant. This is apart from the fact that at times the
defendant may be taken by surprise, by the claimants shifting
their stand from time to time. In that view of the matter, I
am not in a position to take or consider the pleading taken by
the claimant in this regard, as to how the accident occurred,
and what are the facts pleaded constituting negligence of the
driver of the delinquent vehicle, though brief description is
contained in para-10. So far as the reply is concerned, the
reply filed on behalf of owner and driver also stands on no
better footing than the claim petition, as the reply too has
not been signed, and only bears the thumb marks at the bottom
of last page, and the other pages of the pleadings do not
contain any signatures of the defendant. In such
circumstances, in order to examine the evidence, the stand
taken in written statement also cannot be taken to be the
stand pleaded by the defendant.
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It is well nigh possible that in some cases, the
defendants may not be even aware as to what pleadings have
been taken in the court on their behalf. May be, that it may
not be the case here, but the possibilities are not ruled out
about some blank papers bearing thumb mark of the defendant
being available, could be used for manufacturing the written
statement in the claim petition, and allowing the noose to be
put in neck of owner and driver. In that view of the matter,
the Tribunal should grasp the requirements and should stop the
practice of receiving pleadings of either side unless they are
signed on every paper by the party concerned.
In view of the above, my predicament is that I
cannot hold party to the purported pleading taken before the
learned Tribunal. Obviously, then the case rests on the
evidence on record. In this regard again, coming to the two
documents Ex. 4 and Ex. 5, the things make startling
revelation of remiss attitude of the public servants, inasmuch
as Ex. 4, is the site plan, on which normally implicit
reliance is placed by the Tribunal, to arrive at a decision
one way or the other, and then Ex. 5 is the site inspection
note. A look at Ex. 4 shows, that at point A truck no. TATA
407 is shown to be stationary in an accidented condition. At
the mark B is shown to be available a truck, and it is
mentioned that at the time of accident its one rear tyre was
on the road rest entire truck was off the road in the sand,
and it is opined that the truck driver was driving on the
correct side, rather took the truck off the road, and the
driver of TATA-407 went on the wrong side, and hit against the
truck. It is strange, that the Investigating Officer has not
chosen to mention the registration number of two vehicles,
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even though they are mentioned in the first information
report. More so because during evidence the witnesses have
described both the vehicles as TATA-407. Then, a look at Ex. 4
shows that the two vehicles are standing at a distance from
each other, and facing each other, and if the site plan is
taken on the face value it cannot be said that any accident at
all occurred. It is not shown that after the impact either of
the vehicle was thrown at the place where it was found, no
marks of application of brake, or other marks that might have
available on road as marks of accident have been noticed by
the I.O. Negligent attitude is writ large also from the fact
that he was conscious of the fact that in site inspection note
he is supposed to mention the total width of the road and a
line has been written in Ex.5 about the width of the road on
the site, but then space for mentioning figure of width have
been left blank. In view of the sequence of the judgement of
Hon’ble the Supreme Court, when a Motor Accident Claim
Tribunal receives the copy of police paper as public documents
and proceeds with the presumption u/s 114 about regularity of
the official acts, such type of omissions can be described to
be nothing less than MISCONDUCT and not mere gross negligent
act on the part of the I.O. and do tend to play havoc on
either side i.e. claimant or the owner of the vehicle.
Photostat copy of the judgement, Ex.4 and Ex.5 be sent to the
Inspector General of Police and to Hon’ble Home Minister to
appropriately examine the matter and take a very strong
disciplinary action against the delinquent and report the
outcome to this court.
In this sequence I now come to the oral evidence,
led on the side of the claimants. A.W.1 Shishpal in his
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examination in chief deposed that he along with his wife
deceased Badami were travelling from Bakariyawali to Dabri in
TATA-407 which met with an accident near Patwa when the driver
of TATA-407 was driving rashly and negligently. One four
wheeler was going which was attempted to be overtaken by their
driver, in which process it hit that four wheeler, then a big
truck came from opposite direction and their vehicle hit
against that, rather banged into it, in which accident his
wife died, and so on. In cross examination he has stated, that
in the first instance the vehicle coming from the opposite
direction hit the vehicle that was moving ahead of their
vehicle. Then, the vehicle moving ahead hit their vehicle.
Then, he has stated that in the first instance both TATA-407
dashed against each other, and this was on account of
negligence of their driver. He has also deposed that after
hitting, their vehicle went towards right side, and hit
against other 407. Then, the driver left the steering. He has
also stated that after both 407 hitting against each other,
the second incident occurred, which comprised of hitting
against a stationary truck, while the first incident comprised
of two TATA-407 hitting against each other, while moving
together.
Then, the other witness is Adaram A.W.2. According
to him he was also travelling in the truck in question along
with other victims. According to him as soon as they moved
ahead of Patwa, they tried to overtake the four wheeler, and
at that time another truck came from the opposite direction,
and accident occurred. In cross examination he has deposed
that one more 407 was moving ahead of their 407, and that
their truck overtook that another truck.
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Then, A.W. 3 Chandu is also one of the occupant, and
one of the victims being appellant in Appeal no. 153. He has
deposed, that their truck met with an accident near Patwa when
their vehicle tried to cross another vehicle, and in that
process accident occurred. According to him it appears that
accident occurred on account of negligence of their driver.
Then in cross examination he has deposed, that one more
vehicle was moving ahead of their vehicle, and both these
vehicles in the first instance hit each other, then their
vehicle hit against a truck coming from opposite direction.
However, he is not aware, as to whether the truck moving ahead
of them went away or not.
Then, A.W.4 Indraj is also an occupant, and has
deposed that their truck 407 tried to overtake another
vehicle, at that time a truck came from opposite direction,
and in that process their truck hit against the truck coming
from opposite direction. In cross examination he has stated,
that it is wrong to say that their truck dashed against the
truck which it was overtaking, and thereafter hit against the
truck coming from opposite direction. Another witness A.W.4
Shravani has also been examined which need not detain me, as
she does not claim to be there at the time of accident, or to
be in the vehicle.
Then A.W.5 is Nima, another victim and appellant in
appeal No.154, she has deposed that when they reached near
Patwa, a truck was coming from opposite direction, and their
TATA 407 dashed against that truck coming from opposite
direction. In cross-examination she has deposed to be not
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aware as to whether any TATA 407 was proceeding ahead of their
TATA 407 or not, she also does not know as to whether before
the accident their TATA 407 hit against another TATA 407 or
not, or as to how that accident occurred, though she claims to
be sitting in the front cabin, where four persons including
driver were sitting, but then claims, that she had veiled and
came to know only after accident occurred.
Then the last witness is A.W.6 Mahendra. He has
deposed, that when they reached near Patwa, their truck was
moving at a fast speed and their truck hit against the truck
coming from opposite direction, which accident occurred on
account of negligence of defendant No.1. In cross-examination
he is categoric to the effect that, that another TATA 407 was
not moving ahead of their vehicle, and that their vehicle did
not hit another TATA 407, before the accident. He claims to be
sitting in the hind side, and came to know only after
happening of the accident.
As noticed above, no evidence has been led on the
side of any of the defendants.
This is the entire material available on record.
In my view, of course the evidence led on the side
of the claimants is contradictory, in the sense that the
witnesses are not at one even on the question as to whether
there were two accidents or one, i.e. in the first instance,
the vehicle in which they were travelling hit against another
vehicle, which it was trying to overtake, and then hit against
the vehicle coming from opposite direction, or there was only
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one accident comprising of their vehicle hitting against a
vehicle coming from opposite direction. Likewise they are not
one even on the aspect as to how the accident occurred. The
site plan, as noticed above also, in my view, cannot be relied
upon, for the purpose of believing the things as it purports
to contain.
As a matter of fact and law, in my view, on the face
of evidence produced by the parties, it was an imminently fit
case, where the learned Tribunal should have been conscious of
the provisions of Rule 10.14, Rule 10.15, so also Rule 10.16
and should have made a sincere and earnest endeavour to arrive
at correct conclusion, one way or the other, instead of
resting contented with noting contradictory set of evidence
led on the side of the claimants, and to conclude about
failure on the part of the claimants to prove negligence. All
said and done, it is a severe accident, wherein two persons
have died, and number of persons are said to have been
injured, and the Court is asked by the claimant to believe,
that it was head on collision. With this, the claim has been
filed impleading owner, driver and insurer of one vehicle,
being No.HR20-B-357 only, and now all the claimants go high
and dry.
In my view, in view of the above state of affairs,
finding as recorded by the learned Tribunal on issue No.1 can
possible be not sustained.
It could be, that I could have undertaken exercise
to arrive at the finding one way or the other on issue No.1,
but then, looking to the state of scanty material, as noticed
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above, that too would not have been a safe conclusion to be
arrived at.
In that view of the matter, I simply stand advised
to set aside the impugned judgment and award, and remand the
matter back to the learned Tribunal, for trying out the case
afresh in accordance with law, keeping in view the facts found
above, deficiency noticed above, and the observations made
above.
The appeals are, accordingly, allowed. The impugned
judgment and award is set aside, and the matter is remanded
back to the learned Tribunal, for trying out the case afresh
in accordance with law, keeping in view the facts found above,
deficiency noticed above, and the observations made above.
Since the accident occurred way back in the year
1993, a long period of more than 16 years has already rolled
by, it is also directed, that the learned Tribunal shall take
up the matter on utmost priority, and decide the case
expeditiously. Parties present shall appear before the learned
Tribunal on 30.9.2009. Copy of the judgment be circulated to
all the Motor Accident Claims Tribunal in the State.
( N P GUPTA ),J.
/Sushil/