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2005 DIGILAW 261 (HP)

HARSHVIR SINGH v. KIRNA DEVI

2005-07-29

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J.—This appeal filed by the owner under Section 173 of the Motor Vehicles Act, is directed against the award of the Motor Accident Claims Tribunal (II), Una in MAC Petition No. 61/97 decided on 30.3.2001. 2. The facts necessary for decision of the case are that the claimants are the widow, minor daughter and mother of the deceased Kamal Kishore. They filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation from Dr. Harshvir Singh, appellant on the ground that the deceased Kamal Kishore had died in a Motor Vehicles accident due to rash and negligent driving of the appellant. 3. The claimants in the claim petition alleged that the deceased Kamal Kishore who was aged about 30 years at the time of the accident was employed as a driver on truck No.DL-IGA-2517. According to the claimants on 19.9.1997, the deceased was driving the truck from Jalandhar to Delhi. He was accompanied by Ravinder Kumar who was cleaner of the truck. Near village Mehandipur, one of the tyres of the truck got punctured. The truck was then parked on the left side of the road on the kucha portion. It was alleged that the parking lights and indicator lights were switched on since the puncture had occurred little after mid-night. Thereafter the deceased and Ravinder Kumar were unbolting the spare wheel fitted on the back of the truck. In the meantime, car No.TSD-5753 came from behind from Nawanshehar side at a very high speed. This vehicle was being driven in a rash and negligent manner by the appellant. The car rammed into the parked truck resulting in injuries to Kamal Kishore and the cleaner Ravinder Kumar. Kamal Kishore suffered serious injuries and died instantaneously. Some persons took Kamal Kishore to the hospital but he was declared, brought dead. 4. The owner in his reply took up the plea that his vehicle was not at all involved in the accident. It was stated that a false police case was got registered against the appellant in connivance with the employer of the deceased. It was also pleaded that the respondent had complained against registration of false case against him and inquiry was going on. It was stated that a false police case was got registered against the appellant in connivance with the employer of the deceased. It was also pleaded that the respondent had complained against registration of false case against him and inquiry was going on. The appellant averred that the true facts were that he along with his mother was coming from Nawanshehar side and when they reached near Mehandipur, one person was lying injured on the road and another person gave a signal to stop the car so as to shift the injured to the hospilal. The appellant being a doctor, on humanitarian ground took the injured to the hospital and requested the doctors to do the needful. The sum and substance of the stand of the appellant was that he had been falsely implicated in the case and no accident had taken place with his car. 5. The Tribunal recorded the evidence of the claimants. Opportunity was given to the appellant to lead evidence but no evidence was produced on his behalf. The Tribunal on the basis of the evidence held that the accident had occurred due to rash and negligent driving of the appellant. The claimants were held entitled to total compensation of Rs. 3,40,000/ -. Since the car of the appellant was not insured, the appellant was held liable to pay this amount. 6. The appellant has filed the present appeal. One of the main grounds taken is that the appellant was not afforded sufficient opportunity to lead any evidence. 7. This appeal was filed on 15.2.2001. Thereafter on 1.7.2002 an application under Order 41 Rule 27 CPC was also filed seeking permission to lead additional evidence on behalf of the appellant. Before taking up the case on merits, it would be appropriate to see whether sufficient opportunity was given or not to lead evidence. The application being CMP No. 536 of 2002 is also being considered at this stage. 8. The record of the Tribunal shows that the claimants closed their evidence on 12.3.2001. On the said date the, the Motor Accident Claims Tribunal ordered as follows : "12.3.2001. Present : Sh. K.C. Sharma Advocate for Petitioner. Smt. Sunita Thakur for Respondents 1, 2. No PW present but petitioner clause has tendered Ex.PX (objected to) and closed his evidence. For RWs on 22/3 as prayed by Mrs. Thakur. Sd/- Motor Accident Claims Tribunal (II) Una (H.P.)". 9. Present : Sh. K.C. Sharma Advocate for Petitioner. Smt. Sunita Thakur for Respondents 1, 2. No PW present but petitioner clause has tendered Ex.PX (objected to) and closed his evidence. For RWs on 22/3 as prayed by Mrs. Thakur. Sd/- Motor Accident Claims Tribunal (II) Una (H.P.)". 9. On the next date i.e. 22.3.2001, no evidence was produced and the counsel for the appellant prayed that she would produce the respondents witnesses on 30.3.2001 and the matter was accordingly adjourned to 30th March, 2001. The order dated 30.3.2001 reads as follows:— "30.3.2001 Present: Sh. Ajay Sharma with Sh. K.C. Sharma, Advocate for Petitioner. Smt. Sunita Thakur for Respondent. No RW present nor any reason for his non-production assigned though he was to be produced by Mrs. Thakur as undertaken by her on the last date hearing. So the evidence of the respondent is closed. Arguments heard. Orders at 4 pm today. Sd/- Motor Accident Claims Tribunal (II) Una (HP)” 10. Mr. Rajiv Kataria learned counsel for the appellant has contended that the claimants were given a number of opportunities to lead their evidence but the appellant was only given two opportunities to lead evidence. He submits that the Tribunal did not give sufficient opportunity to the appellant to produce his evidence. He also submits that in any event there are sufficient grounds for permitting the appellant to lead additional evidence. 11. The appellant in his application under Order 41 Rule 27 CPC has again reiterated that he was given only two opportunities to lead evidence i.e. 22.3.2001 and 30.3.2001. According to him, on 22.3.2001, he was out of India and he had gone abroad on 16.3.2001 and came back only on 23.3.2001. In support of this contention, reliance is placed upon the photo copy of the passport of the appellant which has been attached as Annexure A-l to the petition. It is also submitted that the appellant is a doctor and on 30.3.2001 the appellant was operating upon some patient named Ram Murti and as such could not appear in the Court, Annexure A-6 is the photo copy of the operation notes of Mukat Hospital and Heart Institute at Chandigarh wherein it is mentioned that one Shri Ram Murti was operated upon by the appellant. 12. 12. By way of additional evidence, the claimants wants to prove some photographs which are on the police record and photo copies of two photographs have been attached as A-7 and A-8. The appellant wants to prove the police report Annexure A-9, according to which the accident was not a result of rash and negligent driving of the driver. As per the appellant, this report has been accepted by the Magistrate and the case was withdrawn in September, 2001. In the prayer clause it is submitted that he may be permitted to summon the photographer who took the photographs, Investigating Officer and the witnesses on the basis of whose statement, the inquiry report was submitted by the Investigating Officer and the hospital record of the injured in the hospital. 13. As far as first part of the contention is concerned, it is pertinent to mention that the appellant did not file any list of witnesses or any process-fee for summoning of any witnesses. As per the provisions of the Code of Civil Procedure, list of witnesses has to be filed within 15 days from framing of the issues. Even if the provisions of the CPC are held not to be strictly applicable, it is expected that a party should file the process-fee and list of witnesses for summoning the witnesses when the date is fixed for is evidence. In the present case, from the orders dated 12.3.2002 and 22.3.2001, it is quite apparent that the dates were fixed as requested by the counsel for the appellant. From the order dated 30.3.2001, it appears that no reason was given for non-production of the evidence. In fact no request was made for summoning the witnesses. It is true that every party has a right to lead evidence and no party should be denied its right. However, a party must be vigilant in its case. Neither in the appeal nor in the application under Order 41 Rule 27 CPC there is any averments made about the communications, if any, between the appellant and his counsel. There is not even a word that the appellant had informed his counsel that he was going abroad or that he was busy in some operation. No party can claim adjournment as a matter of right. When a party wants the Courts to give an adjournment, it must give reasons to justify the adjournment of the case. There is not even a word that the appellant had informed his counsel that he was going abroad or that he was busy in some operation. No party can claim adjournment as a matter of right. When a party wants the Courts to give an adjournment, it must give reasons to justify the adjournment of the case. No reasons were given before the trial Court. In fact no request for adjournment was made and, therefore, the trial Court was justified in closing the evidence of the appellant. 14. Now, coming to the application under Order 41 Rule 27 CPC, the averments made in this application are totally contradictory to the stand taken by the appellant in reply to the main claim petition filed before the Tribunal. Before the Tribunal the stand taken was that no accident had taken place and that the appellant being a doctor, on humanitarian grounds had shifted the injured to the hospital. From the perusal of the application under Order 41 Rule 27 CPC, it is apparent that now the appellant has taken a totally different stand. The appellant would now have the court believe that the truck was parked in the centre of the road that too at night without switching on the parking lights or placing any reflector at the rear of the truck. The appellant is no longer denying the accident but now wants to take the plea that the truck had been parked wrongly and, therefore, the accident took place. 15. Interestingly, though Mr. Kataria learned counsel has urged that the Tribunal has erred in relying upon the photographs which were marked in the evidence, in the application under Order 41 Rule 27 CPC, similar photographs are sought to be exhibited. The position vis-a-vis the accident reflected in the photographs marked A to E is the same as in Annexure A-7 and Annexure A-8. 16. Under Order 41 Rule 27 CPC, the party can lead additional evidence only if (a) the Court below has refused to admit evidence which ought to have been admitted or (b) the party establishes that notwithstanding the exercise of due diligence, such evidence was not within its knowledge or could not, despite the exercise of due diligence be produced. 17. Admittedly clause (a) is not applicable to the present case. As far as clause (b) is concerned, though Mr. 17. Admittedly clause (a) is not applicable to the present case. As far as clause (b) is concerned, though Mr. Kataria has argued at length that the appellant was diligent in his matter, the record shows otherwise. Neittvet axvy list of witnesses was filed nor any steps taken to summon any witnesses whatsoever. All the documents which are now sought to be produced were in existence at the time when the case was pending. The report Annexure-9 is dated 5.11.1997. The photographs were obviously taken well before the said date. There is not even an assertion that the claimant was not aware of all these documents. The only new thing which may have occurred is that the case was withdrawn by the police in September, 2001. However, this is totally irrelevant since the order passed in a criminal trial has no bearing on the proceedings before the Motor Accident Claims Tribunal. In my opinion, the evidence on record is sufficient to decide the matter and this Court does not require production of any additional evidence. The application for leading additional evidence is, therefore, without any merit. 18. The claimants in supporf of their claim have examined eye-witness Ravinder Kumar. He deposed that he was also travelling in the said truck. The truck had a puncture. It was parked on the side of the road and the deceased and the witness were taking out a stepney whereas deceased Kamal Kishore was shining a torch. Suddenly a car came from behind and hit the truck causing injuries to the deceased Kamal Kishore in his stomach. This witness states that the metalled width of the road is about 16 feet at the side. The car had hit the middle portion of the rear of the truck. The deceased was taken to Balachor hospital, where he was declared dead. He has stated that the position of the vehicles at the time of the accident was correctly depicted in the photographs marked A to E. He also proved the statement made before the police, copy of which is Ex. PB. He has denied the suggestion that he was associated by the police in any inquiry later on. He also denied the suggestion that the car had reached the site of the accident after the accident had already taken place. There is no reason why the evidence of PW3 should be disbelieved. PB. He has denied the suggestion that he was associated by the police in any inquiry later on. He also denied the suggestion that the car had reached the site of the accident after the accident had already taken place. There is no reason why the evidence of PW3 should be disbelieved. The FIR was lodged at 5.35 a.m. i.e. about 5 hours after the accident. As per the FIR which was the first version lodged immediately after the accident deceased had been killed in an accident with the vehicle No.TSD-5753. The statement of this witness inspires confidence. He was the cleaner with the truck. He was expected to be on the spot. 19. The widow of the deceased appeared as PW2. She admittedly was not present at the time of the accident. According to her, the age of the deceased was 30 years and he was earning Rs. 5,000/- to Rs. 6,000/- per month. She states that her age is 25 years and the age of her minor daughter is 1-1/2 years. The mother of the deceased is aged 50 years. She states that the deceased was paying her Rs. 3,000/- per month. 20. On the other hand, the stand of the appellant is totally false. Initially, the stand taken by him was that no accident had taken place when he was driving the car No. TSD-5753. After the futility of his plea, now he wants to change his stand and take up the plea that in fact the truck was standing in the centre of the road without any light and this caused the accident. Even this plea cannot be accepted. From the photographs which have been placed on record and marked as A to E and Annexures A-7 and A-8 attached with the application for leading additional evidence, it is proved that the truck was parked on the left side of the road. Actually there is no further place for the truck to move any further left; otherwise it would go to the grassy embankment. The photographs also clearly show that the car rammed into the back of the truck. The negligence of the driver of the car is writ large. In view of the above discussion, the finding of the Tribunal that the accident occurred due to rash and negligent driving of the car is upheld. 21. The photographs also clearly show that the car rammed into the back of the truck. The negligence of the driver of the car is writ large. In view of the above discussion, the finding of the Tribunal that the accident occurred due to rash and negligent driving of the car is upheld. 21. As far as quantum is concerned, the award of the Tribunal is in fact on the conservative side. The widow stated that her husband was earning Rs. 5,000/- to Rs. 6,000/- per month. A certificate issued by the owner was also produced as Ext. P-6 which shows that the deceased was getting a salary of Rs. 5,000/- to Rs. 6,000/- per month and daily allowance of Rs. 70/- per month. The Tribunal has taken the salary at only Rs. 3,000/-. Any truck driver in the year 1997 would not earn less than this amount. The dependency has been assessed at Rs. 2,000/- per month and compensation assessed by applying the multiplier of 14. The multiplier applied is very much on the lower side since the deceased was only 30 years old. No amount has been given for consortium. However, since there is no cross-appeal or cross-objections filed, the assessment of the Tribunal is upheld. 22. In view of the above discussion, CMP No. 536/2002 for leading additional evidence as well as the main appeal are dismissed with costs which are assessed at Rs. 5,000/-. Appeals disposed of.