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2008 DIGILAW 944 (PNJ)

Shanti Devi v. Dinesh Kumar alias Duli Chand

2008-04-29

K.C.PURI

body2008
JUDGMENT K.C. Puri, J.:- This is an appeal directed by claimant-appellant against the award dated 17.5.1996 passed by the Court of Sh. Virender Singh, Motor Accident Claims Tribunal, Rewari, vide which claim petition filed by the claimants was dimissed. 2. Hoshiar Singh, father and Smt. Shanti Devi, mother of deceased Raj Singh, filed petition under Section 166 of the Motor Vehicles Act, 1988 for claiming compensation amounting to Rs.10 lacs on account of death of Raj Singh in a motor vehicular accident. 3. It is pleaded that Raj Singh was travelling on a scooter bearing registration No. BHI-1002 driven by Davender Singh, on 16.5.1993 as a pillion rider. At about 8.00 P.M. a tempo bearing registration No. DHG-6093 driven by Dinesh Kumar-respondent came from opposite direction and hit against the scooter, resulting in death of Raj Singh. Davender Singh was badly injured in the incident. Both of them were admitted in the hospital, where Raj Singh succumbed to his injuries. The deceased was a young man of 18 years and was student of 11th class. 4. Dinesh Kumar-respondent and denied the accident and has pleaded that his tempo had never hit the scooter in question as alleged in the petition. He has submitted that he has been falsely implicated to get the compensation. 5. From the pleadings of the parties, following issue were framed:- “1. Whether the death of Raj Singh was the direct result of motor vehicle accident which took place near V. Jadra on 16.5.93 between scooter No.BHI-1002 and tempo No. DHG-6093 on account of rash or negligent driving on the part of the driver of the tempo? OPP. 2. What is the amount to which the petitioners are entitled as compensation and from whom? OPP. 3. Relief.” The claimant examined PW-1 Satish Kumar and PW-2 Chiranji, witnesses of the occurrence and Hoshiar Singh appeared as his own witness as PW-3. In rebuttal, respondent examined RW-1 Om Parkash and RW-2 Roshan Lal and closed the evidence The learned Tribunal after appraisal of the evidence, returned the finding on issue No.1 against the claimants. Issue No.2 was held to have become redundant in view of finding on issue No.1. In view of finding on issue No.1, the claim petition was dismissed. 6. Feeling dissatisfied with the abovesaid award, Smt. Shanti Devi, mother of the deceased has preferred the present appeal. Hoshiar Singh, another claimant was arrayed as respondent No.2. Issue No.2 was held to have become redundant in view of finding on issue No.1. In view of finding on issue No.1, the claim petition was dismissed. 6. Feeling dissatisfied with the abovesaid award, Smt. Shanti Devi, mother of the deceased has preferred the present appeal. Hoshiar Singh, another claimant was arrayed as respondent No.2. Hoshiar Singh died during the pendency of this appeal and his LRs were arrayed. 7. The decision of the present appeal is dependent upon issue No.1 In case the findings of Tribunal on issue No.1 are found to be correct, then no interference can be made, whereas in case findings on issue No.1 are set aside, in that case the claim petition has to be accepted. 8. Now the question arises whether the findings on issue No.1 sustain the test of legal scrutiny? The answer to that question is in negative. The Tribunal has discarded the testimony of PW-1 Satish Kumar and PW-2 Chiranji on two grounds that there is a delay of 3 days in lodging the FIR and that the presence of these witnesses is not mentioned in the FIR and Davender Singh who got recorded the FIR, has not been examined. The learned Tribunal has also held that testimony of RW-1 Om Parkash and RW-2 Roshan Lal inspire confidence and on that account findings on issue No.1 were returned against the claimants. 9. According to the case of the claimants, Davender Singh was driving the scooter, whereas Raj Singh-deceased was the pillion rider and the accident has taken place due to rash and negligent driving of Tempo No. DHG-6093 by Dinesh Kumar-respondent. According to the evidence on the file, Davender Singh and Raj Singh received injuries at the time of occurrence and Raj Singh succumbed to his injuries in the hospital. The delay of three days in recording the FIR cannot be stated to be fatal in any manner as one person had died and the other has received multiple injuries. Mere fact that names of PW-1 Satish Kumar and PW-2 Chiranji have not been recorded in the FIR, does not lead to the conclusion that they were not present at the time of occurrence. The FIR was recorded at the testimony of Davender Singh. Davender Singh has no enmity with the respondent­Dinesh Kumar and there was no occasion for him to falsely implicate him. The FIR was recorded at the testimony of Davender Singh. Davender Singh has no enmity with the respondent­Dinesh Kumar and there was no occasion for him to falsely implicate him. The name of Dinesh Kumar as driver of the offending vehicle and number of that vehicle is mentioned in the FIR. All the details of occurrence have been given in the FIR. Mere fact that Davender Singh has not been examined, does not lead to the conclusion that the testimony of PW -1 Satish Kumar and PW-2 Chiranji should be discarded. Davender Singh might not be knowing PW-1 Satish Kumar and PW-2 Chiranji and as such there was no occasion for him to name these persons to be present at the time of occurrence. A criminal case against Dinesh Kumar has been registered. The vehicle was not insured and as such it cannot be said that Dinesh Kumar has been implicated to get the false compensation. In case, the claimants are actually interested in falsely implicating anybody, in that case, they would have chosen the vehicle which was duly insured, so that they could get the compensation easily. 10. The learned Tribunal has held that the testimony of RW-1 Om Parkash and RW-2 Roshan Lal inspire confidence. The learned Tribunal has not gone through the testimony of these witnesses carefully. None of these witnesses has stated that he was present at the time of occurrence. Both of them have stated that they were coming in a bus and found two persons lying on the road in injured condition. How the testimony of these witnesses advanced the case of respondent, is not clear from the record. The best person to deny the accident was Dinesh Kumar himself. Dinesh Kumar has not come into the witness box to deny the accident and as such the learned Tribunal should have drawn an adverse inference against him. The testimony of PW-1 Satish Kumar and PW-2 Chiranji on oath, cannot be discarded only on the ground that their name does not figure in the FIR. Both PW-1 Satish Kumar and PW-2 Chiranji have been cross examined at length but nothing could be brought on the file to shatter their sworn testimony. There was no axe to grind for these witnesses to falsely implicate Dinesh Kumar. The learned Tribunal has ignored all these important facts while deciding issue No.1. Both PW-1 Satish Kumar and PW-2 Chiranji have been cross examined at length but nothing could be brought on the file to shatter their sworn testimony. There was no axe to grind for these witnesses to falsely implicate Dinesh Kumar. The learned Tribunal has ignored all these important facts while deciding issue No.1. So the findings of the learned Tribunal on issue No.1 stand reversed and this issue stands determined in favour of the claimant and against respondent­Dinesh Kumar. 11. So far as issue No.2 is concerned, the learned Tribunal has not decided the same on the ground that is has become redundant on account of findings of Tribunal on issue No.1. Since, the findings on issue No.1 stand reversed, so it is not in consonance of justice to remand the case after the lapse of such a long period. So, I propose to decided this issue. 12. The deceased was a student of 11th Class according to the of the claimants. Hoshiar Singh-claimant has expired and claimant Smt. Shanti Devi is stated to be alive. The occurrence has taken placed and appellant Smt. Shanti Devi is still alive So taking into account all these circumstances, it is held that claimants are entitled to claim an amount of Rs.1 lac alongwith interest @ 9% per annum from the date of application till its realisation, on account of death of Raj Singh in a motor vehicular accident. In this case, admittedly, the tempo was not insured at the time of occurrence. So, in order to provide speedy recovery of the award amount, it is ordered that in case the amount of Rs.1 lac is paid to the claimants within six months from today, in that case, whole liability of respondent-Dinesh Kumar shall stand extinguished. 13. Dinesh Kumar being driver and owner of Tempo No.DHG­ 6093 i.e. the offending vehicle, is held liable to pay the said amount. 14. In view of the above discussion, issue No.2 stands determined as discussed above. 15. In view of decision on issue Nos. 1 and 2, the appeal stands accepted. The award of the learned Tribunal is set aside and the claim petition stands accepted. Respondent-Dinesh Kumar is directed to make the payment of Rs.1 lac alongwith interest @ 9% per annum from the date of application till its realisation. However, since the Tempo in. 15. In view of decision on issue Nos. 1 and 2, the appeal stands accepted. The award of the learned Tribunal is set aside and the claim petition stands accepted. Respondent-Dinesh Kumar is directed to make the payment of Rs.1 lac alongwith interest @ 9% per annum from the date of application till its realisation. However, since the Tempo in. question was not insured, in order to effect the speedy recovery, it is ordered that in case the amount of Rs.1 lac is paid or deposited before the Tribunal within six months from today, in that case, whole of the liability of the respondent-Dinesh Kumar shall stand extinguished. The inter se apportionment of Rs. 1 lac is given as under:- Appellant-Smt. Shanti Devi- Rs.70,000/- Remaining Lrs of Hoshiar - Rs.30,000/- Singh (in equal shares) --------------------