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Himachal Pradesh High Court · body

2009 DIGILAW 1208 (HP)

GOVIND SURI. v. GURMEET SINGH

2009-12-04

DEEPAK GUPTA

body2009
JUDGMENT Deepak Gupta, J.(Oral)-This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the award dated 10.1.2005 passed by the learned Motor Accident Claims Tribunal, Solan (hereinafter referred to as ‘the Tribunal’) in MAC Petition No.35-S/2 of 2004 whereby the claim petition filed by the claimant has been dismissed on the ground that the claimant-petitioner has failed to prove that the accident took place due to the rash and negligent driving of the truck driver. 2. Briefly stated the facts of the case are that the petitioner filed a claim petition under Section 166 of the Act claiming compensation. He alleged that on 31.5.2003 at about 3.00 p.m, he was going to Parwanoo from Kalka and had reached near the Parwanoo Barrier. At that time, truck No.PB-12-C-1135 owned by respondent No.1 which was being driven by respondent No.2 came from behind and hit the scooter of the petitioner. According to the petitioner, the accident occurred due to the rash and negligent driving of respondent No.2 due to which he sustained serious injuries. The respondents took a plea that no accident had taken place with the truck in question. It was alleged that the petitioner was drunk and could not control the scooter which hit the divider of the road. The learned Tribunal held that the case set up by the respondents was correct and dismissed the petition. Hence the present appeal. 3. The petitioner examined two witnesses including himself. According to the petitioner when he reached Parwanoo Barrier, a truck came from behind at a high speed and hit his scooter as a result of which he fell down. A suggestion has been put to the petitioner in cross-objection that he was drunk and the scooter hit the road divider. The petitioner denied this suggestion but admitted that he consumes liquor. According to him, he consumes country liquor and, therefore, sometimes his breath smells of alcohol even on the next day. This explanation has obviously been given to counter the note recorded in the medico legal certificate issued by the doctor of E.S.I Hospital, Parwanoo Ext.RA in which it is mentioned that the petitioner when he was taken to the hospital immediately after the accident was smelling of alcohol. 4. The statement of PW/2 Sh.Ram Dayal is to the similar effect. This explanation has obviously been given to counter the note recorded in the medico legal certificate issued by the doctor of E.S.I Hospital, Parwanoo Ext.RA in which it is mentioned that the petitioner when he was taken to the hospital immediately after the accident was smelling of alcohol. 4. The statement of PW/2 Sh.Ram Dayal is to the similar effect. According to Sh.Ram Dayal, he was having tea at a tea stall near the Barrier when he witnessed the accident. In cross-objection, he admits that he is a friend of the petitioner. However, he does not state a word as to whether he accompanied the petitioner to the hospital or not. In case he was present on the spot, he being a friend of the petitioner would have accompanied the injured to the hospital. 5. The FIR regarding the accident was lodged by the petitioner himself. His statement was recorded in the hospital an hour after the accident. In this FIR, truck number and name of the driver was given. If the petitioner became unconscious immediately after the accident who told him the name of the driver and the number of the truck? There is no explanation in this regard. It is also proved from the evidence on record that after investigation the police found that the case lodged by the complainant was false and consequently a cancellation report was prepared by RW/4 Shamsher Singh and filed in Court as is apparent from the statement of RW/1, Criminal Alhmad of the Court of Judicial Magistrate, Kasauli. As per this cancellation report, the scooter hit the parapet of the road. According to this report, on investigation, it was found that the scooter was being driven at a high speed and the claimant was smelling of alcohol and refused to give samples of blood and urine for the purpose of testing the alcohol level. 6. It may be true as urged by the learned counsel for the petitioner that no judicial order was passed on this cancellation report. However till date the petitioner has not made any effort to place on record the judicial order. Obviously the petitioner being a complainant would have been heard in such a matter and, therefore, it would not be unreasonable to draw an adverse inference against the petitioner in this regard. 7. However till date the petitioner has not made any effort to place on record the judicial order. Obviously the petitioner being a complainant would have been heard in such a matter and, therefore, it would not be unreasonable to draw an adverse inference against the petitioner in this regard. 7. According to PW/2 Sh.Ram Dayal, he did not notice the number of the truck nor he knew the name of the driver. He also stated that he had not told the number of the truck or the name of the driver at the time when his affidavit was being prepared. Therefore, it is obvious that he signed his affidavit which was treated as examination-in-chief in a cursory manner. It is also on record that both the scooter and the truck were going uphill. There is a fairly steep climb near the Parwanoo Barrier. It is in evidence that the truck was fully loaded. Therefore, the version of the petitioner that the truck was at a high speed cannot be believed especially when the truck was near the Barrier. Furthermore, in case an accident had taken place at the spot, the truck driver would have been apprehended there and then because at the Barrier there are barricades and the truck could not have fled away. A number of policemen are always present at the barrier. 8. The learned Tribunal has correctly appreciated the evidence and come to the conclusion that no accident took place with the truck and in fact the claimant suffered injuries because of his own rash and negligent driving. 9. In view of the above discussion, I find no reason to interfere with the well reasoned judgment of the learned Tribunal for the reasons enumerated here-in-above. The appeal is accordingly dismissed. No order as to costs.