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2011 DIGILAW 2216 (HP)

Tek Chand v. Subh Lata

2011-06-13

DEEPAK GUPTA

body2011
JUDGMENT : Deepak Gupta, J. This appeal and cross-objections arise out of the same award and, therefore, are being disposed of by a single judgment. The appellants who are the owner and driver of tractor-trolley No. HPG-4124 are aggrieved by the award dated 25.08.2004 passed by the learned Motor Accident Claims Tribunal (2), Una whereby they have been held liable to pay compensation of Rs. 4,04,000/- along with interest to the claimants. 2. Briefly stated, the facts of the case are that the claimant No.1, who is the widow and claimants No. 2 and 3 who are the father and mother of deceased Sanjeev Kumar filed a claim petition before the learned Motor Accident Claims Tribunal (II) Una under Section 166 of the Motor Vehicles Act, 1988. 3. In this petition it was alleged that Sanjeev Kumar, who was about 28 years old, was working as an electrician in Universal College of Medical Sciences, Nepal since December, 1997. According to the claimants he was earning a sum of Rs. 8,000/- per month and had come home to attend the marriage of his sister. On 9.10.2000 the deceased was returning home after meeting his sister at Nangran. He was driving scooter No. HP-20-3554 on the Santoshgarh Una Road. At about 7.00 p.m when he reached near the house of respondents No. 1 and 2 (appellants herein) appellant No.1 Tek Chand came from the opposite side driving tractor-trolley No.HPG-4124 in a rash and negligent manner. Suddenly, the tractor took a wide turn on the road to turn inside the house and the right front side of the trolley struck the deceased who was riding the scooter and he fell down on the road. The injured suffered multiple injuries. Tek Chand parked the tractor-trolley inside his house and then came back to the road, dragged the injured person from the site of the accident and placed him in the field so that the passersby could not identify the injured. According to the claimants it was Tek Chand who went to Police to report the matter. Further according to the claimants the Pradhan of the Gram Panchayat, Yog Raj, came to their house and informed them about the incident and then the father of the deceased along with the Pradhan went to the site of the accident. The deceased was still alive but unconscious. Further according to the claimants the Pradhan of the Gram Panchayat, Yog Raj, came to their house and informed them about the incident and then the father of the deceased along with the Pradhan went to the site of the accident. The deceased was still alive but unconscious. He was removed to the district hospital Una but died on the way. The allegation of the claimants is that the Police recorded a false F.I.R. to save respondents No. 1 and 2. 4. The appellants contested the claim petition and their case was that the tractor-trolley in question was not involved in the accident. According to the appellants they were engaged in the construction of the mini-secretariat at Una and the tractor-trolley in question remained at the work site for transportation of construction material and was never taken to village Khanpur on that day. The tractor-trolley was seized by the police from Una itself. According to the appellants the claimants cooked up a false case with a view to get compensation. The parties went to trial and the learned Tribunal has passed the impugned award in favour of the claimants. Hence, the present appeal. 5. I have heard Shri Bhupender Gupta, learned Sr. Advocate for the appellants and Shri Jagdish Thakur, learned Advocate, for the claimants. 6. The first important document on record is F.I.R. No. 562 dated 9.10.2000 which shows that the information was received in the Police Station about the accident at 12.45 p.m. The informant is stated to be Tirath Ram S/o Medhu Ram, one of the claimants. In this F.I.R. there is no mention of the tractor-trolley and it is alleged that the driver of the vehicle which hit the scooter ran away from the spot. In this F.I.R. it is recorded that the Pradhan of the Gram Panchayat came to the house of the complainant and told him that his son had met with an accident. Thereafter he came to the site of the accident and then went to the hospital but unfortunately the deceased died on the way. 7. The claimants examined two alleged eye witnesses, who are PW-7 Shyam Lal and PW-8 Khushal Chand. According to Shyam Lal on 9.10.2000 he had gone to village Khanpur and was returning at 6.45 p.m to Santoshgarh. Just before the house of Tek Chand he saw that Tek Chand was driving a tractor towards his house. 7. The claimants examined two alleged eye witnesses, who are PW-7 Shyam Lal and PW-8 Khushal Chand. According to Shyam Lal on 9.10.2000 he had gone to village Khanpur and was returning at 6.45 p.m to Santoshgarh. Just before the house of Tek Chand he saw that Tek Chand was driving a tractor towards his house. Tek Chand crossed Shyam Lal who was on bicycle. Then, near his house, Tek Chand took the tractor to the extreme right side of the house so that he could turn the tractor to the left side towards his house. From the opposite side one boy was coming on a scooter and the tractor-trolley hit the said scooter. The scooterist fell down partly on the Kacha road and partly in the ditch adjoining the road. Tek Chand came to the spot and immediately Khushal Chand PW-8 arrived. PW-7 and PW-8 saw that the injured was still alive. Bakshi Ram, father of Tek Chand, also came in the meanwhile. The appellants told the witnesses Shyam Lal and Khushal Chand to go and assured them that the injured was their man and they (appellants) would take care of him. Thereafter this witness proceeded towards Santoshgarh. In cross-examination he states that Tirth Ram had taken him to the Police Station two days later to get his statement recorded. He denied the suggestion that he went to the police station only on 15 or 16 October, 2000. It has been suggested to him that he was not present at the spot and he is testifying falsely but he has denied these suggestions. He further states that he did not know the person who was injured and he admits that there are some houses close to the house where the accident took place. In cross-examination he admitted that he is working as a Beldar and he was posted at Beneyal. He also admitted that if he had to come from Beneyal towards his house he did not have to take this road but according to him on that day he returned to his house at 5.00 p.m and had then gone to Khanpur. He admits that the Santoshgarh Una road has fairly heavy traffic. He also admits that Khushal Chand and he are known to each other for a long time. He admits that the Santoshgarh Una road has fairly heavy traffic. He also admits that Khushal Chand and he are known to each other for a long time. He further states that after two or three days he came to know about the identity of the injured person from his colleagues who belonged to Khanpur and were working with him. On coming to know about these facts he did not go to the Police nor to the house of Tirath Ram. He also admits that both he and Khushal Chand have attended every hearing of the case. This witness also admitted that while going from the site of the accident towards his house he had to cross the Police Chowki Santoshgarh but he did not report the matter there. 8. Khushal Chand appeared as PW-8 and according to him he was going from Santoshgarh to his house. When he reached near the house of Bakshi Ram then Tek Chand came from Una side driving a tractor at a high speed. Deceased Sanjeev Kumar was on a scooter coming from Santoshgarh side. The tractor suddenly turned towards the eastern side and the rear portion of the trolley hit the scooter and the scooterist fell down. The tractor driver stepped down from the tractor and removed the injured and scooter towards one side. Then Shyam Lal came to the spot. Both of them saw the injured. Some women had also gathered there. Tek Chand informed that the injured is his person and he would look after him and requested these persons to go home. Then Khushal Chand returned to his house. According to him the site of the accident is about 1.25 k.m from his house and the house of Tirath Ram is at a further distance of one kilometre. He was carrying seeds of fodder grass. He left the seeds at his house and then went to inform Tirath Ram about the incident. There he came to know that Tirath Ram had already been informed about the incident and had gone to the scene of the accident. In cross examination he states that the police reached the spot the same evening but he was not called to the spot. He further states that he came to know the same night that the injured is Sanjeev Kumar S/o Tirath Ram and had expired. In cross examination he states that the police reached the spot the same evening but he was not called to the spot. He further states that he came to know the same night that the injured is Sanjeev Kumar S/o Tirath Ram and had expired. Even thereafter he did not go to the Police Station to make a statement. He states that he had not made any statement to the police under Section 161 Cr.P.C. on 15th October but according to him immediately after the cremation of the deceased he had informed the police about the entire facts in the police post itself. He had told these facts to the two policemen who were present at the time of the cremation. The witness was confronted with his statement recorded under Section 161 Cr.P.C. Ext.R-1 but denied the same. He further stated that they had tried to shake-up the injured who was unconscious. The injured had many injuries on his face and therefore the witness could not recognise the injured. He was confronted with various averments recorded in his alleged statement recorded under Section 161 Cr.P.C. but denied the same. He stated that the accused dragged the tractor on the side then removed the scooter to one side and ran away. He admitted that in his statement Ext.R-2 recorded in the Court of CJM he had stated that Shayam Lal and Lekh Ram arrived after the accident. He also submitted that in his statement recorded in the criminal case he had stated that he had appeared as a witness in 5-6 cases but not in 15-16 cases. 9. PW-3 Kushal Dutt has proved the F.I.R. Ext.PW-3/A recorded at the instance of the claimant himself. He also proved report No. 21 dated 17.10.2000 Ext.PW-3/B which shows that the tractor-trolley was taken into possession at Una on 17.10.2000. According to him no phone call was received in the Police Station about the accident. PW-4 states that he had conducted an inquiry after the F.I.R. was lodged and in the inquiry he found that the tractor No.HPG 4124 being driven by Tek Chand at the relevant time was involved in the accident and that the accident had taken place due to the rash and negligent driving of Tek Chand. PW-4 states that he had conducted an inquiry after the F.I.R. was lodged and in the inquiry he found that the tractor No.HPG 4124 being driven by Tek Chand at the relevant time was involved in the accident and that the accident had taken place due to the rash and negligent driving of Tek Chand. In cross examination he admitted that the information about the accident was given to him by Tirath Ram and Yog Raj, Pradhan but before this, information had been received in the City Chowki from the hospital about the death of the deceased. He then states that the statement of Tirath Ram was recorded at Santoshgarh Bazar. He admits that there are a number of houses at the place where the accident allegedly took place. He also admits that the house of Bakshi Ram was at a distance of 25-30 meter from the place where the accident took place. He in his cross-examination clearly states that he had not rung up the Pradhan about the accident. According to him he recorded the F.I.R. at the Toll Tax Barrier. He further states that he, another constable whose name he does not remember and Tirath Ram had gone to Khanpur on two separate scooters. Prior to this some private vehicle had already taken the injured to the district hospital at Una. From Khanpur all of them went to hospital at Una where the injured had already died. 10. PW-5 is the widow of the deceased. Her statement is not very relevant to decide the issue. However, relevant portion of her statement is that Yog Raj Pradhan had come to their house and told that somebody had rung him from Santoshgarh Police Chowki to inform him that Sanjeev Kumar had met with an accident. 11. PW-6 Tirath Ram is the father of the deceased. According to him at about 8.15 p.m on 9.10.2000 Yog Raj Pradhan came to his house and told him that he had received a phone call from Santoshgarh Police Station that his son Sanjeev Kumar had met with an accident near the house of Bakshi Ram contractor. Yog Raj had come in a car being driven by his brother Surjeet. Thereafter three of them i.e. Tirath Ram, Yog Raj and Surjeet went to the place of accident. Sanjeev Kumar was lying on one side of the road, half on the road and half outside. Yog Raj had come in a car being driven by his brother Surjeet. Thereafter three of them i.e. Tirath Ram, Yog Raj and Surjeet went to the place of accident. Sanjeev Kumar was lying on one side of the road, half on the road and half outside. The scooter was on the road. They put him in the car and took him to hospital at Una where they were informed that the deceased was dead. The Una police came to the hospital and informed him that the postmortem would take place in the morning and that he should lodge the F.I.R at Santoshgarh Police Station. He along with the Pradhan and Surjeet went to the Police Station Santoshgarh and got the F.I.R. recorded. Then he along with police officials again went to the site of the accident. The police officials were on a scooter, while they were in a car. Then the scooter was taken to one side. He returned to his house. Next day he performed the last rites of his son. When he was returning home from the funeral PW-8 Khushal Chand informed him that he had seen the accident taking place and also informed him that the tractor of Bakshi Ram was involved which was being driven by Tek Chand s/o Bakshi Ram. Thereafter, one of the policemen came to his house and he was again asked to come to the site of the accident and then he informed the police officials about what Khushal Chand had told him. Then Khushal Chand was called to the spot and he also told about the manner in which the accident had taken place. 12. According to Yog Raj (PW-10) a doctor attended upon the injured Sanjeev Kumar for 30-45 minutes before declaring him dead. However, none of the witnesses named the doctor. 13. Tek Chand(PW-13) appeared as his own witness and denied that any action has been taken. He further admitted that a case of causing death by rash and negligent driving was registered against him which was dismissed and the State had filed an appeal against the same. This appeal was dismissed vide judgement dated 6.7.2010 and placed on record. In the FIR the father did not make any allegation that the deceased was hit by the tractor trolley. This appeal was dismissed vide judgement dated 6.7.2010 and placed on record. In the FIR the father did not make any allegation that the deceased was hit by the tractor trolley. According to him he came to know about this fact the next day only when Khushal Chand told him the same. According to Tek Chand, Yog Raj Pradhan received a phone call from the police station Santoshgarh that Sanjeev Kumar had met with an accident and then Yog Raj in turn came to his house and informed him about the same. But this version is not supported by the official witnesses who clearly stated that no information was sent to Yog Raj. They have flatly denied that any telephonic message was sent to Yog Raj. There is no explanation as to how Yog Raj came to know about the accident. 14. In fact, one of the official witnesses PW-4 who conducted the inquiry has clearly stated that the information about the accident was given by Tirath Ram and Yog Raj but before such information a report had been received in the City Chowki from the hospital about the death of the deceased. This means that Tirath Ram and Yog Raj came to him later. He further stated that some private vehicle had taken the injured to district hospital Una, and Tirath Ram had first gone to Khanpur and then to the hospital at Una. This totally belies the version of Tirath Ram that he had gone to the district hospital along with Yog Raj and Surjeet Singh. According to Tirath Ram and Yog Raj the deceased was declared dead on arrival at the hospital but according to Surjit Singh the deceased was treated for 45 minutes before he was declared dead. This casts a doubt as to whether Surjeet Singh was present there or not. 15. Coming to the eye witness Khushal Chand, who is the most important witness. According to him he saw the accident and then went towards his house. Thereafter he went to the house of the deceased. According to him his house is at a distance of 1.25 k.m from the site of the accident and the house of Tirath Ram is at a further distance of one kilometre. There are two glaring discrepancies in his statement. Thereafter he went to the house of the deceased. According to him his house is at a distance of 1.25 k.m from the site of the accident and the house of Tirath Ram is at a further distance of one kilometre. There are two glaring discrepancies in his statement. According to him the injured person had suffered major injuries on his face and therefore, he (Khushal Chand) could not recognise the injured as Sanjeev Kumar. If that be true then there is no explanation as to from where Khushal Chand came to know that the injured person was Sanjeev Kumar s/o Tirath Ram. Why did he go to the house of Tirath Ram if he did not know who was the injured person? 16. This question becomes important because the presence of Khushal Chand at the spot itself is doubtful. From the postmortem report Ext.PW-1/A it is clear that there were only one or two injuries on the head and jaw of the deceased. The injuries were not of such a nature that the face was disfigured or could not be recognised. Admittedly Khushal Chand knew Tirath Ram and Sanjeev Kumar. If he had been at the spot he would never have left the injured Sanjeev Kumar at the mercy of the persons who had caused the accident. He would have definitely accompanied Sanjeev Kumar to the hospital or would have at least made some efforts to inform the police or other persons, which was not done. There are a number of houses near the site of the accident. If Khushal Chand had been present he would have gone to the house of one of these persons to bring water etc. for the injured person. The conduct of this witness is not of a person who has seen an accident wherein the victim was well known to him. It appears that realising that this would cause a problem Khushal Chand made a statement that he could not recognise the injured. As observed above, there is no explanation as to from where he came to know about the identity of the injured. Furthermore, Khushal Chand was on a bicycle. The total distance is 1.25 k.m., which can easily be covered in a bicycle in 5 minutes. It would take further 4-5 minutes to reach the house of Tirath Ram. There is no explanation why he reached there after 8.30 p.m. 17. Furthermore, Khushal Chand was on a bicycle. The total distance is 1.25 k.m., which can easily be covered in a bicycle in 5 minutes. It would take further 4-5 minutes to reach the house of Tirath Ram. There is no explanation why he reached there after 8.30 p.m. 17. Another point which shows that Khushal Chand is not telling the truth is that in case he had gone to the house of Tirath Ram, as deposed by him, he would have told the ladies of the house about the manner in which the accident happened and they in turn would have told Tirath Ram but according to Tirath Ram he came to know about the manner in which the accident happened only on the next day after the cremation. This totally shatters the evidence of Khushal Chand. 18. It would also be pertinent to mention that Khushal Chand is a witness who has appeared in large number of cases and this also casts a doubt on his testimony. 19. In the FIR it is written that the front right side of the trolley of the tractor hit the deceased but Khushal Chand while appearing in the witness box stated that it was the rear of the trolley which hit the scooter of the deceased. 20. As far as the statement of Shyam Lal is concerned, his position is worse. Here is a person who for 5 days does not speak a word to anybody about the accident. According to Khushal Chand, Shyam Lal was present at the time of the accident but Khushal Chand has admitted that in the criminal case he had stated that Shyam Lal arrived after the accident had taken place. Shyam Lal did not know Tirath Ram or the deceased. His explanation is that some person who used to work with him told him about the identity of the deceased about 2-3 days later and then he met Tirath Ram and they went to the police station. However, the statement of this witness has not been recorded 2-3 days after the accident but was recorded about one week after the accident. 21. On behalf of the respondents Jarnail Singh was examined as RW-1. He has proved emergency admission register, which shows that Sanjeev Kumar s/o Tirath Ram was not admitted in the hospital. However, the statement of this witness has not been recorded 2-3 days after the accident but was recorded about one week after the accident. 21. On behalf of the respondents Jarnail Singh was examined as RW-1. He has proved emergency admission register, which shows that Sanjeev Kumar s/o Tirath Ram was not admitted in the hospital. In cross-examination he admitted that in case a person is dead on arrival he is not shown in this register. 22. According to the claimants, the police recorded a false F.I.R. to save respondents No. 1 and 2. This does not appear to be correct because Tirath Ram while appearing in the witness box has not denied what has been recorded in the F.I.R. According to him he came to know about the tractor trolley being involved only the next day. Therefore, where was the occasion for the police to lodge a false F.I.R. According to the claimants they agitated and it was only after public pressure that correct facts were recorded by the police. This does not appear to be correct and it appears that the police changed the version only after the statements of Khushal Chand and Shyam Lal were recorded. 23. The story put up by the claimants does not inspire confidence. There are many serious infirmities and inconsistencies in their version. Normally this Court takes a very liberal view in motor accident claims cases and sympathy is exercised in favour of the claimants but such sympathy cannot be exercised in case the claimants come up with a false case. 24. In view of above discussion, I am of the considered view that the deceased may have been involved in a motor vehicle accident case but the identity of the vehicle was not known to anybody and to get compensation a false case was made out against the claimants. 25. In view of the above discussion, I am clearly of the view that the learned Tribunal was not justified in holding that the accident had occurred with the tractor trolley. Therefore, the appeal is allowed and the claim petition and cross objections are rejected. No order as to costs.