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2015 DIGILAW 1464 (HP)

Asgar Ali v. Imran Khan

2015-10-09

MANSOOR AHMAD MIR

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Judgment : Mansoor Ahmad Mir, Chief Justice (Oral) CMP No.1125/2015. This application has been moved for bringing on record the legal representatives of deceased respondent No.2. Shri Imran Khan one of the legal representatives is already on record, I deem it proper to bring on record the other legal representatives of deceased respondent No. 2 as mentioned in the application. Thus, the application is granted and the legal representatives mentioned in the application are ordered to be brought on record. Registry to carry out necessary correction in the memo of parties. The application is disposed of. FAO No. 7 of 2009. 2. Challenge in this appeal is to the judgment and award dated 30.10.2008, made by the Motor Accident Claims Tribunal-1, Sirmaur District at Nahan, in MAC Petition No. 148-MAC/2 of 2004, titled Asgar Ali and others versus Shri Imran Khan and another, for short “the Tribunal”, whereby the claim petition came to be dismissed, hereinafter referred to as “the impugned award”, for short. 3. The claimants had sought compensation to the tune of Rs.6.5 lacs, as per the break-ups given in the claim petition, on the ground that Imran Khan had driven Scooter No. HP18-7862 rashly and negligently and caused the accident wherein deceased Kesar Ali sustained injuries and succumbed to the injuries. 4. The claim petition was resisted and contested by the respondents and following issues were framed. (i) Whether Kesar Ali (since deceased) was traveling on scooter No. HP-18-7862 as a pillion rider on dated 4.3.2002, on nahan-Shimla road near Jhamiria, the scooter was being driven by respondent No.1 Imran Khan as alleged? OPP (ii) If issue No. 1 is proved in affirmative, whether Kesar Ali died being a pillion rider of scooter No. HP-18-7862 which met with an accident, as alleged? OPP (iii) If issue No. 1 and 2 are proved in affirmative, to what extent the petitioners are entitled to receive compensation and from whom.? OPP (iv) Whether the petition is not maintainable in the present form as alleged in preliminary objection NO. 1? OPR 1 and 2. (v) Whether the petition is bad on account of mis-joinder of parties and causes of action? OPR 1 & 2. (vi) Whether the petitioners are not dependents of late Sh. Kesar Ali, if so, its effect? OPR1 and 2. 1? OPR 1 and 2. (v) Whether the petition is bad on account of mis-joinder of parties and causes of action? OPR 1 & 2. (vi) Whether the petitioners are not dependents of late Sh. Kesar Ali, if so, its effect? OPR1 and 2. (vii) Whether Kesar Ali (since deceased) was driving the scooter at the time of the accident, if so its effect? OPR 1 and 2. (viii) Relief. 5. The Tribunal has discussed the evidence and held that the claimants have failed to prove that the scooter was involved in the accident and Imran Khan had driven the said scooter rashly and negligently. 6. I have examined the record. The claimants have examined five witnesses, namely HC Kuldeep Kumar (PW1), Asgar Ali (PW2), Sanjay Kumar (PW3), Constable Baldev Singh (PW4) and Sirmaur Singh (PW5). The respondents have also examined five witnesses, namely N.K. Barwal (RW1), Sheikh Imtiaz (RW2), Satish Duggal (RW3), Imran Khan (RW4) and Khursheed Ahmed (RW5). 7. The claimants have not led any evidence, oral as well as documentary, to prove that Imran Khan was driving the scooter at the relevant point of time. However, one PW4 constable Baldev Singh stated that Imran Khan, by way of gesture, stated that he was driving the scooter. It is not known how he came to know about the gesture of Imran khan. Imran Khan is stated to be deaf and dumb and he is not trained to know and understand the language and gesture of deaf and dumb people. 8. The Tribunal has rightly discussed the evidence in para 18 of the impugned award. It is apt to reproduce para 18 of the impugned award herein: “18.In the FIR Ext. PW1/A it was mentioned that the scooter was bearing No. HP-18-7862. Even in the statement recorded by the court during the trial of criminal case, it appears that the identity of the scooter could not be established. Statement of PW @ ASI Dhan Singh, who had investigated the case, has stated that he was told about this number of the scooter, but who had told him has not been disclosed by him. Although he was stated that it was Ram Gopal, Head constable who had told him about the scooter, but Ram Gopal was not an eye witness and Ram Gopal had not disclosed the source of information about number of the scooter. Although he was stated that it was Ram Gopal, Head constable who had told him about the scooter, but Ram Gopal was not an eye witness and Ram Gopal had not disclosed the source of information about number of the scooter. The scooter was not available even at the site of accident when the investigating officer went on the spot. In these circumstances, who disclosed the number of the scooter to the police is a mystery, although, the police states that it was Imran Khan who had disclosed so at the hospital, but he is deaf and dumb. PW3 Sanjey Kumar’s version regarding the number of the scooter is not reliable. He has stated that at the time when he had deposed in the criminal court the number was not known to him. How later on when he appeared as PW3 in this case, he came to remember the number of the scooter is not disclosed by him, so he cannot be trusted. The statement of Constable Baldev Singh PW4 that Imran Khan had disclosed the number of scooter by gestures is not convincing. It is so because Baldev Singh is not trained in understanding by gestures of deaf and dumb people. Then in his cross-examination he has admitted that the possibility of Imran Khan might have told that some scooter was brought by Kesar Ali cannot be ruled out. Also no photographs of the scooter which had met with accident have been produced on record. If this scooter was involved it must have been damaged. For the non-production of the photographs of the scooter adverse inference has to be drawn against the petitioner’s claim. 9. Having said so, the findings on issue No. 1 are upheld. 10. At this stage, the learned counsel for the respondents stated at the Bar that the challan was presented against Imran Khan before the Court of competent jurisdiction wherein he was acquitted on the ground that the scooter was not involved in the accident. The State has also carried the appeal to this Court which was registered as Cr.A No. 224 of 2003 and this Court has held that the scooter was not involved in the accident. It is apt to reproduce para 7 of the said judgment herein. The State has also carried the appeal to this Court which was registered as Cr.A No. 224 of 2003 and this Court has held that the scooter was not involved in the accident. It is apt to reproduce para 7 of the said judgment herein. “7.In the instant case, there is no eye witness nor there is any direct or circumstantial evidence to prove that respondent, at the relevant time, was driving the Scooter in question rashly or negligently which caused the accident.” 11. Having said so, the appeal is dismissed and the impugned award is upheld. 12. Send down the record, forthwith, after placing a copy of this judgment.