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2017 DIGILAW 2776 (RAJ)

Surendra Singh v. Dharmveer

2017-12-13

VINIT KUMAR MATHUR

body2017
JUDGMENT : Vinit Kumar Mathur, J. The present appeal has been filed against the order dated 04.09.2002 passed by the learned Motor Accident Claims Tribunal, Hanumangarh in Civil Misc. Case No. 68/1996. 2. Brief facts of the case are that the appellants being minor, preferred a claim petition through their natural guardian grand-father Ishari Singh, for the compensation on account of the death of their father Sh. Hanuman Singh. In the claim petition, it was averred that the father of the applicants Sh. Hanuman Singh on 30.11.1995 while travelling from Hanumangarh town to Dungargarh in the Maruti Car No. CH01-D8620 met with an accident at around 10.45 P.M. on Hanumangarh Rawatsar road near Bhunawali Dhani. 3. It was further submitted that Hanuman Singh died in the accident due to the rash and negligent driving of driver Dharamveer. The First Information Report No. 650/95 of the accident was registered at Police Station, Hanumangarh town. Reply to the claim petition was filed by the respondents no. 1 to 3 denying allegations that the car was driven by the respondent No. 1 rashly and negligently. On the contrary, it was submitted that the accident occurred due to the car being hit from behind by a truck which after hitting from behind, ran away from the spot. The other persons who were travelling in the car could not note down the number of the truck because of shock and trauma due to the accident. 4. The learned Tribunal framed five issues in the matter and after hearing the counsel for the parties, came to the conclusion that the accident was not caused due to rash and negligent driving of respondent No. 1 Dharamveer and, therefore, all the issues were decided against the appellants. 5. Heard learned counsel for the appellants as well as respondents. 6. The counsel for the appellants submits that the learned Tribunal has totally misread the documents submitted before it and have wrongly came to the conclusion that the accident did not occur due to the rash and negligent driving of the respondent No. 1. He further submits that in paragraph fifteen of the reply filed by the respondent No. 1, it has been admitted that car met with an accident resulting in the death of Sh. Hanuman Singh which fortifies the fact that the car was being driven rashly and negligently. He further submits that in paragraph fifteen of the reply filed by the respondent No. 1, it has been admitted that car met with an accident resulting in the death of Sh. Hanuman Singh which fortifies the fact that the car was being driven rashly and negligently. He further submits that as per the site plan, there are no marks of the tyres of truck or any signs which depicts or shows that any other vehicle was involved in the accident, much less the maruti car was being hit from behind. From the site plan, it is clear that the car was driven by respondent No. 1 rashly and negligently and after hitting the tree marked as No. 4 in the site plan of the Ex. A1 it further hit another tree at point No. 5 and, thereafter, ultimately it got stationed at point no. 7 as per the site plan. Learned counsel for the appellants further submits that in the statement of Sh. Ishari Singh, he has categorically submitted that his son accompanied the respondent Dharamveer for going to the marriage and in the letter written to the police authorities signature was done by him on a blank paper and has also submitted that the contents of this letter have been inscribed later which are denied by him. He further submits that in the MTO report point No. 7 has been written twice which is apparent on the face of record that the document has been tampered with and has been written just to favour the respondent. He further submits that there is discrepancy and material contradiction in the statement recorded by the learned Tribunal. Learned Tribunal has erred while passing the order of recovery of the amount paid under Section 140 of MV Act. 7. On the other hand, the counsel for the respondents countering the submissions made by the appellants submits that the respondent No. 1 was not driving the car rashly and negligently and the accident did not occur due to the fault of respondent No. 1. The accident happened due to the rash and negligent driving of the truck which hit their car from behind causing the maruti car to roll over twice or thrice and after hitting the trees it came to a halt at point No. 7 as shown in the site plan. The accident happened due to the rash and negligent driving of the truck which hit their car from behind causing the maruti car to roll over twice or thrice and after hitting the trees it came to a halt at point No. 7 as shown in the site plan. He further submits that as per the statements of the driver Dharamveer as well as Mahaveer Prasad who were travelling in the car, it is more than apparent that the accident happened due to the rash and negligent driving of the truck which hit the maruti car from behind making the maruti car to topple over twice or thrice seriously injuring the deceased Hanuman Singh. It is a plain/simple case of hit and ran by the truck in question, whose number, the driver Dharamveer Singh could not note due to the shock and imbalance of mind at the time of accident. He further submits that even in the Mechanical Inspection Report, the rear part of the maruti car was shown to be damaged and, therefore, he has submitted that the claim petition against the respondent has rightly been rejected by the learned Tribunal. 8. I have given a thoughtful consideration to the submissions on both the sides and I have gone through record of the case. Taking into consideration, the totality of the fact and circumstances and appreciation of the evidence on record, I am of the view that learned Tribunal has rightly concluded that the respondent No. 1 was not driving the car rashly and negligently. A perusal of the site plan along with the report of MTO shows and suggest that if a car is being driven on the correct side and if the same is being hit from behind then the possibility of rolling over after hitting the trees from their side and then coming on halt looks more probable. This theory also gets fortified from the MTO report, which clearly mentions that the rear part of the maruti car was badly damaged. 9. There is no reason to disbelieve the statement of driver Dharamveer and co-passenger Mahaveer Prasad that while the car was being stopped on the side of the road, a truck after hitting the maruti car from behind ran away and they could not note the number of truck. 9. There is no reason to disbelieve the statement of driver Dharamveer and co-passenger Mahaveer Prasad that while the car was being stopped on the side of the road, a truck after hitting the maruti car from behind ran away and they could not note the number of truck. It is a matter of common prudence that after the accident, the passengers travelling in the car or whichever vehicle gets shaken up and since they are not in sound state of mind and unaware of what has actually happened it can normally be presumed that the passenger of maruti car could not register or note down the number of the truck which had hit their car from behind. 10. As far as the contention of the learned counsel that in paragraph fifteen of their reply they have admitted the factum of death is due to accident, the reply further mentions that it occurred due to their car having been hit by a truck. Therefore, the contention of the appellant is also not sustainable. It is submitted that whatever was tendered in the explanation given by the counsel for the appellant that the police has obtained signature of Sh. Ishari Singh on a blank paper and, thereafter, the inscription were done, is also not sustainable as nothing on record has been placed which shows or suggest that Ex. A1 was written afterwords and signature was done prior to that. Besides this the mention of point no. 7 twice in the MTO report does not improve the case of the appellant or suggest the factum of car having been driven rashly and negligently. 11. The police after investigation filed a negative final report and on a protest petition being filed by Ishari Singh, the learned Chief Judicial Magistrate took cognizence under Section 279 and 304 A I.P.C. against the respondents which was challenged by way of filing a revision petition by the respondent No. 1 before the learned Sessions Court and the same was also accepted and the proceeding were dropped. Further, the same was challenged by Sh. Ishari Singh before this Court by way of filing a Cr. misc. petition wherein the order of the learned Sessions Court was upheld discharging the respondent from the charges under Sections 279 & 304 A IPC and it was held that maruti car was not being driven rashly and negligently. Further, the same was challenged by Sh. Ishari Singh before this Court by way of filing a Cr. misc. petition wherein the order of the learned Sessions Court was upheld discharging the respondent from the charges under Sections 279 & 304 A IPC and it was held that maruti car was not being driven rashly and negligently. Therefore, in my opinion learned Tribunal was right in rejecting the claim petition of the appellants. 12. As far as the directions with respect to the recovery of amount paid under Section 140 of the Motor Vehicle Act is concerned, the same is required to be set aside, in view of the judgment of Hon'ble Supreme Court in Indra Devi and Others v. Bagada Ram and Another reported in AIR 2010 SC 2913 . The amount under Section 140 of the MV Act has been awarded to the appellants on the principle of "no fault". As the expression "no fault" suggests the compensation under Section 140 of the Motor Vehicles Act is regardless for any wrongful act, neglect or default of the person in respect of whose death the claim is made. Therefore, in the present case, the amount already awarded under Section 140 of the Motor Vehicles Act is not recoverable, hence that direction of the learned Tribunal dated 4.9.2002 is set aside. The present appeal except the recovery of the amount awarded under Section 140 of the MV Act, fails and is, hereby, dismissed.