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2018 DIGILAW 1316 (HP)

Salma And Ors v. Kishan Singh Kundlas And Ors

2018-07-16

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - By way of instant appeal filed under Section 173 of Motor Vehicles Act, 1988, challenge has been laid to Award dated 26.03.2010, passed by the learned Motor Accident Claims Tribunal-I, District Sirmaur at Nahan, H.P., in Claim Petition No. 38-MAC/2 of 2004, whereby, claim petition filed on behalf of the petitioners under Section 166 of the Motor Vehcles Act came to be dismissed. 2. Facts, as emerged from the record are that petitioners being legal heirs of deceased Matloob Ahmed, who at the relevant time, was employed in the Police Department, filed a claim petition under Section 166 of the Motor Vehicles Act, alleging therein that on 30.12.2003, deceased Matloob Ahmed died in a motor vehicle accident. Allegedly, respondent No. 2 Amar Chand while driving truck bearing No. HP-18- 4841, rashly and negligently crossed the scooter of the deceased and while crossing, deceased Matloob Ahmed was hit by a wooden phatta/plank, which was projecting outside the body of the truck and as a consequence, he fell on the road and received multiple injuries on his person, which ultimately resulted into his death. Allegedly, wooden phatta/plank was projecting outside the body of the truck and the accident was on account of rash and negligent driving on the part of truck driver Amar Chand, respondent No. 2, who immediately after alleged accident, ran away from the spot. Deceased was 37 years old and at the time of accident he was drawing salary to the tune of Rs. 8,808/- per month. In the aforesaid background, an FIR bearing No. 470 of 2003 dated 30.12.2003, under Sections 279, 304-A read with Section 201 IPC, came to be registered at Police Station, Paonta Sahib. The Truck was owned by respondent No.1 Kishan Singh and was insured with respondent No.3, Oriental Insurance Company Ltd. Petitioner No.1 being widow and petitioners No. 2 to 4 LRs. of deceased, claimed compensation to the tune of Rs. 12 Lakh on account of death of deceased Matloob Ahmed. The claim petition filed on behalf of the petitioner was dismissed by the learned Tribunal vide award dated 19.2.2005, on the ground that petitioners have failed to prove the involvement of Truck No. HP-18-4841 in causing the accident near Nawada Rampurghat on 30.12.2003.Against the rejection of the claim petition by the learned Tribunal below, petitioners approached this Court by way of filing FAO No. 197 of 2005. 3. This Court in FAO No. 197 of 2005, having been preferred by the petitioners, set aside the aforesaid award passed by the learned Tribunal and remanded the case back to the learned Tribunal with a direction to decide the matter afresh after considering the ratio laid down by the Hon''ble Apex Court in Bimla Devi and others vs. Himachal Road Transport Corporation and others , (2009) 2 ACC 444 (SC). 4. Pursuant to the aforesaid remand order passed by this Court, Tribunal below re-heard the matter and ultimately vide judgment dated 23rd March, 2010, again dismissed the claim petition under Section 166 of Motor Vehicle Act having been filed by the petitioners, on the ground that involvement of Truck bearing No. HP-18-4841 in the alleged accident, was not proved in accordance with law. In the aforesaid background, petitioners have approached this Court in the instant proceedings, praying therein for compensation on account of death of deceased Matloob Ahmed after setting aside the award passed by the learned Tribunal below. 5. Mr. Rajesh Verma, learned counsel for the appellants/petitioners, while inviting attention of this Court to the impugned award, argued that the same is not sustainable in the eye of law as the same is not based upon proper appreciation of the evidence adduced on record by the petitioners, as such, deserves to be quashed and set aside. Mr. Verma, vehemently argued that bare perusal of statements of material prosecution witnesses especially PW-1 Salma, PW-2 Sandeep Singh and PW-7 SI Parkash Chand, proves beyond reasonable doubt that on the date of alleged accident, alleged truck was being driven by respondent No. 2, Amar Chand and deceased Matloob Ahmed suffered injuries on account of being hit by wooden phatta/plank, which was projecting outside the body of truck. While referring to the statement of PW-7 SI Parkash Chand, Mr. Verma, made a serious attempt to persuade this Court to agree with his contention that it was not only deceased Matloob Ahmed, who had received injuries on account of being hit by the wooden phatta/plank, projecting outside the body of the truck, rather another person namely Rakmudeen also suffered injuries and the Phatta/plank had fallen down in front of the shop of Faquir Mohd. at village Matralion. at village Matralion. He also submitted that it has also come in evidence that one Garbu Chowkidar had asked the truck driver to remove the plank, but he did not do so. 6. While referring to the statement of PW-8 Amar Singh, Criminal Ahlmad, Court No. 1, Paonta Sahib, Mr. Verma argued that a criminal case No. 188/1 of 2004 was registered against respondent No.2, on the basis of FIR No. 470 of 2003, dated 30.12.2003, registered at the behest of petitioner No. 1 and as such, there was no occasion for learned Tribunal below to conclude that petitioners have failed to prove that deceased Matloob Ahmed died on account of injuries suffered by him in the accident alleged to have taken place on 30.12.2003. With the aforesaid submissions, Mr. Verma prayed that present appeal be accepted and petitioners be awarded suitable compensation after setting aside award passed by learned Tribunal below. 7. Mr. Ashok K. Tyagi, learned counsel for the respondent No.1, while refuting the aforesaid submissions having been made by Mr. Rajesh Verma, learned counsel for the petitioners, in support of impugned award, contended that it has been held by the learned Tribunal below that no cogent and convincing evidence has been led on record to prove the involvement of truck bearing No. HP-18-4841 being driven by Amar Chand on the date of alleged accident and as such, no interference of this Court is warranted in the impugned award. Mr. Tyagi, while disputing the aforesaid contentions having been made by Mr. Verma, strenuously argued that none of the complainant witness stated anything specific with regard to their having seen the alleged incident with their own eyes and as such, learned Tribunal below rightly came to the conclusion that there is no eye witness to the alleged incident. 8. While referring to the statement of PW-2, Sandeep Singh, Mr. Tyagi, contended that he has admitted in his cross-examination that at the time of accident, he did not note down the registration number of truck and as such, had not disclosed the same to the police. 8. While referring to the statement of PW-2, Sandeep Singh, Mr. Tyagi, contended that he has admitted in his cross-examination that at the time of accident, he did not note down the registration number of truck and as such, had not disclosed the same to the police. Similarly, referring to statement of PW-7, SI Parkash Chand, he contended that since this witness had no occasion to see the accident with his own eyes, version put-forth by him is totally a hearsay version and could not be relied to ascertain the guilt, if any, of respondent No. 2 and as such , there is no error in the impugned award passed by the learned Tribunal below and the same deserves to be upheld. 9. I have heard the learned counsel for the parties and gone through the record carefully. 10. Having perused the evidence adduced on record vis-a-vis impugned award, this Court is not inclined to agree with the contention of Mr. Rajesh Verma, learned counsel for the petitioners, that learned Tribunal below has mislead, misappreciated and misconstrued the evidence led on record by the petitioners. Rather, this court is convinced and satisfied that learned Tribunal below has dealt with each and every aspect of the matter meticulously and there appears to be no scope of interference. Though, in the case at hand, petitioners with a view to prove their case, examined eight prosecution witnesses but statement of PW-2 Sandeep Singh is most relevant to ascertain the guilt, if any, of respondent No. 2, because admittedly, as per case of the petitioners, PW-2 Sandeep Singh was the first person who reached the spot of occurrence and had seen deceased Matloob Ahmed suffered injuries on account of being hit by wooden plank/phatta, projecting outside the body of the truck. But, as has been noticed herein above, even this witness in his cross-examination has categorically admitted that he did not note down the number of truck and as such he had not disclosed the same to the police. Though, this witness has stated that deceased Matloob Ahmed suffered injuries on account of being hit by wooden plank/phatta projecting outside the body of truck but once he was unable to disclose the identity of truck or person driving the same, not much reliance could be placed on his version. 11. The contention of Mr. Though, this witness has stated that deceased Matloob Ahmed suffered injuries on account of being hit by wooden plank/phatta projecting outside the body of truck but once he was unable to disclose the identity of truck or person driving the same, not much reliance could be placed on his version. 11. The contention of Mr. Verma, that since this witness (PW-2 Sandeep Singh) disclosed that truck was ''S'' model, having red colour, petitioners successfully proved their case that truck belonged to respondent No.3 and was being driven by respondent No. 2, but the aforesaid version put forth by him cannot be accepted because no specific evidence was led on record that respondent No. 3 was the only person having truck of ''S'' model with red colour in the area. As far as statement of PW-1 Salma, wife of deceased Matloob Ahmed is concerned, the same is of no relevance because she reached the spot after having heard about the incident from other persons and she had no occasion to see the accident with her own eyes. In her cross-examination, she admitted that the number of the truck involved in the accident was given to the police after two months. Other witnesses PW-3 Dr. Gitanjali Kothiyal, Medical Officer, PW-4 HHC Jagdish Kumar, PW-5 HC Sunder Singh and PW-6 HC Pawan Kumar, may not be very relevant to ascertain the guilt of the respondent No. 2, because none of these witnesses had an occasion to see the incident. 12. Though, Shri Verma, placed much reliance on the statement of PW-7 SI Parkash Chand, who investigated the case, but statement of this witness does not support the case of the appellants/petitioners. He stated before the learned court below that he had taken possession of the truck in question after its involvement was established, but no plausible explanation is/was rendered to that effect that on what count he arrived at the conclusion that the truck involved in the accident was owned by respondent No. 3. This witness also deposed that during the investigation, it was found that the truck driver in order to tighten the tarpaulin took a wooden plank/phatta of another truck No. HR-58-2428 and fitted it with the side of the driver, but later on he did not remove this plank and started the truck. This witness also deposed that during the investigation, it was found that the truck driver in order to tighten the tarpaulin took a wooden plank/phatta of another truck No. HR-58-2428 and fitted it with the side of the driver, but later on he did not remove this plank and started the truck. He further stated that during the investigation it emerged that one Garbu Chowkidar had asked the truck driver to remove the plank, but he did not do so. He also stated that after hitting Matloob Ahmed, this phatta had struck against one Rakmudeen also and the plank had fallen down in front of the shop of Faquir Mohd. at village Matralion. 13. Interestingly, neither there appears to be any attempt on behalf of PW-7 SI Parkash Chand to associate Garbu, Rakmudeen and Faquir Mohd. during the investigation, nor they were cited as witnesses, who could corroborated the version put-forth by PW-7 SI Parkash Chand that deceased Matloob Ahmed was hit by wooden plank/phatta, projecting outside the body of truck owned by respondent No. 1. Interestingly, neither there is any material on record to prove that Rakmudeen had also suffered injuries on account of being hit by wooden plank/phatta, projecting outside the body of the vehicle in question nor he had ever filed report, if any, qua injuries suffered by him to the police or a petition under Motor Vehicles Act seeking compensation. 14. No doubt, with the statement of PW-3 Dr. Gitanjali Kothiyal, Medical Officer, petitioners proved that deceased Matloob Ahmed died on account of injuries suffered by him in an accident, but that may not be sufficient to hold that deceased died on account of injuries suffered by him in the truck accident because there is no direct evidence available on record to conclude that on the date of alleged incident, deceased Matloob Ahmed was hit by vehicle being driven by respondent No. 2 and he died on account of injuries suffered in the accident involving truck bearing No. HP18-4841. 15. Consequently, in view of the detailed discussion made hereinabove, this Court sees no valid reason to interfere with the award passed by learned Tribunal below, which otherwise appears to be based upon the proper appreciation of evidence adduced on record and as such, the same is upheld. Accordingly the appeal is dismissed being devoid of any merit. 16. 15. Consequently, in view of the detailed discussion made hereinabove, this Court sees no valid reason to interfere with the award passed by learned Tribunal below, which otherwise appears to be based upon the proper appreciation of evidence adduced on record and as such, the same is upheld. Accordingly the appeal is dismissed being devoid of any merit. 16. Needless to say that the petitioners can always seek compensation in terms of provisions of Section 161 of Motor Vehicles Act, under ''hit and run'' case, if already not received.