Wajid Ali Son Of Lt. Sh. Akbar ali v. Arjun Singh, S/o Sh. Daulat Ram
2022-06-21
SATYEN VAIDYA
body2022
DigiLaw.ai
JUDGMENT : By way of instant appeal, the appellant has assailed award dated 11.6.2012, passed by learned Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, H.P. (for short the Tribunal) in MAC Petition No. 57-MAC/2 of 2009, whereby his claim petition preferred under Section 166 of the Motor Vehicles Act was dismissed. 2. Appellant was minor at the time of institution of the appeal, therefore, the same had been instituted through his mother (natural guardian/next friend). During the pendency of appeal, appellant attained majority. He prayed for discharge of his guardian and opted to continue the appeal on his own, which was allowed. 3. Brief facts are that a claim petition under Section 166 of the Motor Vehicles Act was instituted on 27.7.2009 before the learned tribunal, alleging inter-alia that the appellant was victim of road accident involving a motorcycle ridden by respondent No.1 in a rash and negligent manner. It was alleged that the appellant was about 14 years of age. On 19.2.2009, he was returning home with his goat at village Melion, Tehsil Paonta Sahib, District Sirmaur, H.P. At about 6.15 P.M., respondent No.1 hit the appellant and the goat with his motorcycle being driven in a rash and negligent manner. The appellant was stated to have received serious injuries. He was initially taken to Civil Hospital, Paonta Sahib from where he was advised to be referred either to Regional Hospital Nahan or to PGI, Chandigarh but the appellant was taken to Shri Mahant Indiresh Hospital, Dehradun and was got treated from such institution. A claim to the tune of Rs. 7,00,000/- was accordingly preferred. 4. Respondent No.1 contested the claim of the appellant by denying the factum of accident. As per respondent No.1 neither he was riding the motorcycle at the place of accident on the given date or time nor any accident had taken place with his motorcycle. 5. In light of the available pleadings learned Tribunal framed following issues:- i) Whether petitioner Wajid Ali sustained injuries on his person due to rash or negligent driving of motor cycle NO. HP-17-A-9949, as alleged? ii) In case issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? iii) Whether the respondent No.1 did not possess a valid and effective driving license at the relevant time, as alleged?
HP-17-A-9949, as alleged? ii) In case issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? iii) Whether the respondent No.1 did not possess a valid and effective driving license at the relevant time, as alleged? iv) Whether the petition has been filed in collusion with respondent No.1, as alleged? 6. Issue No.1 was decided in negative. Learned Tribunal held that the factum of injuries allegedly caused on the person of appellant Wajid Ali were not proved to have been caused by an accident involving the motorcycle ridden by respondent No.1. In fact, it was held that the factum of involvement of respondent No.1 or his motorcycle in the accident as alleged on behalf of the appellant was not proved. In view of such findings, issues No. 2 and 3 were held redundant. Even issue No.4 was decided against the claimant. The claim petition was accordingly dismissed by the Tribunal. 7. I have heard learned counsel for the parties and have also gone through the record carefully. 8. Learned counsel for the appellant has strenuously argued that the findings recorded by learned Tribunal on issue No.1 were against the material on record. It has been contended that PW-1 Mohd. Yunis was an eye witness and had proved on record beyond doubt the factum of accident involving respondent No.1 and his motorcycle and also the consequent injuries received by the appellant on 19.2.2009 at about 6.15 P.M. at place Melion, Tehsil Paonta Sahib, District Sirmaur, H.P. It has further been contended that an FIR Ext. PW-3/A was registered at Police Station, Paonta Sahib in respect of the accident in question and after thorough investigation it was found that the accident was caused by respondent No.1 while driving his motorcycle in a rash and negligent manner. The challan was presented and respondent No.1 was tried for offences under Sections 279, 337 and 429 of IPC. Reliance has been placed on a judgment passed by a Coordinate Bench of this Court in Balbir Singh vs. Ajay Kumar, 2016 (1) Suppl. HLR 3168. 9. The case of the appellant to large extent was dependent on the testimony of PW-1. On scanning the entire material on record minutely, PW-1 does not appear to be trustworthy. It also appears that he was a procured witness. PW-1 Mohd.
HLR 3168. 9. The case of the appellant to large extent was dependent on the testimony of PW-1. On scanning the entire material on record minutely, PW-1 does not appear to be trustworthy. It also appears that he was a procured witness. PW-1 Mohd. Yunis while appearing as a witness stated that he was at a distance of about 100 meters on the National Highway, when accident took place. He was driving his personal car. In such event, he would have covered the distance of 100 meters within a minute or few minutes at the most to reach the exact place of occurrence. Respondent No.1 would have also been found on spot, whereas, PW-1 is completely silent regarding presence of respondent No.1 on the spot. He only stated that a motorcycle without number was lying on the side of the road. In addition, another glaring aspect that casts serious doubt on the veracity of the version put-forth by PW-1 is that he was never associated by the police during investigation of the case. Though, he specifically stated that he had informed the police immediately through telephone. In such case, he would be the informant/complainant and the sole witness and would have definitely been associated by the police during investigation, especially when the investigation was carried to its logical end after registration of the FIR. 10. PW-1 for the first time made appearance when he swore his affidavit to be used as his examination-in-chief before learned Tribunal. It was on 3.7.2010 i.e. after elapse of more than one year and five months from the date of accident. His interest in the success of the claim petition becomes evident from the fact that on one hand he denied having any relation with the appellant or his family and on the other stated to have visited the appellant in Shri Mahant Indiresh Hospital, Dehradun 3-4 times. In these circumstances, it would not be safe to base the sole testimony of PW-1 for holding respondent No.1 liable for rash and negligent driving and thereby causing the accident in question. 11. Further, there is no corroborative material on record to lend support to the version of PW-1. Merely, because an FIR was registered and on investigation respondent No.1 was put to trial, respondent No.1 cannot be held liable for causing the accident in question.
11. Further, there is no corroborative material on record to lend support to the version of PW-1. Merely, because an FIR was registered and on investigation respondent No.1 was put to trial, respondent No.1 cannot be held liable for causing the accident in question. Needless to say that FIR is not a substantive piece of evidence. In the instant case, perusal of FIR Ext. PW-3/A reveals that it was recorded on the basis of a written complaint sent by HC Sanjay Kumar, Incharge Police Post Majra to Police Station Paonta Sahib. According to his complaint, he had received telephonic information at about 6.15 P.M. on 19.2.2019 from some unknown person regarding the occurrence of accident in question. He had also reported his visit to the spot where he had found a dead goat and a motorcycle on the side of the road, which was without registration number. According to the complainant HC Sanjay Kumar, people present on spot had disclosed that child Wajid Ali was injured as a result of accident caused by respondent No.1 while riding his motorcycle. He had further mentioned that no eye witness was available on spot. Strangely, HC Sanjay Kumar has not been examined as a witness. Even the Investigating Officer, who had investigated the case, was not cited as a witness. In these circumstances, mere lodging of an FIR and presentation of a challan against respondent No.1 cannot be considered as evidence in proof of the factum of the accident having been caused by respondent No.1. Copy of FIR was marked as Ext. PW-3/A from the records of Judicial Magistrate, 1st Class brought before the Court by PW-3, who simply was an official of the said Court. Mere exhibition of a document would not dispense with the proof of its contents. 12. PW-2 Smt. Zarina Begum mother of the appellant undisputedly was not an eye witness. Her statement could not be relied upon for purposes of ascertaining the facts required for answering issue No.1. Whatever she had stated with respect to the occurrence of accident was mere hearsay. 13. Except as above, no other evidence was led by the appellant to prove the facts necessary to fasten the liability of payment of compensation on respondents No.1 or 2 as the case may be. Even, the identification of motorcycle allegedly found near the place of accident was not established.
13. Except as above, no other evidence was led by the appellant to prove the facts necessary to fasten the liability of payment of compensation on respondents No.1 or 2 as the case may be. Even, the identification of motorcycle allegedly found near the place of accident was not established. PW-3, an official from the court, had only stated that respondent No.1 had got the motorcycle released from the Court. No evidence to establish relation between the motorcycle allegedly found on spot and the one got released by respondent No.1 from the court was lead. Even the document through which Police had seized the motorcycle from spot of accident was not placed and proved on record. 14. Perusal of impugned award reveals that learned tribunal has thoroughly considered all the above aspects before answering issue No.1 against the appellant/claimant. 15. In view of above discussion, it is held that the findings recorded by learned Tribunal are based on the basis of material on record and no fault can be found therewith. Accordingly, the impugned award dated 11.6.2012, passed by the learned Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, H.P. in MAC Petition No. 57-MAC/2 of 2009 is upheld and the instant appeal is dismissed. Pending applications, if any, also stand disposed of. Records be sent back forthwith.