Dharam Chand vs Shiv Pat and Others

S.B. Capoor, J.—The Appellant Dharam Chand filed a claim before the Motor Accidents Claims Tribunal, Punjab, Chandigarh, in respect of a fatal accident to his son Jagdish Chander, aged 10 years, alleged to have been caused by the rashness and negligence of Shiv Pat (Respondent No. 1), who was driving the tractor belonging to Amin Chand, Lambardar of village Azimgarh (Respondent No. 2), while Respondent No. 3, is the insurance company. The claim having been dismissed by the learned presiding officer of the Tribunal, Dharam Chand has appealed.

There is no dispute that on the 20th August, 1960, while Shiv Pat was driving the tractor of Amin Chand, Jagdish Chander, son of the Appellant, came under it and was fatally injured. The claim application stated that according to the Police report, of which a copy was enclosed, the deceased died by an accident with a tractor and according to the post mortem report, he died due to the accident and injuries from the wheel of the tractor. The post mortem report was also enclosed. The Respondent, of course, resisted the claim. Now the curious feature of this case is that according to the Police report of the 20th August, 1960. which was made at Police Station Abohar by Kahna Ram, who has appeared as R. W. 4, Jagdish had himself got on the plough of the tractor while it was being driven by Shiv Pat. that on seeing a pit Shiv Pat applied the brakes to the tractor and so Jagdish fell off the plough and came under the wheel of the tractor and sustained injuries. At the time of the making of the report, Dharam Chand Plaintiff is also shown as being present and to have corroborated the statement given by Kahna Ram. The Police accordingly found that no offence had been committed and that the death of Jagdish Chander was accidental. However, it appears that later on the Plaintiff moved various authorities and under the orders of the Deputy Superintendent of Police, Abohar, Assistant Sub-Inspector Harnam Singh (A. W. 2) challenged Shiv Pat. A criminal case against Shiv Pat for rash arid negligent driving was registered on the 12th December, 1960, and it was still pending when the Plaintiff filed his suit.

The Plaintiff is also a resident of Abohar and he stated that his son Jagdish had gone to visit the Plaintiff''s mother-in-law Mrs. Lajwanti in village Azimgarh. The Plaintiff was, of course, not present at the time of the accident and the dead body of Jagdish Chander was brought to his house at about 6 p.m. In cross-examination the Plaintiff was confronted with his statement (included in Exhibit D.A.J and he denied having made the statement though he admitted that he was made to sign that statement.

At the trial the only person put forward as an eye-witness of the occurrence was Mrs. Lajwanti. the maternal grandmother of Jagdish Chander and though in his examination-in-chief she stated that she saw the boy fitting with the driver and the boy fell off the tractor and was run over by the rash and negligent act of Shiv Pat but in cross-examination she hesitated and fumbled and said that she was informed that her grandson was being carried and that she was informed at home. From the half-hearted way in which she made the statement, the Tribunal concluded that she was in all probabilities not present at the scene of the accident On the other hand Shiv Pat himself as R. W. 1 testified that the boy got on the plough of the tractor unknown to the witness and when noticing a pit Shiv Pat applied the brakes suddenly and the accident occurred. Relief R W. 2) chowkidar of the village, testified that he saw Shiv Pat lifting a boy aged 8 or 9 years and that the witness was the only other person at the spot. From mere the boy was taken to the house of Amin Chand Lambardar where Kabna, Lajwanti and Dharmoli (R W. 3) were present. The evidence of R. Ws. 2 to 4 shows that Lajwanti was not present at the scene of the accident but was in the house of Amin Chand. As a matter of fact, Lajwanti herself admitted that during those days she was living at the house of Amin Chnnd Kahna as well as Dharmoli were in the service of Amin Chand and according to Kahna there is some distant relationship between him and Lajwanti. In the statement of Dharam Chand as recorded in Exhibit D. A., it appears that the boy Jagdish Chander had gone to visit his maternal uncle Kahna Ram.

Thus, on the record as it stands, there was no evidence worth the name to establish that the accident was due to any recklessness or negligence on the part of Shiv Pat. Mr. Harbhagwan Singh, learned Counsel for the Appellant, pointed out that the R. Ws. that is, Shiv Pat, Dharmoli and, Kahna Ram were all in the service of Amin Chand, the owner of the tractor, and would, therefore, be likely to support the Defendants. All the same it has, to be remembered that Dharam Chand himself made a statement before the police to the effect that the death of his son was accidental and while it is just possible that at that time Dharam Chand may not have minded to press the culpability of Shiv Pat, at the same time it is extremely difficult to believe him when he turns round and maintains that Shiv Pat was civilly liable for the supposed rash and negligent act of crushing Jagdish Chander (under the tractor.

The next point emphasised by Mr. Harbhagwan Singh was that Shiv Pat, as admitted by him, did not have a licence for driving a tractor, though he had a licence for driving a motor car, but this circumstance is neither here nor there when no rashness or negligence on the pan of Shiv Pat can be, established by the Plaintiff.

Mr. L. M. Suri, learned Counsel for Respondent No. 3, pointed out that when the driver of the vehicle did not have a licence for the driving of the tractor, the insurance company could not be legally made liable even if the driver is shown to be negligent. Mr. Suri further pointed out that the claim Petition enclosing, as it did, merely the police report (Exhibit D. A.) as well as the post mortem, did not set out any rashness or negligence on the part of the driver, and, therefore, as was held in Mansha Ram v. Tej Bhan 1957 P.L.R. 372 the evidence led by the Plaintiff could not be looked into, upon the question of rashness or negligence.

The result, therefore, is that the decision of the Tribunal is upheld and the appeal dismissed with costs.