Fatima & Anr. vs Yusuf & Ors.

Parmod Goyal, J.

Appellants/claimants are aggrieved by award dated 14.01.2005, passed by learned Motor Accident Claims Tribunal, Gurgaon (hereinafter referred to as ‘Tribunal’) vide which claim petition preferred by appellants/claimants was dismissed.

Appellants/claimants had sought compensation under Section 166 of Motor Vehicles Act, 1988 for untimely death of Mustaq (hereinafter in referred to as ‘deceased’) aged six years old in motor vehicular accident dated 29.10.2000, allegedly caused by rash and negligent driving of respondent/driver while driving Esteem car bearing registration No.DL-2CD-5923 (hereinafter referred to as ‘offending vehicle’).

It was the case of appellants/claimants that on 29.10.2000 at about 1:00 PM, deceased was standing on the left side of the road in the area of Village Aterna Samsabad, when all of a sudden, offending vehicle came from Badkali Chowk side being driven rashly and negligently at high speed by respondent/driver and had hit the deceased resulting into multiple injuries and his consequential death on 30.10.2000. After causing the accident, respondent/driver fled away from the spot. Accordingly, compensation of Rs.5,00,000/- was sought on account of death of deceased.

Respondent/driver contested the claim petition and claimed that his vehicle was not involved in the accident and accident was caused by some other vehicle. It was asserted that his car had not passed through place of accident at the alleged time, date and place. It was claimed that car was hired for a marriage party from Village Ranika to Village Jhimrawat and had started at 10:00 AM with five persons of marriage party. He passed from Badkali Chowk at about 10:30 AM and reached near Village Jhimrawat at about 11:00 AM. Thereafter, car remained in Village Jhimrawat for the whole day and they returned back at about 6:00/6:30 PM from village Jhimrawat. It was further claimed that on said date, ten cars had gone to Village Jhimrawat from Village Ranika out of which four of the said cars were white coloured and one more car was Esteem. It was asserted that vehicle of respondent/driver was falsely involved on the instigation of one Iqbal-Chairman who is son-in-law of MLA. Written statement preferred by respondent No.1 was adopted by respondent No.2A.

Respondent No.3-Insurance company had also opposed the claim petition and took an additional ground that respondent/driver was not holding valid and effective driving licence and had violated the terms and conditions of insurance policy.

Learned Tribunal had decided issue No.1 regarding involvement, rashness and negligence of driver of offending vehicle against appellants/claimants and accordingly, claim petition was dismissed.

Learned counsel for appellants/claimants has argued that learned Tribunal had erred in not appreciating the evidence of PW1 – Kundan who is the grandfather of the deceased and the fact that it is respondent/driver who is facing trial for causing the accident after due investigation by police in FIR dated 127 of 2000 dated 29.10.2000 (Ex.P1) which was lodged promptly against offending vehicle and driver.

On the other hand, learned counsel for respondents has argued that the onus to prove rash and negligent driving on the part of respondent/driver and to show involvement of offending vehicle was on the appellants/claimants and the appellants/claimants had failed to discharge the said onus by leading cogent and reliable evidence. Mere fact that respondent/driver is facing trial would not substitute substantive evidence as regards to involvement of offending vehicle and its driver in the accident as well as rash and negligent driving. It was asserted that in FIR (ExP1), neither name of respondent/driver nor number of offending vehicle was mentioned and subsequently offending vehicle and respondent/driver were falsely implicated in the present case.

In order to prove the accident to be result of rashness and negligence of respondent/driver while driving the offending vehicle, appellants/claimants have placed reliance upon evidence of PW1-Kundan who happens to be grandfather of deceased and also author of FIR (Ex.P1). He in his testimony while appearing as PW1 had asserted that on 29.10.2000 at about 1:00 PM he along with his grandson (deceased) was standing on kacha portion of road near his house. They were standing on the correct side of the road and in the meanwhile Esteem car bearing registration No.DL-2CD-5923 came from Badkali Chowk side, being driven rashly and negligently by respondent/driver at high speed and said vehicle hit the deceased who was thrown to some distance due to the impact due to which he sustained multiple injuries. Respondent/driver had stopped for a while but sped away thereafter. After the accident deceased was taken to Nagina Hospital from where he was referred to Gurgaon, however, he died on the next day i.e. on 30.10.2000. PW1 also claimed to have lodged FIR dated 29.10.2000. In his cross-examination, PW1 specifically stated that he had given registration number of Esteem car as well as gave name of driver as he was familiar with him in FIR itself. He had further asserted that Esteem car was carrying a ‘Baraat’ from Village Ranika to Village Jhimrawat through Badkali Chowk. He claimed that other vehicle which was part of ‘Baraat’ had already passed and offending vehicle was the last vehicle. He specifically denied the suggestion that offending vehicle had passed the site of accident at about 10:30 AM and returned near about 6:30 PM or that accident was caused by some other vehicle. He also denied that respondent/driver was involved on the asking of Iqbal-Chairman son-in-law of MLA. He denied the suggestion that accident was result of the fault of deceased.

PW3-Constable Ramesh Dutt had placed copy of FIR No.127 dated 29.10.2000 (Ex-P1) registered with Police Station Nagina under Sections 279, 337 and 304A IPC and asserted that challan was filed against respondent/driver Yusuf. PW4-Madan Gopal, Additional Ahlmad in the Court of SDJM Ferozepur, Jhirka had proved that in trial arising from FIR No.127 dated 29.10.2000, registered with Police Station Nagina, charges were framed against respondent/driver-Yusuf under Sections 279 and 304A IPC. That vehicle bearing registration No.DL-2CD-5923 was released in favour of Hassan Mohammad vide Sapurdari application (Ex.P2). Sapurdarinama and sapurdari orders were placed on record as Ex.P3 and Ex.P4. He had also placed copy of final report under Section 173 Cr.P.C. as Ex.P6. PW4 in cross-examination had also stated that accused was arrested on 09.12.2000.

Respondent/driver Yusuf Mohammad had himself appeared as RW3. In his evidence he had stated that on 29.10.2000 he was engaged to carry marriage party from Village Ranika and had started for Village Jhimrawat with five persons at about 10/11:00 AM via Badkali and had reached Jhimrawat at about 11:15 AM. The vehicle was parked at the house of Sarpanch. He claimed that neither he nor his vehicle was involved in the accident and he has been falsely implicated on the asking of Iqbal-Chairman, Block Samiti, Nagina as Iqbal had some dispute with his brother. He claimed to have given application (Mark B) against his false implication in the FIR. He claimed that he was falsely arrested in criminal case after 1 ½ months after the accident as initially the investigating officer H.C. Ram Pal had refused to falsely implicate him in the present case and it was subsequently under the pressure of Iqbal-Chairman, he was falsely implicated.

Respondent/driver had also examined Azeej Akhtar as RW4 in support of his case who claimed that he was travelling in the Esteem car being driven by respondent/driver on 29.10.2000. He also claimed that they had passed Badkali Chowk at about 10/11:00 AM and no accident had taken place. That there were about 50 cars in the ‘Baraat’ and they had started back after about 6/6:30 PM.

RW5-Constable Rajesh Kumar had brought complaint register maintained in DSP Office, wherein application given by Yusuf son of Ahmad dated 03.11.2000 was duly entered at serial No.121. As per said entry in the register, complaint was in respect of false implication of vehicle belonging to complainant in an accident case. Vehicle number was No.DL-2CD-5923. Complaint was marked by DSP, Ferozepur, Jhirka to SHO, Police Station Nagina for inquiry and report. Entry in complaint register was placed on record as Ex.P4. Endorsement made by DSP, Ferozepur, Jhirka upon complaint was placed on record as Ex.P5.

On appreciation of above noted evidence led by both the parties, learned Tribunal had concluded that PW1- Kundan in statement before the Court had claimed that registration number of vehicle as well as name of driver was duly disclosed by him in FIR, however, perusal of FIR (Ex.P1), rather goes to show that neither the name of vehicle nor registration number of offending vehicle was stated therein. Since evidence of PW1 is contrary to the contents of FIR and no reasons were given as to why registration number and name of driver of offending vehicle was not mentioned in the FIR, therefore, evidence of PW1 regarding involvement and manner of accident is not reliable.

Learned Tribunal had also taken note of the complaint made by respondent/driver dated 03.11.2000 to DSP against his alleged false implication in the accident dated 29.10.2000. He had claimed that effort is being made to falsely implicate his vehicle, whereas on the date of accident 4 white coloured cars had passed from the place of accident being part of ‘Baraat’. Learned Tribunal had taken note of the fact that evidence of RW3 is corroborated by evidence of RW4 and accordingly, evidence of RW3 and RW4 were taken to be trustworthy over the evidence of PW1.

On appreciation of evidence noted above as well as conclusion drawn by learned Tribunal, it is clearly made out that while lodging FIR (Ex.P1) on the same day of occurrence i.e. on 29.10.2000, its author PW-1 -Kundan had not disclosed either vehicle number or name of driver, as was named by him while appearing as PW1. In FIR (Ex.P1), contents of which are not denied by PW1 to be wrong or not as per his complaint, the time of occurrence was stated to be about 1:00 PM near Badkali Chowk and it was claimed that one Esteem car which had come from Badkali Chowk side being driven rashly and negligently at high speed had hit his grandson (deceased) and had fled away. He had specifically stated while lodging FIR, that at the time of accident he could not note down the car number and driver’s name, whereas while appearing as PW1, author of FIR had claimed that he had duly noted the driver’s name as well as vehicle number and had disclosed the same to police while lodging FIR.

The investigating officer of FIR No.127 has not been examined to disclose as to how and in what circumstances, name of respondent/driver and number of offending vehicle had come to knowledge of I.O. as to proceed against them. No other eye witness or any other witness disclosing vehicle number and identity of respondent/driver had been examined or disclosed by appellants/claimants. Though appellants/claimants in the present case have succeeded in proving that Esteem car had hit the deceased, however, had failed to prove that deceased was hit by none else but car bearing registration No.DL-2CD-5923 being driven by respondent/driver. Involvement of offending vehicle as well as respondent/driver has not been proved even on the standards of proof i.e. preponderance of probability. It was the duty of appellants/claimants to explain as to how number of vehicle and name of respondent/driver had come to the knowledge of police and that whether it was disclosed by some witness or it was result of investigation made by police. However, there is no evidence which has been led by appellants/claimants to prove this fact. The fact that on 03.11.200 within four days of accident, respondent/driver had already made a complaint against alleged attempts for false implication in the accident. The version of respondent/driver that accident was not caused by him, had come in public domain by way of complaint (Ex.R5) and has gone unrebutted. The non-examination of investigating officer in the facts and circumstances of the present case, especially when the assertions of PW1 that he had disclosed the number of offending vehicle as well as name of driver who was known to him at the time of lodging FIR, stands rebutted by contents of FIR is fatal to case of claimants. Rather in FIR, statement was made by PW1 that he could not note down number of vehicle or particulars of driver.

From the evidence noted above, it is therefore, clearly made out that involvement of respondent/driver and offending vehicle was made subsequently to accident only to get the compensation. Therefore, appellants/claimants have failed to prove involvement of offending vehicle as well as rash and negligent driving on the part of respondent/driver. The appreciation of evidence by learned Tribunal therefore, cannot be faulted with. Same is upheld.

Appeal is without merit, hence is dismissed.

Pending application(s), if any, is/are disposed of accordingly.