Kalyani Mondal and Others vs National Insurance Co. Ltd. and Others

Debasish Kar Gupta, J.—Both the above appeals arise out of the one and same accident claiming compensations u/s 140 and u/s 166 of the Motor Vehicles Act 1988 respectively. Both the appeals are taken up for final hearing analogously.

FMA No. 663 of 2003 is preferred assailing the judgment and award dated June 17, 2002 passed by the Learned Judge, Motor Accident Claims Tribunal, Bankura in MAC case No. 8/164 of 2000/2002. The above case was dismissed by the Learned Court below on contest.

The appeal bearing FMA No. 1584 of 2003 is directed against the judgment and award dated May 7, 2003 passed by the Learned Judge, Motor Accident Claims Tribunal, Bankura in MAC case No. 165 of 2000. The above case was also dismissed on contest.

One Dilip Kr. Mandal, Since deceased, of village Ardhagram, P.S. Majia, District Bankura sustained serious injury arising out of motor accident on March 28, 2000 at about 7 p.m. He was shifted to Raniganj Maroari Hospital and he succumbed to his injuries there. A post mortem was held at Ranigang sub-divisional Hospital. According to the appellants, the victim was knocked down by a truck bearing registration No. WMH/7341 due to its negligent and rush driving at Shampur Morrum Road. According to the appellants late Dilip Kumar Mandal was the only earning member of the family.

The appellant No. 1 deposed in the claim petition filed u/s 140 of the Motor Vehicles Act, 1988 as PW 1. According to the PW 1, one Nityananda Mandal of village Majia, District Bankura lodged the First Information Report at the concerned police station. One Gautam Mandal deposed in connection with the above claim petition as P.W. 2 claiming to be eye witness.

The appellant No. 1 and the aforesaid Goutam Mandal deposed before the Learned Tribunal in connection with the MAC case No. 165 of 2000 also as PW 1 and PW 2 respectively.

Appearing on behalf of the appellants Mr. Krishanu Banik, Learned Advocate, submits that the fact of accident as also the cause of death of late Dilip Kumar Mandal was proved before the learned Tribunal. According to him, normally it is for the plaintiff to prove the negligence but as in some case considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. According Mr. Banik mentioning of registration number of the vehicle in the FIR was not necessary. He further submits that though the name of the eyewitness was not mentioned in the FIR, there was no reason to disbelieve his evidence.

Mr. Banik Relies upon the decisions of Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, , Bishan Devi and Ors. v. Sirbaksh Singh and Anr. reported in AIR 1979 SC 1862, : (1980) 1 SCR 300 , Laxmi Gontiya and Another Vs. Nand Lal Tahalramani and Others, , Beni Bai and Another Vs. Chhandilal and Another, and Bimla Devi and Ors. v. Punjab State and Ors. reported in 2002(2) T.A.C. 571 in support of his above submissions.

On the other hand Mr Rajesh Singh, the learned Counsel appearing on behalf of the respondent No. 1, submits that the claim petitions filed under Sections 140 and 166 of the Motor Vehicles Act, 1988 respectively were dismissed on contest by two separate learned judges. Mr. Rajesh Singh further draws our attention towards the contradiction in the dispositions of PW 2 in connection with the aforesaid two applications. In connection with the application u/s 140 of the Motor Vehicles Act 1988, PW 2 deposed that the place of accident was completely under darkness at the time of accident and he was the only person present at the accident point at the material point of time. While in course of adducing evidence in connection with the application u/s 166 of the Motor Vehicles Act 1988, the same PW 2 deposed that at the time of accident, the road was illuminated and 2/3 other persons, namely, Kabul Chatterjee, Bani Ghosh and others were present at the place at the time of accident. He further submits that apart from the above contradictions, the cause of injury and the death of Late Dilip Kumar Mandal involving the truck bearing registration No. WMH/7341 had not been proved.

We have heard the learned Counsel appearing for the respective parties as also considered the facts and circumstances of this case. We find that the learned Tribunal dismissed the claim petition filed u/s 140 of the Motor Vehicles Act, 1988 on the ground that there was contradiction with regard to the description of the vehicle which allegedly caused the death of the victim. In FIR it was described as "Dumper". In the charge-sheet it was mentioned as the truck under reference without pointing out any defect in the FIR with regard to the description of the same. The person who had lodged the FIR, namely, Nitya Nanda Mandal was not examined.

Since we are hearing the claim petitions under Sections 140 and 166 respectively of the Motor Vehicles Act, 1988 analogously, we cannot ignore the contradiction in deposition of PW 2, namely, Goutam Mondal. While deposing in respect of the claim petition filed u/s 140 of the Motor Vehicles Act, 1988, he claimed to be the only eye-witness of the accident under reference. But at the time of adducing evidence in connection with the claim petition u/s 166 of the Motor Vehicles Act, 1988, he deposed that there were 2/3 other persons, namely, Kabul Chatterjee, Bimal Ghosh and others at the time of accident in the place of accident. While deposing in connection with the aforesaid former claim petition, PW 2 deposed that the place of accident was completely in dark at the time of accident. While in the later claim petition he deposed that the place of accident was illuminated at the time of accident.

In accordance with the provisions of Section 59 of the Indian Evidence Act, 1872, all facts except of documents or records, may be proved by oral evidence. Further, in accordance with the provisions of Section 60 of the above Act, oral evidence must, in all cases whatever, direct, that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who saw it.

Applying the above provisions of law in the facts and circumstances as discussed herein above we have no hesitation to hold that the evidence on record fell short of the requirement of Section 60 of the Indian Evidence Act, 1872, to prove that the truck in question bearing reference No. WMH/7341 had been involved in the accident which caused the death of aforesaid Dilip Kumar Mandal, since deceased.

The decisions of Pushpabai Parshottam Udeshi(supra), Bishan Devi(supra), Laxmi Gontiya(supra), Beni Bai(supra) and Bimla Devi(supra) have no manner of application in this case. Because the proof of involvement of the alleged offending vehicle in the accident was not subject matter of scrutiny of the court in any of the above decisions.

The appeals are, therefore, dismissed. There will be, however, no order as to costs.

Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.

Ashim Kumar Banerjee, J.

I agree.