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Kitabo & Ors v. Tehal Singh & Ors - FAO-273-1986 [2006] RD-P&H 4293 (18 July 2006)


FAO 273 OF 1986


Kitabo and others .......Appellants.


Tehal Singh and others .......Respondents CORAM:- HON'BLE MR.JUSTICE S. D. ANAND
PRESENT: Mr.Ashwani Kumar Bura, Advocate for the appellants.

Mr.Namit Gautam, Advocate for respondents No.1 and 2.

Mr.Neeraj Khanna, Advocate for respondent No.3.


The claimants (widow and two minor children of deceased Naib Singh) are in appeal against the impugned award dated 9.11.1985 vide which they were non-suited on a finding of want of evidence to prove that the impugned accident had been caused by respondent No.1 driver Tehal Singh.

Deceased Naib Singh, who was in the employment of the Electricity Department as an Assistant Lineman, was proceeding on his cycle from Salpani towards village Thaska on 8.1.1985 when he was involved in an accident and died due to the injuries sustained in the course thereof. It was Om Parkash (PW) who found the dead body and also the cycle of the deceased which was found lying by the road side. He lodged an FIR No.12 dated 9.1.1985, under Sections 279/304-A of the Indian Penal Code with the Police of Police Station Thaska. It was in the course of investigation by the Police that it transpired that the accident had been caused by respondent No.1-Tehal Singh by having driven his new tractor at FAO 273 OF 1986 2

a rash speed and in a negligent manner.

Claimants raised a plea for award of compensation to the tune of Rs.3 lacs on an averment that they were dependent on the deceased only for sustenance. The monthly income of the deceased was averred in the petition to be Rs.1080.70/-. The claim was raised against respondent No.1 Tehal Singh, respondent No.2 Kala Singh and New India Assurance Company in their capacity as driver, registered owner and Insurer respectively of the offending vehicle.

Respondents No.1 and 2 denied the very involvement of the allegedly offending vehicle in the impugned accident. It was otherwise conceded that the tractor owned by respondent No.2 was under the Insurance cover with respondent No.3. The further averment was that the FIR lodged in the context is false.

Respondent No.3 Insurer also denied the averments made by the claimants on merits. A plea for exoneration from liability was raised on an averment that respondent No.1 did not hold a valid driving licence at the time of the impugned accident and that the insured vehicle was being used at the relevant point of time for purposes other than those prescribed under the Motor Vehicles Act. The plea, in short, was that the Insurer is exonerated from the liability as the vehicle was being driven in violation of the terms and conditions of the Insurance Policy.

The trial proceeded on the following issues:

1. Whether the claimants are the only legal heirs of Naib Singh deceased? OPP.

2. Whether the accident had been caused on account of the rash or negligent driving of the tractor belonging to respondent No.2 and which was being allegedly driven by respondent No.1 at the time of the accident? OPP

3. To how much amount of compensation are the claimants entitled to recover and from whom? OPP

4. Whether the proper court fee has not been paid? OPR1 and 2.

5. Whether the claim petition has not been property presented? FAO 273 OF 1986 3

OPR 1 and 2.

6. Whether the liability of the respondent No.3 is limited? If so, to what extent? OPR3

7. Whether the driver of the offending vehicle had no driving licence? If so, to what effect? OPR3

8. Whether the claim petition s liable to be dismissed for the reasons given in preliminary objections No.2 and 5? OPR3

9. Whether the claim petition is bad for non-joinder of necessary parties? OPR3

10. Relief. The learned Tribunal recorded findings in favour of the claimants under Issue No.1. Issues No.4,5,7 to 9 were not pressed. Under Issue No.2, the finding recorded was that the claimants have not been able to prove that the impugned accident had been caused by respondent No.1 by driving the offending vehicle rashly and negligently.

I have heard learned counsel for the parties and have perused the file.

The challenge, in the appeal before this Court, is only with regard to the finding recorded by the Tribunal under Issue No.2. The findings recorded by the Tribunal under the other issues shall stand affirmed accordingly.

In order to assail that finding, learned counsel for the claimants argued that the Tribunal erred in law for not having attached adequate importance to the fact that the prosecution against respondent No.1 had been launched only after the Investigating Agency found that it was he only who was driving the offending vehicle rashly and negligently at the relevant point of time and had caused the accident thereby. It was also argued that the testimony of PW Ram Karan ought to have been relied upon because he had seen the tractor trolly driven by respondent No.1 at the canal bank where Sunder Lal, Beldar opened the canal bank passage after unlocking the iron chains. While arguing in favour of the applicability of the principle of res-ipsa-loquitur, learned Counsel relied upon Pushpabai Purshottam FAO 273 OF 1986 4

Udeshi and others Versus M/s Rajnit Ginning and Pressing Co. and another, 1977 ACJ 343, Rajanti and others Versus Nihal Singh and others, 2002 ACJ 1921 and Chanda Devi Versus Rajendra Singh and others, 2004 ACJ 634.

The plea was resisted by the learned Counsel for the respondents, who argued that the present is a case of complete want of evidence to prove that any vehicle driven by respondent No.1 had caused the impugned accident. Qua the judicial pronouncements relied upon by the learned counsel for the appellants, it was argued that those have no applicability to the facts and circumstances of the present case.

The plea raised on behalf of the claimants is completely bereft of merit. In the FIR, the registration number of the allegedly offending vehicle was not indicated. The name or identity of the driver of the offending vehicle was also not indicated. In so far as PW4 Tej Pal is concerned, he appears to have been introduced into the case just to advance the case of the appellants. On his own showing, he is an agriculturist and does not follow any (other) business or profession. He claimed to have been to Kurukshetra along with Ram Karan. He would want the Tribunal to believe that he had been to Kurukshetra to purchase some spare parts of the tractor. He does not indicate why the purchase was not made on that day from Kurukshetra. He proceeded to state that he and Ram Karan proceeded from Kurukshetra to Jyotisar from where they went to Thol. It is in his statement that the shop (at Thol) from where the spare parts were to be purchased was lying closed on that day and the other shop-keepers were demanding excessive price for the relevant spare parts. He was not in a position to name the person whom Ram Karan visited that day at Jyotisar.

In order to wriggle out of the embarrassment of having had to explain the purpose for which he had accompanied Ram Karan to Jyotisar, he put forth his explanation that Ram Karan had supplied a machine to that Jyotisar- based person and he had been to that place to check that machine. He was not in a position to indicate the distance either between Jyotisar and Jhansa via canal bank or between Salpani bridge and Jhansa bridge. In so far as Ram Karan is concerned, he did not at all indicate the name of the person whom he visited that day to Jyotisar. On his own showing, he FAO 273 OF 1986 5

manufactures the machine parts which are used in the rice shellers and flour mills. In the normal course of things, he would have been expected to indicate the name of the person to whom he had supplied the relevant machine parts and whom he allegedly visited that day.

It would be pertinent to point out here that respondents No.1 and 2 have presently filed a certified copy of the judgment dated 14.7.1988, vide which respondent No.1 Tehal Singh son of Kala Singh had been acquitted of the charge in case FIR No.12 dated 9.1.1985, registered under Sections 279/304-A of the Indian Penal Code at Police Station Thaska.

The judicial pronouncements relied upon by the learned counsel for the appellants do not advance their case. In Pushpabadi Purshottam Udeshi (supra), the factum of accident was not in dispute. The involvement of that vehicle was also not in question.

In Rajanti and others (supra), the bus had crushed a person.

The driver failed to explain the circumstances under which the impugned accident had occurred. Further, in that case, reliance was placed by the Tribunal upon a statement made by a witness in a criminal case. In the course of that statement, he had pointedly indicated that the bus was being driven by the impleaded respondent. Though that was a statement under Section 161 of the Code of Criminal Procedure, the Rajasthan High Court observed that it gathered importance as the driver thereof had also been examined on oath. The same applies to Chanda Devi's case (supra). Driver in that matter had raised a plea that the accident had occurred due to the own negligence of the deceased. Thus, the above judicial pronouncements are not of any assistance to the claimants.

It was, of course for the claimants to have adduced evidence to connect vehicle belonging to respondent No.2 with the impugned accident.

It could well be done by even proving the sapurdari application. A perusal thereof could have given an idea about whether respondent No.1 had, in the course thereof, raised a plea of denial of involvement of that vehicle in the accident itself or not.

The fact that the investigating agency prosecutes a person on a charge of having caused an accident is a relevant piece of evidence.

FAO 273 OF 1986 6

However, it cannot be said to be conclusive piece of evidence to prove the allegation against the driver. The claimant would be required to adduce corroborative evidence as well in the form of substantive testimony of eye witness.

The present is, thus, a case in which none had witnessed the impugned accident, the registration number of the allegedly offending vehicle is not given in the FIR, the name and identity of respondent No.1 is not indicated in the FIR and respondent No.1 stands acquitted of the charge of having caused the impugned accident by driving the allegedly offending vehicle rashly and negligently. The mere fact that the produced witnesses had seen the tractor trolly driven by respondent not on that route (beyond the site of accident) passing through the canal bank is not sufficient to uphold their testimony particularly when the Tribunal has recorded a well reasoned finding to the effect that a large number of persons residing in the deras enroute also own tractor trolleys. The inference raised thereby was that the mere fact of the allegedly offending vehicle having been passed through that route would not conclusively prove that it had caused the impugned accident. The presence of those witnesses at that time has also not been been proved to be natural. The line of reasoning adopted by the Tribunal in discarding the evidence adduced by the claimants is in order and this Court concurs with the view aforesaid. The finding recorded by the Tribunal under Issue No.2 shall stand affirmed accordingly.

For the foregoing reasons, the appeal fails and is ordered to be dismissed. The parties shall, however, bear their own costs of the cause throughout in the peculiar facts and circumstances of the case.

( S. D. ANAND )

May 10, 2006 JUDGE


FAO 273 OF 1986 7


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