THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A No. 360 of 2004 Dt.27.08.2009 Between: Mohd. Abdul Basheer Khan @ Basheer Khan and others. .. Appellants And Mohammed Ahmed and another. Respondents THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A No. 360 of 2004 Judgment: (per Hon’ble Sri Justice B. Chandra Kumar) This appeal is directed against the judgment dated 29.09.2003 passed in O.P. No. 1040 of 2000 by the Motor Accidents Claims Tribunal (District Judge), Nizamabad, whereby and whereunder the Tribunal dismissed the petition filed by the appellants herein, under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.15,00,000/- on account of the death of Mohd. Abdul Jabbar Khan @ Jabhar Khan in a motor vehicle accident. The parties hereinafter will be referred to as they are arrayed before the Tribunal for the sake of convenience. The brief facts of the case are as follows. On 26.02.1999, the deceased Mohd. Abdul Jabbar Khan @ Jabbar Khan was proceeding on his scooter bearing No. AAJ 6087 from Biloli to Bodhan. The deceased was driving the scooter and one Achyut Rao, who was examined as PW.2, was a pillion rider. When the scooter reached Karlaphata at about 9.00 PM on Biloli-Bodhan road, the lorry bearing No. AP 25/T-6541 being driven by its driver in a rash and negligent manner came at high speed towards wrong side and dashed against the scooter, as a result of which, the deceased sustained multiple grievous injuries including head injury and died on the spot. The pillion rider of the scooter Achyut Rao (PW.2) also sustained fracture and other multiple injuries. Alleging that the accident occurred due to rash and negligent driving of the lorry driver, the claimants 1 to 7 filed the claim petition. It is their further case that the deceased was hale and healthy and as on the date of accident he was aged about 30 years and doing agriculture and that he was also the proprietor of Bharat Steel Furniture Works. He was also doing business as Wooden Contractor and was running dairy farm and earning Rs.1,50,000/- per annum from all sources. It is also their case that the deceased was contributing his entire income and earnings to the claimants for their maintenance. Contending that due to sudden demise of the deceased, the claimants have lost their source of livelihood and all future hopes, they filed the claim petition claiming compensation of Rs.15,00,000/- from R1 the owner of the lorry and R2 the Insurance Company jointly and severally. The first respondent owner of the lorry filed counter admitting the involvement of the lorry in the accident and also the death of the deceased. Of course he further contended that he has no knowledge about the age, avocation and earnings of the deceased. It is also contended that the lorry driver was having driving licence at the time of accident and that in case if any compensation has to be paid since the lorry was insured with the second respondent, the second respondent is liable to pay compensation to the claimants. The second respondent filed counter and denied the material averments made by the claimants. The second respondent also contended that the driver of the lorry was not having valid driving licence at the time of accident and therefore it is not liable to pay the compensation to the claimants. The insurance company also denied the averments of the claimants with regard to age, occupation, income of the deceased and further contended that their claim is highly excessive and arbitrary. Originally, the following issues were framed by the Tribunal for trial. 1) Whether the petitioners are entitled to compensation sought for? 2) To what relief the petitioners are entitled to? On behalf of the claimants, Pws.1 and 2 were examined and Exs.A1, A1(a), A2 to A5, A5(a) and A6 were marked. Initially none were examined on behalf of the Insurance Company and no evidence was adduced on its behalf. Initially, the Tribunal allowed the petition in part and awarded compensation of Rs.10,52,500/- fastening the liability on the respondents and directing the Insurance Company to pay the said compensation amount. Aggrieved by the said judgment and decree dated 06.03.2002, the second respondent-Insurance Company filed appeal in AAO No.3760 of 2002, and this Court allowed the said appeal filed by the Insurance Company and remanded the matter to the Tribunal with a direction to receive additional evidence proposed to be adduced by the Insurance Company in connection with the allegation of fraud and dispose of the OP afresh expeditiously in accordance with law. It appears that the Insurance Company specifically alleged fraud and stated that the lorry was not involved in the accident and that the involvement of lorry is an after thought plan to get compensation from the Insurance Company. Under the above circumstances, it appears that the matter was remanded to the Tribunal. After remand, on behalf of the Insurance Company, the Administrative Officer of the Insurance Company was examined as RW.1 and Exs.B1 to B5 were marked. After closure of the evidence of the Insurance Company after remand, the claimants did not choose to examine any further witness to rebut the evidence adduced by the Insurance Company. The Tribunal framed the following points for consideration. (1) Whether the lorry bearing No.AP 25/T-6541 belonging to the first respondent was involved in the accident? If so, whether accident took place due to the rash and negligent driving of the said lorry? (2) Whether the petitioners are entitled to compensation? If so to what amount and against whom? The Tribunal, on appreciation of the oral and documentary evidence and considering Exs.B1 to B3, came to the conclusion that the earliest version of PW.2 that the scooter hit a bullock cart and there is no involvement of lorry in the accident is correct. The Tribunal finally came to the conclusion that there is no involvement of lorry in the accident and therefore, the Insurance Company is not liable to pay compensation to the claimants. Aggrieved by the same, the present appeal has been filed. Sri S. Satyam Reddy, learned counsel for the Claimants, submitted that the police recorded the statements of persons who were in the bullock cart at the time of accident and basing on the same a case was registered against the driver of the lorry and that the driver of the lorry who was prosecuted has admitted his guilt and in the above circumstances, the involvement of lorry cannot be disputed. It is also his submission that merely because PW.2 did not mention about the involvement of the lorry in his earliest version, his evidence cannot be discarded. It is also his contention that since PW.2 appears to be in shock, he did not reveal the true facts immediately after the accident. He has relied on a judgment reported in Krishan Gopal v. Sandhya Devi[1] in support of his contention that when an eye witness is examined, the version of the eye witness cannot be discarded merely because some other version has been given in the first information report. The learned counsel for the second respondent-Insurance Company supported the judgment of the Tribunal and submitted that it is clear that fraud has been played to make illegal claim of compensation. The only point that arises for consideration is whether the involvement of lorry in the accident has been proved. It is not in dispute that the deceased sustained injuries on 26.02.1999 and died. It is also not in dispute that PW.2, who was a pillion rider, reported the matter to the police. The report of PW.2, marked as Ex.B1 addressed to the Deputy Superintendent of Police dated 26.02.1999 i.e., on the date of accident, clearly goes to show that he had stated at the earliest point of time that he along with the deceased were proceeding on the scooter driven by the deceased and when they were near Karlaphata the accident occurred when their scooter hit a bullock cart and that the deceased died in the said accident. Ex.B2 is the certified copy of FIR, which shows that basing on the report of PW.2, the police registered a case in Crime No. 23 of 1999 of PS Biloli on 26.02.1999. The police held inquest over the dead body of the deceased from 6.15 AM to 7.00 AM on the next day morning. As seen from the contents of Ex.B3 one Gafoor Khan, brother of the deceased and PW.2 were present at the time of inquest. The contents of Ex.B3 also go to show that the accident occurred when the scooter hit the bullock cart. There is no whisper about the involvement of the lorry in Ex.B3. Coming to the evidence adduced by the claimants, the alleged eye witness Achyut Rao was examined as PW.2. According to PW.2 on the date of accident, he was accompanying the deceased as pillion rider while the deceased was driving the scooter. His specific case is that when they reached Karlaphata at about 9.00 or 10.00 PM the lorry bearing No. AP 25/T 6541, being driven by its driver, came at high speed in a rash and negligent manner in wrong side and dashed against the scooter. His evidence further shows that the deceased died on the spot. According to him he was examined by the police. He further admitted that he had given complaint to the police in connection with the accident. It has to be seen that PW.2 did not whisper at the earliest point of time that the lorry hit their scooter. But he had categorically mentioned in his report that the scooter hit the bullock cart and did not explain that under what circumstances he had stated in Ex.B1 that the scooter hit the bullock cart. Particularly, when the Insurance Company adduced evidence and examined RW.1 and marked Exs,.B1 to B5 it was obligatory on the part of the claimants to adduce further evidence. They ought to have recalled PW.2 and ought to have sought his explanation with regard to discrepancy between his oral evidence and the contents of Ex.B1. The version of the claimants is that the persons who were proceeding in the bullock cart had witnessed the accident and that they informed the police that the lorry first hit the scooter and then the scooter dashed against the bullock cart. It has to be seen that the claimants have not examined any one of those persons who claims to have spoken about the involvement of the lorry in the accident to disprove the contents in Exs.B1 and B3 and to prove the involvement of the lorry. In Krishan Gopal’s case (1 supra), relied on by the learned counsel for the claimants, PW.5 – Rewati Devi the only eye witness was examined who had specifically spoken that appellant No.2 had driven the vehicle. However, the trial Court accepted the evidence of appellant No.2 that he was a pillion rider while the deceased was driving the scooter and consequently came to the conclusion that the complainant had not been able to prove that the appellant No.2 was responsible for the accident in which the deceased died and, therefore, rejected the claim petition of the respondents therein. The High Court, however, in appeal accepted the version as narrated by PW.5 Rewati Devi and has come to a definite finding that it was not the deceased, but appellant No.2 who was, in fact, driving the scooter. The High Court, therefore, disagreed with the finding of the Tribunal that the deceased himself was responsible for the accident. When the matter was carried to the Supreme Court, the Hon'ble Supreme Court held that the view taken by the High Court, relying on the evidence of PW.5, does not appear to be improbable. It was further held that PW.5 was the only eye witness to the actual incident and, therefore, the version given by the only eye witness was rightly accepted. The facts of that case are entirely different and not applicable to the facts of the case on hand. In this case, the version of PW.2 given before the Court is quite contrary to his own earliest version. Of course, PW.2 claims that he has witnessed the accident. It is the case of the claimants that not only PW.2, but two others have also witnessed the accident, who were said to be travelling in the bullock cart. Admittedly, those two persons were not examined by the claimants. So, it is not the case of the claimants that there was only one eye witness i.e., PW.2 in this case. The version of PW.2 as rightly observed by the Tribunal cannot be accepted, because PW.2 himself at the initial stage did not whisper anything about the involvement of the lorry. His categorical case as seen from Exs.B1 and B2 is that the accident occurred when the scooter hit the bullock cart at 9.00 PM. Therefore, the version of PW.2 before the Court involving the lorry is clearly an after thought after the inquest and to support the case of the claimants. If at all the lorry was involved in the accident nothing prevented the persons travelling in the bullock cart or PW.2 to give a report to the police showing the involvement of the lorry as alleged. It is not the case of PW.2 that he became unconscious after the accident. It is also not his case that the persons travelling in the bullock cart did not come to their rescue after the accident or that he had no opportunity to talk to them. Therefore, the changed version involving the lorry after the inquest appears to have been brought only to claim compensation from the Insurance Company. In view of that, we are of the view that there are no merits in the appeal and the same is liable to be dismissed. Accordingly, the appeal is dismissed. No costs. ___________________ A. GOPAL REDDY, J. _______________________ B. CHANDRA KUMAR, J. Date: 27.08.2009. Nsr [1] AIR 2009 SC 1852