1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- J U D G M E N T CIVIL MISC. APPEAL No. 603 of 1997 SMT. PUSHPA DEVI & ORS V/S SMT. GURMEET KAUR & ANR Date of Judgment : 16.3.2009 HON'BLE SHRI N P GUPTA,J. Mr. NK RASTOGI, for the appellant / petitioner Mr. ANIL KAVIRAJ, for the respondent BY THE COURT : This appeal has been filed by the claimant against the award of the Motor Accident Claims Tribunal, Bhilwara dated 14.11.1996 passed in claim case No.168/92 (212/87) dismissing the claim by deciding issue No.1. From a look at the judgment, it transpires that two claim petitions were filed, one by LRs of Ranjeet Singh, and other by LRs of Radheyshyam as both the persons had died in the accident. The necessary facts of the claim No.168 are that the deceased Radheyshyam was driving his truck No.RNJ 427, and was going from Bhilwara to Ajmer, after travelling 2 about 13 kms., he saw truck No.DIL 2007 coming from opposite direction in a fast, and uncontrolled speed, therefore, he stopped his truck on left side of the road, rather on Kuccha portion thereof, but the truck No.DIL 2007 dashed against it. In this accident, he received injuries, and during treatment, he died. That truck was being driven by Ranjeet Singh, who also died in the same accident, and for his death, the claim No.169 has been filed. No reply was filed on behalf of the owner, and the insurer admitted the factum of insurance, and pleaded that the deceased died on account of his own negligence, and that the driver of truck No.DIL 2007 was not holding valid driving licence, rather the truck was being driven by cleaner, and therefore, the claim be dismissed. The learned Tribunal framed 5 issues, out of which issue No.1 related to negligence of driver of truck No.DIL 2007, while issue No.2 was regarding negligence of driver of truck No.427. Both the issues were decided together by learned Tribunal. On the aspect of negligence, the claimants produced site plan, and site inspection note, prepared by the police, as Ex.2 and 3, and had also produced a document, being Parcha Kayami Mukadma, prepared by the SHO, which is certified copy, but has not been exhibited as such, in oral evidence, produced Kundan Lal, the younger brother of the deceased, who has proved these 3 documents from the file of FIR No.64/87 of Police Station Banera, and has deposed the facts, about his having seen both the trucks lying on the road in the manner that truck No.427 was standing on the left side of the road, its left tyres were off the road, road at that place was 22 ft. wide, and he saw that the truck No.DIL 2007 was standing on the wrong side, duly banged in the truck No.427, and that on the left side of truck No.2007 there was space available on the road. He was cross-examined, wherein he stated that at the time of accident, he was not there, but he went there at the time of preparation of site inspection note. He has denied the suggestion, about truck No.427 being there on the wrong side of the road. He has admitted that he did not sign the site inspection note. The learned Tribunal after referring to the statement of Kundan Lal held that since Kundan's signature did not appear in the site inspection note, therefore, it cannot be believed that at the time of preparation of site inspection note, he was there, rather he being younger brother of the deceased, is interested witness. Thus, his version has been assumed to be a concoction. Then the contents of Ex.2 have been noticed in detail, and then it has been found that in either of the claim petitions, copy of the FIR has not been produced, and had that been produced, it could have been clear, as to how the accident occurred, and there is no reason for not producing the FIR. 4 With this background, it has been concluded, that from the statement of Dara Singh recorded in claim No.169, and of Kundan recorded in claim No.168, negligence on the part of the driver of truck No.2007 is not established. Consequently, the other issues have been resultantly decided against the claimants, instead of deciding them on their own merits, and the claim petition has been dismissed. I have heard learned counsel on either side, and have gone through the record. From the record, I find that FIR is available at page C-5/2 of the record, which is a certified copy, it is in the form of Parcha Kayami Mukadma, to the effect, that at 7 AM, the SHO received a wireless message about accident having occurred at Bhilwara-Ajmer road between two trucks, and some 3-4 persons having died. Thereupon, the SHO along with the constable No.162 Kanhaiya Lal went from Bhilwara, and reached the spot, where on the road, one truck facing towards Ajmer was standing on the left side of the road with damaged front, being truck No.RNJ 427, and opposite that, truck No.DIL 2007 was standing in the mid of the road, facing towards Bhilwara, wherein different bodies of two persons were entangled, and one dead body was lying on the road. It was observed that the deaths have occurred on account of rash and negligent driving of the trucks, therefore, finding a case under Section 279 and 304A IPC, 5 the investigation was commenced, and FIR case No.64/87 was registered, and further proceedings were taken. It is significant to note that from a reading of the statement of Kundan, which were recorded in two parts, it is clear that for proving Ex.2 and 3, the original file of FIR No.64/87 of Police Station Banera was called. In such circumstances, this much is clear, that may be that FIR, as available on record, has not been formally proved, but then the document is very much available, and it does not disclose anything, as expected by the learned Tribunal to be disclosed, as to how the accident occurred, rather it only shows, that wireless message was received by the SHO, whereupon he went on the spot, and found the things as noticed therein. Obviously these very things are noticed in the site inspection note, and site plan Ex.2 and 3, therefore, the basic reason given by the learned Tribunal about non- production of FIR cannot be sustained. Then so far as the question of evidence on the aspect of negligence is concerned, it is clear on record that the occupants of both the trucks have expired in the accident, and obviously therefore, no other evidence was available, who might have seen the accident taking place. That being the position, the site inspection note, and site plan, depicting the things as they have been found on the spot, are the million dollar piece of evidence, to enable the Court to decide the matter, one way or the other. It is 6 imminently a fit case, wherein the doctrine of res-ipsa- loquitur is attracted with all force. If on those parameters, the two documents are seen, rather even barely seen, without putting much of stress either-ways, it is clear, that the truck No.427 is standing on its correct side, rather having both left wheels off the road, and leaving 15 ft. wide dammer road to provide clear passage to the traffic coming from the opposite direction. As against this, the delinquent truck No.DIL 2007 is standing in the mid of the road, inasmuch as, on the right hand side of that truck, there is 7 ft. wide dammer portion on the rear side, and 9 ft. wide dammer portion on the front wheel side. While 8 ft. and 7 ft. wide portion of the dammer road is still clearly available on the left side of truck No.2007, which does clearly show, that rather complete space for having clear passage of that truck No.2007 was still available on the road, on the left side thereof. Obviously meaning thereby, that truck No.2007 was being driven in the mid of the road, and by rather coming on a wrong side, dashed against the truck No.427, which is clearly an act of negligence in driving truck No.2007. It is also significant to note, that in the site inspection note, Ex.3, no skid marks of application of brakes have been found behind truck No.2007, which also shows, that the driver of truck No.2007 even did not take any steps to avert the possible accident, which was looking writ large. Thus, in my view, the finding recorded by the learned 7 Tribunal on issue No.1 cannot be sustained, and is required to be reversed, and is accordingly, reversed. Since the learned Tribunal has not given any findings on the other issues, about quantum of compensation etc. on their own merits, I am left with no option but to allow the appeal, and remand the matter back to learned Tribunal for deciding the other issues afresh and pass appropriate award of compensation. It is unfortunate on the part of the learned Tribunal, that it did not care to decide the other issues on their own merits, with the result, that despite it being an accident of 1987, the claimants are left high and dry for more than two long decades. The result of the aforesaid discussion is, that the appeal is allowed, impugned award is set aside, and he issue No.1 is decided in favour of the claimants, and the matter is remitted back to the learned Tribunal for deciding other issues afresh, on their own merits, and passing award for appropriate amount of compensation. Since the claim relates to 1987 learned Tribunal is directed to decide the matter most expeditiously. The parties are directed to appear before the learned Tribunal on 27.4.2009. ( N P GUPTA ),J. /tarun/