COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32 (2) (b)] Description of Case. A.O. No. 515 of 2001 Smt. Shanti Devi (Deceased) and others. Versus Union of India and others. A.F.R. (Approved for Reporting) Not Approved for Reporting Date :- 2-11-2006 (B.S. Verma, J.) Initials of Judge Reserved Judgment THE HIGH COURT OF UTTRTANCHAL AT NAINITAL. A.O. No. 515 of 2001 Old F.A.F.O.No. 142 of 1989 1. Smt . Shanti Devi Saklani Wife of Late Shiv Prasad Saklani, ( since deceased ) 2. Sri Vinod Kumar Saklani, 3. Sri Dinesh Kumar Saklani, sons of late Shiv Prasad Saklani, All residents of 85/3 Chowdhary Behari Lal Marg, Dehradun. (Claimants) … Appellants. Versus 1. Union of India through the Secretary, Ministry of Defence, Government of India, New Delhi., 2. The Commanding Officer, Unit No. 286, Medium Regiment, Clement Town, Dehradun. 3. Driver No. 1265525 Babaji Gopal Patel, Unit No. 286, Medium Regiment C/O 56 APO. … Respondents Sri B.S. Negi, learned Counsel for the appellants. Sri Pradeep Joshi, Advocate, Learned Counsel for the respondent No.1-Union of India. Date November 2, 2006. P.C. : Hon. B.S. Verma, J. This appeal under Section 110-D of the Motor Vehicles Act, 1939 (for short the Act) is directed against the impugned order dated 17-10-1988 passed by the Motor Accident Claims Tribunal/III Additional District Judge, Dehradun ( for short the Tribunal), in Motor Accident Claim Petition No. 164 of 1986, Shanti Devi and others Vs. Union of India, whereby the claim petition was dismissed. Facts of the case, in brief, are that Shiva Prasad Saklani, husband of claimant no.1–appellant, aged 63 years and a retired pensioner of the Post and Telegraph Department lost his life in a motor vehicle accident on 11.2.1986 involving army vehicle no. 85B 33397 owned by Union of India. According to the claimants the deceased was going from Ballupur Chowk towards Balliwali (Kanwali) on the fateful day at about 6.15 p.m. When he reached in front of Wadia Institute on General Mahadev Singh Road, the offending Army vehicle driven rashly and negligently hit the cyclist- deceased, who sustained fatal injuries and became unconscious. The deceased was rushed to Doon Hospital, where he was declared dead. The claimants filed the claim petition for compensation of Rs. 1,20,000/- on different counts. The opposite party no.2 is the controller of the vehicle and opposite party no.3 is the driver of the offending Army vehicle. The opposite parties no. 1 to 3 resisted the claim petition and filed their joint written statement. However, the allegations made in the claim petitions were died. In the additional pleas, the opposite parties half heartedly admitted the factum of accident by asserting that on the date time and place, the Army vehicle took over the cyclist who suddenly lost balance of the cycle and struck with the rear portion of the Army vehicle and due to the collision the cyclist fell down. On the pleadings of the parties, the learned Tribunal framed following issues: 1. Whether Shiv Prasad Saklani died in an accident with vehicle no. 85B 33397 belonging to O.P.No.1 and driven by opposite party no.3? 2. Whether the accident in question occurred as a result of rash and negligent driving by the driver of vehicle no. 85B 33397? 3. To what amount of compensation, if any, are petitioners entitled? 4. To what other relief, if any, are the petitioners entitled? The learned Tribunal recorded the evidence of the parties, heard them and after perusing the evidence on record, came to the conclusion that the claimants failed to prove that the accident in question was caused due to rash and negligent driving by the driver of Jeep-opposite no.3. The learned Tribunal has however worked out the amount of compensation of Rs. 42,000/-. Ultimately, the claim petition was dismissed by the impugned order dated 17-10- 1988 on account of its finding on Issue Nos. 1 and 2. Aggrieved, the claimant Shanti Devi has preferred the appeal before this Court. In this appeal, the finding of the learned Tribunal has been assailed mainly on the ground that the finding of the Tribunal on the point of negligence is contrary to the evidence on record. It has been contended that the learned Tribunal has not properly appreciated the evidence in the light of the written statement filed by the opposite parties. I have heard rival contention of both the parties and perused the evidence on record including the lower court record. At the outset, it may be mentioned that in the compensation cases before the Claims Tribunal, strict proof of the facts is not essential as in the criminal trials. The accidental death of the deceased Shiv Prasad Saklani stands proved from the testimony of P.W.1 Vinod Kumar Saklani, who is son of the deceased. Moreover, it is not under challenge that Shiv Prasad Saklani is alive. The only issue to be answered in the present appeal is whether the motor accident resulting into grievous injuries and consequent death of deceased Shiv Prasad. For a just decision of the present appeal, a reference to the entries of column no. 9 of the claim petition, which is meant for mentioning place, date and time of accident is necessary vis-a-vis the averments made in the written statement by the opposite-parties-respondents. In column no.9 of the claim petition, it has mentioned to the effect “Near Wadia Institute on Gen. Mahedev Singh Road on 11.2.1986 at about 6-15 P.M.” In the written statement the opposite parties have mentioned “That para 9 of the petition is not admitted as alleged in this para. The details are given in the additional pleas. In paragraphs no. 27 and 28, the following averments have been by the opposite parties: 27. That on 11.2.1986 at about 6.20 P.M. the vehicle of respondents was plying on General Mahadev Singh Road, and when it reached near Wadia Institute it took over a cyclist who was on the left side of the road and when the jeep overtook the cyclist it seems that the cyclist suddenly lost his balance of the cycle and stmele with the rear portion of the Army vehicle which has already crossed him. Due to this collision the cyclist fell down. 28. That the accident is not caused due to any rashness and negligence of respondent no.2 and as such the respondents are not liable to pay any compensation to the petitioners. From a bare perusal of the claim petition and the written statement filed on behalf of the respondents, it is clear that it is admitted fact that a motor accident took place in front of Wadia Institute on General Mahadev Singh Road involving Army vehicle in question. It is the positive case of the claimants that the deceased was going on his cycle at the time of the alleged motor accident, which resulted in serious injuries and consequent death to the deceased. There is no averment worth the name in the written statement that the driver of the Army vehicle in question was driving the vehicle at a moderate speed carefully or cautiously, though it is specifically admitted in paragraph no.27 that a cyclist got hurt. The opposite parties could not dare disclose the name of the cyclist in the written statement. From the side of the opposite parties, as many as three witnesses have been examined in the witness box. D.W.1 is Subedar Ram Lal Yadav. It would suffice to mention here that the O.P.-respondents have not pleaded anything regarding court of enquiry in the matter. The testimony of D.W.1 is therefore not material for decision of the present case. D.W.2 B.G.Patil is the driver of the offending Army Jeep. A reference to his testimony is relevant. This witness has stated in the opening line that the alleged accident did not take place in his presence. At the relevant time he was taking his Commanding Officer to unit by the Army jeep in question. In front of Wadia Institute, they heard a sound from behind. He stopped the vehicle on the direction of the Commanding Officer. They saw a person fallen on the road at a little distance. They called him for help, but no body was there. Then the Commanding Officer went to call the police and he remained there. After a lapse of 5-6 minutes, the police force came there. Police asked him to bring the person. He also helped in the process and the police took the person. At one place he stated that there was no collision of the cyclist with his vehicle. This statement of D.W.2 B.G.Patil is not in conformity with the stand taken by the opposite parties in their written statement. It has been clearly stated in the written statement that a cyclist hit against the rear portion of the Army Jeep, but in oral evidence, the driver of the Army vehicle has twisted the stand by saying that no collision took place with the Army Jeep. In the written statement, the opposite parties have no where explained the fact regarding arrival of police force in their presence. Moreover, the testimony D.W.2 does not find direct corroboration from the statement of Col. Jaswant Sethi, D.W.3. It is settled law that normally the claimant is required to prove negligence but as in some cases considerable hardship is caused to the plaintiff because the true cause of accident is not known to him but the same is solely within the knowledge of the driver who caused it, the claimant can only prove the accident but cannot prove how it happened to establish negligence on the part of the opposite party. In the circumstances of the case, the principle of res ipsa loquitur is fully applicable. Applying the said principle, it can very well be inferred that the driver of the Army Jeep himself was not careful and cautious at the time of accident otherwise the accident in question could have been avoided. It is admitted to the D.W. 3 Col. Jaswant Sethi that the Army Jeep over-took the cyclist near Wadia Institute. This cyclist was none else but the deceased Shiv Prasad Saklani. It was for the driver of the Army Jeep to have been cautious and careful while overtaking the cyclist at the place of accident. The respondents have frankly mentioned in paragraph no. 27 that the cyclist was on the left side of the road. This indicates that there was no negligence on the part of the deceased cyclist. The O.Ps. could not say that the cyclist was rash and negligent in any manner. There is no corroboration or consistency in the written statement filed by the respondents and the oral evidence led by them. In the written statement, the respondent-O.Ps. have admitted that a cyclist was struck with the Army Jeep, but the D.W.2, the driver of Army Jeep denied that any accident took place from the vehicle in question. It appears that the driver of the Army Jeep has tried to save his skin from the liability of compensation. It is not disputed that the F.I.R. of the accident was lodged by P.W.2 Sukhdeo soon after the accident. This witness has proved the F.I.R. lodged by him. P.W.2 has appeared in the witness box after about two years from the date of accident. Naturally, there may appear minor discrepancies in his evidence. Moreover, there is nothing to indicate as to why an independent person will give false evidence against the Army jeep driver. In the cross-examination he has stated that the offending jeep was at a high speed. The learned Tribunal while assessing the evidence on record lost sight of the material facts brought by the respondents-opposite parties in their written statement vis-à-vis the oral statement given by the witnesses of the respondents in deviation of the pleadings. The learned Tribunal has discarded the testimony of P.W.2, who is scribe of the F.I.R. on the ground that his testimony did not find strong corroboration from the statement of P.W.3. It is not disputed that P.W.3 Madan Singh was employed as security guard at the gate of the Wadia Institute. No doubt, P.W.3 also came to know about the accident. It has come in his testimony that he diverted his attention when the sound of strike was heard by him and then only he saw towards the place of accident. Naturally, PW 3 being a security guard of the Wadia Institute was not supposed to have paid attention towards the activities going on the road. Therefore, the learned Tribunal was not justified in discarding the testimony of the scribe of the F.I.R. as well as independent eye witness of the accident P.W.2 Sukhdeo. The arrival of the police personnel soon after the accident goes to show that police was informed promptly by PW 2. It is significant to mention that P.W.2 Sukhdeo had not given any reference regarding presence of P.W.3 Madan Singh, The learned Tribunal has discarded the testimony of P.W.2. because PW 3 has stated that he had not seen Sukhdeo. This approach of the learned Tribunal was not proper. It is very natural that a person who drives a motor vehicle on the road must be cautious and careful in driving the vehicle. The respondents have not brought on record any document to indicate that they ever informed the police about this accident. Having considered the entire material on record from all the four corners, it can be safely inferred that the motor accident resulting into grievous injuries to Shiv Prasad Saklani and his consequent death was caused due sole negligence on the part of driver of the offending Army Jeep, the opposite party no.3. I hold accordingly. The findings recorded by the learned Tribunal are not tenable on Issue Nos. 1 and 3 and are set aside. The learned Tribunal while deciding Issue No.3 has recorded a finding that the proper compensation for the death of the deceased would be Rs. 42,000/-. This finding of the learned Tribunal has not been questioned by the claimant-appellants. The respondents have also not challenged the finding of the Tribunal on Issued No.3 Therefore, the above finding of the learned Tribunal on Issue No. 3 is upheld. In the result, the claimant-appellants are entitled to compensation of Rs. 42,000/-(forty-two thousand) payable by the opposite parties-respondents. The claimant-appellants shall also be entitled to get simple interest @ 6% per annum on the amount of Rs. 42,000/- from the date of filing of claim petition, i.e.19-5-1986 till the date of payment. In view of the discussion aforesaid, the claim petition filed by the claimant-appellants is liable to be partly allowed. The impugned order is liable to be set aside and the appeal deserves to be allowed. The appeal is allowed. The impugned order dated 17- 10-1988 is set aside. The claimant-appellants are entitled to compensation of Rs. 42,000/- (forty-two thousand) along with simple interest @ 6% per annum w.e.f. 19-5-1986 till payment, payable by the O.P.-respondents. Costs easy. ( B.S.Verma, J.) RCP