1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 499 of 1996 SMT SAHJAD BEE V/S ISHWAR SINGH & ORS Mr. PRIKSHIT NAYAK, for the appellant / petitioner Mr. MAHENDRA TRIVEDI, for the respondent Date of Order : 18.2.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- This is appeal by the unfortunate claimants, whose claim petition has been dismissed by the learned Tribunal. The necessary facts are, that the claimants filed a claim petition before the Motor Accident Claims Tribunal, Banswara, on 2.6.1990, alleging interalia, that on 27.2.1990 at about 2.30 in the noon the deceased, along with his nephew Ahmed Noor were going on motor cycle from Banswara to Padliya, and when they were near village Borkheri, the delinquent truck came from opposite side, being driven negligently at a fast speed, and hit the motor cycle, as a result of which Nawab Khan died on the spot, motor cycle was substantially damaged, and the pillion rider Ahmed Noor sustained fracture and other grievous 2 injuries. The present claim was filed for compensation on account of death of Nawab Khan. This claim was contested by the insurer, by filing written statement, denying any accident to have occurred from the truck. It was pleaded that rather there was no other vehicle around, and motor cycle being driven at a fast speed could not be controlled on the turn, and the driver losing balance, slipped, and thus the accident occurred. It was denied that any accident was caused by the alleged delinquent truck. In additional pleas it was pleaded, that on the said day, date and time, the delinquent truck was nowhere even near around the alleged place of accident. Various other pleas were also taken regarding liability of the insurer. During trial the claimants examined, apart from other witnesses, A.W.5 Ahmed Noor, the injured pillion rider, P.W.2 Bherji said to be Khalasi in the delinquent truck, and Dhanji claiming to be a passenger in the truck, having taken lift from Hamirpura. As against this, the defendants examined Ram Swaroop the surveyor of the insurer, and the driver of the delinquent truck, Ishwar has also appeared in the witness box, as D.W.2. Various documentary evidence was also produced on record, which include F.I.R. Ex.2, Site Plan Ex.3, Post Mortem Report Ex.4, Site Inspection Note Ex.5, Seizure Memo of the Truck Ex.6, driving license of Ishwar Ex. 7, and Registration Certificate of the truck being Ex.8. Then, other documents produced are, insurance policy, certificate of the income of the deceased, Ex.P-13, 14 and 15 being the 3 statements of Bheria, Hakra, and Dhanji, recorded by the police. The defendants have also produced Ex.A-1, being the affidavit of Bheria dt. 20.4.90, duly attested by Notary Public, Ex.A-2 being the statement of Bheriya recorded by surveyor, Ex.A-3 being the statement of Ishwar Singh, recorded by the Surveyor, and Ex.A-4 being the survey report. Then, Ex.A-5 copy of the insurance cover has also been produced. The learned trial court decided issues no. 1 and 3 together. Issue no.1 related to the question, as to whether on 27.2.1990 accident was caused by the truck no. GRY 4382, being driven by Ishwar Singh rashly and negligently, and issue no. 3 related to injury suffered by Ahmed Noor, in the said accident. While deciding these two issues, it has been found, that it is not established, that the accident was caused by the delinquent truck No. GRY 4382, being driven by the defendant no.1. Assailing the impugned judgment, learned counsel for the appellant contended, that the learned trial court has not properly read, and appreciated, the evidence of P.W.5 Ahmed Noor, P.W.2 Bherji, P.W.3 Dhanji, and D.W.2 Ishwar Singh, inasmuch as from the statement of Ishwar Singh it is clear, that on the relevant date, and time, he was driver of this truck, wherein excavated earth was loaded, while the three witnesses P.W.2, P.W.3 and P.W.5 4 have clearly and categorically stated, that it was the delinquent truck which came from opposite direction, and at a fast speed, being driven negligently and rashly, hit the motor cycle, as a result of which the accident occurred. Learned counsel for the owner supported the impugned judgment. A look at the findings given by the learned trial court on issues no. 1 and 3 shows, that it has discussed the evidence of witness P.W.5 Ahmed Noor, and after discussing various aspects, including statement recorded by way of F.I.R., and certain admissions made in the cross- examination, found, that from his evidence it is not established that the delinquent truck was the blue colour truck which caused the accident, as from his statement it appears, that after alleged accident, the truck did not stop, and ran away. Likewise while discussing the evidence of P.W.2 and P.W.3, the learned trial court considered various aspects, appearing from their statement, including the fact, that story propounded by them already stands belied by the statement made by Ahmed Noor A.W.5, which contradicted his previous statement, and thus their statement was disbelieved. Then, it has also been considered, that they have been examined by the police at a much belated hour, and there is nothing to show, as to how the police could discover the two eye witnesses. Then, the 5 evidence of Ishwar Singh has also been considered, and it has been found, that despite long drawn cross examination, the claimants could not elicit any admission from his statement, about the truck being involved in the accident. With the assistance of the learned counsel for the claimant, I have gone through the evidence of five witnesses, being P.W.2, P.W.3, P.W.5, D.W.1 and D.W.2, so also the various documents. At the outset it may be observed, that all said and done, P.W.5 Ahmed Noor cannot be disputed to be an eye- witness of the accident, inasmuch as there were only two passengers on the motor cycle, one was Nawab Khan, who has died, and the other is Ahmed Noor, who is injured, and who too has filed another claim, which has also been dismissed by the impugned order. The accident occurred on 27.2.1990, and according to his evidence, he was moved to hospital in a jeep, and in the hospital, on that very day his statement was recorded by the police, on the basis of which F.I.R. was registered, and in that statement, being Ex.2, all that has been deposed by him is, that he along with his uncle Nawab Khan were going on motor cycle being no. RJB 4427 from Banswara to Padliya, which motor cycle was being driven by Nawab Khan, and at about 2.30 P.M. when they reached near village Borikheri, a blue colour truck LP Model came from opposite side, which was being driven at a 6 fast speed, and hit the motor cycle, as a result of which Nawab Khan sustained injuries on the head, and died on the spot, while he was thrown away and sustained a fracture in the left leg. He has also deposed, that the truck driver, by driving the truck rashly and negligently, hit the motor cycle, and ran away from the spot, and that, he does not know the number of the truck. With this he has deposed, that at that time a jeep came from Barodiya, wherein he was brought to hospital, while the dead body of Nawab Khan is lying on the spot. A reading of this statement does not require much of discussion, for concluding, that in this statement the identity of the truck is not given, nor any description has been given, except that it was a blue coloured LP Model truck. Then a look at the statement of this P.W.5 shows, that he has deposed that on 27.2.1990, when he along with his uncle Nawab Khan was going to Padliya, on bullet motor cycle near village Borkheri, a blue colour truck came from opposite direction. They had taken their motor cycle off the road, still the truck driver came on the wrong side, and hit the motor cycle, as a result of which the motor cycle was thrown away, and witness was also thrown away, and Nawab Khan died on the spot. This statement is in line with Ex.2, and since in Ex.2, the identity of the truck was not there, this witness has then stated, that after the accident the truck had stopped after driving to some 7 extent, and then from cabin of the truck three people came, out of which two were wearing trousers and bush-shirt, and one was tribal, and they returned back after looking from there itself, and again boarded the truck, and went away, and they did not come near the injured. After some time a jeep came, and he was taken to Banswara hospital. This is the whole statement, regarding happening of the accident. Then in cross examination, he has admitted that the truck had stopped after 20 paces. He has deposed that he did not lodge any report of the incident with the police, rather his family members had lodged the report with the police. Then, he has denied to be knowing, as to who was the owner of the truck, or who was driving the truck, nor does he know the number of the truck. He has denied the suggestion, that no accident has occurred, and they had fallen even otherwise. Then he has also admitted, that he did not identify the persons who had alighted from the truck after it had stopped. Then he has also deposed, that he lost conscious, and he could not notice the number of truck. Then, he has deposed that he was interrogated by the police in the hospital on the same day, and admitted to have deposed that the truck had ran away after hitting, and that he never gave out to the police that the truck had stopped. He has in no categoric terms deposed, that “य सह ह क द र टन  वक ट अजत थ ज टक र मर र चल गई". Then, he has given out, that truck number GRY 4382 was given out by the police people, and on that basis claim has been filed. Thus, so 8 far as this witness is concerned, in my view, his evidence is of no relevance, for the purpose of fact, that delinquent truck no. 4382 was the truck, which hit the motor cycle, and caused the accident. Then, coming to the evidence of P.W.2 Bherji, he claims to be the cleaner of the truck, and also claims to be in the truck at the time of accident, and the truck was being driven by Ishwar Singh which was bearing no. GRY 4382. He has deposed that the truck was going from Gujarat to Ratlam, carrying excavated earth, and on their way they met Dhanji and Hakra at Hamirpura, who also boarded the truck, and when they reached Barodiya there was a turn, and a motor cycle, on which two persons were riding came from opposite side, and on the turn the truck was moving slightly on the right hand side, at that time the motor cycle dashed against the rear part of the truck. Then, he has deposed that on hearing noise of the accident, the truck was stopped, they alighted, and saw that one man was lying on the road, and the other was lying near the turn, out of them one was dead and the other was alive. Thus, this witness has tried to depose in line with P.W.5, about the truck having hit the motor cycle, and this witness having alighted, and after seeing the victims went away. As against this in cross examination he has deposed, that the fact of accident having been caused by their truck was not disclosed by him to the police according to the instruction 9 of his employer. Then, he admitted his signatures A to B on Ex.A-1. It is significant to note, that on the statement recorded in the Court, the witness has appended thumb mark, while Ex.A-1 bears signatures, appearing to be like that of illiterate person, hardly knowing to append signatures, but then, significantly he has admitted his signatures at Ex.A- 1. Then, he has disowned the contents of Ex.A-1, on being confronted with some of the portions thereof. Then, he has deposed that he was sitting by the side of the driver, and denied the suggestion about the driver being vigilant, so also denied the suggestion about giving false statement. Then, on cross examination by the insurer he has denied the insurance company people having come to interrogate him, or that he gave any statement to them. Then, he was confronted with his statement Ex.A-2, recorded by the surveyor, and this time he denied practically the entire part of the statement, with which he was confronted in piece meal, and also chose to deny his signatures thereon. He also denied the suggestion aobut his having been detained by Mirbaj Khan for 15 days for giving statement about the truck having met with an accident. Then, a look at statement Ex.A-2 and A-1 does show, that therein he had clearly denied any accident having occurred by delinquent truck No. GRY 4382, and about his having been detained by Sarpanch Chand Khan and one Patel, and that one Shyama Bhai Pathan and Sanuwala Pathan used to threaten to depose about the accident having been caused by the truck. He has also 10 deposed that Mirbaj Pathan asked him to depose about the accident to have not been caused by their truck. This does clearly show, that the witness is resiling from his previous statement. That apart, in any case, the witness does not inspire any confidence, also for the reason, that on the face of Ex.A-2, it cannot be said, that the truck had ever stopped, or he had ever alighted from the truck, for seeing the persons lying on the spot. He, obviously, is deposing false fact to help the claimants. Then, coming to the evidence of P.W.3 Dhanji he has also deposed in line with the statement of Bherji. According to him four persons alighted from the truck, and they had seen the deceased and the victim. In the cross examination he has stated, that the place where he ultimately alighted from the truck, was just in front of police station, but he did not give any information of the accident to the police. Then, he has denied to be giving false statement today. On being cross examined by the insurer, he has deposed that insurance people did not came to interrogate him. He has denied to be knowing the driver of the truck, and has deposed to be not knowing as to what was being carried in the truck. Thus, from an over all reading of this statement clearly transpires, that he is a planted witness, to depose the accident to have been caused, inasmuch as he has additionally deposed, that not three, but four persons alighted from the truck, which is 11 nobody's case, then, he claims to be not even knowing as to what was being carried in the truck, despite the fact that he claims to be a passenger in the truck, and likewise, if he had seen the accident being caused, and the two persons lying, then as a matter of prudence, it does not stand to reason that he would not intimate the police people, the fact of accident, more so, when he was dropped from the truck just near the police station. Thus, the statement of this witness also does not inspire any confidence. Then, coming to the statement of D.W.2 Ishwar Singh; in examination in chief he has denied to have caused any accident by his truck. Then, even in cross examination he has admitted that he was carrying excavated earth from Surendra Nagar to Ratlam, but then he has denied that Hakra and Dhanji were being carried in the truck as passengers. He has denied to have caused any accident, and to have ran away from the site, and to have dropped the passengers near Banswara Naka, and to have taken the truck to Khandu Colony. In other words, even picking up the things by straws from here and there, from an over all look at the statement of this witness, I have not been able to decipher any admission, that might have been made by this witness to the effect, about any accident having been caused by the delinquent truck. Thus, even after re-appreciating the entire evidence on record led by either side, I am at one with the 12 findings recorded by the learned Tribunal on issues no. 1 and 3. The net result is that the appeal has no force, and is dismissed. ( N P GUPTA ),J. /sushil/