SBCMA No.1160/2007 Smt. Shyama Devi & Ors. Vs. Ali Mohd. & Ors 1 SBCMA No.1160/2007 Smt. Shyama Devi & Ors. Vs. Ali Mohd. & Ors DATE OF ORDER : - 22.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.RS Chundawat, for the appellants. Mr. Jagdish Vyas ] Mr. Anil Kaushik ], for the respondents. <><><> Heard learned counsel for the parties. The appellants'-claimants' petition was dismissed by the Motor Accident Claims Tribunal -Addl.District Court (Fast Track) No.1, Jaitaran, District Pali by award dated 3rd May, 2006, hence, this appeal has been preferred by the claimants-appellants. Learned tribunal held that the claimants failed to prove that the accident was caused by the respondent no.1 Mohd. Ali by driving the vehicle container by rash and negligent driving and by hitting to the truck of the deceased Sharwan Kumar, who died in the accident. The tribunal held that in fact, deceased Sharawn Kumar himself was negligent in driving his truck No.RRQ 7536 and he himself caused the accident and in that accident he died. SBCMA No.1160/2007 Smt. Shyama Devi & Ors. Vs. Ali Mohd. & Ors 2 According to learned counsel for the appellants the tribunal has committed error of law by rejecting the direct evidence of witness AW-2 Oma Ram and AW-3 Ganpat, who were eye witnesses to the accident. The tribunal also committed error of law in relying upon the police challan papers in which the finding was recorded in the criminal case that Sharwan Kumar was negligent in driving his vehicle and he himself caused accident. According to learned counsel for the appellants, the victim Sharwan Kumar died and the second driver of the truck took opportunity and lodged the FIR levelling allegations against the deceased. The witness Oma Ram and Ganpat were eye witnesses and they were examined by the investigating agency. The tribunal observed that it is improbable that these two witnesses, who were travelling in the truck driven by Sharwan Kumar would not have suffered any injury of serious nature and, therefore, the tribunal on this assumption rejected the statements of witnesses Oma Ram and Ganpat. Learned counsel appearing for the Oriental Insurance SBCMA No.1160/2007 Smt. Shyama Devi & Ors. Vs. Ali Mohd. & Ors 3 Co. Ltd. - respondent no.4 submitted that respondent Oriental Insurance Company covered the risk of 3rd party for the truck no.RRQ7536 of Sharwan Kumar and had not covered the risk of the owner of the vehicle Sharwan Kumar. Therefore, the respondent-Insurance Company is not liable to pay any compensation to the claimants claiming compensation due to the death of Sharwan Kumar. Learned counsel for the respondent United India Insurance Co. submitted that though the risk of the tanker was covered by the respondent no.3 -Insurance Co. but in this case, the tribunal on the basis of cogent and reliable evidence held that the accident was not caused by the driver of the container driven by the respondent Ali Mohd., risk of which was covered by the Insurance policy issued by the respondent United Indian Insurance Co. In the alternative, it is submitted that appellants- claimants' own case is that it was a case of contributory negligence and Sharwan Kumar contributed to the negligence. I considered the submission of learned counsel for the parties and perused the record. SBCMA No.1160/2007 Smt. Shyama Devi & Ors. Vs. Ali Mohd. & Ors 4 It appears that the accident occurred on 11.10.2001 at 8.30 PM. The accident was caused because of the collusion of two vehicles,one container driven by respondent Ali Mohd having no.HR 38/9695 and another truck driven by deceased Sharwan Kumar which have no.RRQ 7536 and because of that accident, Sharwan Kumar was taken to hospital and there he has died. The FIR was lodged by alleged second driver of the container driven by the respondent no.1. In FIR, the second driver of the vehicle no.HR 38/9695 stated that accident was caused by the deceased Sharwan Kumar by hitting the container which was going on his right side i.e., on the left side of the road. Sharwan Kuamr came with the truck in extreme other side of the road and hit it to the container. The investigating agency after recording the statement of the witnesses during investigation reached to the conclusion that accident was caused by the deceased Sharwan Kumar and since he himself die, therefore, no prosecution can continue. Before the tribunal for claimants herself Smt. Shyama Devi was examined and claimants produced AW-2 Oma Ram SBCMA No.1160/2007 Smt. Shyama Devi & Ors. Vs. Ali Mohd. & Ors 5 and AW-2 Ganpat and also produced the copies of the documents obtained from the criminal case as well as documents in support of the expenditure incurred by the claimants. In defence NAW-1 Mohd. Ali and NAW-2 Tarachand Balotiya were exmaind. Learned counsel for the appellant vehemently submitted that the appellant AW-1 Smt. Shayma Devi clearly stated that her husband alonwith Ganpat and Oma Ram were in the truck at the time of accident. Her said statement was corroborated by both the witnesses Oma Ram and Ganpat. Oma Ram and Ganpat both clearly stated that accident was caused by the respondent no.1 by driving the container rashly and negligently. It is also submitted that the respondent did not produce any witness to prove the contents of FIR and further the FIR was lodged by the rival party and by a interested person, who was interested in the respondents. Two witnesses were examined by the tribunal, who were eye witnesses and stated that the accident caused by the respondent no.1 and it was not because of fault of Sharwan Kumar. The SBCMA No.1160/2007 Smt. Shyama Devi & Ors. Vs. Ali Mohd. & Ors 6 respondents' witnesses had no knowledge about the manner in which the accident took place, therefore, in view of the un-rebutted evidence, the tribunal has committed error by holding that accident was caused by respondents. Learned counsel for the appellants rightly explained the site of the accident with the help of the document Ex.89. I perused the above evidence and it appears that FIR was lodged by one of the persons who was alleged to have been with the respondent. Neither the said person who lodged the FIR nor the driver of the other vehicle were examined by the respondents to rebut the evidence produced by the appellants-claimants, but at the same time, there appears to be no reason to disbelieve the documents, which were produced by the appellants themselves for which it appears that the FIR was lodged immediately after the accident and site was inspected by the investigating agency. In the site map there is a clear mention that from which side truck driven by deceased Sharwan Kumar was going on and from which side the container driven by respondent was coming. The truck SBCMA No.1160/2007 Smt. Shyama Devi & Ors. Vs. Ali Mohd. & Ors 7 driven by deceased Sharawan Kumar from left side to extreme right of the road. As per the copies of the statements of Ganpat and Oma Ram they were examined on 29th Oct., 2001 i.e., after 18 days from the date of accident. In their statement it nowhere stated that they also suffered any injury. The accident was serious and the tribunal was right in holding that in this type of accident, it is highly improbable that a co-passenger will not suffer any injury. Not only this, but the witnesses Ganpat and Oma Ram tried to submit that police wrongly prepared the site map Ex.89, but admitted that in the site map the truck of Sharawn Ram has been shown coming to the left side and hit it to the container. In cross-examination, witness AW-2 Oma Ram admitted that he did not lodge any FIR, but he did complain for lodging the FIR. The statement of these two witnesses Oma Ram and Ganpat cannot be relied upon and the tribunal rightly did not choose to rely upon these witnesses. In view of the reasons, the claimants failed to prove the negligence of the respondent driver driving the SBCMA No.1160/2007 Smt. Shyama Devi & Ors. Vs. Ali Mohd. & Ors 8 container. The tribunal was right in holding that accident was caused by Sharwan Kumar by driving the vehicle rashly and negligently. In view of the above, there is no merit in this appeal and the same is hereby dismissed. (PRAKASH TATIA), J. c.p.goyal/-