1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- J U D G M E N T CIVIL MISC. APPEAL No. 267 of 1996 RAJA RAM V/S PARASH RAM & ORS Date of Judgment : 17.3.2009 HON'BLE SHRI N P GUPTA,J. Mr. RK MEHTA, for the appellant / petitioner BY THE COURT : Heard learned counsel for the appellant. This appeal has been filed by the claimant against the award of the Motor Accident Claims Tribunal, Jodhpur dated 9.2.1996, dismissing the claim, which was filed for personal injury sustained by the appellant in the road accident. The necessary facts are that the appellant filed a claim petition on 17.7.1992, alleging in para 11, that the claimant along with his friend Radheyshyam were going from Court to Nagori Gate, the claimant was driving. The jeep, being delinquent jeep No.RNS 4151 was moving ahead. The 2 appellant asked for side to overtake, which was duly given by the jeep driver, and as soon as the appellant took the motorcycle ahead, the jeep driver swerved the jeep towards right, as a result of which the right rear wheel of the jeep dashed against the motorcycle, the motorcycle lost balance, and both the occupants fell down, the appellant became unconscious, and was carried to hospital by Radheyshyam. Then details, of the injuries sustained, have been given. A reply has been filed by the driver Paras Ram, pleading that of course he was driving the jeep, but he was driving on the correct side, the claimant's motorcycle came at a fast speed, and banged in the jeep from behind, as a result of which, the motorcycle lost balance, and fell down. After falling they were hail and hearty, the claimant did not become unconscious, did not receive any grievance injures, the rear light of the jeep got damaged, and the rear side of the iron sheet of the jeep received dent. Thus, it was pleaded that the accident occurred on account of the own negligent driving of the motorcycle by the claimant. Then in para 25 it was pleaded, that the two occupants of the motorcycle were moving while talking to each other, unmindful of the road, and in that process, banged in the jeep. Another reply has been filed by the owner, wherein also, identical plea has been taken. 3 Learned Tribunal framed 4 issues. Issue No.1 related to the question of negligence. In the trial, the claimant examined himself as P.W.1, and also examined Radheyshyam as P.W.2, while the owner and driver appeared as D.W.1 and D.W.2 respectively. In documentary evidence, the claimant produced copy of FIR, site inspection note, site plan, medical papers, bills of medicines etc. He has also produced some documents from the file of criminal case, like the judgment, and evidence recorded therein. The learned Tribunal decided issue No.1 against the appellant, by holding, that from a reading of the evidence of the two witnesses, it appears that they have not properly given the description, as to how the accident occurred, and are avoiding to disclose true facts, and are resorting to falsehood. It was observed, that according to Raja Ram, jeep hit from behind, and at the same time, also states, that the rear side of the jeep was hit by the front side of the motorcycle. Then he also denies about the jeep moving ahead of the motorcycle, while in FIR he has given a different version, about the accident having occurred in the process of overtaking, and thus, in the opinion of the learned Tribunal, it appeared, that despite little space being available, the motorcyclist tried to overtake, and accident occurred, and thus, the accident was a result of negligence in driving of the motorcycle itself. Thus, the issue No.1 was decided against the claimants. 4 Learned counsel for the appellant assailed this finding, by contending inter-alia, that the finding is clearly contrary to the contents of the FIR, and the site inspection note, and site plan. It is submitted that FIR was immediately lodged, and therein it is clearly alleged, that they were going from Sojati Gate towards Nagori Gate, the delinquent jeep was moving ahead, and when they reached near the Court gate, they thought that there is enough space in between the jeep, and the road divider, therefore, they proceeded ahead to overtake the jeep, and had also blown horn some twice or thrice. Thereupon the jeep driver took the jeep towards the left, and gave side to them to pass, however, as soon as they proceeded ahead at the point of rear side of the jeep, the jeep driver suddenly swerved the jeep towards the right side, as a result of which, the rear portion of the jeep dashed against the head light of the motorcycle, resultantly, motorcycle lost balance, and both of them fell down and he suffered injuries. In the site plan, road is going from South to North, and there is divider in the width of 3 to 4 feet, the place of incident is said to be about 4 feet away from the eastern edge of the road, while on the western side, 32 feet wide portion is available. In my view, of course, the things are so mentioned in the FIR, and have been accordingly pleaded in the claim 5 petition also, but then, a look at the statement of the two occupants of the motorcycle, being the claimant and the pillion rider, shows, that all that has been deposed by them is, that on 26.2.92 at about 1-2 in the noon, as soon as they came out of the Court gate /Collectorate gate, the accident occurred. Raja Ram was going along with Radheyshyam, and accident occurred with jeep No.4151, jeep came from behind, and the rear portion of the jeep hit against the front portion of the motorcycle, and he fell down. Then he has detailed the injuries, which were received by him, and has proved the FIR, site plan etc. as Ex.P20, 21, 22 etc. What is significant to note is, that in the entire statement, it is nowhere deposed, that they desired to overtake the jeep, or that finding enough space to pass, they proceeded ahead, and had blown horn, as a result of which, the jeep driver moved his jeep towards the left, providing clear passage to them, and then he suddenly swerved the jeep towards right, resulting into causing of accident. Rather a wholly different story has been deposed, about the accident having occurred as soon as they came out of the Collectorate gate. The Collectorate according to the site plan is situated in the west side of the road. Obviously the substantive evidence is the statement given in the Court by the injured, and the eye- witnesses, and simply because from that statement, which is substantive evidence, the negligence of the jeep driver is 6 not spelt out, the claimant cannot be allowed to fall back upon the earlier version, given in the FIR, which is at complete variance with the story as deposed in the Court. If the matter were to be examined on the anvil of the evidence led before the Court, it is required to be comprehended, that when the claimant emerged from the Collectorate gate on the main road, he was supposed to be cautious about the on-moving traffic on the main road, and if in that process, he came out of the Collectorate gate unmindful of the traffic, and accident occurred, it cannot be said that the accident was a result of any negligence on the part of the jeep driver. Thus, I do not find any error in the finding of the learned Tribunal on issue No.1. The appeal thus, has no force, and is dismissed. (N.P.GUPTA),J. /tarun/