IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 2186 of 2007 LEELA DEVI & ORS. V/S N.I.INS.CO.LTD. & ORS. Mr. MANOJ JOSHI, for the appellant / petitioner Date of Order : 22.2.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- Heard learned counsel for the appellant. It is contended by the learned counsel for the appellant, that the learned Tribunal has erred in finding the deceased to be negligent to the extent of 50%, and on that count, reducing the assessed compensation. It is contended that from a look at the statement of A.W.2 Lalu Ram, eye witness, it is clear, that the deceased was driving the motor cycle at slow speed, and the delinquent vehicle was coming in the reverse gear, at a fast speed, without any indicators on the rear side of that vehicle, on account of which accident occurred, which clearly shows that there was no negligence on the part of the deceased. With this it is also contended, that the learned Court below has disbelieved his statement, or at least doubted his reliability, on the ground, that he has not lodged the first report despite having seen the accident, while it was not necessary for him to lodge the report, and in any case, even if he has not lodged the report, since he was an eye- witness, driving another vehicle, following the motor cycle, at a distance of about 200 ft., his evidence was most reliable evidence, and could not have been, and should not have been disbelieved, and if that evidence is believed, the finding of the learned Tribunal about the deceased’s 50% contributory negligence cannot be sustained. It is then contended, that even so far as the F.I.R. is concerned, that is lodged by Shanker Lal, on receiving message on telephone, which telephonic message does not disclose as to how the accident occurred, and the story given in F.I.R. is only an observation of Shanker Lal, what he found on the spot, and he concluded therefrom. It is a different story, that Shanker Lal has not come in the witness box, and as such the evidence of Lalu Ram, A.W. 2 could not be discarded, on the basis of version given in the first information report. Then, it was also contended that even from the site plan, it does not at all appear, that there was any negligence on the part of the deceased. Then, reliance was also placed on Ex.8 and 7, which are the replies of owner and driver, given to the police, in response to the notice of the police, under Section 133 of the Motor Vehicle Act, wherein both the persons have respectively gave out, that it was Surender who was driving 2 the vehicle, at the time of accident, meaning thereby, that the vehicle was in motion at that time, and was not stationary, inasmuch as had it been stationary, the reply would have been, that the vehicle was not being driven but it was stationary, which is not the reply, rather the reply is, that he was driving the vehicle. Thus, this reply also corroborates the story, deposed by Lalu Ram, A.W.2. Thus, the finding of the learned Tribunal, about contributory negligence, is not sustainable. I have examined the submissions, and have gone through the record, which had been requisitioned, and received, very closely, and have rather re-appreciated the entire evidence, as is available on record. True it is, that the version given in the F.I.R. is only the observation of Shanker Lal, as he could find on the spot, and as he could conclude, or anticipate as to how the accident might have occurred, on the basis of his own wisdom, as in the first report itself he has given out that on seeing the things on the spot he learnt. This is one aspect of the matter. The other aspect of the matter is, that even de hors this F.I.R., if the statement of Lalu Ram were to be read, in my view, the learned trial court rightly concluded, that evidence of this witness does not inspire any confidence whatever, and he clearly appears to be an introduced witness. May be, that it might not be 3 necessary for him, to have lodged the report for acquiring reliability, and on that count he cannot be disbelieved, but then, in the statement of this witness there are inherent things, which render him wholly unreliable. In this regard a reading of the statement of Lalu Ram shows, that his version is, that delinquent vehicle was driven at a fast speed, in reverse gear, and hit the motor cycle, which was coming behind, and the delinquent vehicle was not having any light indicators in the rear side, as the accident occurred at 8.30 in the evening. Then he claims to have seen from a distance of 200 ft. behind the motor cycle, on which the deceased was riding. Thereafter, after seeing the accident he stopped there for five minutes. Then, many people had assembled, and he went away with his truck. In cross examination he had maintained, that he had seen the accident from 200 ft. distance, and distance between the Trawler and the motor cycle was only 20-30 ft. With this he has also deposed, that the delinquent vehicle was driven in reverse gear at the speed of 25-30 km. per hour, while the motor cycle was driven at a speed of 15-20 kms. per hour. Even by seeing at this part of the statement, it does not stand to reason, firstly, that the Trawler would be driven in reverse gear, at a speed of 25- 30 km. per hour. It is required to be grasped, that the heavy vehicle, like Trawler, even in the normal forward gear, normally travel at a speed of 40 km. per hour; and it is difficult to swallow, that it would be driven at a speed 4 of 25-30 kms. per hour. That apart, even if that was so, in that event the engine revolutions would produce such a huge noise, that even a motor cyclist, driving at a speed of 15- 20 kms. can very well notice it, and at least take some steps to avert the accident, more so when, as appears from the site plan, that there is quite sufficient space available in the east of the vehicle, as the vehicle is shown to be stationary in the extreme western end of the road. It is a four lane road, and all said and done, there is only one vehicle, being the delinquent vehicle, on the road. These circumstances, are also required to be considered, in conjunction with the fact, that the witness is resident of the same village, as that of the deceased, and also belongs to the same community. Further with this, he has admitted in the cross-examination, that he is not called by anybody to give statement in the Court today, nor did he receive any summon from the Court, he has come on his own, as he was told by the claimant. With this he was clearly suggested in the cross-examination, that as a matter of fact the delinquent vehicle was stationary, and the motor cyclist banged in it, which suggestion has of course been denied. These circumstances, taken cumulatively, leave no manner of doubt, that this is a witness, on which no reliance can be placed, to believe, as to how the accident occurred. So far the documents Ex. 7 and 8 are concerned, 5 the interpretation sought to be put by the learned counsel is preposterous, inasmuch as by the notices only the information was sought, as to the person employed as driver on the vehicle, and information was not sought, as to whether the vehicle was in motion, or stationary, and the reply given only confirmed, that the defendant was the person who was there on the vehicle as driver, and has nothing to do about the fact, as to whether the vehicle was stationary, or mobile. Thus, the matter rests only on the consideration of site inspection note, and site plan. A look thereat shows, that the accident has occurred on the road leading from south to north, which is a four lane road, and the other lane coming from north to south is towards the east, in between there is a median. In the western part of the road, leading from south to north, the delinquent vehicle has been shown to be lying at point B, which is the extreme western end of the road, and just behind that motor cycle is lying, and thereafter the deceased is lying. Entire remaining width of the road is available for the motor cyclist to pass, if he was cautious. Of course, the delinquent vehicle's driver did not give the requisite indication to show the presence of stationary vehicle, but then, all said and done, it is a national high way, and being four lane, the deceased was also required to take some care, to have a clear passage. 6 In my view, from the above detailed re- appreciation of the entire material also, it is clear, that it cannot be said, that the finding recorded by the learned Tribunal, about 50% negligence of the drivers of both the vehicle, requires any interference in appeal. The appeal thus has no force, and is dismissed summarily. ( N P GUPTA ),J. /sushil/ 7