FAO No.202 of 1994 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.202 of 1994 DATE OF DECISION: April 29, 2011 IQBAL KAUR & OTHERS ...APPELLANTS VERSUS DAYAL SINGH & OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? Yes 2. To be referred to the reporters or not? Yes 3. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR.JAGMOHAN SINGH CHOWDHARY, SR. ADVOCATE WITH MR. AMANDEEP SINGH GILL, ADVOCATE FOR THE APPELLANTS. MR. S.S. KAMBOJ, ADVOCATE FOR RESPONDENTS NO.1 AND 2. MR. VIVEK SINGAL, ADVOCATE FOR RESPONDENT NO.3. K.KANNAN, J. 1. The appeal is against the dismissal of the petition for compensation arising on account of death of one Rajinder Singh Sohi. The accident was said to have taken place at the time when he was travelling alongwith one Lachhman Singh Rai in jeep PIR 7028. Both of them were advocates. The accident and death of Rajinder Singh Sohi had arisen on account of a collision of the jeep with the tractor PB-12-4972. It was alleged that on 12.1.1991, at about 6.30 p.m. near village Sarhana, Police Station Morinda when the tractor owned by Joginder Singh and driven by Dayal Singh dashed against the jeep and both the persons travelling in the jeep were injured when it turned turtle. Rajinder Singh has reported to have FAO No.202 of 1994 -2- died on the spot and Lachhman Singh Rai had suffered injuries and was taken to the hospital. The further averment was that the body of the deceased was taken to the Civil Hospital at Morinda and later referred to Civil Hospital, Ropar where the post-mortem was conducted. 2. The accident was got reported by the father-in-law of the deceased who had reached the spot after the incident and it was he who had lifted the corpse in a tempo to the Civil Hospital at Morinda and later taken the body to the hospital at Ropar for post mortem. One Labh Singh who was a close relative of the deceased had given a complaint to the police the following day on the basis of which DDR No.3 was recorded on 13.1.1991 at 8.15 a.m. There was no disclosure of the registration number of the tractor or the name of the driver. The FIR, however, had been registered rather late on 11.2.1991, on a complaint from Lachhman Singh and at that time a reference had been made to the involvement of the tractor with particulars of registration number and name of the driver. The investigation based on the complaint lodged as FIR did not result in tracing the accused or the vehicle involved in the accident and the police closed the case witn an investigation report that the particular vehicle mentioned in FIR was not involved and the person alleged as driver was innocent. 3. The Tribunal while examining the case found that the DDR that was recorded immediately after the accident did not spell-out the identity of the vehicle and the further the fact that FIR came to be lodged only nearly a month after the accident as going to prove that claimants were fabricating a case of involvement through an obliging owner of tractor and therefore, accepted the contention of the insurance company that accident involving the insured's vehicle had not been established and proceeded to dismiss the FAO No.202 of 1994 -3- petition. 4. Learned senior counsel appearing on behalf of the appellants points out to the fact that in the statement as given by Labh Singh he had merely recorded referred the fact that the accident had taken place when the jeep had turned turtle and he had himself been fair in stating that he did not see the accident and that he wanted appropriate investigation to be done. The DDR also contains endorsement by the police with a statement that on the basis of fact disclosed no cognizable offence had been made out which required police action. Since the DDR made reference to the presence of Lachhman Singh alongwith the deceased, it was recorded that statement of Lachhman Singh will be collected and thereafter according to the statement further enquiry would be carried out in the matter. 5. The alleged accident involving the tractor was recorded for the first time only when the complaint was given through Lachhman Singh Rai on 11.2.1991, when the reference was made to the vehicle with registration PB12-4972 and also giving description for the vehicle as Swaraj 735 alongwith the trolley. The complaint made reference to the fact that driver of the tractor had come to the wrong side of the road and dashed against the driver side as a result of which the jeep had turned turtle. The complaint also made reference to the fact that father-in-law of the deceased Rajinder Singh had arrived, but by that time the driver of the tractor had already run away with his tractor. His own grievous injuries suffered in the accident was stated to be the reason why he could not approach the police earlier to give the details of the accident. Upon receiving the complaint the police had registered a case against Dayal Singh S/o Joginder Singh. 6. The trial brought the evidence of yet another person Bachhitar FAO No.202 of 1994 -4- Singh who gave narration of the facts referring to himself being a victim on that day when he saw that the jeep which was being driven by the deceased was dashed against by a tractor and trolley loaded with sugarcane coming from the opposite side between the village Kalaran and Sarana and then after the collision the jeep turned turtle. He said that he was going on a cycle and the jeep which was coming from behind him from the side of Morinda dashed against the cycle and caused injuries to him as well. He stated that he knew the driver of the jeep Rajinder Singh and his father-in- law who was a resident of a nearby village, but he did not know the name of the driver of the tractor-trolley. He also stated that the tractor-trolley did not also stop immediately after the accident and went ahead. He had identified Dayal Singh who was in the Court about whom he stated that he was not driving the tractor on that day, but some other person was driving the tractor. He also stated that Rajinder Singh was driving the jeep and the other person who was travelling alongwith him were under the influence of liquor and two bottles of liquor were recovered later on from the jeep. The presence of Bachhitar Singh at the place was brought home through the fact that he had been taking treatment in the hospital at Chandigarh where the entry in the MLR showed that he had suffered injuries in road side accident involving jeep on the very same day when the accident had occurred killing Rajinder Singh. The cross-examination was to the effect that he had been brought by driver Dayal Singh to give evidence falsely. He was also queried why he did not make a statement to the police immediately after the accident especially when he had suffered injuries implicating the driver of the jeep. RW3 Amarjit Singh, Assistant, PGI had brought the case file of Bachhitar Singh which showed that he was brought with injuries on FAO No.202 of 1994 -5- 12.1.1991 and it contained a reference to the effect that he had been knocked down by jeep around 6.00 p.m. at Sarhana, Morinda. RW6 was ASI at the Police Station Jagraon who gave evidence to the effect that he undertook the investigation and his investigation revealed that Dayal Singh against whom complaint had been given by Lachhman Singh was innocent and that he was not in any way involved in the accident. He also deposed that tractor PB12-4972 was not involved in the accident and the case was, therefore, recommended to be cancelled. Dayal Singh examined himself as RW7 and he also gave evidence to the effect that he never drove the tractor PB12-4972 and he had also given evidence to the effect that the case which was registered against him on the complaint of Lachhman Singh was subsequently cancelled and the investigation revealed that he was innocent. 7. From the conspectus of evidence which was tendered before Court, it become evident that the accident that caused the death was on account of collision of the jeep with a tractor, but it was not clear that it was particularly the tractor with registration No.PB12-4972 which was involved in the accident. The DDR made no more reference to the fact that a motor accident had taken place that resulted in death of Rajinder Singh and it is significant that there was no reference to any particular tractor by that time. If we must look for an evidence of the involvement of the tractor, it should be only through the evidence of Lachhman Singh, but his statement hardly evokes confidence. He was an Advocate and he ought to have definitely known the importance of his statement and the need for registering the complaint. It is no doubt true that he was injured in the accident and therefore, it could not have been expected that he went to the police station immediately to give a complaint. However, it was essential for him to give FAO No.202 of 1994 -6- the actual period of his treatment from the date when the accident took place to 11.2.1991 when he registered a complaint against the driver of the tractor. If there had been a cogent evidence that he was actually undergoing treatment till the day immediately or somewhere proximate to the date of complaint and there was sufficient material to show that he could not have given a complaint earlier, then it might become possible to link the particular tractor with the accident and make an inference that the complaint could have been true. It almost seems like doctored evidence which Lachhman Singh gave to the police with all graphic details of tractor, registration number and the model as well as the name of the driver when he gave complaint to the police. A person who knew all these details must have given surer evidence of what he was doing after the accident. As a crucial period from the date of accident till the date he gave the complaint must have been duly explained. He said as follows:- “After some time the father-in-law of Rajinder Singh, namely, Labh Singh came to the spot in milk tempo, who took us in the tempo in the Civil Hospital Morinda, where Rajinder Singh was declared dead and he was referred to the Civil Hospital Ropar. I was medically examined at Ropar hospital and thereafter I have been getting treatment from a private practitioner due to this I could not approach the police to record my statement. Today, I have got my statement recorded.” If he was getting treatment from a private practitioner, the reference to such treatment was also necessary for that could have explained that why he had not reported the matter to the police although he knew all the relevant FAO No.202 of 1994 -7- details of the accident involving the respondent's tractor. 8. The driver alleged to have been involved in the accident had examined himself and denied the accident. The police investigation also denied the involvement of the tractor and found the driver to be innocent. It is no doubt true that when the truth of involvement of any particular vehicle is brought before the Tribunal, it will examine the issue without in any way being influenced by the police investigation. But, I will not wholly discard it in a situation where it obtains relevance. I will not take the fact of the police enquiry as in any way conclusive, but it does provide a modicum of evidence alongwith other circumstances brought through other witnesses. 9. Learned senior counsel for the appellant refers me to the two decisions of Hon'ble Supreme Court for driving home the point that in a motor accident strict rules of evidence cannot be applied. In Parmeshwari vs. Amir Chand and others, reported as 2011(2) RCR (Civil) 153, the Hon'ble Supreme Court held that in a road accident claim, the strict principles of proof in a criminal case were not attracted and the claimants were merely to establish their case on the touchstone or preponderance of probability. In Ravi vs. Badrinarayan and others, reported as 2011(2) RCR (Civil) 191, the Hon'ble Supreme Court held that a mere delay in lodging the FIR shall not be fatal to the claimant. The contents of the FIR should also be scrutinized carefully and if the Court finds that there was no indication of fabrication or that it was not concocted or engineered to implicate innocent persons, then even if there was a delay in lodging the FIR the claim could not be dismissed. In Kusum Lata and others vs. Satbir and others, reported as 2011(2) RCR (Civil) 379, the Hon'ble Supreme Court held that in a case relating to the motor accident claims, the claimants FAO No.202 of 1994 -8- were not required to prove the case as it was required to be done in a criminal trial. The claimants were merely required to establish the case on probability. All these principles brought through these decisions only lay down that if there was evidence which showed probability of involvement of a particular vehicle, but the same fact that a complaint was lodged after a delay, they ought not to be taken as a ground for disbelieving the version. I have pointed out to the situation where I am affirming a finding of non- involvement not by the fact that there was a delay, but by the fact that the delay was artificial. A fellow passenger who was a lawyer and who ought to have known the worthiness of the statement to the police against the guilty person took a month's time to go to the police and would not explain where he was undergoing treatment and how his illness was such as he could not have gone to the police station earlier. The particular person against whom the complaint was given was denying the accident and yet another person who had been injured in the same accident, a cyclist who said that he knew the deceased and his father-in-law as acquittances being a resident of the same village also said that Dayal Singh who had been implicated as driver in the accident was known to him as an acquaintance and he gave definite evidence to the effect that it was not Dayal Singh who was the driver of the tractor which dashed against the jeep. There is simply no reason for Bachhitar Singh to give fake evidence in support of the tractor-trolley. He had hardly anyone to choose to depose falsely. He knew both deceased Rajinder Singh as well as the driver Dayal Singh. There was sure evidence to the effect that a tractor that hit the jeep was carrying sugarcane in the trolley. It could have been possible for the claimant in a case of doubt relating to the involvement of the vehicle that this particular FAO No.202 of 1994 -9- tractor had actually delivered sugarcane at any factory nearby. In a case like this, there ought to have been a better quality of evidence on the side of the appellants. The wife of the deceased was examined and the claimant was admittedly not the eye witness. The only eye witness who was an advocate and who was a fellow traveller of the deceased was examined, but his deposition did not definitely evoke confidence and the Tribunal found that the accident had not been established involving the respondents, the tractor owner and driver. It was justified in coming to such a conclusion on this quality of evidence which was hardly convincing to make the respondents in the claim petition liable for claim out of the accident. A Court of appeal which can re-appreciate the facts on the basis of materials already placed, can definitely come to different conclusion even on a question of fact, but it must be such fact that was transparent and clear and it must find that the Tribunal had closed its eye to clear evidence which was placed before it. Such clear evidence was never there and I have no better reasons to come to a different conclusion. 10. The order of dismissal of petition by the Tribunal is confirmed. The claimants shall have only a remedy for taking appropriate solatium from the fund created under Section 163 of the Motor Vehicles Act. If such application were to be filed, the same could be considered by the appropriate authority as a case of hit-and-run and the period before the Tribunal and this Court could be excluded and the amount as described under the Act could be released to the claimants. 12. The appeal is dismissed with directions as aforesaid. April 29, 2011 (K.KANNAN) Gulati JUDGE