Sri Sharda Prasad Tiwari & Another vs Sri Sachchidanand Shahi
2013 Latest Caselaw 1983 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 

 
First Appeal From Order No.  972 Of  1997
 
              1.  Sri Sharda Prasad Tiwari  (dead)
 
              1/1. Vijay Kumar Tiwari s/o Sharda Prasad Tiwari 
 
                         1/ 2. Sanjay Tiwari s/o Sharda Prasad Tiwari.
 
                             ( Substituted vide Court order dt.  10.1.2007)              
 
               2.  Smt. Gulabi Devi wife of Sharda Prasad Tiwari (dead)                       
 
                                                                                    ...............Appellants
 
Versus
 
Sachchidanand Shahi................................................................Respondent
 
Hon. Rakesh Tiwari, J.

Hon. Anil Kumar Sharma,J,

( By Hon. Anil Kumar Sharma )

The parents of deceased Pradeep Kumar Tiwari, have challenged the award dated 27.8.1997 passed by Motor Accident Claims Tribunal/District Judge, Deoria in MACP No. 42 of 1992, whereby the claim petition filed by them for an award of Rs. 7,48,000/- on account of death of their son in the instant motor accident, had been dismissed.

During pendency of the appeal, both the appellants have died and in place of the appellant no. 1, his two sons Vijay Kumar Tiwari and Sanjay Tiwari have been substituted in the appeal vide order dated 10.1.2007 and they are legal representatives of appellant no. 2 also.

It appears that on 18.11.1991 at about 12 O' clock in the noon, Pradeep Kumar was going on cycle on Kasiya-Tamkuhi road, then he was knocked down by the driver of bus registration no. UTX 5639 owned by the respondent by driving the vehicle rashly and negligently. 21 years' old Pradeep Kumar was taken to Kasiya for medical treatment but on account of his serious condition, he was shifted to Medical College, Gorakhpur. He was also medically treated at Varanasi but on account of the injuries, he suffered death on 28.1.1992. Parents of the deceased filed claim petition alleging that the deceased was running a scooter repairing shop in Dharamshala Bazar, Gorakhpur and his monthly income was Rs. 1500/-. A sum of Rs. 60,000/- were spent in his medical treatment in the said hospital. Report of the accident was lodged with police against the driver of the bus no. UTX 5639 and the police after investigation submitted charge sheet against the driver.

The respondent contested the claim totally denying the factum of accident. He has stated that he and the claimants are residents of the same village and the claimants are inimical to him on account of election rivalry because in Gram Pradhan election he has defeated father of the deceased twice i. e. in the year 1982 and 1988. Ere that Shyam Tiwari, uncle of claimant no. 1 fought election of Gram Pradhan with the respondent in the year 1972 and he too was defeated. It was further contended that in the year 1987-88 claimant no. 1 has forcibly set up flour mill in the land of Gram Sabha and as Pradhan of the village he has filed a report under section 122-B of U.P. Act 1 of 1951 and pursuant thereto he was evicted. The case of the respondent is that on account of this enmity, his bus has been falsely implicated in the case which was not in working condition on the alleged date of accident as its tail crone had broken and the bus was repaired by Ram Autar Mistri in Kasiya. The learned Tribunal framed the following issues :

1- D;k fnukad 18-11-91 dks yxHkx 12 cts fnu esa dl;k reMqgh jksM ij ogn xzke HkfB;k vUrxZr Fkkuk rqdZikVh eksVj okgu cl ua0 ;w0Vh0,Dl 5639 dks vlko/kkuh rFkk mrkoysiu ls pyk;s tkus ds dkj.k dksbZ nq?kZVuk ?kfVr gqbZ ftlesa ;kphx.k ds iq= iznhi dqekj frokjh dks pksVs vkbZ vkSj bUgha pksVksa ds ifj.kkkeLo:i mudh e`R;q gks x;h\

2- D;k ;kphx.k foi{kh ls dksbZ izfrdj izkIr djus ds gdnkj gS\ ;fn gks rks fdruk\

The claimants examined claimant no. 1 as P.W.1 and also produced Sita Ram as P.W.2. They have filed various papers pertaining to medical treatment of the deceased, FIR, site plan, postmortem examination report and charge sheet etc. The respondent examined himself as D.W.1 and has also produced Muneev Singh as D.W.2 and Ram Autar Mistri as D.W.3. After considering the evidence on record and hearing parties' counsel, learned Tribunal decided issue no. 1 against the claimants holding that they have failed to prove that the accident had taken place due to rash and negligent driving of driver of the respondent's bus and consequently the claim petition was dismissed. Aggrieved the claimants have come up in the present appeal.

We have heard Sri A.B. Shukla, learned counsel for the appellants, Sri R.K. Shahi appearing for the respondent and perused the impugned award as also the oral and documentary evidence adduced by the parties.

Learned counsel for the appellant has vehemently argued that the Tribunal has erred in deciding issue no. 1 against the claimants and has not appreciated the evidence in correct perspective. His contention is that the claimants have proved the factum of accident with the bus of respondent through testimony of eye witness Sita Ram P.W.2, so the Tribunal ought to have decided this issue in favour of the claimants.

Per contra, learned counsel for the respondent has submitted that it is not disputed that there was election rivalry between claimant no. 1 and respondent because the respondent had defeated claimant no. 1 twice in the election of Gram Pradhan. He has further submitted that alleged eye witness Sita Ram P.W.2 was not present at the spot and he is a got up witness. On the contrary, the respondent has produced himself to prove his enmity with claimant no. 1 on account of Gram Pradhan election and has also examined Muneev Singh D.W.2 who owns a shop near the alleged place of accident. Apart from it, the respondent had examined Ram Autar Mistri D.W.-3 who has repaired the respondent's bus on alleged date of the accident.

The claimants have filed this claim petition under section 140 and 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act). It is now not res integra that to sustain a claim under section 166 of the Act, the claimants are required to prove rash and negligent driving of the offending vehicle by its driver. The claimant no. 1 in his F.I.R. has charged the driver of bus no. UTX 5639 belonging to the respondent for knocking down his son by driving the vehicle in a rash and negligent manner. Claimant no. 1 is not the eye witness of the accident. In the F.I.R. the claimant has not noted the name of any eye witness of the accident. In his entire examination-in-chief, the claimant no. 1 has not stated that driver of bus no. UTX 5639 driving the vehicle rashly and negligently, dashed with his son Pradeep Kumar. Even he has not stated that the aforesaid bus is owned by the respondent. He has simply stated that his son has died on account of bus accident on 26.1.1992; that this accident took place on 18.11.1991 and he was informed by Santosh Kumar at his house; that after getting information he went to Sukhaliya Bazar where came to know that his elder son Vijay Kumar had taken injured Pradeep Kumar to Kasiya. Thereafter he reached there and found his son in unconscious state at the clinic of Dr. Gyan Prakash Rai. The doctor advised to take him to the Medical College and then the injured was taken there. Thus, we find that claimant no. 1 has failed to involve bus no. UTX 5639 in the instant accident.

The respondent in his written statement in very clear terms alleged enmity with the claimant on account of Gram Pradhan election, stating that he had defeated Sharda Prasad Tiwari in the years 1982 and 1988. However, claimant no. 1 in his examination-in-chief had not at all denied this fact. In the opening of his cross examination, he has admitted that he fought election of Gram Pradhan against the respondent in the years 1982 and 1988 and was defeated twice. It is pertinent to note here that the respondent has reiterated this election enmity in his examination-in-chief which has not been contradicted on behalf of claimant no. 1 in his cross examination. Thus, it is proved that there was enmity between claimant no. 1 and the respondent so it cannot be denied that his bus has been falsely implicated in the instant accident.

Now we take up statement of alleged eye witness of the accident Sita Ram P.W.-2. His examination-in-chief is reproduced as under:

1- dl;k ls lsojgh tkus okyh lM+d if'pe ds iwjc rjQ tkrh gS mlh lM+d ij esjk xkWo efB;k gSA 18-11-91 dks fnu esa 12-00 cts 'kkjnk ckcw ds yM+ds dh nq?kZVuk gqbZ Fkh og yM+dk lk;fdy ls if'pe ls iwjc tk jgk Fkk cl ls Bksdj yxh Fkh vkSj fxj x;k FkkA cl iwjc ls vk jgh FkhA cl dk uacj ;w0Vh0&5639 @;w0Vh0&[email protected] FkkA cl lfPpnk 'kkgh dh FkhA ;g iwNs tkus ij fd nq?kZVuk yM+ds dh ykijokgh ls gqbZ Fkh ;k cl dh ykijokgh ls gqbZ Fkh xokg us dgk yM+dk tk jgk Fkk vkSj cl vk jgh FkhA

2- eSa yM+ds dks nq?kZVuk LFky ls mBkdj [kfV;k ij xq[kfy;k ys x;kA xq[kfy;k esa yM+ds ds HkkbZ fot; dqekj igqap x;s FksA eSa xq[kfy;k ls yM+ds dks dgh ugh ys x;k FkkA

3- njksxk th us esjk c;ku ,d eghuk ckn fy;k FkkA

The above statement of the sole eye witness does not at all prove the rash and negligent driving of the aforesaid bus by driver of the respondent. Cross examination conducted on behalf of the respondent from this witness, shows that he had tried to hide his intimacy with claimant no. 1. He has denied the suggestion that claimant no. 1 is his maternal brother or relative. Even he has stated that claimant no. 1 does not belong to his caste but he had to admit in the next breath that he and the claimant are Brahmins. He has claimed that his house is situated near the place of accident but this statement does not find corroboration from the site plan. He has stated in cross examination that after the accident, he took the injured on a cot alongwith three other persons but he could not give their names or residence. Contrary to the statement of claimant no. 1, he has stated that he had taken the injured to doctor Vijay in village Sukhaliya where he was treated for two hours and claimant no. 1 also arrived there. There is material contradiction in the statement of claimant no. 1 and P.W.-2 about the doctor who had initially examined and treated the injured. This witness has further admitted in his cross examination that he did not inform anyone about the accident. In paragraph 8 of the cross examination, he has stated that he had studied up to Vth standard and can write the numericals in English. However, in cross examination he has stated that registration number of the bus was told to him by the villagers who had arrived at the spot but he could not name any of them. He has categorically stated that he had seen the registration number but could not read the same completely. Thus, from the deposition of P.W.-2, we find that he had not been able to prove the rash and negligent driving of the aforesaid bus by its driver.

The respondent had examined Muneev Singh D.W.-2 who has stated that his shop is situated by the side of road in village Mathiya and he sits there since morning to evening. In November, 1991 no accident took place near his shop. He further stated that he knows the respondent whose bus plies daily from Kasiya to Tamkuhi road and with that bus no accident took place with Pradeep Kumar on 18.11.1991 at about 12 O' clock in the noon. This witness had been cross examined on behalf of the claimant but nothing adverse could be elicited therefrom which may show that he is not stating the truth. The site plan shows that there is a shop near alleged place of the accident. Thus, statement of D.W.-2 totally belies the factum of accident by bus no. UTX 5639 of the respondent.

The respondent has stated in his written statement that on the date of accident his bus went out of order and was repaired by Ram Autar Mistri. This Ram Autar Mistri has been examined by the respondent as D.W.-3. He has stated that he is engaged in motor repairing work in the name and style "Janata Motor Repairing Works". On 18.11.1991 he had repaired bus no. UTX 5639 of the respondent. Its crone pin and tail pin had broken. He had proved the receipt dated 18.11.1991 which was given by him to the respondent. In cross examination he has stated that the bus reached him on that day at 7 A.M. and after repairs went back at about 6 P.M. on that day itself. In his cross examination, he has admitted that he is not literate and has signed the receipt which was written and read over to him by respondent Sachchidanand Shahi. Thus, statement of this witness proves that on the day of the accident, the alleged offending bus of the respondent was under repairs and had not plied on the road.

In view of what has been stated and done above, we find that learned Tribunal has not at all erred in deciding issue no. 1 against the claimants and claim petition of the claimant appellants was rightly dismissed. The appeal sans merit and is accordingly dismissed.

Dated: May 13, 2013/SNT