Gulab Chand Dhot vs P.N. Aggarwal
1993 Latest Caselaw 539 Del

JUDGMENT

P.K. Bahri, J.

1. These two cross-appeals have been brought against the award of the Motor Accident Claims Tribunal dated August 30, 1980 by which he had awarded a sum of Rs. 51,076/- as compensation with costs against respondent No. 1, Gulab Chand, and respondent No. 2, Jagdish Kumar, and had dismissed the claim against respondent No. 3, National Employees Mutual General Insurance Association. The claimant has filed the appeal for enhancement of the compensation and also for awarding the compensation against the Insurance Company. The owner of the vehicle, which was involved in the alleged accident, has challenged the award on the ground that in fact the vehicle owned by him had not caused the accident and was not involved in the accident at all.

2. Facts, in brief, are that on December 26, 1970, at about 6.20 p.m., the claimant Sh. P.N. Aggarwal was injured in an accident with motor vehicle near A-2/1, Model Town, Delhi. It was the case of the claimant that the Car No. DLI 1745 owned by respondent No. 1 namely Gulab Chand and being driven by driver Jagdish Kumar, respondent No. 2, had caused the accident. It is not disputed before me that in fact the claimant had met with an accident and he received the injuries and the accident was as a result of rash and negligent driving of a particular car. The whole dispute between the parties is with regard to the identity of the car which was involved in the accident.

3. It has come out from the testimony of Gurbaksh Singh, A.S.I., then posted in the relevant Police Station, Model Town that on receipt of the information regarding the accident, he came to the spot and on learning that injured had been removed to Irwin Hospital, he reached there and there he met one Sh. Dhan Raj, the alleged eye witness of the occurrence and he recorded his statement on the basis of which the case registered as F.I.R. copy of which is Ex. PW10/A. In that F.I.R., it was recorded by Dhan Raj that the vehicle which had caused the accident and which resulted in injuries to the claimant was bearing Registration No. DLI 1775. No particulars of the person who was driving the car were given in the F.I.R. although it was stated in the F.I.R. that a few children were there in the said car. Of course, nothing was mentioned about the ownership of the said car in the F.I.R. It was mentioned in the F.I.R. that the car, which had caused the accident, had fled away from the spot and many people had gathered at the spot. Names of any other witnesses who might have witnessed the said accident were not mentioned in the F.I.R.. It is the case of the claimant that in fact, the accident was witnessed by Guru Dutt and Mrs. Gargi Sharma.

4. In evidence, surprisingly, the author of the F.I.R. who had actually witnessed the accident was not examined. Sh. Guru Dutt, PW1 had appeared in witness box. He is having a tea stall near the place of accident. According to him, when he was coming from Tagore Park towards his shop, he had seen a car coming at a very high speed and causing the accident to the claimant. According to him, possibly the number of that car was DLI 1745. In cross-examination, he stated that he had made the statement to the police on the same day and had also seen Dhan Raj at the spot and he had also noted down the number of the vehicle in question and he had given the said number of the police. He deposed that probably the colour of the car was black but in cross-examination he went on to depose that he had been seeing the said car many a time being parked in a house just at some distance from the place of the accident.

5. As far as the other alleged eye witness is concerned, namely Mrs. Gargi Sharma, PW 7, she was frank enough to admit that she was not aware of the number of the car which had caused the accident, so her statement is of no help in deciding as to whether the car belonging to Gulab Chand had caused the accident or not. The claimant appeared as PW 8 and he has not mentioned about the number of the car which had caused the accident in his examination-in-chief, although in cross-examination, he denied the suggestion given to him that the accident had not been caused by the car belonging to Gulab Chand.

6. It is true that Gulab Chand who examined RW1, Jagdish Kumar, the alleged driver of the car and his son Bal Mukund as RW 2, had tried to prove that the car DLI 1745 belonging to Gulab Chand was undergoing repairs at the relevant time but no proper evidence was led to show that in fact the car was not in use during the relevant period.

7. However, unless and until it is established by some positive evidence led by the claimant that in fact the car which has caused the accident was the same which belongs to Gulab Chand, the onus did not shift to Gulab Chand to prove the negative that in fact his car was not involved in the accident. If there has been some positive convincing evidence led before the Tribunal from the testimony of any of the eye witnesses that the car which caused the accident had the registration No. DLI 1745, in that situation it could be inferred in the absence of any satisfactory evidence led by the owner as to whether his car was or was not in running condition at the relevant time to come to the conclusion that in fact the car of Gulab Chand had caused the accident.

8. PW 1 is not positive about the number of the car which was involved in the accident. The learned Counsel for the appellant has vehemently argued that he had made the statement to the police on the same day and the error which has crept in with regard to the number of the car in the F.I.R. stood corrected by taking the statement of other eye witnesses, who had witnessed the accident, on the same day by the police. It is to be mentioned here that in case the witnesses were so positive about the involvement of the car of Gulab Chand in accident, there appears to be no reason why the Investigating Officer would not have seized the car of Gulab Chand immediately because admittedly Gulab Chand is residing in the house near the place of the accident and Guru Dutt was aware, according to his own testimony, that the car in question was available and was being seen by him at the said house of Gulab Chand.

9. The possibility of the witnesses making a mistake about the identity of car which had caused the accident cannot be overlooked. Dhan Raj who was the author of the F.I.R. was the most material witness who had been kept back because he had given the number of the car in the F.I.R. and he could have been the best person to explain as to how he could have made such a mistake in noting down the number. No evidence has been led to show that there does not exist any black car by the number of DLI 1775 and that such a car bearing such a number could not have possibly been involved in such an accident at all. It is unfortunate that claimant had received injuries but for awarding compensation to him we have to have some reliable and convincing evidence to prove that, in fact, it was the car of Gulab Chand which had caused the said accident.

10. In case Guru Dutt had noted down the number of the car soon after the accident on any chit, as stated by him, it was all the more necessary that the said chit should have been proved in this case by summoning the same from the Investigating Officer as Guru Dutt had deposed that he had handed over that chit to the Investigating Officer at the spot.

11. In view of the above discussion, I am of the firm view that Tribunal went wrong in coming to the conclusion that it was the car of Gulab Chand bearing No. DLI 1745 which had caused the accident. The Tribunal also misread the documentary evidence as he has mentioned in the order that document Ex. PW 10/C shows by itself that the police had corrected the number of the car in that document soon after investigation commenced. That document is a sketch of the place of accident and does not show by number of any car which was involved in the accident.

I, hence, allow the appeal FAO 400/80 of Sh. Gulab Chand and set aside the judgment and award of the learned Tribunal and dismiss the claim petition of Sh. P.N. Aggarwal and dismiss his appeal FAO 36/81 but in view of the peculiar facts of the case, I leave the parties to bear their own costs throughout.