Om Prakash Nayar vs M/S. National Productivity ...
1999 Latest Caselaw 1254 Del

ORDER

Dr. M.K. Sharma, J.

1. This appeal is directed against the award passed by the Motor Accidents Claims Tribunal on 17.5.1985 dismissing the claim petition filed by the appellants. The appellants filed the claim petition alleging that on 6.5.1977 at about 6.15 P.M. while he was standing at the bus stand, Moti Bagh, New Delhi a car bearing No. DHE-916 came from Dhaula Kaun side which was being driven rashly and negligently at a very fast speed and knocked down the appellant who was waiting for a bus. It was also alleged that after stopping for a moment the car driver speed away with the vehicle. It was stated that the appellant was removed to Safdar jang Hospital wherein he remained for about 5 days as he sustained multiple injuries and fracture on his leg and hand. It was stated in the said claim petition that the appellant was in private service of a Bakery and was earning Rs. 450/- per month, and that as he suffered multiple injuries and could not attend his work his services were terminated by his employer. It was also alleged that the appellant lost all sources of income for a period of about 3 years and also could not complete his Chartered Accountancy course as a result of which he not only suffered physical pain and agony but also suffered mental agony, torture and loss of future in life and also suffered from permanent disability. The appellant, therefore, claimed just and fair compensation valued at Rs. 3 lac under various heads from the owner of the vehicle, driver of the vehicle and the Insurer.

2. The owner and the driver of the vehicle denied the factor of accident by the aforesaid car and stated in their written statement that their vehicle was not involved in the alleged accident and that the said vehicle was used for other duties of the owner at the alleged time and date of occurrence. The Insurance company also denied any liability. On the pleadings of the parties the Tribunal framed 5 issues. Evidence was also adduced by the parties and after hearing the arguments the Tribunal dismissed the claim petition holding that the appellant herein did not receive any injury on account of the rash and negligent driving of vehicle No. DHE-916. He held that the appellant failed to prove his case of rash and negligent driving and also involvement of the owner and the driver. Accordingly, the Tribunal dismissed the said claim petition.

3. Mr. Goyal appearing for the appellant submitted that the Tribunal not only committed error in law but also committed error of facts in coming to the aforesaid conclusions. He referred to the evidence on record in support of his contention that the aforesaid accident was caused by none other vehicle than DHE-916 of which respondent No.1 was the owner. He took me through the evidence on record in support of his aforesaid contention to substantiate that the award passed by the Tribunal is illegal and is based on misreading of the evidence.

4. None appeared for the respondents when the matter was argued and heard. Therefore, I proceeded to dispose of the appeal on the basis of the arguments advanced by the counsel appearing for the appellant and also on the basis of the records perused by me.

5. A close reading of the evidence on record would indicate that for proving the factor of the accident by the vehicle DHE-916 of which the respondent No.1 was the owner the appellant examined 2 eyewitnesses apart from himself. The aforesaid two eyewitnesses apart from himself. The aforesaid two eyewitnesses were examined as PW-1 who is Shri Waiaya Ram and Shri Ravinder Pal Singh, PW-2. The said witnesses have testified that a car with registration No. DHE-916 came from Dhaula Kuan side at a very fast speed and hit the appellant who was standing towards kaccha side of the road. The said witnesses however, admitted in their deposition that they could not see as to who was driving the vehicle. That however, is not very material, for the driver of the vehicle admitted in his deposition that he was the driver of car No. DHE-916. He has also admitted in his deposition that the aforesaid car remained under his hand continuously from 4.00 P.M. till 9.30 at night on the date of the accident.

6. The question that therefore, falls for my consideration is as to whether or not the accident was caused by vehicle No.DHE-916. The Tribunal has discussed the evidence of PWI & 2 as also of the appellant herein at length and on scrutinizing the same came to the conclusion that the afore- said accident was not caused by vehicle No. DHE 916. Reasons have also been given by the Tribunal for disbelieving the evidence of PW-1, PW-2 as also that of the appellant herein. PW-1 stated that on 6.5.1977 at about 6.00 P.M. he saw that car No. DHE-916 came from Dhaula Kuan side at a fast speed, hit a boy and severely injured him. He also stated in his examina- tion-in chief that he was one of the persons who removed him to the Hospi- tal in a car which came later on. Even in the examination-in-chief itself he stated that he left the spot when the boy was removed to the Hospital. There is therefore, some discrepancy in his deposition even in the examination-in-chief. In his cross-examination he stated that he did not accompany the injured to the Hospital and that he had met the appellant on the date of deposition after the accident which is about 3-1/2 years later and recognized him immediately. He has also stated that his statement was not recorded by the police nor did he go to the police station and that he did not follow up the case at any stage. He also stated that he was not summoned by the criminal court. He also could not say if the speed was 20-30 or 40 kms. per hour as he had never driven a car.

7. The other alleged eyewitness is PW-2. He also stated in his examination-in-chief that he did not accompany the injured to the Hospital and remained on the spot for about 5 minutes only. He also stated that he never met the appellant at any time after the accident and that he got the injured removed in that car although he did not remember number of the car in which the appellant was removed to the Hospital. He did not remember the color of the car which allegedly hit the appellant, nor did he note the number of the vehicle.

8. The appellant examined himself as PW-8 and stated that immediately after the accident he became unconscious and he regained consciousness at 2.00 A.M. on the next date in the Safdarjang Hospital. He had also deposed regarding the nature of injuries sustained by him in the aforesaid accident and also about his income and source of the said income. No appointment letter was however, placed on record by him nor any termination letter has been placed on record. He had admitted that he did not know who took him to the hospital as he was unconscious at the time of accident. He also did not know the number of the car which is alleged to have hit him nor did he know who was driving the said car.

9. In this connection reference may be made to Ex.PW-6/A the entry in the MLC wherein it has been noted by the Doctor of the Hospital that the appellant was brought to the Hospital with an alleged history of being knocked down by a car and was found lying on the road side. In the said MLC the name of Mr. Ravi Gupta has been mentioned as the person who brought him to the Hospital. Said Ravi Gupta has not been examined as a witness in the present case, although said Ravi Gupta was examined in the criminal case, as an eye-witness. A vital and important witness has not been cited as a witness in the present proceedings by the appellant which amounted to withholding of the best evidence.

10. The two eye-witnesses namely-PW-1 and 2 clearly appear to be chance witnesses but none of them admittedly accompanied the appellant to the hospital although they were present at the site nor did they ever try to meet the appellant after the accident and during the period when he was in the hospital and even did not know the appellant even before the accident or after the accident. It has also come in evidence that immediately after the accident the appellant lost his consciousness. A doubt is therefore, created in the mind as to how the appellant came to know that these two persons had witnessed the occurrence. Ravi Gupta who accompanied the appellant to the hospital has not been examined. It is not disclosed from the evidence on record that he had named PW-1 and PW-2 as eyewitnesses to the occurrence. PW-2 did not remember the color of the vehicle, which hit the appellant although he remembered the number of the vehicle. This is some- thing astonishing and appears to be doubtful. In my considered opinion the Tribunal did not commit any error or mistake in disbelieving the testimony of the aforesaid alleged two eyewitnesses. The appellant became unconscious immediately after the accident and he also did not remember the number of the car and therefore, no reliance can be placed on his evidence so far factor of the accident is concerned. Even otherwise the evidence of the appellant with regard to quantum of his income appears to be doubtful. The appellant alleged that his monthly salary is Rs. 450/- per month and that he was employed in a bakery for about 2-1/2 years. In support of the aforesaid contention an employee of the aforesaid bakery testified. However, the employer or any authorized agent of the management was not examined in the present case by the appellant to prove and establish that he was really in employment of the said bakery. No appointment letter has been placed on record nor the order of termination, if there be any. No salary certificate has been placed on record. Therefore, except for the statement of a co-worker that the appellant was drawing salary of Rs. 350/-per month from the bakery there is no other evidence to support the case of the appellant. If the appellant was really employed in the said bakery, he could have obtained salary certificate from the management and/or placed some reliable documentary evidence in support of his claim that he was employed in the said bakery and was earning Rs. 350/- per month from the said bakery. No register nor any document showing that the appellant was ever in the service of the said bakery has been placed on record. In absence of some reliable evidence it cannot be held that the appellant was employed in the said bakery or that he was drawing a salary of Rs. 450/- per month as claimed by the appellant.

11. In view of the aforesaid facts and circumstances, the Tribunal was justified in holding that the appellant has failed to prove his case regarding involvement of the vehicle of respondents No.1 & 2 and also regarding rash and negligent driving on the part of the driver as also on the issue of loss of his income. Consequently, I find no merit in this appeal and the appeal stands dismissed but without any costs.