Parveen Kumari Vs Raju and Others

This is an applica%on under Order 41 Rule 27 read with Sec%on 151 CPC for permission to place on record documents Annexures A-1 to A-5, by way of addi%onal evidence.

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By way of the present applica%on, applicant/appellant is seeking to place on record Annexures A-1 to A-5 which pertain to the medical record of the deceased; as also the police proceedings.

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In the peculiar facts and circumstances of the case, the said medical evidence is not of any relevance. Moreover, no reason has been given by the applicant/appellant for not producing the above, said documents before the learned Tribunal.

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In view of the above, present applica%on stands dismissed.

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The present appeal has been 6led by the claimant against the dismissal of her claim pe%%on by the learned MACT, Jhajjar (hereina9er referred to as ‘the Tribunal’), vide Award dated 18.11.2024 passed in MACP Case No. 79 dated 18.11.2024 6led under Sec%on 166 of the Motor Vehicles Act, 1988 (hereina9er referred to as ‘the Act’). The sole claimant is the mother of the deceased Harish, who was 20 years old at the %me of accident.

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Brief facts of the case are that the ld. Tribunal on the basis of evidence adduced by the par%es concluded that the appellant/claimant had failed to prove that the accident dated 27.01.2019 at around 03:30 p.m. had taken place due to the rash and negligent driving of a Mahindra Scorpio bearing registra%on No.HR-06X-6256 (hereina9er referred to as “the oDending vehicle”) being driven by respondent No1; owned by respondent No.2; and insured by respondent No.3.

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Learned counsel for the appellant assails the impugned Award by submiGng that learned Tribunal was in error in dismissing the Claim Pe%%on as it failed to appreciate that FIR in respect of the accident, was registered on the same day on the basis of statement of injured Deepak (who subsequently expired), who had also sustained injuries in the same accident. It is submiJed that from the record, it is also clear that the oDending vehicle has been taken into possession by the police from the place of accident. Respondent No.1 has been charge-sheeted and the PW-7 Ahlmed from Criminal Court has appeared before the learned Tribunal and

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has stated that respondent No.1 is facing trial. It is submiJed that

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therefore, in face of all the voluminous evidence, Claim Pe%%on could not have been dismissed.

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When it is pointed out to learned counsel for the appellant that at the %me of accident, deceased was driving a bike on which 4 persons were riding, learned counsel contends that at best, the deceased could therefore, have been held liable for contributory negligence or some viola%on of the Motor Vehicles Act. However, the Claim Pe%%on could not have been dismissed as negligence on the part of respondent No.1 in driving the oDending Scorpio is established. It is accordingly prayed that the present appeal be allowed; and the impugned Award be set aside.

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No other argument is raised on behalf of the appellant. I have heard learned counsel and perused the case 6le in great detail. I 6nd no merit in the submissions made by learned counsel for the appellant.

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The case as pleaded by the appellant in the claim pe%%on

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before the learned Tribunal as recorded in para 7 of the impugned Award reads as follows: -

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“7. The pe��oners have stated that on 27.01.2019 pe��oner Ravi along with his colleague Harish, Deepak Kumar @ Dipesh and Monu were going to Beri from village Dadri on a motor-cycle for mee�ng their friends. The motorcycle was driven by Harish and Ravi, Deepak Kumar and Monu were pillion riders. When at about 3:30 PM, they reached near Dalawala Mandir at Dubaldhan-Beri Road then a Mahindra Scorpio bearing registra�on No. HR-06X-6256 driven in rash and negligent manner by respondent No.1 Raju came from the opposite side and directly hit the motor-cycle.

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On account of which, pe��oner and others who were si5ng on the motor-cycle fell down and sustained mul�ple grievous injuries. Harish son of Jai Singh succumbed to the injuries sustained by him in the accident. Many persons came at the spot. Driver of the Scorpio by taking advantage of the crowd 7ed away from the place of accident. The FIR of the above accident bearing No.32 dated 27.01.2019, under Sec�ons 279,337,304-A IPC in police sta�on, Beri was lodged against the respondent no.1. The pe��oners have submi=ed that the respondents, who are driver, owner and insurer of the o>ending vehicle are jointly and severally liable to pay compensa�on to the pe��oners for causing death of Deepak Kumar and Harish and causing injuries by Ravi and Monu in the above accident.”

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From the above, it is admiJed fact on record that at the %me of accident, deceased was driving bike with 3 pillion riders who were not wearing helmet.

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In the impugned Award, learned Tribunal has recorded the tes%mony of pillion rider Monu, eye-witness as follows: -

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“15. PW5 Monu in his tes�mony has stated that there were four persons on the bike, Bike was driven by Harish. Harish was wearing Halmet. Other three pillion riders were not wearing the halmet. It is correct that �ll date, he has not seen the driver of the Scorpio. He does not know who is the owner of the Scorpio. Pe��oner Monu who was the pillion rider in his tes�mony in criminal case FIR No. 32 Ex.D6 has stated that that he saw the driver of o>ending vehicle whose name he came to know was Raju. ABer the accident, he became unconscious. He has seen the accused, he cannot

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iden�fy him. Taking into considera�on the above tes�mony of Raju (should be Monu), he was declared hos�le in the criminal case bearing FIR no. 32. ”

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It has come on record that pursuant to the accident, FIR No. 32 dated 27.01.2019 was registered against respondent No.1 under Sec%ons 279, 337, 304-A IPC at Police Sta%on Beri on the basis of statement of injured and eye-witness Deepak Kumar, alleging that accident in ques%on had taken place due to rash and negligent driving of respondent No.1. However, Deepak Kumar had also died. During the criminal trial, PW5 Monu, another injured eyewitness has stated that that he saw the driver of oDending vehicle whose name he came to know was Raju. A9er the accident, he became unconscious. He has seen the accused, but he cannot iden%fy him. Taking into considera%on the above tes%mony of Monu, he was declared hos%le in the criminal case bearing FIR no. 32. Thus, PW5 Monu did not support the case of the prosecu%on against respondent No.1.

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It is to be appreciated that the present claim pe%%on was 6led by the claimant with the posi%ve averments that the accident in ques%on had been caused due to the rash and negligent driving of the oDending vehicle by respondent no.1. However, in the criminal trial against respondent no.1/Driver, PW5 Monu eyewitness has turned hos%le and gone back/reversed on the case set up by the claimant side before the learned Tribunal. This Court cannot be a deaf-mute spectator to the

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two contradictory versions given by the claimant side. No doubt,

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proceedings under the Act have to be decided on the preponderance of probabili%es. However, this Court cannot shut its eyes in an ostrich like manner, to the starkly diametrically opposite stance taken by the claimants' side in the criminal trial. Thus, no credence can be aJributed to the contrary statements made by the claimant side before the learned Tribunal. Therefore, it cannot be said that the accident in ques%on was caused due to the rash and negligent driving of the oDending vehicle by respondent No.1; as the same would be contrary to the own statements made by the claimant side. It would appear that the claimant side had deposed falsely before the Tribunal only to get the compensa%on. In such a situa%on, I 6nd no error in the impugned Award.

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I 6nd support in my view from a judgment of this Court in “United India Insurance Company Limited Vs. Kamla Devi & Others” (P&H) : Law Finder Doc Id # 251230 wherein it has been held that:

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"5. It should s�ll have been possible for the Tribunal to take a decision unin7uenced by any decision that may have come before the criminal court. The several decisions which have come about on this issue are to the e>ect that a judgment in a criminal court is not binding on the Tribunal; the non-Gling of a FIR is not material; even the fact of involvement of the vehicle as found by the criminal court is not binding. While the Tribunal is competent to assess the evidence which is brought before it and take an independent decision, then the point that has to be seen is whether there was any evidence worth its name before the Tribunal to come a Gnding

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that the par�cular vehicle was involved in the accident. It can be either that the version of Sitar Mohd. cannot be relied for he has contradicted himself wholesale with the version given before the criminal court or looked for other evidence which was placed before the Court. Alterna�vely if any explana�on had been given by the witness as to why he deposed falsehood before the criminal court, even such an explana�on could have been accepted to enter a Gnding that the accident took place only involving the par�cular insured's vehicle. In this case, no explana�on has been given by the witness as to why he stated before the criminal court that he did not know which vehicle was involved in the accident. He would, on the other hand, defy that he ever made any such statement before the criminal court, necessita�ng the statement made before the criminal court to be exhibited for contradic�on before the Tribunal. It must be remembered a statement in criminal court case by a witness is also on oath. If he was u=ering falsehood, he was liable for perjury. If there was contradic�on between the version elicited before the Tribunal to the statement made before the criminal court then such a witness will be unworthy of acceptance. The Tribunal could have simply rejected the whole evidence. If it was going to pick out one line from chief examina�on to say that the insured's vehicle was involved in the accident, the Tribunal was doing something which is not a judicial func�on but a travesty of jus�ce."”

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The above said view has been reiterated by this Court in “Shri

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Ram General Insurance Company Limited Vs. Jeeto Devi & Others” FAO-

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2231-2014 decided on 03.12.2019, wherein it is held as under:-

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“(6) This Court cannot loose sight of the judgment rendered by this Court in the case of United India Insurance Company Limited versus Kamla Devi and others, wherein it was speciGcally held that in case an eye witness gives totally different version before the Court conduc�ng trial in criminal case from the statement made by the said eye witness before the Tribunal, the tes�mony of such a witness is unworthy of being accepted and the evidence should be simply rejected. In fact, the learned Single Bench came down heavily on such witness and held that the said witness is also liable for perjury.”

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I am in agreement with the abovesaid view taken by my worthy predecessors that the claimant side is liable for perjury for making contradictory statements before two Courts of Law.

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Furthermore, I am in agreement with the reasoning of learned Tribunal in para 17 of the impugned Award, which reads as follows:-

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17. It is not disputed that at the �me of accident, motor-cycle was driven by Harish. Besides Harish, there were three more pillion riders on motor-cycle. Three pillion riders were not wearing halmet. The above conduct of the pe��oners speaks volume with regard to the negligence with which the motorcycle was driven at the �me of accident. PW5 Monu in his tes�mony has stated that he does not know who was driving the Scorpio at the �me of accident. Monu in his tes�mony before the Court where Raju is facing criminal trial with regard to the accident in hand has stated that he cannot iden�fy the accused. The same can be gathered from Ex.D6.”

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