PRAVABATI JENA Vs. RAM KUMAR AGARWAL

JUDGEMENT

(1.) THIS appeal by the wife is directed against an award of the Second Motor Accidents Claims Tribunal, Orissa, Cuttack, seeking enhancement of compensation to the injured husband. Respondent No. 1 has also filed a cross -objection challenging the award as not sustainable insofar as it has made him liable to pay the awarded amount. The appellant lodged a claim with the tribunal on the pleading that her husband was hit while crossing the Bhubaneswar -Cuttack Road at Phulnakhara on 15 -7 -1981 at about 1.00 p.m. after alighting from a bus by an Ambassador car belonging to respondent No. 1 going from Cuttack side at reckless high speed without blowing horn. The car hit her husband from behind and without stopping fled away but was pursued by P.W. 7 with a motor -cyclist who got it detained near the road breakers at Pahala and left the vehicle there with the police. It is her case that the injured suffered multiple injuries, his both the legs were broken, he became useless for all purposes and being so handicapped has become a burden to all. She accordingly lodged a claim of Rs. 85,000/ - as compensation. The claim was contested by the respondent No. 1 mainly contending that the Ambassador car ORO 424 belonging to him was not the car causing the accident and that on the date of the accident the car was at Balangir.

(2.) SINCE it is the case of respondent No. 1 that his vehicle ORO 424 was not the cause of the accident, it is necessary to examine such plea before considering the question of enhancement of compensation. It has been urged by Mr. S.Kr. Mohanty, learned Counsel for respondent No. 1, that the only two eye -witnesses to the occurrence, P.Ws 4 and 7, are not believable in their statement that they noted down the number of the vehicle as ORO 424 and that the injured himself also did not say about the number of the car and that another person, Ramesh Chandra Praharaj, who had taken the injured to the SCB Medical College -Hospital has not been examined. It is the evidence of P.W. 7, who is a tailor, that a Cuttack bound bus came from Bhubaneswar side and parked at the bus stop just in front of his tailoring shop. The injured Dibakar Jena gotdown from the bus and having crossed the road stood on the eastern side earthen flank of the National Highway and while standing there the Ambassador car with the registration number ORO 424 came from behind and knocked him down and without stopping fled away towards Bhubaneswar. He and a motor -cyclist who was there at the bus stop chased the car and got it detained by the police near the road breakers at Pahala overtaking it while it had slowed down. After leaving the vehicle in police custody they returned to the spot where the injured was lying with fractured legs. Such evidence of P.W. 7 almost goes unchallenged and has not been in any way shaken in cross -examination. The other witness examined by the claimant as witness to the occurrence is P.W. 4 who was said to be standing at the bus stop and saw an Ambassador car bearing registration number ORO 424 coming from Cuttack side knocking down the injured from behind and then speeding away towards Bhubaneswar. The injured suffered bruises all over his body including face and both his legs were broken. He took the injured to the SCB Medical College -Hospital at Cuttack by an ambulance van and while going to Cuttack reported the fact at the Sadar Police Station in writing. The only ground on which the evidence of the witness has been assailed is his statement of having marked the number of the car from a distance of about 300 to 400 feet. P.W. 4 has explained that after running near the injured and finding him senseless he directed his attention towards the car and noted its number. His statement about the aforesaid distance of 300 to400 feet is an eye -estimation and there is nothing in his evidence to disbelieve him that as a fact he had seen the number of the speeding vehicle. Apart from these two witnesses, another witness, P.W. 8, a truck driver, was also examined by the appellant to show that he was the driver engaged after the accident to drive the car ORO 424 from Pahala to Balangir and had left the vehicle at the residence of Ramkumar Baboo (respondent No. 1) at Balangir town and was paid Rs. 150/ - by respondent No. 1 towards his wages. The evidence of this witness does not inspire much confidence since he deposed that the injured had contacted him the day before his deposition to request him to figure as a witness in the case and about twenty five days prior to that he had also met his mother at his village and had requested her to ask P.W. 8 to become a witness. He also could not explain as to how the injured could know that he had driven the vehicle to Balangir.

(3.) AS regards the evidence led by the respondent No. 1, the same principles decided by the Supreme Court apply. Respondent No. 1 examined three witnesses to establish his case that his vehicle ORO 424 was at Balangir at the time of the accident. It has been found by the tribunal that the respondent No. 1 appeared in the proceeding on 9 -7 -1982 and filed a cryptic written statement on 6 -12 -1982 that his vehicle ORO 424 never meet with any accident on 15 -7 -1981 as alleged in the claim petition and that on that date it was at Balangir. Only after the evidence of the appellant was over on 11 -7 -1984, he led evidence disclosing for the first time on 4 -8 -1984 that the vehicle was on the date of the accident in the garage of O.P.W. 1. Absolutely no explanation has been offered as to why the fact that the vehicle had been garaged from 24 -6 -1981 for two months as was sought to be proved through evidence had not been pleaded in the written statement. The tribunal found that the counsel who had been engaged by respondent No. 1 in the proceeding was a prominent lawyer of experience and that it was but natural that such fact of the vehicle having been in the garage for repair at the relevant time, if had been informed to him, would have been pleaded in the written statement. From such fact, it was found by the tribunal that an inference arises that the defence to be adopted by respondent No. 1 was carefully kept suppressed so as to avoid any attempt by the appellant to verify the veracity of such stand. The learned tribunal also found the evidence of O.P. W. 1, the owner of the garage, to be not believable and the register Ext. A maintained by him in respect of the vehicles entrusted to him for repair as not a credible document, the same being not serially page -marked, the serial numbers of the entries being not maintained and further the entry Ext. A/1 of 24 -6 -1981 having been followed by an entry dated 7 -4 -1981. Likewise, the evidence of O.P.W. 3 who was examined to corroborate the version of O.P.W. 1 has also been disbelieved since though he had gone to the garage of O.P.W. 1 to get his motor cycle repaired which had met with an accident, yet there was no entry in Ext. A regarding it and there was also no police report to support such story of the accident. Besides, the witness is also a grain -dealer like that of the respondent No. 1. The tribunal also found some intrinsic evidence of conduct on the part of respondent No. 1 to suggest that attempts had been made to regularise the insurance of the vehicle up to the time of the accident. The entries in the registration certificate, Ext. 8, show that the vehicle had no valid insurance till 31 -3 -1981 when the entries were made. Thereafter, entries were made on 24 -7 -1981 to show that the insurance was valid till 22 -7 -1982 which would show that the insurance was valid till 22 -7 -1982 which would show that the insurance premium was paid after the accident. Generally for such reasons and otherwise I would hold, in agreement with the learned tribunal, that it is the vehicle ORO 424 belonging to respondent No. 1 which had caused the accident and hence the cross -objection of the respondent No. 1 must be rejected.;