GURJIT SINGH Vs. AJINDER KAUR

JUDGEMENT

(1.) The appeal is by the owner challenging the award passed by the Tribunal finding the Appellant to be responsible for the accident against the death of a police man whose representatives were the claimants. The contention in the claim petition was that the deceased was traveling on a motor cycle and was proceeding towards Village Niana and at the place of accident he was going towards west and turning towards south. At the same time, the Appellant was alleged to be going from east towards west and did not exercise caution while driving his vehicle but was driving rashly and negligently and dashed against the Motor Cycle in which the deceased was going. The deceased hit against the iron railing and suffered fatal injuries.

(2.) The accident was said to have taken place around 7.30 P.M. on 26.1.2007. The accident was denied by the Appellant and it was his contention that the whole case was a fabrication and would point out to the fact that even the complaint had been lodged only two days later. The contention is that if the accident had really taken place involving the police constable, it must have been immediately brought on record through a complaint and no explanation had been given as to why the complaint was lodged two days later. Again, it is pointed out that in the evidence of PW-2, it has been elicited that the alleged eye witness was a close relative of the deceased being the brother of the first claimant herself, the widow of the deceased. Learned Senior counsel appearing on behalf of the Appellant would show other improbabilities in the version that a person who was supposed to be coming in his own vehicle at a distance of 30 yards from the place of accident could not have noticed the accident. It was quite dark at 7.30 P.M. and the accident having taken place during winter, the visibility ought to have been poor. These are the facts that must be elicited in evidence than being a matter of inference, for it was just as well possible that the road had been lit up at the place of junction going to a village road from the main road and it was also possible that there was no fog. I cannot make any such assumption. I have tested only on the basis of evidence that was given. If there had been a contra evidence placed by the Appellant himself through the driver who was driving the motor cycle at that time I would have reasons to suspect the version of the person who had lodged the FIR and would have taken with such a modification as the situation could have warranted. In this case the driver of the offending vehicle had not been examined and no explanation is forthcoming for his non-examination either at the trial or in the grounds of appeal. It appears that there had been a criminal case against the Appellant and he was also acquitted. I would not take that to be relevant any more than that there was a criminal case and he was acquitted. The case before the Tribunal has to be decided on merits on the basis of evidence.

(3.) Even, if I have no difficulty in finding that the Appellant's vehicle was involved in the accident, I will not go as far as to state that the Appellant alone was responsible for the accident. The site of accident as brought through the site plan drawing by the police which shows that the accident was on the left side of the road and admittedly the deceased was traveling on Balachaur to Ropar G.T. Road and he was turning to the right. I will not accept again the evidence of the eye witness that he could see the deceased turning by putting out his hand to signal that he was turning right. That may not have been possible at a distance of 30 yards even on a clear night and even if it was not foggy. The deceased was turning into a side road from the main road and the Appellant traveling along the main road had a right of way. Even a mere collision of two motor vehicles may not have resulted in fatal injuries but for the fact that the deceased must have been thrown off the vehicle and landed on the iron angle by the velocity of the impact. He must have suffered grievous injuries. Again, by the fact that the accident had taken place at a road junction on the left side of the road for a person traveling from east to west, the whole aspect of negligence cannot therefore be placed only on the Appellant's driver. I would take that the deceased was guilty of contributory negligence, I would make the modification relating to the finding on such basis and take the responsibility for the accident between the driver of the Appellant's vehicle and the deceased in the ratio of 60:40.