SURENDRA KAUR Vs. KULJIT SINGH

JUDGEMENT

(1.) THESE two appeals are directed against the common order passed by the Motor Accident Claims Tribunal, Sambhar Lake, District Jaipur thereby rejecting two claim petitions filed by the appellants herein in regard to death of driver of truck No. RND- 9257 Gulzar Singh and khalasi of the said vehicle namely Nirmal Singh @ Nimmo, both of whom died in road accident along with two others which took place on 23. 10. 1989. It is borne out from the record that Gulzar Singh was driving the vehicle No. RND-9257. While he was coming from Ajmer towards Jaipur, suddenly truck No. DIL-5262 which was coming from Jaipur towards Ajmer and was being driven by respondent no. 1-Kuljit Singh, collided with the former which resulted into death of aforesaid Gulzar Singh and Nirmal Singh and two others travelling in that truck. In the first information report that was lodged at the instance of khalasi of truck no. DIL-5262, it was alleged that the driver of truck no. RND-9257 was driving the said truck in rash and negligent manner and that resulted into the accident. Subsequently, however, when informant Sita Ram appeared in the witness box before the Tribunal, he stated that accident took place due to negligence on the part of the driver of truck no. DIL-5262. The learned Tribunal, however, held that accident took place due to the negligence and mistake of deceased Gulzar Singh and that since the owner and insurance company of truck no. RND-9257 have not been impleaded as party, the claim petition in both the cases was liable to be dismissed and accordingly rejected.

(2.) I have heard Shri Vinay Mathur, learned counsel for the claimant-appellants and Shri S. R. Joshi and Shri Ganesh Joshi, learned counsel appearing for the respondent insurance company.

(3.) EVERYTHING would turn on the appreciation of statement of eye witness Sitaram as the issue no. 1 was to the effect whether the accident had taken place due to rash and negligent driving of truck no. DIL- 5262 by respondent no. 1 Kuljeet Singh. Matter has been decided against the claimant-appellants by the Tribunal on interpretation of his statement. The Tribunal has on consideration of his statement, has concluded that this witness was making statement under the influence of claimant because he has gone to Delhi to give his statement before the Commissioner along with Sukhdev Singh, who is brother of the claimant Surendra Kaur, the widow of deceased. Coupled with that assumption, the Tribunal has also drawn adverse inference against the appellant for non production of site plan, which it assumed if was submitted, would have gone against them. I find it difficult to persuade myself to agree with the kind of reasoning adopted by the Tribunal. Merely because statement of the witness Sitaram was recorded on commission and the brother of the claimant accompanied the Commissioner, that would not be a reason enough to entirely discard the testimony of such witness. The statements on commission are required to be recorded in the presence of the representatives of both the parties. Nothing has been mentioned by the Tribunal in the impugned award as to if no one was present from the side of the respondents when the statement of said witness was recorded by the Commissioner. The Tribunal could not proceed on the assumption that the said witness had made his statement under the influence of one or the other party. If this logic is extended further, it can even be applied to what Sitaram stated in his first information report that the accident had taken place due to negligence of the deceased Gulzar Singh and thereabout also, it can be said that since respondent no. 1 Kuljeet Singh was driver of the truck in which he was employed as khalasi, he while acting under his influence, made the statement that the accident took place due to negligence of the deceased Gulzar Singh. In fact, the witness Sitaram in his statement has before the Court stated that he was told by the `truckwala' that if anybody ask him, then he should state that accident has taken place due to the negligence of the other vehicle i. e. RND-9257. The Tribunal however disbelieved that part of the statement and observed that it was not clear from his version as to what was meant by `truckwala'. There was no one else in the truck other than the truck driver and the witness himself as a khalasi and not even the truck owner was accompanying the truck. This distinction drawn by the Tribunal thus appears to be without any difference. If there were only two persons in the truck and they were the driver and the khalasi and when the khalasi is making a statement that he was told by the `truckwala' to attribute the negligence to the other vehicle, the obvious conclusion would be that it was driver himself who told him to make such a statement. Manner in which the findings have been recorded by the Tribunal to completely discard testimony of the eye witness Sitaram in the motor accident claim proceedings cannot be approved of, but at the same time, due to lack of evidence by any other witness about the negligence of driver of other vehicle, except the statement of this witness, the complete negligence cannot be attributed to respondent Kuljeet Singh, who was driving the truck no. DIL-5262.