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Shridhar Tiwari Vs. U.P. State Road Transport Corporation - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAllahabad High Court
Decided On
Judge
Reported in2(1986)ACC393
AppellantShridhar Tiwari
RespondentU.P. State Road Transport Corporation
Cases ReferredPrafulla Chandra Mohanty v. Vast Dei and Ors.
Excerpt:
.....strong reliance on ex. 2) is equally unreliable. 4, awadh narain is equally unreliable. he could not tell as to how many persons bad sustained injuries. a-2 does not mention the name of this witness and it would be unsafe to rely on his testimony in preference to the direct testimony of the conductor and the driver. upg 5197 have given highly discrepant versions contradicting on material points each other and further feigning ignorance of many facts which bad they seen the claimant travelling by that bus, they would have known and remembered. i find their testimony wholly unsafe to rely on and i agree with the assessment made by the tribunal of their statements. they have clearly stated that the claimant was not travelling by the bus in question on the date of the accident. the.....a.n. varma, j.1. this is a claimaint's appeal against an order passed by the motor accident claims tribunal mainpuri dismissing his claim for compensation under the motor vehicles act.2. the claim petition was founded on these allegations. on 31st august, 1975 the claimant was travelling in a roadways bus no. upg 5197 from bewar to bhogaon. between 5 to 6 p.m. the bus reached village pratappur on its way to bhogaon when it met with an accident involving another roadways bus no. usa 8037 coming from the opposite direction. as a result the front portion of the other bus hit the rear portion of the bus in which the claimant was travelling. as a consequence of the impact the claimant was injured resulting in double fracture of his left forearm and his spectacles and wrist watch were also.....
Judgment:

A.N. Varma, J.

1. This is a claimaint's appeal against an order passed by the Motor Accident Claims Tribunal Mainpuri dismissing his claim for compensation under the Motor Vehicles Act.

2. The claim petition was founded on these allegations. On 31st August, 1975 the claimant was travelling in a Roadways Bus No. UPG 5197 from Bewar to Bhogaon. Between 5 to 6 P.M. the Bus reached village Pratappur on its way to Bhogaon when it met with an accident involving another Roadways Bus No. USA 8037 coming from the opposite direction. As a result the front portion of the other Bus hit the rear portion of the Bus in which the claimant was travelling. As a consequence of the impact the claimant was injured resulting in double fracture of his left forearm and his spectacles and wrist watch were also damaged. He suffered sereve mental shock and had to undergo treatment lasting three months at the District Hospital, Mainpuri. A sum of Rs. 2000/- was spent on the treatment. The claimant was a Kurk Amin in the Corporative Department. His duties involved field work which he would be unable to perform for about 6 months. In all he claimed Rs. 25,000/- as damages.

3. The claim petition was amended a number of times whereby besides giving particulars of the compensation the plea that the accident was caused by the rash and negligent driving of the Bus was also sought to be introduced.

4. Both the U.P. State Road Transport Corporation (U.P.S.R.T.C. for short) as well as the Oriental Fire and General Insurance Co. Ltd. Which were arrayed as Opp. parties contested the claim petition. The plea of the Insurance Company was that the two Buses involved in the accident were not insured with it and consequently it was not liable to pay any compensation. It was wrongly impleaded in the petition.

5. The defence of the aforesaid Corporation was that the claimant was not travelling in Bus No. 5197 at the time of the accident. The passengers who sustained injuries in the accident were given first aid at Bhogaon dispensary. The claimant was not one of them. He appears to have obtained a ticket from some passengers of the Bus to make a false claim for compensation. In any case, the accident was caused for no mistake or negligence of the driver of Bus No. UPG 5197. What bad happened was that at the relevant time the road was wet. A cyclist had suddenly come in front of the Bus and in order to save that cyclist the driver applied the brakes as a result of which the Bus skidded on the road with its rear portion striking against the front portion of Bus No. USA 8037. The claim was highly excessive and the petitioner was not entitled to any amount beyond Rs. 500/- if at all.

6. In support of their respective versions, parties led evidence consisting of both oral and documentary. The claimant examined a large number of witnesses including himself and filed inter alia the Ticket. The Corporation on the other hand examined Ram Gopal Tiwari and Jagdish Singh respectively the conductor and driver of Bus No. UPG 5197. In addition the Corporation filed the report dated 31st August, 1975 (Ex. A-1) lodged by the Driver of the Bus with the Station Officer Police Station Be war. the accident report (Ex. A2) submitted by Sri B.C. Awasthi, the Senior Station Officer-Incharge, U.P. State Road Transport Corporation, Bewar and the report dated 31st August, 1975 (Ex. A-3) submitted by the Senior Foreman about the damage caused to the two buses. Ex. A-4 is the report submitted by Jagdish, the driver of the Bus UPG 5197 to the Station Incharge U.P. State Road Transport Corporation Bewar. Ex. A-5 is the report of Sri Ram Gopal Tiwari, the conductor of that Bus to the Station Incharge U.P. State Road Transport Corporation Bewar. It is pertinent to mention here at this stage that the claimant dispensed with the formal proof of all these documents. However, Ram Gopal Tiwari (D.W. 1) and Jagdish Singh (D.W. 2) aforesaid have given formal proof of these documents stating that they recognized the hand in which these documents have been written.

7. A number of issues were framed by the Tribunal. In the arguments before me, however, findings only on two issues were challenged. These were issues Nos. 1 and 6. The correctness of the conclusion reached by the Tribunal on other issues were not challenged before me by any of the learned Counsel for the parties.

8. The two issues which were debated before me were, as mentioned above, issues No. 1 and 6 reading as follows:

(1) Whether the petitioner was travelling by vehicle No. UPG 5197 on 31st August, 1975 between 5 P.M. on his way from Bewar to Mainpuri where the accident took place ?

(6) Whether the accident was caused due to rash and negligent driving of any of the two Buses by the employees of opposite party no. 1 ?

9. The Tribunal considered the evidence led by the parties on these two issues very carefully and exhaustively and answered both these issues against the claimant. It held that the evidence indicated that the claimant was not amongst the passengers who were travelling by Bus No. UPG 5197 at the time of the accident. It further found that the accident was not caused due to any rash and negligent act of the drivers of the two vehicles but had occurred in the circumstances alleged by the Corporation.

10. Having heard learned Counsel for the parties at some length and given the matter anxious consideration, I find myself in complete agreement with the conclusions reached by the Tribunal.

11. I shall take up issue no. 1 first. On this issue the claimant relied firstly on the ticket (Ex. 1) and secondly on the oral evidence consisting of his own statement and those of Mahendra Pal (P.W. 2), Awadh Narain (P.W. 4) and Saheb Singh (P.W. 9). The Corporation on the other hand relied on the testimony of Ram Gopal Tiwari (D.W. 1) the conductor, and Jagdish Singh (D.W. 2) the driver of Bus no. UPG 5197. Both these defence witnesses stated very categorically that the petitioner was not travelling in the Bus on the date of the and he was not one of the injured persons. Their evidence is that in all eight persons including the conductor received injuries. All these injured persons were sent by another Bus to Bhogaon. In the detailed accident report (Ex. A-2) prepared by Sri B.C. Awasthi, the Senior Station Officer Incharge U.P.S.R.T. C. Bewar the name of the claimant does not find place either in the list of passengers or in the list of persons who received injuries in the accident.

12. Learned counsel for the appellant placed strong reliance on Ex. 1 (the ticket) and submitted that in view of the same the Tribunal should have held that the claimant was travelling by the Bus at the time of the accident. However, having regard to the direct evidence available on the record on the question whether or not claimant was travelling by the Bus, it seems very difficult to accept the contention. The ticket was not issued in the name of the petitioner and there is no other material or record maintained by the Corporation which may connect the ticket with any particular individual so as two mike the ticket conclusive evidence of the fact that the person producing the same must be deemed to have been travelling by the Bus. If, however, the evidence on record had not created serious doubt regarding the allegation that the petitioner was travelling by the Bus at the time of the accident, one might have relied on Ex. 1 and decreed the claim of the petitioner. Bat I find that the evidence which the claimant has led does not inspire confidence at all and on the contrary there are such serious discrepancies therein as lend considerable weight to the direct evidence led by the Corporation to the effect that the petitioner was not amongst the passengers travelling by that Bus,

13. Shridhar Tiwari (claimant) P.W. 1 categorically stated in his examination-in-chief that Saheb Singh (P.W. 9) the Pradhan of village Dwarka took him from the place of accident of Mainpuri. Saheb Singh's own statement gives a complete lie to this assertion of the claimant. He has stated that the claimant and other injured persons were sent by another Bus and that he came laterby a different Bus. The Bus by which he came stopped at Bhogaon. At Bhogaon the conductor boarded the claimant and other injured persons on the Bus by which he was travelling. This version is entirely inconsistent with the claimant's own testimony that it was Saheb Singh who brought him from the place of accident to Mainpuri. The contradiction is on a very vital aspect and strikes at the very root of the version given by the claimant. Further the claimant could not identify the driver of the conductor of the Bus, though he recognised the persons who came to depose in his favour and were a leged to be travelling by the same Bus. Still further the claimant first stated that he came to Mainpuri from the place of accident. Later on the changed his version and said that he got down at Bhogaon when the conductor asked him to get down there for being taken to the Bhogaon dispensary. There are other material contradictions not only in his own statement but that made by him and his other witnesses which leave no manner of doubt that no reliance can be placed on the claimant's version. The Tribunal has stressed these contradictions and discrepancies in detail and it is not necessary to repeat the same, as 1 find myself in agreement with the comments made by it.

14. The testimony of the next witness, namely, Mahendra Pal (P.W. 2) is equally unreliable. This witness apart from the fact that be did not know the claimant from before stated that all the injured persons including a claimant came by the same Bus upto Mainpuri thereby giving lie to the claimant's version to the effect that he had got down at Bhogaon from where he boarded another Bus for Mainpuri with the help of Saheb Singh. The witness further the claimant was moving about by himself and did not require the help of any one in boarding the Bus or getting down from it, thus completely contradicting the version of the claimant to the effect that he became partially unconscious and Saheb Singh brought him from the place of accident to Mainpuri. The testimony of this witness is full of discrepancies which have been dealt with by the Tribunal elaborately and it is not necessary to dilate on all those contradictions here. The veracity of this witness is open to serious doubt and the Tribunal was right in not placing reliance on his testimony. He also contradicts the claimant's version on many other points and it is difficult to speculate as to which one of them is telling the truth and which part of their statement is to be relied.

15. P.W. 4, Awadh Narain is equally unreliable. He said that he and the claimant boarded the first Bus which came from the side of Bewar, that he got down at Bhogaon, while the claimant went to Mainpuri. He could not tell as to how many persons bad sustained injuries. He further said that the conductor did not get the medical examination of any injured person made. He hails from the same village Alipur where the son of the claimant is married. He has admitted that he knew the claimant for the last several years. He states that he did not recognize any one of the passengers travelling by that Bus and injured at the accident other than the claimant. His statement that the claimant came to Mainpuri in the first Bus which came from the side of Bewar is completely at variance with the version of the claimant to the effect that he got down at Bhogaon and came by another Bus to Mainpuri. The testimony of this witness does not inspire confidence in the least and can not be accepted.

16. The statement of Saheb Singh (P.W. 9) on which considerable reliance was placed by learned Counsel and regarding whom the claimant said that it was he who had brought him from the place of accident to Mainpuri because the claimant was partially unconscious does not lend any support to the claimant. Indeed, far from supporting it, the testimony of this witness gives a lie to the claimant's own version. In the examination in-chief he did not state that he brought the claimant from the place of accident to Mainpuri. He did not at all support the claimant's version that he had helped him or arranged for his travel from Bhogaon to Mainpuri. The impression given by the claimant in his statement was as if this witness had physically helped him in boarding the Bus because he was partially unconscious as a result of the accident. The witness, however, does not in the slightest way support this theory. On the other hand he says that the claimant and other persons were sent by the first Bus which came after the accident from the side of Bewar. However, he did not travel by that Bus but came by the next which came from the side of Bewar and that at Bhogaon the conductor got the claimant and other injured persons accommodated in his Bus. The injury-report Ex. A-2 does not mention the name of this witness and it would be unsafe to rely on his testimony in preference to the direct testimony of the conductor and the driver.

17. It would thus appear that the witnesses produced by the claimant on the issue whether be was travelling by Bus no. UPG 5197 have given highly discrepant versions contradicting on material points each other and further feigning ignorance of many facts which bad they seen the claimant travelling by that Bus, they would have known and remembered. I find their testimony wholly unsafe to rely on and I agree with the assessment made by the Tribunal of their statements. The tribunal which had the added benefit of watching the demeanour of these witnesses was not impressed by their testimony and I see no ground for differing with its assessment.

18. On the other hand the statements of D.W. 1 and D.W. 2 namely, the conductor and the Driver are straight forward and nothing material has been brought out in their cross examination which might in the slightest degree reflect upon their veracity. They have clearly stated that the claimant was not travelling by the Bus in question on the date of the accident. He was not one of the injured persons. Eight persons including the conductor had received the injuries and they were all sent by another Bus to Bhogaon. The claimant was not one of them. The conductor Ram Gopal Tiwari (P.W. 1) was also one of the injured persons. His name also finds place in the list of the injured persons, namely, Ex. A-2 prepared by a senior Officer of the U.P. State Road Transport Corporation. I see no ground for rejecting the testimony of these witnesses against whom it has not been alleged that they bore any grudge of ill-will against the claimant. D.W. 2 Jagdish Singh, the driver has fully supported the defence version and also proved Ex. A-2 by stating that he recognized the handwritting of Sri Awasthi, the senior Station Incharge, who had prepared the same.

19. Learned counsel for the appellant vehemently contended that Ex. A-2 is not admissible in evidence because Sri Awasthi who is said to have prepared the same has not been produced. In support learned Counsel placed reliance on a decision reported in 1975, Allahabad Weekly Cases, page 633. The contention is devoid of any merit and it overlooks the facts that the claimant himself dispensed with the formal proof of the various documents filed on behalf of the corporation including Ex. A-2. The formal proof of the document having been dispensed with it is not open to the learned Counsel to take this objection in appeal, in any case in view of the testimony of Jagdish Singh (P.W. 2) to the effect that he recognizes the hand-writing of Sri Awasthi and that Ex. A-2 is in his hand. The said document had been proved according to law in our opinion.

20. Learned counsel for the claimant vehemently contended that having regard to the scope of issue no. 1 which was whether the claimant was travelling by the vehicle in question from Bewar to Mainpuri, the only relevant question was whether the claimant was in fact travelling from Bewar to Mainpuri and this fact having proved by Ex. 1 the ticket, all other circumstances pointed out by the Tribunal as establishing discrepancies were irrelevant and not admissible.

21. I am unable to agree. The tribunal was entitled to test the veracity of the claimant's statement and version on the issue whether he was in fact travelling by the Bus in question and in that connection it was entitled to take into account all such facts and circumstances which were inconsistent with the claimant's version and which rendered the veracity of the claimant's version open to doubt, in my opinion the circumstances pointed out by the Tribunal were all relevant and admissible. As regards Ex. 1 (the ticket) I have already made my comments thereon. I repeat that Ex. 1 cannot in the facts and circumstances of the present case be treated as conclusive.

22. Learned counsel relying on a decision of the Supreme Court in the case of Bharwada Bhogiabhai Hirjibhai v. State of Gujarat reported in 1983 SC page 753 submitted that undue importance should not be given to minor discrepancies or discrepancies which do not go to the root of the matter and shake the basic version of the witnesses. The argument has no merit. The discrepancies relied on by the Tribunal and referred to by me are discrepancies which strike at the very root of the matter and do in my opinion render the basis version of the claimant unreliable. The decision cited by the learned Counsel thus lends no support.

23. I next turn to the other issue No. 6. The contention of the learned Counsel was that the finding of the Tribunal on this issue is vitiated because it is inconsistent with the case set up in the written statement. The argument cannot be accepted for variety of reasons. The Tribunal has on a very careful and elaborate discussion of the evidence on arrived at a conclusion with which 1 find myself in complete agreement. The Tribunal has also relied on the claimant's own evidence which to a very large extent supports the evidence led by the respondent.

24. As for the inconsistency pointed out by the learned Counsel, the submission was that in the written statement the respondent had taken the plea that at the relevant time there were heavy rains and therefore the driver of Bus No. 8037 had stopped just north to the metalled road when Bus No. 5179 came from the opposite direction. It was urged that this plea is entirely irreconcilable with the evidence led by the respondent to the effect that the two buses collided while they were moving.

25. The submission is without any substance and is based on taking a few lines from the written statement turn out of context. Reading paragraph 26 of the written statement as well I find no inconsistency whatsoever between the basic case pleaded by the respondent and its evidence. The consistent evidence of the respondent was that the Bus in which the claimant was travelling namely Bus No. 5179 was coming from the opposite direction from the side of Bewar when it noticed a cyclist who had come on the road and in order to avoid hitting that cyclist the driver of Bus no. 5179 applied the brakes as a result of which the wheels of the Bus slipped on account of the fact that the road was wet with rains and in the process it struck the front of Bus No. 8037. It will, thus, be seen that there is really no inconsistency between the pleadings of the respondent and its evidence so as to warrant the rejection of the latter's evidence.

26. Learned counsel next submitted that the mere that the road was wet could not provide a valid excuse to the respondent. For if the road was wet, it cast on the driver a greater degree of care than in the normal circumstances. In support of this learned Counsel relied on a decision reported in 1981 Accidents Claims Journal page 11 (para 6) of the Orissa High Court in the case of Prafulla Chandra Mohanty v. Vast Dei and Ors.

27. As an astract proposition of law there cannot be two opinions that the degree of care which the driver of a Bus or vehicle is expected to take would vary with the situation of the traffic and the condition of the road at the relevant time; nor can there be any doubt that where the road is wet the driver of a vehicle must take the degree of care which is commensurate with the condition of the road. However, from these propositions alone it cannot be said that in the present case the driver must necessarily be presumed to have been lacking in that degree of care which was expected of him. In the case of Prafulla Chandra Mohanty (supra), the finding was that at the time of the accident the vision was limited on account of the fact that there was a sudden bend so that the driver could not see any on-coming vehicle. The finding further was that having regard to the situation and the condition of the road the driver had not taken in that case the care expected of him.

28. In the present case the situation is entirely different. The finding of the Tribunal is that the road was wet and both the vehicles involved in the accident were being driven at a moderate speed, a finding which the learned Counsel for the appellant made no attempt to question and one with which I entirely agree. The Tribunal has also found that the cyclist had come on the road all of sudden and on seeing him the driver in order to save him applied the brakes as a result of which the wheels of Bus slipped hitting the on-coming vehicle in spite of due care on the part of the drivers of the two Buses.

29. On the evidence discussed at considerable length by the Tribunal no other conclusion except that the accident was caused dye to circumstances beyond the control of the drivers and not on account of any rash and negligent act on their part is possible.

30. The evidence of the claimant on this issue is completely unworthy of reliance. The statement made by his witnesses are full of discrepancies which have been pointed out by the Tribunal at length and it is not necessary to repeat the same here. It may also be pointed out that the plea that the accident was caused by rash and negligent driving was introduced more than one year after filing of the claim petition.

31. No other point was urged in support of this appeal.

32. In the result the appeal fails and is dismissed with costs.


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