K.M. Dayal, J.
1. These four connected appeals have been filed by the claimants under Section 110D of the M. V. Act, 1939, against a common order, dated January 25, 1977, passed by the Motor Accident Claims Tribunal, Mathura, in Cases Nos. 62, 63, 64 and 65 of 1974, rejecting all the claims.
2. F. A. F. 0. No. 173 of 1977 has been filed by Smt. Shanti Devi and others, claimants, arising out of Case No. 62 of 1974. F. A. F. O. No. 172 of 1977 has been filed by Avinash Kapoor arising out of Case No. 63 of 1974. F. A. F. 0. No. 174 of 1977 filed by Smt. Ram Katori arises out of Case No 64 of 1974. F. A. P.O. No. 171 of 1977 has been filed by Smt. Savitri Devi and another arising out of Case No. 65 of 1974. All the claims arise out of a single incident.
3. Three persons, viz., Ajai Krishna Mehta, Balbir Prasad Bessario and Munna, lost their lives in the accident and the claim petitions had been filed by their defendants. Avinash Kapoor received injuries in the accident and he filed the claim petition for damages. All the four cases were consolidated by the Tribunal and decided on the basis of the same evidence. Consequently, all the four appeals are also being decided by us by a common judgment.
4. The brief facts of the case are that on the night between February 15/ 16, 1974, at about 12-30 a.m. Sri Ajai Krishna Mehta was going from Agra to Delhi in his Fiat car No. DHB 6734. Avinash Kapoor (injured), Balbir Prasad Bessario (deceased), Munna (deceased), Nanak and Tulsi were also travelling in that car. The allegations of the claimants were that the car was being driven by Sri Ajai Krishna Mehta at a moderate speed and truck No. HRG 5107, which was being driven rashly and negligently by Udai Bhan, came from behind. While overtaking the car it hit and dragged the car for some distance. Thereafter, the truck stopped suddenly and the right front portion of the car was smashed against the rear portion of the truck. Ajai Krishna Mehta and Balbir Prasad Bessario died on the spot and Munna received grievous injuries and died in Mathura Hospital. Avinash Kapoor was thrown out of the car and was injured.
5. The claimants claimed various amounts. In Miscellaneous Case No. 62 of 1974, Smt. Shanti Devi, the widow, sons and daughter of Balbir Pfasad Bessario claimed a sum of rupees two lakhs under various heads. In Miscellaneous Case No. 63 of 1974, Avinash Kapoor claimed a sum of Rs. 25,000 for pain and suffering, loss in business, expenses in treatment due to his injuries, etc. Smt. Ram Katori, mother of Munna, deceased, claimed Rs. 50,000 as compensation for the death of her son in Case No. 64 of 1974. Smt. Savitri Deviand Ram Kishan, the parents of Ajai Krishna Mehta, claimed a sum of Rs. 5 lakhs as damages in Case No. 65 of 1974 for the death of their son, Ajai Krishna Mehta, who was aged about 27 years. He was a chartered accountant and was also a partner in two firms. The car was owned by him.
6. It may be pointed out that the claim petitions were filed against Udai Bhan, the driver, Sri Ram Rang Magoo, the owner, and National Insurance Co., the insurer of the truck. No claim was made against the owners and insurers of the car.
7. The defence of the driver and the owner was that the truck was standing on the left side of the road, there was some defect and the dynamo stopped charging the battery. The driver and the cleaner were looking to the engine and the tail light of the truck was on. Suddenly car No. DHB 7634 (Correct No. 6734) came from Mathura side and tried to pass the truck from the left side but it dashed against the back portion of the truck.
8. The truck was insured and if any compensation could be claimed, it would-be payable by the insurance company. The claims were alleged to be excessive.
9. The defence of the insurance company was also similar. Separate issues were framed by the Tribunal in all the four cases. Issue No. 1 was common in all the cases which is as under;
' Whether the accident took place due to rash and negligent driving of the truck No. HRG 5107 by its driver, Uday Bhan, respondent No. 1, as alleged in the petition '
10. The other issues were about the legal representatives of the deceased and the quantum of compensation.
11. Under issue No. 1, the Tribunal came to a finding that the accident took place solely due to the negligence of the driver of the car. The driver of the truck was not at all at fault. This is the main issue that has been assailed by the learned counsel for the appellant. The learned counsel wanted to rely upon the statement of the Station Officer, Police Station, Chhata, Harbeer Singh, A.W. 3. He had inspected the scene of occurrence soon after the accident and prepared the site plan (Ex. 4). Exhibits A-I, A-2 and Exs. 5 to 9 are the photographs of the vehicles involved in the accident. A.W. 3 stated that he found skid marks of tyre of the car for a distance of about fifty feet behind the place of the accident. He also found broken pieces of glass, head light, etc., of the car just near the place of the occurrence. Nanak Chand, A.W. 7 and Avinash Kapoor, A.W. 9, gave a different story. They stated that it was about 12-30 a.m. in the night and the car was a little away from Chhata when a truck came from behind and gave horn as it wanted to pass the car. Another truck was coming from the opposite direction. The driver of the car brought the car towards the left of the road. The truck which was coming from behind dashed with the car, dragged the car for a distance of about half a mile. Thereafter, the truck driver applied the brake suddenly and stopped the truck. The car smashed with the truck and went under it. Even then the truck dragged the car for about three furlongs. Avinash Kapoor fell outside the car where it stopped. This story appears to be wholly improbable and the court below rightly discarded the same. Amar Nath, A.W. 8, has given a slightly different story. He stated that he was going in his car from Agra to Delhi and saw a Fiat car (involved in the accident) going ahead of his car. A truck passed his car and while it was overtaking the Fiat, it passed touching and dashing with that car and one person fell down from the Fiat car. A truck was coming from the front side, so the driver of the truck stopped it on the left side and then the Fiat rammed under the truck. He also stated that the man who had fallen down from the Fiat car gave him a telephone number of Delhi. According to him his car was about 250 yards away when the first impact took place. He could not withstand the cross-examination and all the three witnesses, A.Ws. 7, 8 and 9, have been disbelieved by the court below. We fully agree with the appreciation of evidence by the court below and the story does not appear to be at all probable. The site plan prepared by Harbeer Singh, A.W. 3, and the photographs completely belie the story set up by the claimants.
12. O.P. W 1, Udai Bhan, was the driver of the truck No. HRG 5107. He stated that he had loaded wood in the truck. When he reached the place of accident, the dynamo stopped charging the battery. Consequently, he brought the truck on the left side of the road and stopped; the engine was running. He and the cleaner started checking the engine. Another truck was coming from opposite direction and the car came from rear side and dashed against the standing truck from behind and went under it. When he came from the engine to the back he saw this accident. There was no space on the left for the passing of the car. There was a lot of space on the right. Bhadhawa Singh, O.P.W. 2, was driving truck No. HRR 121, which was coming from Delhi side, i.e., opposite direction at that time. He also stated that the truck in question was standing on the left side of the road and its bonnet was open and the parking lights were on. He had seen the car coming from the opposite direction. He dipped the light of his truck and gave the signal that he would pass first. The car came on and dashed with the standing truck. The court below believed the statements of the two drivers and, in our opinion, rightly. The evidence of the appellants is wholly unreliable and the story that the car was first over taken, then dragged with the truck and the truck was stopped and again it dashed against the truck is wholly unbelievable. It cannot be believed that the truck after hitting the car while overtaking it, will drag it for some distance and if the truck stopped suddenly the car could not dash against it and go under it. It would go beyond the truck due to its momentum. In overtaking, the right side of the car should have come in contact with the left side of the truck but in the instant case the car is found under the left portion of the truck and the right portion of the car is under the middle of the truck. The statement of the two drivers O.P. W-l and O.P. W-2 is quite consistent and reliable.
13. We agree with the findings of the Tribunal that the accident took place due to rash and negligent driving of the car. The driver of the truck was not at any fault. Under the circumstances, the driver, owner or insurer of the truck No. HRG 5107 were not at all liable as the accident did not take place due to any fault of the owner or driver of the truck.
14. The court below has determined the amounts of compensation that would have been payable to the various claimants, had their claim for damages been decreed. In view of the fact that the owner or driver of the truck was not found liable for the accident, no amount could be awarded against them, in favour of the claimants.
15. At the close of the argument, the learned counsel for the appellant requested the postponement of the judgment in order to enable him to implead the owner and insurer of the car No. 0HB 6734 as the accident took place due to the negligence of the driver of the aforesaid car, Sri Ajai Krishna Mehta. We are not inclined to grant that indulgence. No claim was made against the owner or insurer of the car at the trial stage. They were not made parties to any of the claim petitions nor had they any opportunity to meet the case of the appellants. The limitation provided under Sub-section (3) of Section 11OA of the M.V. Act, 1939, is six months from the date of the accident. The accident took place on February 15/16, 1974, at about 12.30 a.m. We are not prepared to permit the claimant to raise the fresh claim against the owner or insurer of the car after a lapse of more than eight years. Raising the claim for the first time at the appellate stage would entail a fresh trial and the parties would be greatly prejudiced. We, consequently, reject the prayer of the learned counsel for the appellant for adjournment of the case in order to enable him to implead the owner and insurer of the car at this stage. The owner of the car was Ajai Krishna Mehta, who had expired in the accident. That is also one of the considerations for refusing the request. As we have held that the accident took place due to the rash and negligent driving of the car, the owner, driver or insurer of the truck was not at all liable. The claim of the appellants against them is liable to be rejected.
16. In the result all the appeals fail and are dismissed. There will be no order as to costs.