Krishan Gopal & Anr vs Sandhya Devi & Ors

1st December, 2001. Against the said order of 2

dismissal of their claim, the respondents preferred

an appeal, being FAO No.46 of 2002, in the High

Court of Himachal Pradesh at Shimla, which was

allowed in favour of the respondent nos.1 and 2

herein on 29th November, 2005. By virtue of the

said decision, the High Court held that Jitender

Sharma had died due to the rash and negligent

driving of Jitender Thakur, the Appellant No.2

herein, while he was driving the scooter owned by

the Appellant No.1 (father of Appellant No.2) and

that both of them were jointly and severally liable

to pay compensation of Rs.2 lakhs, together with

interest at the rate of 9 per cent per annum w.e.f.

6th October, 1999, till deposit of the amount.

They were also directed to pay the costs of the

appeal to the respondents assessed at Rs.3,000/-.

3. The appellants have filed the instant appeal

against the said decision of the High Court.

4. In order to appreciate the circumstances in

which the Tribunal dismissed the claim petition and 3

the High Court allowed the same, it is necessary to

briefly set out the facts leading to the filing of

the claim before the Motor Accidents Claims

Tribunal.

5. On 21st December, 1998, while the Appellant

No.2 herein was riding a scooter belonging to the

Appellant No.1, Krishan Gopal Thakur, there was an

accident in which the said scooter and a Himachal

Road Transport Corporation bus which was proceeding

from Kullu towards Manali, were said to have been

involved. According to the claimants, the accident

had occurred on account of rash and negligent

driving of the driver of the bus as well as the

driver of the scooter. As far as the owner and

driver of the bus are concerned, it was their case

that no collusion had at all taken place between

the scooter and the bus. However, as far as the

appellants are concerned, it is their case that the

scooter was being driven by the deceased himself

and the Appellant No.2 was the pillion rider on the

scooter. According to them, the accident had taken 4

place due to rash and negligent driving of the

driver of the bus in question. On the materials

before it the Motor Accidents Claims Tribunal came

to the conclusion that the claimants had failed to

prove that the accident had occurred due to

negligence of the bus driver and dismissed the

claim petition accordingly.

6. In appeal, it was observed that the main

question which arose in the appeal was as to who

was driving the scooter at the time of the

accident. In the FIR (FIR No.255 of 1998) it has

been shown that the same was recorded at the

instance of Jitender Thakur son of Krishan Kumar,

who is the Appellant No.2 herein. The FIR

indicates that the complainant, Jitender Thakur and

deceased Jitender Sharma, had gone to Haripur and

were, thereafter, coming on his scooter which

skidded on some sand lying on the road. At the

same time, one HRTC bus came from the opposite side

which, however, did not hit the scooter and they

had suffered the injuries even before the bus 5

reached them. The accident was, however, witnessed

by one Rewati Devi, who was examined as PW.5 and

deposed that while she was drinking tea in the

Dhaba of Milap Chand, she saw Jitender Thakur

driving the scooter with Jitender Sharma sitting as

the pillion rider. At the same time, a bus was

coming from the opposite side and collided with the

scooter due to the fault of both the bus driver as

also the driver of the scooter. She also deposed

that Jitender Sharma who was sitting at the pillion

of the scooter, died as the handle of the scooter

pierced his stomach. She categorically stated that

the scooter did not skid on the spot as had been

indicated in the First Information Report.

7. From what has been mentioned hereinabove, there

appears to be two versions of the accident in which

Jitender Sharma died. The version of the claimant

is that the scooter in question was being driven by

Jitender Thakur, the Appellant No.2 herein, and

that the deceased was the pillion rider. Jitender

Thakur, who was also the complainant, had, at the 6

initial stage while lodging the First Information

Report, stated that the scooter had slipped on a

patch of sand and that the bus was not involved in

the accident and that injuries to the deceased had

already occurred before the bus reached the scene

of the accident. Subsequently, however, he changed

his tune and contended that the accident had

occurred on account of the rash driving and

negligence of the bus driver.

8. Apart from the said two conflicting versions of

the incident, as depicted by the Appellant No.2,

there is another dispute as to who was actually

driving the scooter belonging to the Appellant

No.1. While it has been claimed by the Appellant

No.2 that it was the deceased who was driving the

scooter and that he was the pillion rider and was

not, therefore, responsible for the accident, his

version has been contradicted by P.W.5 Rewati Devi,

who has categorically stated that she had witnessed

the accident and that it was the Appellant No.2 who 7

was driving the scooter and that the deceased was a

pillion rider.

9. The trial court accepted the version of the

Appellant No.2 that he was the pillion rider while

the deceased was driving the scooter and

consequently came to a finding that the complainant

had not been able to prove that the Appellant No.2

was responsible for the accident in which Jitender

Sharma died and, therefore, rejected the claim

petition of the respondents herein.

10. The High Court, however, in appeal accepted the

version of the accident as narrated by P.W.5 Rewati

Devi and has come to a definite finding that it was

not the deceased, but the Appellant No.2 who was,

in fact, driving the scooter. The High Court,

therefore, disagreed with the finding of the

Tribunal that the deceased was himself responsible

for the accident and held the Appellant No.2 to be

the only person responsible for the accident and

that since the Appellant No.1 was the owner of the 8

scooter, he too was liable for payment of

compensation to the claimants, who are the

respondents herein.

11. From the facts as narrated hereinabove, the

view taken by the High Court, relying on the

evidence of P.W.5, does not appear to be

improbable. Apart from the fact that P.W.5 was the

only eye-witness to the actual accident, the High

Court has also disbelieved the version projected on

behalf of the appellants on account of the

different stands taken by the Appellant No.2 as to

how the accident actually occurred. While at the

very initial stage it had been contended by the

Appellant No.2 that the accident had occurred even

before the bus had arrived at the scene, at a later

stage it was contended that it was the bus driver's

negligence which had caused the accident. The High

Court also took note of the fact that the Appellant

No.2 had not come forward to be examined as to how

the accident had actually taken place. 9

12. The reversal of the Award of the Motor Accident

Claims Tribunal by the High Court cannot be said to

be perverse or without any basis and we see no

reason to interfere with the same. The appeal is,

accordingly, dismissed, with costs assessed at

Rs.20,000/-.

________________J.

(ALTAMAS KABIR)

________________J.

(CYRIAC JOSEPH) New Delhi Dated: 18.2.2009