FAO/326/2005 of PREM CHAND Vs SUBHASH CHAND on 26 December 2008

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO No. 326 of 2005

Date of decision : 26.12.2008

Prem Chand Sharma …Appellant

Versus

Subhash Chand and others …Respondents

Coram

The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?[1] No. For the appellant: Mr. B.R. Kashyap, Advocate. For the respondents No. 1& 2.: Mr. Ajay Chandel, Advocate. For the respondent No. 3: Mr. Harish Behl, Advocate.

Per Deepak Gupta, J. (Oral)

This appeal has been filed by the claimant and is directed against the award dated 12.5.2005 whereby the claim petition filed by the claimant was rejected. The appellant in his claim petition filed under Section 166 of the Motor Vehicles Act alleged that when he was guarding his truck No. HIU-515, at about 9.00 a.m. on 15.7.2001, respondent No.1 Subhash Chand, who was driving truck No. HPH-2700, came towards Sukkar Khad. The respondent stopped his vehicle at a distance of about 100 feet from the vehicle of the claimant and inquired about the vehicle of the complainant. The respondent put a stone behind the back tyre of his vehicle to prevent it from going downwards. He talked to the petitioner for some time and then asked the petitioner to remove the stone. While the petitioner was removing the stone the respondent 1Whether the reporters of the local papers may be allowed to see the Judgment? yes.

negligently started his truck and the petitioner suffered injuries in his right arm as it was crushed under the rear tyre of the vehicle HPH-2700. Thereafter, the petitioner shouted and Shubhash Chand stopped the vehicle. The petitioner was taken to the Zonal hospital, Hamirpur and from there to I.G.M.C, Shimla. The petitioner alleged that the accident had taken place due to the rash and negligent driving of respondent No.1 Subhash Chand.

The respondent Subhash Chand took the plea that no accident had taken place with his vehicle. According to him, in fact the vehicle of the claimant-petitioner had turned turtle and he had received injuries in the said accident and thereafter he was removed by the respondent and his brother to the hospital Bhota and thereafter to hospital at Hamirpur. In rejoinder, for the first time, the petitioner made a mention that his vehicle had turned turtle. He stated that he had not suffered any injury when his vehicle had over-turned and he reiterated that he had suffered the injuries in the manner stated in the claim petition.

The petitioner appeared as PW-1 and again stated that he had loaded his truck HIU-515 with grit from Sukkar Khad and when it was going upwards the vehicle stalled and started moving backwards and over-turned. According to him, the vehicle stalled because there was no fuel in the same. He states that his younger brother Anil Kumar was sitting in the vehicle as the helper. He states that he did not suffer any injury in the incident which took place on 14.7.2001 and he and his brother spent entire night next to their truck. In the morning of 15.7.2001 he sent his younger brother to get a crane to lift the truck. Then at 9.00 a.m. the respondent came driving truck No. HPH-2700 and stopped the same to enquire about the fact as to how truck of the petitioner had over-turned. He had put a stone under the rear tyre of his vehicle. After about 15 minutes, he requested the petitioner to remove the stone and while removing the stone the accident occurred, when respondent Subhash Chand lost control of the vehicle and the vehicle moved forwards and crushed the right arm of the petitioner.

In support of his claim, the petitioner produced Shri Roshan Lal. Roshan Lal states that when he had gone to supply milk at Ladrour he met Anil Kumar, brother of the petitioner, who informed him that their vehicle had overturned on 15.7.2001. Then he corrected himself and stated that the vehicle had overturned on 14.7.2001. He and one Rattan Lal went to the spot at about 8.15 a.m and met the petitioner Prem Chand who was sitting on the side of the road next to his vehicle. At about 9.15 a.m.one truck came and Prem Chand started talking to the driver. When the truck driver was leaving, he asked Prem Chand to remove the stone which had been put next to the tyre of the truck and when the petitioner was removing the stone, his arm was crushed under the tyre of the truck. In cross-examination he could not give the number of the truck of the petitioner. He states that Prem Chand was removed in a Sumo Jeep to the hospital. He does not know whether the jeep belongs to Subhash Chand and Sansar Chand. He was not associated by the police in the case registered against the petitioner. According to him he stayed at the spot for about 4-5 hours but the police did not come on the spot. He is a neighbourer of the petitioner. His house is only at a distance of 1 kilometer from the site of the accident. He could not give the number of the truck with which the claimant allegedly met with the accident. He could not even say what was the colour of the truck, which was involved in the accident. He further states that other than the relatives of the petitioner he did not talk about this incident to any other person.

Subhash Chand appeared as RW-1 and denied the accident. According to him he and his brother Sansar Chand alongwith some other persons were traveling in a Sumo vehicle and when they reached the spot they found that the petitioner was lying injured next to his truck which had over-turned. They, therefore, took him to the hospital at Bhota. Since no medical aid was available at Bhota they then took him to the hospital at Hamirpur. The learned Tribunal came to the conclusion that the petitioner had failed to prove that the accident occurred in the manner claimed by the petitioner. The learned Tribunal held that the petitioner had set-up a false claim to grab compensation and dismissed the petition. Hence, this appeal.

I have heard Shri B.R.Kashyap, learned counsel for the petitioner, Shri Ajay Chandel, learned counsel for respondents No. 1 and 2 and Mr. Harish Behal learned counsel for respondent No.3. Shri Kashyap has urged that taking undue advantage of the fact that the petitioner was unconscious, the respondent in connivance with the police official lodged a false report with the police. The petitioner has also placed on record the statement of certain witnesses including Subhash Chand recorded in the criminal case, which was filed against the accused. The judgement of the criminal case was also placed on record. Unfortunately, no application under Order 41 Rule 27 was moved. However, to satisfy my judicial conscience, I have gone through the judgement and the statement of Subhash Chand, respondent. I have not gone through the other evidence because that evidence could not have been looked into by any Court. Subhash Chand’s statement in the criminal case does not help the petitioner because he denies the suggestion that he was driving truck No. HPH-2700 on that date.

The petitioner for reasons best know to him did not examine his brother Anil Kumar, who would have been the best person to state as to whether the petitioner had sustained any injury or not in the accident in question. The petitioner for reasons best know to him has not produced any doctor or the original record of treatment given to him at Hamirpur or at the IGMC, Shimla. The record of the treatment would have reflected whether the petitioner had suffered a crush injury under a tyre or not. A crush injury under a truck of a tyre would have definitely left some marks of the tyre on the arm. There is no explanation, as to why the petitioner did not care to produce such evidence. It would also be pertinent to mention that the stand of the petitioner before the criminal case as per the judgement produced by him was that he was not the driver of the truck which over-turned. In fact, he has been acquitted solely on this ground. The case of the petitioner is that the respondents in connivance with the police lodged a false case against him. If that had been so what prevented the petitioner who was facing a criminal trial from sending a complaint to the senior police officials or any other authority, to this effect. There is no such evidence on record.

In my opinion, it is the petitioner who has lodged a false case. It would be pertinent to mention that this claim petition was filed on 25.4.2003 more than two years after the accident occurred. The petitioner was already facing a criminal trial and therefore, he could have given detailed facts about the accident of his truck in the claim petition itself. He tried to withhold these facts from the Court and only when the respondent in his reply took the plea that the claimant had suffered injuries when his own truck had over-turned that he was forced to admit the fact that his truck had met with an accident.

PW-2 Roshan Lal is obviously a procured witness. No reliance can be placed on his statement. Leave aside giving the number of the truck, he could not even identify the colour of the truck. He is a neighbour of the claimant. As a neighbour he should have gone to the hospital alongwith the injured claimant. Admittedly, his house is only one kilometer away. If the version of the petitioner is to be believed then after causing the accident the respondent went to his own village to meet his brother and came back in the Sumo vehicle and then lifted the petitioner to the hospital. If the respondent had time to do so many things what prevented Roshan Lal from going to the house of the petitioner which was only 1 kilometer away and inform his relatives. There is another reason to disbelieve the version of the petitioner. In case the accident had happened with the truck and respondent wanted to take the petitioner to the hospital then he would have taken him in the truck itself. Why would he go to get another vehicle to transfer the petitioner to hospital? It is obvious that the version given by the respondent that he was coming in the Sumo vehicle with his brother is correct. Even Roshan Lal admits that the claimant was removed to the hospital in a Sumo vehicle. It is more than abovious that the petitioner suffered injuries when his truck over-turned and just to claim compensation he has now concocted this cock and bull story.

The learned trial Court has rightly observed that when a false case is set up a person gets trapped in his own false evidence. The petitioner in his statement produced a number of documents relating to his treatment and the expenditure on his treatment. One of the documents produced is a receipt purportedly issued by the Hospital Management and Welfare Society, Hamirpur. This receipt is Ext.P4. As per this receipt a sum of Rs.1248 was received from claimant-Prem Chand as ambulance charges on 14.7.2001. It is more than obvious that this receipt is a manufactured document. Both the petitioner as well as the respondent clearly state that the petitioner was shifted to the hospital at Hamirpur on 15.7.2001 Therefore, there was no question of any receipt for ambulance charges being issued on 14.7.2001. Learned counsel for the petitioner had no plausible explanation to give in respect of this document.

In view of the above discussion, I am clearly of the opinion that the claim petition was rightly dismissed by the learned Tribunal.

I see no merit in the appeal, which is accordingly dismissed. No order as to costs.

December 26, 2008 ™

( Deepak Gupta ), J.