# Bhagwandas & Anr v. Smt. Rammi Devi & Ors

- **Citation:** (2022) 5 ILRA 697
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-05
- **Case number:** First Appeal From Order No. 965 of 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwandas-anr-v-smt-rammi-devi-ors-48577
- **Pages:** 14

## Headnote

A. Civil Law - Motor Accident Act, 1988 -
Claim - Involvement of offending vehicle
- Burden of proof, on whom lie - Held,
burden
of
proof
and,
particularly,
evidential burden, would lie upon the
claimants to adduce some evidence, on
the basis of which, a reasonable inference
about the offending vehicle's involvement
can be drawn - After some evidence by
the claimants is brought in to show the
involvement of the offending vehicle, of
course, the purpose and object of the
Motor Vehicles Act, insofar it relates to
accident claims, that is to secure just
compensation to the victim or victims of a
motor accident, would require a holistic
consideration of the evidence to find out if
the offending vehicle is indeed involved -
The owner of the offending vehicle,
particularly, that is not insured, or even
one that is insured, is not permitted to
raise
fanciful
doubts
about
the
involvement of a motor vehicle that has
apparently caused an accident, resulting
in injury to life or limb. (Para 13)
B. Motor Accident Claim - Involvement of
offending vehicle - Nine days Delay in
lodging of F.IR. - Impact on claimant's
case - Held, if the FIR belatedly reports an
accident, truthfully pointing out to the
identity of the offending vehicle, the
delayed registration of the FIR cannot be
a ground to doubt the veracity of the
claimants' case - But, at the root of the
inquiry,
lies
the
fact,
whether
the
claimants' version carried in the FIR and
the claim petition about the identity of the
offending vehicle is truthful and genuine.
In the present case, mostly, like many
other claims, there is an eye-witness
account - Held further, the evidence that
has come on record does not remotely
establish that it was the owner's vehicle,
that was involved in the accident - High
Court gave liberty to the claimant to claim
u/s 161 of M.VsAct. (Para 16, 17, 35 and
42)
C. Motor Accident Claim - Non-insurance
of the vehicle, alleged to be involved in
698 INDIAN LAW REPORTS ALLAHABAD SERIES
accident - Effect - Tribunal's observation
that if it were a case of involving the
vehicle for the purpose of realizing
compensation,
there
would
be
prior
concert with the owner and the driver,
where it would be ensured that the
vehicle had valid papers, how far lay down
correct presumption - Held, the fact that
the vehicle was not insured, cannot lead
the Court to draw a positive inference
about the vehicle's involvement in the
absence
of
some
evidence
aliunde,
showing that involvement. (Para 38 and
39)
Appeal allowed (E-1)
List of Cases cited:-

## Text

_Characters 0–39,785 of 47,027. This is a partial read: ask again with offset=39785 for what follows._

5 All. Bhagwandas & Anr. Vs. Smt. Rammi Devi & Ors.
697
Motor Accident Claims Tribunal, Aligarh
in the highest interest bearing fixed deposit
schemes, either of the post office or of any
nationalized bank. The receipts of the fixed
deposit shall be handed over to the
appellant no. 1, who is also the guardian of
appellant nos. 2 to 4, who shall be entitled
to withdraw the maturity amount when the
fixed deposits mature. The maturity amount
shall be credited by the bank/post office in
any savings account of the appellants. The
concerned bank or post office shall not
permit any loan or advance against the
fixed deposits made in favour of the
appellants. The Tribunal, while depositing
the amount in any fixed deposit scheme,
shall communicate the directions issued by
this Court to the concerned bank/post
office.

23. With the aforesaid directions and
observations, the appeal is allowed. Parties
shall bear their own cost.

24. The office shall transmit the
records of the case to the Tribunal, at the
earliest.
----------
(2022)05ILR A697
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 965 of 2021

Bhagwandas & Anr. ...Appellants
Versus
Smt. Rammi Devi & Ors. ...Respondents

Counsel for the Appellants:
Sri Surendra Pal, Sri S.P. Gangwar

Counsel for the Respondents:
Sri Ravinath Tiwari

A. Civil Law - Motor Accident Act, 1988 -
Claim - Involvement of offending vehicle
- Burden of proof, on whom lie - Held,
burden
of
proof
and,
particularly,
evidential burden, would lie upon the
claimants to adduce some evidence, on
the basis of which, a reasonable inference
about the offending vehicle's involvement
can be drawn - After some evidence by
the claimants is brought in to show the
involvement of the offending vehicle, of
course, the purpose and object of the
Motor Vehicles Act, insofar it relates to
accident claims, that is to secure just
compensation to the victim or victims of a
motor accident, would require a holistic
consideration of the evidence to find out if
the offending vehicle is indeed involved -
The owner of the offending vehicle,
particularly, that is not insured, or even
one that is insured, is not permitted to
raise
fanciful
doubts
about
the
involvement of a motor vehicle that has
apparently caused an accident, resulting
in injury to life or limb. (Para 13)
B. Motor Accident Claim - Involvement of
offending vehicle - Nine days Delay in
lodging of F.IR. - Impact on claimant's
case - Held, if the FIR belatedly reports an
accident, truthfully pointing out to the
identity of the offending vehicle, the
delayed registration of the FIR cannot be
a ground to doubt the veracity of the
claimants' case - But, at the root of the
inquiry,
lies
the
fact,
whether
the
claimants' version carried in the FIR and
the claim petition about the identity of the
offending vehicle is truthful and genuine.
In the present case, mostly, like many
other claims, there is an eye-witness
account - Held further, the evidence that
has come on record does not remotely
establish that it was the owner's vehicle,
that was involved in the accident - High
Court gave liberty to the claimant to claim
u/s 161 of M.VsAct. (Para 16, 17, 35 and
42)
C. Motor Accident Claim - Non-insurance
of the vehicle, alleged to be involved in
698 INDIAN LAW REPORTS ALLAHABAD SERIES
accident - Effect - Tribunal's observation
that if it were a case of involving the
vehicle for the purpose of realizing
compensation,
there
would
be
prior
concert with the owner and the driver,
where it would be ensured that the
vehicle had valid papers, how far lay down
correct presumption - Held, the fact that
the vehicle was not insured, cannot lead
the Court to draw a positive inference
about the vehicle's involvement in the
absence
of
some
evidence
aliunde,
showing that involvement. (Para 38 and
39)
Appeal allowed (E-1)
List of Cases cited:-
1. Ravi Vs Badrinarayan & ors. AIR 2011 SC
1226

(Delivered by Hon'ble J.J. Munir, J.)

1. This is an appeal by the driver and
the owner, arising out of an award dated
22.02.2021 passed by Mr. Rakesh Dhar
Dubey, Presiding Officer, Motor Accident
Claims Tribunal, Pilibhit, allowing Motor
Accident Claims Petition No.35 of 2016
and ordering payment of compensation to
the claimant-respondents.

2. The facts giving rise to the motor
accident claims are these:

On
13th
November,
2015,
according to the claimants, at about 5:00
o'clock in the evening, the deceased Prem
Chand, along with his wife, Rammi Devi,
was proceeding on bicycle from his inlaws' place, located in Dehgala, to Village
Jagpura
in
the
District
of
Pilibhit.
Following him on a bicycle was his
younger brother Bheemsen. Suddenly, a
tempo bearing Registration No. UP-26T0479 appeared from the opposite direction.
It was driven at a high speed and
negligently by its driver, Bhagwandas. The
tempo hit the deceased's bicycle head on.
The collision caused the deceased Prem
Chand and Rammi Devi to sustain grievous
injuries. The accident was witnessed by the
deceased's brother and other natives of the
village, to name a few, Ram Charan and
Puttu Lal. The deceased's condition being
serious, he was referred to Dr. S.K.
Agrawal at the S.S. Hospital, Pilibhit. The
deceased
was
subjected
to
an
ultrasonographic examination, whereafter
he was referred to Ganga Singh Hospital.

3. While on way to the Ganga Singh
Hospital, the deceased passed away. An
inquest was held by the Police of Police
Station Nyuria and the dead body was sent
for autopsy. A case was registered by the
Police, being Case Crime No.1154 of 2015,
under Sections 279, 338, 304A IPC, P.S.
Nyuria, District Pilibhit against the driver,
Bhagwandas. It is then said in the claim
petition that the deceased had agricultural
land, upon which he toiled to earn a sum of
Rs.15,000/- per month from agricultural
produce. In addition, he had seven cattle
heads, five buffaloes and two cows that
yielded milk, which he sold for Rs.10,000/-
a month. The deceased had a total income
of Rs.25,000/- per month that he utilized to
provide for his wife and children, including
the children's education. The deceased was
a young and hard working man, who would
go on to earn more from his exertions. It is
also said in the claim petition that the
deceased's wife would also aid him in
productive work. Prem Chand's untimely
demise plunged the family's future into an
abyss of darkness. They faced financial
crisis, which led them to sell off their milch
cattle. The couple's three children are all
pursuing educational courses. The entire
finances of the family, including the
education of the children, has been
5 All. Bhagwandas & Anr. Vs. Smt. Rammi Devi & Ors.
699
imperiled by the unfortunate accident. The
family have also incurred debt. The
deceased's wife has been deprived of her
spousal consortium, and so have the
children of the love and affection of their
father. The claimants have asked that they
be awarded compensation in the sum of
Rs.68,32,000/-
together
18%
annual
interest from the date of accident until
realization.

4. Bhagwandas, the driver of the
offending vehicle, who is appellant no.1,
was arrayed as opposite party no.1 to the
claim petition. He shall hereinafter be
referred to as 'the driver'. The driver filed a
written statement, denying his involvement
in the accident. He has asserted that by
setting up a false claim, the claimants
desire to recover compensation. It is also
pleaded that the driver has been wrongly
impleaded. He is not answerable to pay any
compensation. He did not cause the
accident and was not present at the place of
accident at all. He has no connection at all
to the offending vehicle, that is to say,
tempo bearing Registration No. UP-26T0479 nor had he ever had any connection
with the said vehicle. A false and malicious
First Information Report (for short, 'the
FIR') has been lodged against him. He is
not at all responsible for the accident. He
has a valid licence, that was valid on the
date of accident also.

5. Niranjan Lal is the owner of the
offending vehicle and the second appellant
here. He was arrayed as opposite party no.2
to the claim petition. Niranjan Lal,
appellant no.2 shall hereinafter be referred
to as ''the owner'. The owner has filed a
written statement, denying the accident and
the entitlement of the claimants to recover
compensation. He has said that burden lies
upon the claimants to establish the accident
involving the offending vehicle. There is
plea raised in his written statement that in
the Amar Ujala Hindi Daily dated 14th
November, 2015, there was a news item
published, reporting that Prem Chand, a
resident
of
Jatpura,
was
riding
his
motorcycle along with his wife and
proceeding to Jatpura, when he met with an
accident involving a tempo. It has been
raised as a plea by the owner that the
claimants' case that the deceased was riding
a bicycle is false.

6. It is also said by the owner that on
the date of occurrence, he was not the
owner of tempo bearing Registration No.
UP-26T-0479 nor was the said vehicle
under his control. The driver was never
hired by the owner. It has also been pleaded
in the written statement by the owner that
he purchased the tempo under reference in
the year 2011 after securing finance from
Mahindra Alfa Shriram Transport Finance
Company. The vehicle was registered on
22.01.2011. The owner got the vehicle
plied for sometime, but it suddenly broke
down. The vehicle's axle broke and it had
to be parked at the owner's home. It was no
longer road-worthy. In the circumstances,
the owner sold the tempo in question to one
Rizwan son of Natthu, a native of Mohalla
Peelkhana, P.S. Kotwali, District Pilibhit
for a sum of Rs.52,000/- on 30.05.2014. It
was sold as scrap.

7. An affidavit sworn before a Notary
Public was filed about the aforesaid fact.
The tempo was not in an operational state
and, therefore, no longer a motor vehicle.
Rizwan had taken it away after the
purchase, not moving on its wheels. After
30.05.2014, the entire control of the vehicle
passed
on
to
Rizwan.
The
entire
responsibility about the vehicle was his.
The owner has been wrongly impleaded.
700 INDIAN LAW REPORTS ALLAHABAD SERIES
The so called offending vehicle bore a false
number plate. The offending vehicle
bearing the number plate of the tempo, that
was once the owner's vehicle, was not that
vehicle at all. Its engine number and
chassiss number were different. The driver,
Bhagwandas, who has been shown to be
driving the offending vehicle, was not a
driver employed by the owner. Rizwan had
not been impleaded as a party to the claim
petition. For the said reason, the claim
petition was bad for non-joinder of
necessary party. The owner is not liable to
pay any compensation. If the deceased
Prem Chand had sustained any injury in a
motor accident, that was on account of his
riding a motorcycle negligently and at a
high speed, the way it is reported in the
Amar Ujala Hindi Daily dated 15.11.2015.
On the basis of these facts, the owner
prayed that the claim petition be rejected.

8. Upon the pleadings of parties, the
following issues were framed (translated
into English from Hindi):

"(1) Whether on 13.11.2015 at
5:00 in the evening hours when the
claimant's husband, the deceased Prem
Chand along with his wife, the injuredclaimant was proceeding on the main road
at Dhankuna Adda on his bicycle returning
from his in-laws at Village Dehgala to
Village Jatpura, he was hit head-on by
tempo bearing Registration No. UP-26T0479, that was driven at a high speed and
negligently, in consequence of which Prem
Chand and his wife sustained injuries, that
led to Prem Chand's death? If yes or no, its
effect?

(2) Whether on the date of
accident, the driver of vehicle No. UP-26T0479 had a valid and effective driving
licence? If yes, its effect?

(3) Whether on the date of
accident, Rizwan son of Natthu, resident of
Mohalla Peelkhana was the owner of tempo
No. UP-26T-0479 and the vehicle was
under his control? If yes, its effect?

(4) Whether the claim petition is
bad for mis-joinder? If yes, its effect?

(5) Whether the claimants are
entitled to any compensation? If yes, how
much and from which party?"

9. In support of the claim petition, the
claimants examined PW-1, Smt. Rammi
Devi, PW-2, Bheemsen and PW-3, Puttu
Lal. The opposite parties to the claim
petition, that is to say, the owner and the
driver, examined themselves as DW-1 and
DW-2 in that order.

10.

The
claimants
also
led
documentary evidence that comprises a
certified copy of the FIR, a photostat copy
of the bail order relating to Bhagwandas, a
photostat copy of the postmortem report,
medical papers relating to treatment of the
deceased, Prem Chand, medical bills of the
deceased's ultrasonography, a letter of
reference to the higher centre, medico-legal
reports relating to Rammi Devi, that
includes a CT Scan report and blood test
reports. Further documents have been filed,
such as the Aadhar Card relating to Rammi
Devi and her identity card. Papers relating
to medical expenses involved in Rammi
Devi's treatment have also been filed. The
claimants also filed through a list bearing
paper No. 32ग, a certificate about sale of
milk by the deceased issued by one Raj
Kumar. The claimants also filed through
list 52ग, a certified copy of the charge sheet
filed by the Police in the criminal case
against Bhagwandas.
5 All. Bhagwandas & Anr. Vs. Smt. Rammi Devi & Ors.
701

11. The driver through a list bearing
paper No. 21ग has filed his driving licence.
The owner through a list bearing paper No.
23ग has filed a newspaper clipping of
Amar Ujala Hindi Daily of 14.11.2015 and
an affidavit dated 30.05.2014 sworn by
Rizwan son of Natthu. The owner also filed
through a list bearing paper No. 62ग, a
photostat copy of the insurance cover-note,
bearing paper No. 62ग/2.

12. Heard Mr. Surendra Pal, learned
Counsel for the the driver and the owner,
and Mr. Ravinath Tiwari, learned Counsel
for the claimants.

13.

The
foremost
point
for
determination that arises in this appeal is
whether the offending vehicle bearing
Registration
No.
UP-26T-0479
was
involved in the accident. This point
assumes some seriousness in this matter
because there is distinct and specific
pleading by the owner that the said vehicle
was not at all involved and the allegations
have been brought against the said vehicle
in order to recover compensation. The
driver too has taken a specific stand, which
is more to the effect that he is not at all
connected
to
the
vehicle
bearing
Registration No. UP-26T-0479, of which
he has never been the driver. The burden of
proof and, particularly, evidential burden,
would certainly lie upon the claimants to
adduce some evidence, on the basis of
which, a reasonable inference about the
offending vehicle's involvement can be
drawn. After some evidence by the
claimants is brought in to show the
involvement of the offending vehicle, of
course, the purpose and object of the Motor
Vehicles Act, insofar it relates to accident
claims, that is to secure just compensation
to the victim or victims of a motor accident,
would require a holistic consideration of
the evidence to find out if the offending
vehicle is indeed involved. The owner of
the offending vehicle, particularly, that is
not insured, or even one that is insured, is
not permitted to raise fanciful doubts about
the involvement of a motor vehicle that has
apparently caused an accident, resulting in
injury to life or limb.

14. It has been argued with much
vehemence by Mr. Surendra Pal, learned
Counsel for the driver and the owner that
there is not a shred of evidence to prove
that the offending vehicle was at all
involved in the accident. He has drawn the
Court's attention to the fact that the
accident occurred on 13.04.2015, whereas
the FIR relating to the accident was lodged
on 21.11.2015, that is to say, after a lapse
of eight days of the accident. During this
time, the claimants virtually conjured up
the identity of the owner's vehicle from
some source, which he had already sold in
scrap to Rizwan. The latter had scrapped
the vehicle and its number plate was fixed
to some unknown tempo, that did not bear
the engine number or the chasis number of
the owner's vehicle, already scrapped. All
these eight days in lodging the FIR were
spent in searching for a vehicle that could
be held out as the offending vehicle, so as
to recover compensation from its owner.
Learned Counsel for the driver and the
owner has taken the Court through the
testimony of the claimants' witnesses
urging that it does not even remotely
establish the offending vehicle's identity as
the one responsible for the fatal accident.

15. Mr. Ravindra Nath Tiwari,
learned Counsel for the claimants, on the
other hand, submits that the driver is named
in the FIR, that was lodged as soon as the
family could have emerged somewhat from
702 INDIAN LAW REPORTS ALLAHABAD SERIES
the trauma. During the relevant period of
time, that is to say, between the accident
and the lodging of the FIR, the deceased's
wife was also hospitalized in a precarious
condition and all that has contributed to the
delay. He submits that delay in lodging an
FIR in a motor accident claim does not cast
doubt about the veracity of the claimants'
case against the offending vehicle. The
driver of the offending vehicle, after
investigation by the Police, has been
charge-sheeted. He has also been released
on bail. That apart, there is a dependable
account of three eye-witnesses, including
the deceased's wife, who sustained injuries
in the accident, that all point unmistakably
to the involvement of the owner's vehicle in
the accident. He submits, therefore, that the
Tribunal has taken a holistic view of the
evidence and rightly found the owner's
vehicle involved in the accident and
ordered him to pay compensation.

16. It is, no doubt, true that the mere
fact of delay in lodging the FIR cannot
lead at all to the inference that the
claimants' case is doubtful. What is of
importance, in a matter involving a motor
accident, that is, at once an offence and a
cause of action for compensation under
the
Motor
Vehicles
Act,
is
the
authenticity of the claimants' case. If the
FIR
belatedly
reports
an
accident,
truthfully pointing out to the identity of
the
offending
vehicle,
the
delayed
registration of the FIR cannot be a ground
to doubt the veracity of the claimants'
case. There could be innumerable reasons
for the delay in lodging the FIR and the
most commonplace of these is the trauma
that the family goes through, particularly,
where there is a survivor, still struggling
for his/ her life in the hospital. This
position of the law is adumbrated by the
Supreme Court in Ravi v. Badrinarayan
and others, AIR 2011 SC 1226. In Ravi
(supra), it has been held:

"20. It is well-settled that delay
in lodging FIR cannot be a ground to
doubt the claimant's case. Knowing the
Indian conditions as they are, we cannot
expect a common man to first rush to the
Police Station immediately after an
accident. Human nature and family
responsibilities occupy the mind of kith
and kin to such an extent that they give
more importance to get the victim treated
rather than to rush to the Police Station.
Under such circumstances, they are not
expected
to
act
mechanically
with
promptitude in lodging the FIR with the
Police. Delay in lodging the FIR thus,
cannot be the ground to deny justice to
the victim. In cases of delay, the courts
are required to examine the evidence with
a closer scrutiny and in doing so; the
contents of the FIR should also be
scrutinized more carefully. If court finds
that there is no indication of fabrication
or
it
has
not
been
concocted
or
engineered to implicate innocent persons
then, even if there is a delay in lodging
the FIR, the claim case cannot be
dismissed merely on that ground.

21. The purpose of lodging the
FIR in such type of cases is primarily to
intimate the police to initiate investigation
of criminal offences. Lodging of FIR
certainly proves factum of accident so that
the victim is able to lodge a case for
compensation but delay in doing so cannot
be the main ground for rejecting the claim
petition. In other words, although lodging
of FIR is vital in deciding motor accident
claim cases, delay in lodging the same
should not be treated as fatal for such
proceedings, if claimant has been able to
demonstrate
satisfactory
and
cogent
5 All. Bhagwandas & Anr. Vs. Smt. Rammi Devi & Ors.
703
reasons for it. There could be variety of
reasons in genuine cases for delayed
lodgment of FIR. Unless kith and kin of the
victim are able to regain a certain level of
tranquillity of mind and are composed to
lodge it, even if, there is delay, the same
deserves
to
be
condoned.
In
such
circumstances, the authenticity of the FIR
assumes much more significance than delay
in lodging thereof supported by cogent
reasons."

17. Therefore, by reason of delay
alone in lodging the FIR, the claimants'
case cannot be viewed with an eye of
suspicion. But, at the root of the inquiry,
lies the fact, whether the claimants' version
carried in the FIR and the claim petition
about the identity of the offending vehicle
is truthful and genuine. In the present case,
mostly, like many other claims, there is an
eye-witness account. There are three eyewitnesses, who have been examined by the
claimants. PW-1, Smt. Rammi Devi is a
victim of the accident alongside the
deceased. This witness in her examinationin-chief has described the accident as she
must have experienced it until the traumatic
event and has referred to the offending
vehicle with its registration number. In her
cross-examination on behalf of the driver,
this witness has stated thus:

"मैं साढे चार बजे अपने घर से चली
थी। टक्कर लगते ही मैं नीचे भगर गई थी। जब
मुझे होर् आया मैं अस्पताल में थी। मुझे करीब
नौ-दस भदन के बाद पता चला था भक मेरे
ररिेदारोूं में ररपोटश भलखा दी है। मुझे िीमसेन ने
बताया था भक हमने िगवानदास के भवरुद्ध
ररपोटश दजश करा दी है। ररपोटश में उन्होने बताया
भक िगवानदास का नाम भलखाया है और टैम्प
का क्या नम्बर भलखाया यह देवर िीमसेन को
पता होगा। जब मैं अस्पताल में थी तब िीमसेन
व मेरे ररिेदार अस्पताल में आये इन लोगोूं ने
मुझसे प छा भक कौन टक्कर मार गया तो मैने
बताया भक टैम्प वाला टक्कर मार गया।"

18. There is no reason to disbelieve
that it was a tempo that hit the unfortunate
couple, but there is equally no reason to
believe the evidence of this witness that it
was the offending vehicle that did the evil
deed. It is apparent that as soon as the
accident happened, this witness fell off of
the bicycle and lost consciousness. She
regained it in the hospital. In her crossexamination, she has specifically said that
on being hit by the offending vehicle, she
fell
down.
When
she
regained
consciousness, she was in the hospital. In
this sequence of events, it is difficult to
credit this witness with a first-hand account
about the registration number or the
identity of the offending vehicle. She can
be believed to the extent alone that it was a
tempo, which hit the victims while they
were moving on the bicycle at the date,
time and place of occurrence. The further
admission of the witness in her crossexamination, that it was Bheemsen, who
told her that they have lodged an FIR
against Bhagwandas (the driver) and that it
is her brother-in-law (Bheemsen), who
would know about the registration number
of the tempo, makes it pellucid that this
witness never had occasion to know the
number of the offending vehicle for herself,
or identify it by any other means.

19. PW-1, Smt. Rammi Devi has also
said in her cross-examination at the
instance of the owner that the offending
vehicle bears a registration plate in the
english language and she does not know
english. The evidence of this witness across
the length and breadth of it, is of no
consequence in ascertaining the identity of
704 INDIAN LAW REPORTS ALLAHABAD SERIES
the offending vehicle by reference to its
number or otherwise.

20. The other most important witness
is Bheemsen, PW-2. He is the author of the
FIR, reporting the occurrence. In his
examination-in-chief, he has said about his
presence on the spot and the identity of the
offending vehicle thus:

"महीने का मुझे ध्यान नही है। करीब
14 महीने पहले की बता है। दुघशटना के समय
मेरे िाई साईभकल चला रहे थे व िािी पीछे बैठी
थी। यह दहगला अपनी ससुराल से आ रहे थे। मै
इनसे करीब आधा भक०मी० पीछे-पीछे आ रहा
था। धनकुना अड्डा पर पहुाँचने पर मै अपनी िैया
से थोडा पीछे था। यह दुघशटना मेरे सामने हुई
थी। िैया की साईभकल मे पीछे से िगवानदास ने
टक्कर मारी थी। टैम्पो से टक्कर मारी थी। टैम्पो
का नम्बर UP T 26/ 079 था। भफर कहा भक
0479 है। यह नम्बर टैम्पो का U.P. 26 T/0479
गवाह के हाथ पर िी भलखा है। टैम्पो का असली
नम्बर 0479 सही है। एक्सीडेंट के समय घटना
स्थल पर कौन कौन आ गया था उनके नाम मुझे
नही पता। भफर कहा भक- पुत्त लाल, राम चरन व
िीमसेन आ गये थे। टैम्पो वाले को मौके पर नही
पकड पाये, वह मौके से िाग गया था।"

21. This witness has read up to ClassVIII as he says himself in his crossexamination on behalf of the owner. He has
spoken thus about the number of the
offending vehicle:

"टैम्पो का नम्बर मेरे घर पर डायरी मे
भलखा है। आज मै डायरी नही लाया हाँ। हाथ पर
नम्बर मैने अपने आप भलखा है। मै सीधे हाथ से
भलखता हाँ व टैम्पो का नम्बर िी मेरे सीधे हाथ
पर ही भलखा है।

टैम्पो में लाईट नही जल रही थी।
स रज भछप चुका था। मै दुघशटना के समय पुभलया
के पास दन्धिन मे था। यह पुभलया वहाूं से
करीब 20 कदम द र होगी। दुघशटना होते ही टैम्पो
िाग गया। टैम्पो पीलीिीत की तरफ िाग
भनकला था।

हमारी धनकुना चौकी पर स चना
पहुाँच गयी थी। वह स चना वैसे ही दी थी भक
दुघशटना में प्रेमचन्द्र की मृत्यु हो गयी है। भलखकर
नही दी थी।

दुघशटना के आधे घूंटे के बाद मेरे िाई
मदन लाल धनकुना चौकी पर स चना दे आये भक
दुघशटना मे प्रेमचन्द्र की मृत्यु था।

यह कहना गलत है मै आज झ ठी
गवाही दे रहा हाँ। यह कहना गलत है भक भजस
नम्बर का टैम्पो मैने बताया है उससे दुघशटना न
हुई हो बन्धल्क दुघशटना कही और हुई हो।

टैम्पो का पता चला थाना न्युररया में
है। मैने खुद टैम्पो को ढ ढा था। मझोला पकभडया
मे झाडी के पीछे खडा हुआ था। यह कहना
गलत है भक मै सब फजी बाते बता रहा हाँ। यह
कहना गलत है भक मेरे िाई मोटर साईभकल से
भगरे हो।"

22. It is further stated by this witness,
in answer to the cross-examination on
behalf of the driver, thus:

"जब मैं टैम्पो को ढ ढता हुआ मझोला
पहुाँचा तो मुझे एक टैम्पो झाभडयो में खडा भमली।
यह टैम्पो मुझे पाूंच भदन के बाद भमला था। उसी
टैम्पो का नम्बर मैने अपनी डायरी मे नोट भकया।
और यही नम्बर मैने अपनी तहरीर में भलखकर
थाने मे दे भदया था।
5 All. Bhagwandas & Anr. Vs. Smt. Rammi Devi & Ors.
705

भदन र्भनवार को लगिग 11 बजे मै
अपने घर से दहगला के भलए भनकला था। साढे
11 बजे मै दहगला पहुाँच गया था। वहाूं से
पीलीिीत नही आया था। मेरी वापसी वहाूं 4.15
पर वापसी हो गयी थी।

जब मै घटना स्थल पर पहुाँचा तो
डराईवर टैम्पो लेकर िाग चुका था। जब मै वहाूं
पहुाँचा तो िािी मेरी वहाूं पर बेहोर् पडी थी।
वहाूं पर बहुत िीड लगी थी। वहाूं पर मदन लाल
नही आये थे। मै अपनी िािी को देखने
अस्पताल गया था। उनको आठवें भदन होर्
आया था। तब मैने अपनी िािी को बताया भक
एक टैम्पो मुझे लावाररस हालत में भमला है।
उसका नम्बर मैने ररपोटश मे भलखा भदया है।

घटना वाले भदन मै ररपोटश भलखाने
नहीूं गया था। घटना को द सरे, तीसरे, चौथे,
पाूंचवे, छठे, सातवें, आठवे, नौवे भदन तक मै
ररपोटश भलखाने नही गया क्योूंभक मै टैम्पो तलार्
करता रहा जब टैम्पो भमला, उसका नम्बर नोट
भकया तब मुकदमा दजश कराया।

मै आकर तहरीर अपने वकील साहब
से भलखायी और वहाूं पर सब घर वालो ने बैठकर
तय भकया भक यभद क्लेम लेना है तो इसी टैम्पो के
न्धखलाफ ररपाटश भलखा दो।"

(emphasis by Court)

23. From the testimony of this witness
like PW-1, it is vivid that he saw the
occurrence, but could not note down the
number of the vehicle as it escaped. By the
time the accident occurred, darkness had
already set in and the offending vehicle did
not have its lights on, much less a light that
would be illuminating the number plate. To
expect a number plate light on a tempo
plying in the hinterland is a far-cry. What is
beyond doubt is that the offending tempo
escaped immediately after the accident, and
evidently, there was not enough time for
anyone to note down its number.

24. This is all the more evident from
the fact that the deceased's inquest and
postmortem reports show that the Police
took that action on the basis of G.D. Entry
No.5 lodged at 50 minutes past midnight on
14.11.2015
at
Kotwali,
Pilibhit.
Apparently, this G.D. Entry was made on
the basis of an oral information that PW-2
has spoken about, that was given to the
Police after Prem Chand passed away while
on way for medical aid to a higher centre at
Bareilly. If by that time, PW-2, the
deceased's brother had noted down the
number of the offending vehicle, it is
possible that it might have figured in the
G.D. Entry based on the oral information to
the Police. In any case, it would have
figured in police investigation very early.
In all eventualities, the FIR would have
been lodged early, mentioning the vehicle.
It could be said that in the crisis and trauma
that ensued, PW-2 was not left with time or
attention to pay to the legal niceties of
lodging an encyclopedic written first
information or at least one that mentioned
the offending vehicle's registration number
or other identities. But, that possibility is
obviated by what PW-2 has said in his
cross-examination. He has stated that he
proceeded to Majhaula, where he found the
offending tempo parked behind some
bushes. This was five days after the
occurrence. He has very candidly said that
he noted down the number of that tempo in
his diary and mentioned it to the Police in
his written information lodged later. He has
stated in his cross-examination that he
lodged the FIR on the ninth day of the
occurrence, because he was searching out
the offending tempo. He has said that after
he had searched out the offending tempo,
706 INDIAN LAW REPORTS ALLAHABAD SERIES
he noted down its number and got an FIR
registered.

25. It has also been said in his crossexamination by PW-2 towards the tail-end
of it that after noting down the parked
tempo's number, he went to his Counsel
and asked him to draft the FIR and there,
all members of the family sat together and
expressed opinion that if compensation had
to be claimed, then an FIR has to be lodged
against this tempo (the one discovered by
PW-2 in the bushes at Majhaula).

26. This Court is mindful of the fact
that in hit-and-run cases, some kind of a
private investigation to ascertain the identity
of the offending vehicle is undertaken or has
to be undertaken by those who are the
unfortunate victims of the accident, or the
survivors of the deceased. If they go about
the task gathering with reasonable certainty,
the identity of the offending vehicle, a mere
belated report of the incident to the Police,
would not cast any doubt about the claimant's
case. Here, the identity of the tempo, going
by the words of PW-2, who is an eye-witness,
has been ascertained by him. He did not
know its identity, when the accident occurred
and the offending vehicle escaped. It took
him some five days to discover the offending
vehicle parked behind some bushes at a place
called Majhaula.

27. Remarkably, there is nothing in the
testimony of PW-2 to indicate the basis on
which he inferred that the vehicle that he
found parked behind some bushes at
Majhaula was the offending vehicle. The
assertion that PW-2 found the offending
vehicle behind the bushes at Majhaula is
nothing more than pure conjecture, with no
basis to the inference. It is not said that there
was some feature about the vehicle that this
witness had noted at the time of accident, that
led him to identify it or that he was informed
by someone, who knew about the identity of
the offending vehicle. Of course, in the latter
case, the person informing him would also
have to be examined, but there is no such
case. Rather, the closing part of this witness's
cross-examination virtually says that after he
had searched out the offending vehicle, as if it
were by gut feeling, he sat together in
conference with other relatives and decided to
lodge an FIR against the offending vehicle
for the sake of preferring a compensation
claim. It is very difficult to accept on the
basis of this witness's evidence that the
offending vehicle identified by him was
indeed the one involved in the accident.

28. The third witness, who has been
examined on behalf of the claimants is Puttu
Lal,
PW-3.
He has
testified
in
his
examination-in-chief that he was an eyewitness to the accident, about which he
broadly says that it was a tempo that hit the
deceased and his wife as they were moving
on the bicycle. The tempo had proceeded on
the wrong side to cause the accident. He has
further said in his examination-in-chief that
the tempo was being driven by Bhagwandas
son of Nandram. The driver is a native of
Village Dhankuna. The driver is not a prior
acquaintance of the witness or otherwise
known to him. It is then said by this witness
in his testimony:

"भजस टैम्पो से टक्कर हुई थी उसका
नूं० U.P.26T/0479 था। उसके बाद टैम्पो
चालक को मय टैम्पो के तीन चार लोग चौकी पर
ले गये।"

29. In his cross-examination at the
instance of the owner, this witness has
stated:

"टैम्प चालक व टैम्प को मैं थाने नहीूं
ले गया था। टैम्प चालक व टैम्प को मैं चौकी पर
5 All. Bhagwandas & Anr. Vs. Smt. Rammi Devi & Ors.
707
नही ले गया था कौन ले गया था मुझे नहीूं पता जो
ब्यान आज मैं दे रहा हाँ वह सही है पहले वाला
गलत है। यह गलत ब्यान मैने जान ब झकर नही
भदया था। मैने टैम्प के आगे वाला नम्बर देखा था
उसका इन्जन नम्बर नही देखा था। यह टैम्प मैने
घनकुना अड्डे पर देखा था वहााँ से कौन ले गया
मुझे नहीूं पता वहाूं पर बहुत से लोग इकट्ठे थे
वही लोग टैम्प चालक को ले गये। मैं चौकी पर
नही गया था यह पता है भक टैम्प भकसका है।
टैम्प पर नम्बर प्लेट सफेद रूंग की काले अक्षर
भलखे थे। यह कहना गलत है भक मैं झ ठी गवाही
दे रहा हाँ।"

30. In his cross-examination at the
instance of the driver, PW-3 has stated
thus:

"मैं भवद्याराम को जानता हाँ। भवद्याराम
वकील साहब है। गाूंव के प्रधान हैं। इसी गाूंव का
मै कोटेदार हाँ भजस गाूंव के भवद्याराम प्रधान है
मृतक प्रेमचन्द्र भवद्याराम के गाूंव बस्ती के ितीजे
थे। कोटा ग्राम प्रधान सत्याभपत करता है। मेरे
सामने टैम्प चालक को िीड पकड कर ले गयी
थी। यह बात सही है भक भजस टैम्प से घटना हुई
थई उस टैम्प के चालक को व टैम्प को लोगोूं ने
मौके पर ही पकड भलया था।

यह कहना गलत है भक मैं अपना
रार्न का कोटा बचाने के भलए प्रधान भवद्याराम
के दबाव में झ ठी गवाही दे रहा हाँ। यह िी
कहना गलत है भक मैं भसखाए से झ ठा प्रभतकर
भदलाने के भलए गलत ब्यानी कर रहा हाँ।"

31. Now, so far as this witness is
concerned, he has largely spoken about the
tempo being apprehended on the spot by
the crowd and taken to the Police Chowki
and then to the Police Station. He says that
he had seen the number of the vehicle on
the front plate at the Dhankuna Stand. It is
beyond understanding that if the offending
vehicle was apprehended by the crowd on
the spot and taken to the Police Chowki,
why an FIR would be lodged by the
deceased's brother nine days later after
searching out the tempo, five days after the
accident, parked behind some bushes at
Majhaula. Even if one were not to look at
the irreconcilable contradiction between the
evidence
of
PW-2
and
PW-3,
an
apprehension of the vehicle on the spot by
the public would have led to a prompt FIR
and immediate arrest of the driver. It does
not appear to be the case in the FIR also,
pursuant to which the driver surrendered in
Court and secured bail. On a comparison
done of the two eye-witness accounts of
PW-2 and PW-3, the only ones available,
the two cannot be reconciled. One speaks
about the offending vehicle causing the
accident and escaping, whereas the other
says that it was apprehended on the spot by
the crowd and handed over to the Police at
the Police Chowki. There is also no such
G.D. Entry brought to the notice of this
Court that the vehicle was apprehended and
handed over to the Police immediately after
the accident. The two versions, when
compared and also evaluated individually,
do not show a hint about the involvement
of the offending vehicle in the accident.

32. So far as the evidence of the
driver Bhagwandas is concerned, he has
entered the witness-box as DW-2 and
asserted in his cross-examination that he
does not do the job of a driver. He had no
connection whatsoever with the offending
vehicle. He had never functioned as its
driver. He was at home on the date of
accident and never driven it. He was not
about the place of accident. In his crossexamination, he said that he had read about
the accident the following day in the
newspaper. The locals know him at
Dhankuna, where he was born. He did not
708 INDIAN LAW REPORTS ALLAHABAD SERIES
know the deceased and bore no ill-will or
grudge against the deceased or his family
members. The witness and Bheemsen were
not at all inimical. He had a driving licence
for a motorcycle and a four wheeler, that
was valid. It has been said further in his
cross-examination that he got himself
bailed out 25 days after the accident and is
still facing trial. He had not complained in
any Court that he was falsely implicated.

33. The owner of the vehicle, DW-1,
Niranjan Lal also entered the witness-box
and testified in support of his case. He has
said in his examination-in-chief that he had
sold off the vehicle to Rizwan son of
Natthu Bux for a sum of Rs.52,000/-. A
sale letter had been written, which is on
record as paper No. 25ग. The sale has been
done on 30.05.2014. He has stated that the
tempo was not in a motorable condition and
was scrap. It was also said that when he
came to know about the case, he went to
Rizwan, who told him he had got the tempo
dismantled as scrap. At the police station,
he was told that the number plate of his
tempo was affixed to some other vehicle
and that the engine and chassiss number
were different from those of the owner's
vehicle. It was also said that the witness did
not know, whether the number plate was
genuine or fake, but the number on it was
that of his vehicle. He did not know the
driver at all and also that the driver had
never been employed by him to operate his
tempo.

34. In his cross-examination, this
witness has said that he did not know that it
was necessary to get a transfer of the
vehicle registered with the R.T.O. after
permission by the Finance Company. He
had sold the vehicle to Rizwan and some
part of the consideration was due. It is
further said that Rizwan had told the
witness that after the tempo was transferred
to his name, he would pay the balance, but
before that could be done, he got the tempo
scraped and dismantled. The witness has
also said that he did not know the deceased
or the claimants. The claimants could not
be inimical to him, as they never knew him.
It has also been said by this witness that
when he was summoned to the police
station, he saw the number plate of his
tempo on another vehicle, but did not
complain about it to the Police or the Court.
He did complain about the fact to Rizwan,
but did not get any notice served through
his Counsel or proceed in the matter before
the Court.

35. There is no doubt about the fact
that the accident took place involving a
tempo, where Prem Chand perished in the
accident, leaving behind the claimants. But,
in this Court's opinion, the evidence that
has come on record does not remotely
establish that it was the owner's vehicle,
that was involved in the accident. There is
no admission on the part of either the
owner or the driver, even slightly, that the
offending vehicle could be the one
involved in the accident.

36. The two witnesses for the
claimants,
whose
evidence
alone
is
material, are PW-2 and PW-3.