N.D. Ojha, J.
1. The first appeal has been preferred by Jeodhan Rai against the order dated 20th March, 1979 passed by the Motor Accident Claims Tribunal/III Additional District Judge, Gorakhpur dismissing the claim of the appellant for compensation under the Motor Vehicles Act.
2. The facts which are necessary for the decision of this appeal are that according to the claimant Jeodhan Rai be along with his nephew Barrister Rai was going on foot to Gorakhpur University from Gol-Ghar in the district of Gorakhpur on 28th December, 1976 and that at about 2-15 P.M. a tractor belonging to Ram Lagan Tewari respondent No. 1 having its registration number as UTQ 690 dashed against him causing a fracture of his left neck of femur.
3. The claim was contested by respondent No. 1. His case was that no accident from his tractor UTQ 690 took place at all on 28th December, 1976 as asserted by the appellant and that indeed on 28th December, 1976 the tractor was not even in his possession. According to him delivery of the tractor was given to him on 29th December, 1976.
4. The Tribunal after framing necessary issues and taking into consideration the evidence produced by the parties disbelieved the version of respondent No. 1 that the tractor was not in his possession on 28th December, 1976 and that it was delivered to him only on 29th December, 1976. The Tribunal recorded specific finding that on the date of the accident respondent No. 1 was the owner of the tractor. The Tribunal also recorded a categorical finding in favour of the appellant that it was fully established that on 28th December, 1976 the appellant had met an accident with a tractor which resulted in his injuries. It, however, dismissed the claim of the appellant on the ground that he had failed to establish that the accident took place with tractor No. UTQ 690. In this view of the matter the Tribunal did not consider it necessary to determine the quantum of compensation.
5. It has been urged by counsel for the appellant that in recording the finding that it had not been established that the accident took place with tractor No. UTQ 690, the Tribunal has misread the evidence and has misdirected itself. Having heard counsel for the parties we find substance in the submission made by counsel for the appellant. As seen above, the case of the appellant was that at the time of accident his nephew Barrister Rai was also accompanying him. From the statement of the appellant as also of Barrister Rai it is apparent that Barrister Rai was walking towards the right of the appellant side by side. After pointing out certain alleged contradictions in the statement of the appellant and Barrister Rai the Tribunal came to the conclusion that Barrister Rai does not appear to have been present on the spot at the time of the accident at all and consequently his statement was not worthy of credence. In regard to the statement of the appellant the Tribunal took the view that since even according to him after receiving the injuries he had fallen-down, it was not possible for him to read the number of the tractor which according to the appellant he had read at the time of the accident. In our opinion there are no such contradictions in the statements of the appellant on the one hand and Barrister Rai on the other from which it could reasonably be said that Barrister Rai was not at all present at the time of the accident. One contradiction pointed out by the Tribunal is that whereas appellant had stated that the colour of the tractor was red, Barrister Rai had specifically stated that its colour was not red. In holding so the Tribunal has apparently not correctly read the statement of Barrister Rai in its context. What Barrister Rai had stated was that the colour of the Tractor was a mixture of yellow and green and appeared to be reddish. On a further question being put in the cross-examination he stated that its colour was not red. To us it appears that there is no inconsistency in the statements of the appellant and Barrister Rai in this behalf. Their statements were recorded after about three years of the accident. If one of them states that the colour of the tractor was red and the other states that it was reddish and not red, it cannot be said that either of them was speaking-a-lie. The Tribunal then pointed out that the appellant in his statement had stated that he and Barrister Rai were walking side by side of the left on the road. On this basis at a later stage the Tribunal came to the conclusion that if this was so it is Barrister Rai who would have received the injuries and not the appellant.
6. On a perusal of the statement of the appellant it is apparent that he has nowhere stated that he and Barrister Rai were walking side by side of the left on the road. What he has stated is that they were walking on the 'Patri' towards north of the road. The Tribunal then pointed out that the appellant had stated that when he was bit by the tractor he fell towards left side and that in the next breath he stated that he fell towards right. This observation of the Tribunal is again belied by the statement of the appellant. He has nowhere stated that when he was hit by the tractor he fell towards left side. Consequently there was no question of the saying in the next breath that he fell towards right. The other contradiction pointed out by the Tribunal was that whereas the appellant had stated in its deposition that there were three or four shops at the place of the accident, Barrister Rai had stated that there were no shops at that place. This again does not represent the statement of Barrister Rai faithfully. What he had stated was that at the place where the accident had taken place there were no shops except shop of a tailor, a person mending charis and one or two shops of tea vendors. This statement apparently supports the case of the appellant that there were three or four shops at the place of the accident. In stating that there were no shops except the shop aforesaid, Barrister Rai apparently seems to have in mind big shops for instance of a grocer or a cloth merchant etc. on the one hand and small shop of a tailor or a tea vendor etc. on the other. Ignoring this part of the statement of Barrister Rai contained in the later part of the same sentence the Tribunal apparently read only the first part of the sentence. The Tribunal then pointed out that the presence of Barrister Rai on the spot was doubtful, firstly because he had not received any injury and secondly because the First Information Report which was lodged by him at 6-25 P.M. was very much delayed. In regard to no injury being received by Barrister Rai suffice it to point out that in the circumstances pointed out by the appellant, Barrister Rai could not have been hit by the tractor and no question of his receiving any injury really arose. In regard to the delay in lodging the First Information Report the Tribunal has emphasised that the wife of the appellant had also arrived at the nursing home where the appellant had been taken after receiving injuries and Barrister Rai should have gone to lodge the report soon after the accident. This observation of the Tribunal is apparently in complete disregard of normal human conduct. The appellant in his deposition has stated his age to be 36 years. The age of his wife who is said to have arrived at the nursing home is stated to be about 30 years in the claim petition. No male member of the family would immediately after getting a person, who has got his neck of femur fractured, admitted in a nursing home leave him to be looked after by his young wife of 30 years for lodging a First Information Report.
7. According to the Tribunal the lodging of the First Information Report was delayed because Barrister Rai was not there and came subsequently and after ascertaining the facts lodged the report. In this connection it may be pointed out that in the First Information Report the number of the tractor is shown as UPQ or UTQ 690. Had it been a fact that the First Information Report was lodged after deliberation and ascertaining facts as observed by the Tribunal the number of the tractor would have been stated unequivocally as UTQ 690 and not UPQ or UTQ 690. The case of the appellant is that the driver of the tractor after knocking him down turned towards left and run away with the tractor. It was during this process that the number of the tractor written on the back side is stated to have been read. In this background it was possible that there may have been a doubt whether the letter 'P' was there or 'T' was there between the letters 'U' and 'Q' This uncertainty as pointed out above, runs counter to the First Information Report being lodged after deliberation and ascertaining the facts. And that is not all. The most surprising observation which the Tribunal has in disbelieving the case of the appellant made is that even though the case of the appellant was that injury was caused in his leg, the medical evidence indicated that no such injury was caused in the leg of the appellant. The Tribunal after referring to the statements of Dr. B. Mall (PW 4) and Dr. Harihar Singh (PW 5) who had attended the appellant consequent upon receiving the injury observed that their statements show that the appellant had received injuries in his neck and ribs. The statements of these two witnesses clearly indicate that the injury received by the appellant was fracture in the left neck of femur. The Tribunal appears to have read neck of femur as neck and ribs. For all these reasons the order appealed against holding that the appellant had failed to establish that the accident took place with tractor No. UTQ 690 cannot be sustained.
8. A perusal of the statements of the appellant and Barrister Rai as also of the two Doctors referred to above, we are clear in our mind that the accident had taken place with tractor No. UTQ 690. In this connection it is also note worthy that respondent No. 1 had set up a plea that the tractor was not in his possession on 28th December, 1976 which has been specifically repelled by the Tribunal. This conduct also of respondent No. 1 indicates that the accident had taken place with tractor No. UTQ 690 and respondent No. 1 was trying to save himself of the consequences by setting up a wrong plea. On the finding that the tractor was owned by respondent No. 1 and was in his possession on 28th December, 1976 it was incumbent on the respondent No. 1 to have produced evidence as to where his tractor was at the time of accident on 28th December, 1976. This he has failed to adduce. Another circumstance which supports the case of the appellant is that it has been stated by Barrister Rai (PW 3) that the name of respondent No. 1 was at the time of accident written on the tractor. Respondent No. 1 on the other hand did not have the courage to state that on that date his name was not written on the tractor. In regard to the colour of the tractor on which emphasis has been placed by the Tribunal, respondent No. 1 pleaded his ignorance by stating that he was not aware as to what was the colour of the tractor on 28th December, 1976. In this back-ground the cae of the appellant that the tractor was of red colour not be disbelieved merely because Barrister Rai had stated that it was of reddish colour and of red colour.
9. In view of the foregoing discussion this appeal deserves to be allowed and the case remanded to the Tribunal concerned for determining the quantum of compensation to be awarded to the appellant inasmuch as the Tribunal as pointed out above, has not gone into this question in the order appealed against. The findings of the Tribunal on issues Nos. 2 and 3 are confirmed.
10. Before parting with the case it may be pointed out that an application has been made on behalf of the appellant today for making certain amendments in the claim petition. Since the matter is being remanded to the Tribunal for recording a finding in regard to the quantum of compensation and the proposed amendments are relevant for determination of the quantum of compensation alone, we are of opinion that the appellant may be required to make a similar application for amendment before the Tribunal concerned which shall dispose it of after giving an opportunity to the respondents to contest the said application. In this view of the matter we do not propose to pass any order on the amendment application made today.
11. In the result this appeal succeeds and is allowed. The order appealed against dated 20th March, 1979 is set aside and the Tribunal is directed to decide the claim petition of the appellant afresh keeping in mind the observations made above in accordance with law. Since the accident took place in 1976, i.e. about ten years ago, the Tribunal should decide the claim petition expeditiously. The record of the case may be sent down to the Tribunal concerned forthwith. In the circumstances of the case, however, there shall be no order as to costs.