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2008 DIGILAW 1329 (MP)

Sandeep v. Suresh

2008-11-14

J.K.MAHESHWARI

body2008
ORDER 1. This appeal is filed under section 173 of the Motor Vehicles Act assailing the award dated 25.9.2007 passed in Claim Case No. 87/06 whereby the claim filed by the appellant was rejected on the ground that the accident took place on 27.4.2005 was not found proved by the motorcycle bearing registration No. MP-43/ A-8149. On 27.4.2005 injured was going from Swastik Transport to Krishi Upaj Samati on his motorcycle. At about 6:30 p.m. in front of Bharat Transport motorcycle bearing registration No. MP-43/A-8149 driven by respondent No. 1, which is of the ownership of respondent No. 2 and injured with respondent No. 3 has dashed him. Immediately he was sent to Jaora Hospital where Pre-MLC was performed by Dr. M.K. Yadav and an intimation was given by him to the police station. After investigation challan was filed and the injury was found to the injured. To the said injuries injured appellant has filed a claim petition, seeking compensation to the tune of Rs. 7,10,000/-. 2. Respondents No. 1 & 3 have filed their separate written statements and the accident took place by motorcycle No. MP-43/ A-8149 was denied with the averment that in fact the accident took place with the motorcycle No. MP-43/M-4506 and the driver was not having valid driving licence on the date of accident, therefore, the claim deserves to be dismissed and the Insurance Company cannot be held liable for payment of compensation in the said accident. Learned Claims Tribunal has framed Issue No. 1 regarding occurrence and to prove the accident from motorcycle No. MP-43/A-8149. After going through the statements of Sandeep Sharma AW1 (injured) and Nahid Ali AW2 and on the basis of Pre MLC report and the marg intimation, which was lodged immediately after the accident the Tribunal has recorded a finding that the accident with vehicle No. MP-43/ A-8149 is not proved. In fact, the accident took place by a motorcycle No. MP-43/M-4506, but without any plausible evidence the existence of the said motorcycle was changed, therefore, it cannot be said that the accident from the motorcycle No. MP-43/A-8149 was found proved and, accordingly, the claim petition was dismissed. 3. Shri Kumawat, learned counsel appearing for the appellant has argued with vehemence and submits that the Pre MLC which was written by Dr. 3. Shri Kumawat, learned counsel appearing for the appellant has argued with vehemence and submits that the Pre MLC which was written by Dr. Yadav has not been proved by the Insurance Company and the marg intimation has also not been proved by its scriber to the police station; however, it cannot be relied upon for the purpose of proving the accident. Merely mentioning of a number of the motorcycle MP-43/M-4506 in the marg intimation as well as Pre MLC cannot be relied upon until and unless the content thereof has been proved. In support of their contention reliance has been placed on the three judgments of Orisa High Court as well as Punjab and Haryana High Court, reported in United India Insurance Company v. Parpudi Krishna Kumkari and others ( 2004 ACJ 624 ), Virat Sama v. Mohanlal and others and National Insurance Company v. Asha Lata Raut and others ( 1994 ACJ 1134 ) and argued that until and unless content of the FIR has been proved to the effect that the accident took place with a motorcycle No. MP-43/M-4506 it cannot be relied upon and the finding as recorded by the Claims Tribunal cannot be sustained. It is further argued that it is the duty of the Insurance Company to prove that accident took place with the motorcycle No. MP-43/M-4506. In absence of proof by the Insurance Company the Tribunal ought to have accepted the contention of the claimant regarding occurrence of the accident with the motorcycle No. MP-43/A-8149 and the claim petition must be allowed. In view of the said submission it is argued that the appeal may be allowed and the award passed by the Claims Tribunal may be ordered to be set aside with a further direction to compute just and reasonable compensation as specified under section 168 of the Motor Vehicles Act. 4. Shri Monesh Jindal, learned counsel appearing for the respondent submits that the accident took place on 27.4.2005 at about 6:30 p.m. and within half an hour of such accident the injured was hospitalized and it is admitted by him in his statement. The said injured has given number of motorcycle from which the accident took place i.e., MP-43/M-4506. On the description of the doctor in the Pre MLC he has signed. All these facts have been admitted by him in the cross examination. The said injured has given number of motorcycle from which the accident took place i.e., MP-43/M-4506. On the description of the doctor in the Pre MLC he has signed. All these facts have been admitted by him in the cross examination. On the basis of an intimation given by the injured to the doctor at the first inception the marg intimation was recorded by the police authorities. In the said sequence of events, looking to the admission of the injured in the cross examination, the finding of the Tribunal cannot be said to be arbitrary or perverse. In fact, if the injured appellant wants to rely on the final report Ex. P-1, which indicates the number of motorcycle MP-43/A-8149, then he will have to prove the contents thereof by calling the Investigating Officer to prove the accident, but in absence of such evidence and looking to the facts and circumstances of the present case the finding as recorded by the Tribunal cannot be faulted with and liable to be upheld. 5. After having heard learned counsel for the parties and looking to the fact that the accident took place at 6:30 p.m. on 27.4.2005; the injured at the first instant was shifted to the hospital. The treating doctor M.K. Yadav has prepared Pre MLC wherein the description of the accident from motorcycle No. MP-43/M-4506 has been mentioned, which is based on the version of the injured himself and the MLC was signed by him. Those facts have not been disputed in his cross examination by the injured himself. On the basis of such an intimation of doctor has reported to the police authorities which resulted in registration of a marg. After sometime the number of the said motorcycle which was mentioned at the first instance has been changed indicating the number of the offending vehicle as MP-43/A-8149. The claimant has utterly failed to prove under what circumstances the said motorcycle was introduced during investigating by the police authorities. The claimant has also not proved the contents of the final report by calling the Investigating Officer. The claimant has utterly failed to prove under what circumstances the said motorcycle was introduced during investigating by the police authorities. The claimant has also not proved the contents of the final report by calling the Investigating Officer. In these circumstances the evidence which is based on the information of the injured himself and admitted by him in cross examination cannot be disbelieved and the Tribunal has rightly recorded a finding that the accident was not taken place by the motorcycle No. MP-43/A-8149 and in fact the accident took place with the motorcycle No. MP-43/M-4506. The judgments relied upon by the learned counsel for the appellant on the issue of proving the contents of the final report cannot be doubted with, but in the facts of the present case where injured himself has admitted his signatures regarding giving admission that accident with a motorcycle No. MP-43/M-4506 and which was relied upon by the Tribunal cannot be said that the finding of the Tribunal is unsustainable or perverse or contrary to law. 6. In view of the aforesaid the claim petition has rightly been dismissed by the Claims Tribunal. Accordingly, this appeal is hereby dismissed. At this stage, Shri Kumawat, learned counsel appearing for the appellant prays for liberty to file a fresh petition against the owner, driver and Insurance Company of the motorcycle No. MP-43/M-4506. He is at liberty to do so, if law permits.