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2008 DIGILAW 809 (ALL)

Afaq Khan v. Rampyari

2008-04-09

RAJES KUMAR, S.S.CHAUHAN

body2008
ORDER : Rajes Kumar, S.S. Chauhan, JJ. This appeal is directed against the judgment and award dated 25.7.2002, passed by the Motor Accident Claims Tribunal, Sitapur in M.A.C.P. No. 320 of 2000. 2. The facts giving rise to the present appeal are that on 28.11.1999 at about 3.00 p.m. deceased Roshan aged about 7 years son of claimants was hit upon by a tractor which was driven by the appellant. The deceased Roshan was seriously injured and thereafter he was taken to the hospital for treatment and on 30.11.1999 he expired. A claim petition was filed, inter alia, on various grounds. The claim was raised before the Motor Accident Claims Tribunal, Sitapur to the tune of Rs. 11,00,000. The claim was repudiated by the appellant by filing written statement and it was stated that neither he was driver of any tractor nor was the owner of any tractor. He does not know driving. The accident had occurred from some other vehicle. Therefore, he is neither responsible nor the award can be passed against him. 3. The parties led their evidence. P.W. 1 Chhabiley proved his case. The Motor Accident Claims Tribunal proceeded with the case and recorded evidence of P.W. 1. No other witness appeared in the witness box and it was found that the claimants have been able to prove their case and the award in their favour was passed. Feeling aggrieved with the said award the present appeal has been filed. 4. We have heard the learned Counsel for the appellant and the counsel for the respondents. 5. The main thrust of the learned Counsel for the appellant is that the appellant has specifically stated in written statement that he does not know driving of the tractor nor he is the owner of any tractor and he has been wrongly roped in and the claim petition has wrongly been filed against him. 6. The appellant did not produce any evidence to prove his case. He has simply filed written statement and on that basis arguments have been advanced before the trial court that he does not know driving. It was incumbent upon the appellant to prove his case that he does not know driving. 7. So far as the factum of the accident is concerned, the report of the police filed before the Magistrate Court also goes to indicate that the tractor was being driven by the appellant. It was incumbent upon the appellant to prove his case that he does not know driving. 7. So far as the factum of the accident is concerned, the report of the police filed before the Magistrate Court also goes to indicate that the tractor was being driven by the appellant. This report was submitted by the police in the Magistrate Court. The claimants have discharged their burden in regard to the accident and rash and negligent driving of the appellant. The claimant Chhabiley has been cross-examined and in the cross-examination nothing has come out which may indicate that accident had not taken place. The appellant has deliberately tried to shield the tractor owner with a view that the liability may not fasten upon him. The counsel for the respondents has specifically argued that the parties are living in the adjoining villages and, therefore, there is no occasion of not recognizing the person who was driving the tractor. The factum of death, therefore, is fully proved from the evidence of P.W. 1 Chhabiley. The appellant has not been able to point out any illegality or perversity in the award passed by the Motor Accident Claims Tribunal. It seems that the appellant was in collusion with the owner of the tractor as he was driving the tractor of his own relative, therefore, he did not disclose the name in the written statement. On consideration of evidence on record and going through the findings recorded by the Motor Accident Claims Tribunal, we do not find any illegality or impropriety in the award passed by the Tribunal. The appeal is accordingly dismissed.