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2009 DIGILAW 100 (UTT)

KAMLA DEVI v. SUBHASH CHANDRA AGARWAL

2009-03-16

B.C.KANDPAL

body2009
JUDGMENT Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellants/claimants against the judgment and order dated 03.08.2006 passed by M.A.C.T./District Judge, Udham Singh Nagar in M.A.C.P. No. 23 of 2004. Smt. Kamla Devi & others Vs Subhash Chandra Agarwal whereby the appeal of the claimants was dismissed by the Tribunal. 2. Brief facts of the case are that on 02.01.2004, husband of the claimant – Vishan Singh was going from Village Pratapur to Thakurdwara on his bicycle. At about 03:00 p.m., when he reached on Moradabad-Thakurdwara Road, suddenly, a Maruti Car bearing registration No. UP02/1361 coming from the side of Moradabad, which was being driven by its driver in a very rash and negligent manner, hit the bicycle of the deceased – Vishan Singh, due to which he sustained injuries on his head. He was admitted in the Primary Health Centre, Thakurdwra and after providing first aid he was referred to Moradabad. Thereafter, on 06.01.2004 he was referred to Delhi by the Doctors for better treatment, but he died in the way to Delhi. According to the claim petition, the deceased was 44 years of age and used to earn Rs. 5,000/- per month. Therefore, they filed the claim petition for a sum of Rs. 6,40,000/- as compensation. 3. Thereafter notice was issued to the respondent. On the receipt of the notice, the respondent – Subhash Chandra Agarwal contested the claim petition by filing written statement before the Tribunal alleging therein that on the date and time of the accident, he was with Sri Sarad Goyal at his company situated at Jaspur and his car was not involved in the said accident. It has further alleged that the claimant lodged the complaint against him after expiry of one month with the help of advocate – Ram Kishore Arya in order to implicate him in the false case. Therefore, the claim petition against him was liable to be dismissed. 4. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal dismissed the claim petition vide judgment and order dated 03.08.2006. 5. Feeling aggrieved by the aforesaid judgment and order, the claimants/appellants preferred this appeal before this Court. 6. Heard Sri Mohd. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal dismissed the claim petition vide judgment and order dated 03.08.2006. 5. Feeling aggrieved by the aforesaid judgment and order, the claimants/appellants preferred this appeal before this Court. 6. Heard Sri Mohd. Azim, learned counsel for the appellants/claimants, Sri I.P. Gairola, learned counsel for the respondent and perused the record. 7. Learned counsel for the appellants has pressed this appeal only on the point that the Tribunal did not consider the evidence available on record properly and wrongly dismissed the appeal. He has further submitted that the claimants produced Smt. Kamla Devi (P.W.1) and Pal Singh (P.W.2) and the Tribunal without considering the statement of P.W.2 wrongly dismissed the claim of the appellants. 8. Learned counsel for the respondent has made the rival contention and has submitted that the complaint was lodged after expiry of one month and the witness himself admitted this fact that he was not the actual eyewitness of the accident. He has further alleged that the Car No. UP02/1361 was not involved in the accident. 9. After hearing learned counsel for the parties and perusing the entire material available on record, I am of the view that the Tribunal has not committed any error while deciding the issue No. 1. In order to support her case, Smt. Kamla Devi produced Pal Singh as P.W.2 who has stated in his deposition that he was informed about the accident by one-Charan Singh, whereas in his deposition, Charan Singh has stated that he was not the actual eyewitness of the accident. Therefore, the evidence of these eyewitnesses cannot be reliable. It is further clear from the evidence that the claimants have not produced postmortem report before the Tribunal. From the perusal of the record, it reveals that the respondent – Subhash Chandra Agarwal filed a criminal case against Ram Kishore Arya – Advocate and in order to take the revenge, he has filed the false complaint against the respondent. Learned counsel for the appellants has not placed any clinching evidence before me, which may show that the accident took place by Maruti Car No. UP02/1361. Learned counsel for the appellants has not placed any clinching evidence before me, which may show that the accident took place by Maruti Car No. UP02/1361. The record further reveals that the accident took place on 02.01.2004 and the report of the accident was lodged on 03.02.2004, after expiry of one month and there is no evidence on record, which may show that the said vehicle was involved in the accident and further the claimants/appellants have not produced any proper explanation before the Tribunal about the delay in filing the complaint. The Tribunal after having considered the entire material available on record rightly dismissed the claim petition of the claimants. I do not find any infirmity or illegality in the impugned judgment and order passed by the Tribunal. I am in total agreement with the findings recorded by the Tribunal while dismissing the claim petition. The appeal lacks merit and is liable to be dismissed. 10. Accordingly, the appeal is dismissed. No order as to costs.