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2009 DIGILAW 376 (CHH)

RAMKALI v. SHRIPAL BALECHA

2009-12-10

R.L.JHANWAR, T.P.SHARMA

body2009
ORDER As per Hon'ble Shri T.P. Sharma, J. :- 1. The challenge in this appeal is to the award dated 08.10.1996 passed by the 6th Additional Motor Accidents Claims Tribunal, Bilaspur in Claim Case No. 27/1995 whereby the learned Additional Motor Accidents Claims Tribunal, Bilaspur dismissed the claim petition on the ground that the appellants have failed to establish the fact that accident occurred by the alleged vehicle owned by respondent No.1 and driven by respondent No.2. 2. The award is impugned on the ground that the learned Claims Tribunal has not considered the evidence available on record for proving the fact that respondent No.2 was driving the vehicle at the time of incident and has caused accident resulting into death of Mahesh Kumar. 3. The claimants in this appeal are legal heirs of the deceased Mahesh Kumar - Rickshaw Puller, who on fateful day of incident i.e. 24.12.1994 was carrying a passenger in Rickshaw at Bilaspur, at the same time Matador No. M.O.L. 640 owned by respondent No.1 and being driven by respondent No.2 rashly and negligently dashed the Rickshaw from back side, resulting into, deceased Mahesh Kumar was thrown from Rickshaw. He received fatal injuries on account of accident. He immediately lodged a report at Police Station vide Ex.P.2. During the course of treatment, Mahesh Kun1ar succumbed to the injuries. Claim petition was filed by the legal representatives of the deceased - Mahesh Kumar. 4. All the respondents have contested the claim. Respondent No.1, owner of the vehicle, has admitted the factum of ownership and that Munnalal, who was driving the vehicle at the time incident, has denied the accident but admitted that• on 30.12.1994 he came to know about the death of Mahesh Kumar. Respondent No.2 - Munnalal has further admitted that he was driving the vehicle but has denied the accident and pleaded that one hour after reaching his house, the police came to him and took him along with vehicle and implicated falsely in the case of accident. 5. Respondent No.3 has admitted that they have insured the vehicle but pleaded that respondent after concealing the truth has succeeded in insuring the vehicle after accident. 6. On the basis of arguments, issues were framed and after providing opportunity of hearing, the Claims Tribunal has dismissed the petition on the ground that the appellants have not proved the involvement of the Matador No.M.O.L.640 in the incident. 6. On the basis of arguments, issues were framed and after providing opportunity of hearing, the Claims Tribunal has dismissed the petition on the ground that the appellants have not proved the involvement of the Matador No.M.O.L.640 in the incident. 7. We have heard learned counsel for the pat1ies and have perused award impugned and record of the claims Tribunal. 8. Counsel for the appellants argued that in the present case, respondents have not adduced any evidence. They have specifically denied the allegation of accident but the appellants have proved the factum of accident and involvement of the vehicle by adducing the evidence, oral and documentary. Injured Mahesh Kumar himself has lodged F.I.R. vide Ex.P.2 at Police Station Tarbahar wherein the number of offending vehicle i.e. Matador and the name of the driver have clearly been mentioned, This fact has not been denied by the respondents and even lodging of F.I.R. Ex.P.2 is sufficient to draw an inference that the offending vehicle was involved in the accident thereby the Claims Tribunal committed irregularity. He urged that case be remitted to the 6th Additional Motor Accidents Claims Tribunal, Bilaspur for its fresh consideration. 9. On the other hand, learned counsel for the respondent No.3, opposed the prayer and submitted that although the respondents - Owner and Driver have not adduced the evidence but the burden of proof of aforesaid fact was on the appellants and the appellants have failed to discharge their burden. 10. In order to appreciate the arguments of the learned counsel appearing for the parties and, we have examined the evidence available on record substantially. Ramkali A.W.l has specifically stated that her husband lodged a report in the Police Station at Tarbahar vide Ex.P.2. A.W.2 Durga Prasad has also deposed that on the date of incident he was sitting in the Rickshaw being driven by the deceased - Mahesh Kumar and he also received injuries when at the time of the offending vehicle which was M.O.L. 440. Versions were tallied resulting into the name of the driver is Munnalal. There could be discrepancy about the number of the offending vehicle but it has clearly been written in the F.I.R. A.W.2 Durg Prasad further deposed that after two years of the accident, there may be discrepancy in the number of offending vehicle. Versions were tallied resulting into the name of the driver is Munnalal. There could be discrepancy about the number of the offending vehicle but it has clearly been written in the F.I.R. A.W.2 Durg Prasad further deposed that after two years of the accident, there may be discrepancy in the number of offending vehicle. Respondent No.1 has admitted in his pleadings that he is the owner of the offending vehicle and Munnalal is the driver of that offending vehicle. He came to know that about the accident after sometime. Respondent No.2 has also admitted in his pleadings that after accident he was called by the police station along with vehicle. Thus, this much evidence is sufficient for drawing an inference that Munnalal was driving the offending vehicle at the time of accident and that offending vehicle involved was of respondent No.1 at the time of incident. The Court has not considered for such evidence available on record and has not assessed the amount of compensation thereby committed irregularity. 11. Having thus scrutinizing the evidence substantially available on record, we are of the opinion that award impugned is not sustainable under law. 12. Consequently, the appeal is allowed. Award impugned dated 08.10.1996 is hereby set aside and the case is remitted to 6th Additional Motor Accidents Claims Tribunal, Bilaspur for consideration of the amount of entitlement and compensation. Parties are directed to remain present before the said Court on 19.01.2010. Case Remanded.