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2009 DIGILAW 699 (MP)

NARENDRA KUMAR ALIAS GUDDAN MANARAJ v. UMESH

2009-06-18

P.K.JAISWAL

body2009
Judgment ( 1. ) THIS appeal has been filed by the claimant against the award dated 28/3/1997 passed by 1st Additional Motor Accident Claims Tribunal, Sagar in m. V. Case. No. 6/1996 whereby learned Tribunal dismissed the claim petition on the ground that claimant failed to prove that jeep bearing registration no. CIB 0129 was involved in the accident. ( 2. ) BRIEF facts of the case are that on 15/12/1993 claimant Narendra kumar @ Guddan Maharaj aged about 50 years was standing at the left side of the road near Nagad narayan Akhada along with Vijay Shrivastava, prashant Dubey, Virendra Suhane and Ravishankar Mishra. While he was talking with them, a Jeep bearing registration No. CIB 0129 driven by respondent No. 1 hit him and ran away from the place of occurrence, at about 10. 00 p. m. in the night. Due to the injuries sustained by the appellant, he was rushed to Government Hospital (Tilli Hospital ). His MLC was conducted on 15/12/1993 vide Ex. A/85 in the night. The doctor who conducted his MLC has opined that injuries are grievous and he was advised for x-ray of right leg. As per MLC the appellant received the following injuries. "compound commuted fracture both bones of right leg with deformity dislocated and loss of movement. Severe bleeding from wound. " ( 3. ) VIJAY Shrivastava, one of the eye witnesses with whom the appellant was standing along with other persons, lodged a report vide Ex. A/1. In the said report no vehicle number has been mentioned nor Vijay Shrivastava at the time of lodging of report intimated the vehicle number of offending vehicle as is evident from FIR No. 208/93 (Ex. A/1 ). Later on the appellant was admitted for his further treatment at Medical College, Jabalpur. During treatment it was found that it is a case of compound fracture of tibia fibula of right leg. As per Ex. A/2, the Reader of Orthopedics Department of government Medical, Jabalpur has opined that the appellant is presently having non-union and infection in the fracture site and he has been advised for major surgery of the same. ( 4. ) JEEP bearing registration No. CIB-0129 was owned by respondent no. 2 and insured with respondent No. 3-National Insurance Company. ( 5. A/2, the Reader of Orthopedics Department of government Medical, Jabalpur has opined that the appellant is presently having non-union and infection in the fracture site and he has been advised for major surgery of the same. ( 4. ) JEEP bearing registration No. CIB-0129 was owned by respondent no. 2 and insured with respondent No. 3-National Insurance Company. ( 5. ) THE appellant filed a claim petition under Section 166 of the Motor vehicles Act, 1988 on the ground that due to rash and negligent driving of jeep by respondent No. 1, he has suffered grievous injuries, claiming compensation of Rs. 8,07,087/- from the respondents. ( 6. ) RESPONDENTS 1 and 2 jointly filed their written statement and denied the averments made in the claim petition. It is also denied that at the time of accident, respondent No. 1 was driving the vehicle very rashly and negligently. They also denied the accident and the involvement of the vehicle. It is contended that they have been falsely implicated in the alleged accident and one Vijay Shrivastava who had lodged an FIR on 19/12/1993, after a period of four days from the date of accident again lodged a written complaint to falsely implicate them. ( 7. ) RESPONDENT No. 3 Insurance Company filed its written statement and for want of knowledge, denied the accident and the other averments made in the claim petition. ( 8. ) LEARNED Tribunal after appreciating the oral statement of claimant narendra Kumar (AW-1), Prashant (AW-2) and Ravishankar (AW-3) eye witnesses of the accident came to the conclusion that there is a contradiction in the statement of the eye witnesses and from their statement it cannot be said that alleged vehicle was, in any way, involved in the said accident and dismissed the claim petition of the appellant by holding that the vehicle in question was not involved in the said accident. ( 9. ( 9. ) LEARNED counsel for the appellant drew my attention to the FIR, statement of Narendra Kumar (AW-1), Prashant (AW-2) and Ravishankar (AW-3) and has submitted that driver of the vehicle was not appeared in the witness box or adduced any witness in support of the evidence of respondents 1 and 2 and there is no cross-examination on the question that alleged vehicle was not involved in the accident or respondents 1 and 2 has been falsely implicated with an ulterior motive to get compensation from respondent No. 2. Learned Tribunal without considering the evidence in its proper perspective on technical ground dismissed the claim of the appellant. There is defect in the investigation made by the investigating officer. On the basis of FIR lodged vide Ex. P/1, the Investigating Officer hurriedly completed the investigation and submitted Khatma report within a period of three days from the date of accident and in absence of any cogent evidence, it cannot be said that the alleged vehicle was involved in the accident. It is further submitted that learned Tribunal committed an error in dismissing the claim petition of the appellant. ( 10. ) ON the other hand, Shri N. S. Ruprah, learned counsel for respondent no. 3, drew my attention to the findings recorded by learned Tribunal in para 7 to 15 of the impugned award and submitted that if the evidence of narendra Kumar (AW-1), Prashant (AW-2) and Ravishankar (AW-3) are accepted to be correct then also it cannot be said that alleged vehicle was involved in the accident. The findings recorded by the Tribunal is based on the admission made by the eye witnesses of the accident. The lodger of the fir has not been examined before the Tribunal nor vehicle number has been mentioned in the FIR lodged by Vijay Shrivastava vide Ex. A/1 and the evidence led by the claimant is not sufficient to establish the involvement of the vehicle and the Tribunal has not committed any legal error in dismissing the claim petition of the appellant. With the above submission, he prayed for dismissal of the appeal. ( 11. ) I have heard the arguments of learned counsel for the parties and perused the record of the case. ( 12. ) IT is not in dispute that at the time of accident appellant/claimant was standing along with Vijay Shrivastava, Prashant Dubey, Virendra Suhane and ravishankar Mishra. With the above submission, he prayed for dismissal of the appeal. ( 11. ) I have heard the arguments of learned counsel for the parties and perused the record of the case. ( 12. ) IT is not in dispute that at the time of accident appellant/claimant was standing along with Vijay Shrivastava, Prashant Dubey, Virendra Suhane and ravishankar Mishra. FIR was lodged by Vijay Shrivastava immediately after the accident. As per FIR the accident was held on 15/12/1993 at 10. 00 p. m. The FIR was lodged on 15/12/1993 itself at 10. 15 p. m. i. e. within 15 minutes from the time of accident. The lodger of the FIR who in his written complaint which was lodged on 19/12/1993 at Police Station Moti Nagar, sagar, gave the vehicle number but in the FIR he has not gave the vehicle number which was lodged immediately after the accident. This shows that he had not seen the accident nor he immediately after the accident noted the jeep number which was involved in the accident and when he came to know that after the investigation Khatma report has been filed, he again lodged a written report, stating therein that Jeep No. CIB-129 was involved in the accident. This person has not been examined by the claimant nor he appeared in the witness box and adduced any evidence to substantiate the claim of the claimant. Narendra Kumar (AW-1) in his statement has deposed that at the time of accident, he had not seen the Jeep number. This witness in para-8 of his cross-examination has deposed that immediately after accident Prashant (AW-2) intimated him about the jeep number of the vehicle which was involved in the accident. Prashant (AW-2)in para-5 and 6 of his cross-examined has deposed that after the accident, he has not intimated the involvement of the alleged vehicle to Narendra or his sons or anybody else. This falsify the statement of the claimant that he came to know about the vehicle number through Prashant. ( 13. ) PRASHANT (AW-2) in para-4 of his cross-examination has deposed that he had noted the jeep number of the alleged vehicle in one copy but the same has not been produced by the claimant nor at the time of recording of evidence Prashant came along with the said copy. ( 13. ) PRASHANT (AW-2) in para-4 of his cross-examination has deposed that he had noted the jeep number of the alleged vehicle in one copy but the same has not been produced by the claimant nor at the time of recording of evidence Prashant came along with the said copy. The evidence of this witness was recorded on 1/8/1996 and he, in para-5 and 6 of his cross-examination, has deposed that till now he has not intimated any one about the number of the jeep which was involved in the accident. ( 14. ) RAVISHANKAR (AW-3) is another eye witness of the accident and in para-2 of his statement, he deposed that at the time of accident he was talking with Narendra as they were standing near mercury light and, therefore, he had seen the number of offending vehicle which was CIB-0129. This witness in para-5 and 6 of his cross-examination has deposed that he has not noted the number of the vehicle which was involved in the accident. Ravishankar (AW-3) immediately after the accident intimated the same to the family member of appellant- Narendra but he had not intimated about the jeep number of the offending vehicle. This witness has further deposed that he immediately after the accident intimated the jeep number to Narendra, Virendra and Vijay. From his evidence, it is clear that before lodging of the FIR, Narendra was intimated the number of jeep by ravishankar but he has not given the registration number of the offending vehicle to the police station nor any offence has been registered against respondents 1 and 2. Vijay Shrivastava, lodger of the FIR, has not been examined before the Tribunal. ( 15. ) CONSIDERING the statement of Narendra Kumar (AW-1), Prashant (AW-2) and Ravishankar (AW-3), there is no sufficient evidence to establish the involvement of the vehicle which was caused the accident. It is not the case of appellant that he is illiterate or eye witnesses are also illiterate. From the evidence of the claimant and his witnesses it seems that they very cleverly involved the alleged vehicle in the accident to some how get the compensation from respondent No. 3. The appellant failed to establish the identity of the vehicle, involved in the accident. ( 16. From the evidence of the claimant and his witnesses it seems that they very cleverly involved the alleged vehicle in the accident to some how get the compensation from respondent No. 3. The appellant failed to establish the identity of the vehicle, involved in the accident. ( 16. ) IN the present case, besides the evidence of Narendra Kumar (AW-1), prashant (AW-2) and Ravishankar (AW-3), FIR and other documents, there is no evidence to prove that vehicle bearing registration No. CIB-0129 was involved in the accident. Therefore, on overall evidence and circumstances of the case, the appellant failed to establish the accident with the alleged vehicle No. CIB-0129. Vijay Shrivastava, lodger of FIR, did not appear in the witness box who was the best person having knowledge about the circumstances in which the accident occurred. On carefully examining the evidence and the material on record and the FIR in which registration number of the vehicle was not mentioned, it cannot be very well said that the vehicle was involved in the accident held on 15/12/1993. In the instant case Prashant (AW-2) and Ravishankar (AW-3) had seen the accident, then at least, one of them could have disclosed the registration number of the offending vehicle to the appellant. Prashant (AW-2) has lodged the FIR against an unknown vehicle. Thus, the evidence of Prashant (AW-2) and ravishankar (AW-3) is nothing, but an after thought to overreach the difficulty faced by the claimant to establish that the accident was caused by the Jeep. In absence of evidence, the Tribunal has rightly held that the jeep was not involved in the accident, therefore, the Tribunal has rightly rejected the claim petition preferred by appellant. The appellant by cogent evidence failed to establish the involvement of the vehicle which cause the accident, in my opinion, the finding recorded by learned Tribunal in para-7 to 15 is just and proper. ( 17. ) THE decisions cited by learned counsel for the appellant in the case of laxmi Gontiya and another V. Nand Lal Tahalramani and others, 1999 ACJ 241 and Bhanwarlal V. Kabulsingh and others, 1989 ACJ 189, will not applicable in the present facts and circumstances of the case. ( 17. ) THE decisions cited by learned counsel for the appellant in the case of laxmi Gontiya and another V. Nand Lal Tahalramani and others, 1999 ACJ 241 and Bhanwarlal V. Kabulsingh and others, 1989 ACJ 189, will not applicable in the present facts and circumstances of the case. In those cases the claimant and his eye witnesses deposed that offending vehicle was involved in the accident and, therefore, this Court has held that respondents did not lead evidence and establish that their vehicle was at some other places at the relevant time, therefore, vehicle was involved in the accident. In the present case, the facts are entirely different. The involvement of the vehicle has not been proved by the claimant and his eye witnesses and, therefore, on the basis of the said citation the appellant will not get any help. ( 18. ) FOR the above mentioned reasons, I am of the view that learned tribunal has not committed any legal error in dismissing the claim petition. The appeal filed by the appellant has no merit and is dismissed but without any order as to cost.