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Madhya Pradesh High Court · body

2009 DIGILAW 86 (MP)

Sanwar Aalam v. Arun Kumar Chog

2009-01-19

SHANTANU KEMKAR

body2009
ORDER 1. With consent heard finally. 2. This appeal u/s. 173 of the Motor Vehicles Act, 1988 (for short the Act) is directed against the award dated 23.8.2007 passed by the Xth Motor Accident Claims Tribunal, Indore (for short the Tribunal) in Claim' Case No. 219/06 by which the appellant-claimants claim petition has been dismissed. 3. Briefly stated, on 28.5.2006 at about 12:45 p.m. the appellant who was working with respondent No.1 was sitting on a large piece of stone near M.R. 10 railway crossing gate. At that time a Dumper bearing registration No. CPO-7967 driven by the second respondent, owned by the first respondent and insured with the third respondent dashed the said stone on which the appellant was sitting. As a result the stone fell on the appellant causing grievous injuries to him. He was immediately taken to Bhandari Hospital for treatment. According to the appellant due to the said accident his spinal cord suffered grievous injury and his lower part of the body has suffered total disablement. 4. The appellant filed a claim petition u/s. 166 of the Act seeking compensation from the respondents. The respondents No.1 & 2 remained exparte. The respondent No.3 resisted the claim petition and the Tribunal after framing issues and recording evidence held that the appellant suffered injuries by falling of the stone and the accident being not caused by the motor vehicle (Dumper) he is not entitled for any compensation under the provisions of the Act. Feeling aggrieved the appellant has filed this appeal. 5. Heard learned counsel for the parties and perused the record. 6. In order to prove the accident appellant-claimant examined himself as PW 1. He also examined eye witnesses of the accident Habibulha as PW 2 and Gulabchand Patidar as PW 3. In order to prove the injuries he examined Dr. Kush Bandi (P.W 4). In rebuttal the respondents have not examined any witness. 7. The appellant-claimant (PW 1) deposed that on 28.5.2006 when he was sitting near railway bridge a Dumper bearing registration No.CPO-7967 driven by the second respondent while reversing without blowing horn climbed on the big stone on which he was sitting and as a result of it, the said large stone fell upon him. The wheel of the vehicle also run over on his lower part of the body causing grievous injury in the backbone. The wheel of the vehicle also run over on his lower part of the body causing grievous injury in the backbone. Habibulha (PW 2) supported the statement of appellant-claimant and deposed that on 28.5.2006 while he was standing near the railway bridge a Dumper No. CPO-7967 while reversing dashed to a big stone which as a result of the dash fell upon the appellant who was sitting upon it and thereafter the appellant came under the wheel of the Dumper. Gulabchand Patidar (PW 3) also deposed about the accident being caused by the Dumper No. CPO-7967 due to rash and negligent driving of the Dumper by its driver. 8. The Tribunal ignoring the aforesaid over whelming evidence about the occurrence of the accident by the said Dumper placing reliance on the documents Ex. D-l and D-2 by which the first respondent employer of the claimant informed the insurer of his labourers about the occurrence of the accident on 28.5.2006 and causing injury to the appellant-claimant by felling of piling post on him came to the conclusion that the accident did not occur by the said Dumper. 9. In my considered view the approach of the Tribunal in disbelieving the appellant's version only on the basis of such documents by which the intimation has been given by the first respondent being employer of the appellant to the insurance company of its labourers, it cannot be held that the accident did not occur by the said Dumper. In the absence of any contrary evidence and in the absence of examination of any witness, in support of the said documents the finding recorded by the Tribunal ignoring the oral evidence of the eye witnesses of the accident, cannot be sustained. The documents Ex. D-l being a correspondence between the respondent No. 1 and its insurer the stand taken in it cannot bind the appellant-claimant. It is also to be noted that in the FIR (Ex. P-3) as also in the criminal case involvement of the Dumper and its driver for causing the said accident has been alleged and the criminal Court has convicted the second respondent for committing the offence U/Ss. 279, 337 and 437 of the Indian Penal Code. In the circumstances the finding recorded by the Tribunal that the accident did not occur by the Dumper is perverse 10. According the appeal deserves to be and is hereby allowed. 279, 337 and 437 of the Indian Penal Code. In the circumstances the finding recorded by the Tribunal that the accident did not occur by the Dumper is perverse 10. According the appeal deserves to be and is hereby allowed. Finding recorded by the Tribunal that the accident did not occur by the said Dumper is liable to be and is hereby set aside. The matter is remanded to the Tribunal for fresh adjudication on the other issues. Parties to appear before the Tribunal on 18.2.2009. No order as to the costs.