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2010 DIGILAW 1190 (MP)

Mukesh @ Mukrim v. Ganishakoor

2010-11-26

PRAKASH SHRIVASTAVA

body2010
ORDER 1. This appeal under section of the Motor Vehicles Act, 1988 has been filed by the claimants against the award dated 18.6.2004 passed by the learned 7th Member, Motor Accident Claims Tribunal, Indore in Claim Case No. 21/2003. 2. The appellant had filed the claim petition before the Tribunal stating that on 17.11.2002 in the evening when he was standing near his ancestral house on his side, respondent No.1 driver of tractor No. MP-09-MA-2878 brought the tractor in a rash and negligent manner from the side of Lebad and had caused accident by coming on the wrong side in which the appellant had received injuries and had suffered permanent disability. The Tribunal, by the impugned award rejected the claim petition by holding that the appellant failed to establish that on 17.11.2002 at 6.00 pm. the accident was caused due to the rash and negligent driving of the vehicle (tractor No. MP-09-MA-2878). 3. Learned counsel appearing for the appellant submitted the Tribunal has committed an error in holding that the accident from the rash and negligent driving of the vehicle concerned is not proved. He further submitted that the finding which has been recorded by the Tribunal is not supported by the evidence on record. 4. Learned counsel appearing for the respondent/Insurance Company supporting the finding of the Tribunal submitted that no error has been committed in holding that the appellant has failed to establish that the accident was caused due to the rash and negligent driving of the vehicle concerned. 5. I have heard learned counsel of the parties and perused the entire record carefully. 6. AW-1 Mukesh (appellant) has stated that the accident was caused by the tractor No. MP-09-MA-2878 on 17.11.2002 due to the rash and negligent driving of the tractor driver in which the appellant had received injuries. He has given a description of the manner in which the accident was caused by the tractor. There is no effective cross examination of AW-1 in this regard. AW-2 Gangaram, who is also one of the witness of the accident, has stated that the accident was caused by the tractor concerned due to the rash and negligent driving of the tractor in which the appellant has received injuries. The evidence of Doctor established that the appellant had received injuries in the accident. The first information report is Ex. P-2. The evidence of Doctor established that the appellant had received injuries in the accident. The first information report is Ex. P-2. There is delay in lodging the FIR, but the delay has been explained. It is mentioned in the FIR that the appellant had received injuries on both the legs in the accident and he was taken to the hospital and after discharge from the hospital he had gone to the Police Station to make the report. Ex. P-8 is the Medico Legal Certificate dated 20.11.2002 which mentioned about the tractor-tyre being run over the patient's both feet on 17.11.2002., Thus, this report supports the appellants version about causing of the accident by the tractor. Ex. P-10 is the report which was made on 28.11.2002 by the appellant to the Police disclosing the details of the accident and the tractor Number which had caused the accident. A perusal of the reply which was filed by the Insurance Company before the Tribunal indicates that no dispute was raised by the Insurance Company about the involvement of the tractor in question in the accident. No investigation was done and no report was placed on record to show that the tractor in question was not involved in the accident. 7. A perusal of the award passed by the tribunal indicates that the Tribunal has not properly appreciated the evidence available on record. The Tribunal proceeded on the basis that there was delay in the lodging of the FIR and it was not disclosed that immediately thereafter, in which hospital the appellant had received treatment. 8. The Division Bench of this Court in the matter of Manoj v. Samundar Singh and others, reported in 2005 ACJ 520 in a case where there was a delay of 1 year in lodging the FIR, but the eye witnesses had proved the accident and driver had admitted the accident and the injured had sustained injuries had set aside the award of the Tribunal dismissing the claim petition. The Division Bench in the matter of Daulatram and others v. Akhlesh Kumar and others, reported in 2006 (III) MPWN 39 , in a case when accident was proved by eye-witness and the Police had registered a criminal case against the driver of the vehicle, has held that in such a case claim petition cannot be dismissed. The Division Bench in the matter of Daulatram and others v. Akhlesh Kumar and others, reported in 2006 (III) MPWN 39 , in a case when accident was proved by eye-witness and the Police had registered a criminal case against the driver of the vehicle, has held that in such a case claim petition cannot be dismissed. This Court in the matter of Arij Khan v, Madanlal and others, reported in 2008 (2) DMP 112 (MP) has taken the view that the Claims Tribunal while deciding the claim petition is not to be influenced by finding of criminal Court and is required to decide the claim on the basis of preponderance of probabilities. The Madras High Court in the matter of New India Assurance Co. Ltd. v. G. Vijaya Kandiban and another reported in 2007 ACJ 2824 has taken the view that the statement before the Tribunal are made on solemn affirmation and FIR can not be raised to pedestal higher than that of a statement on oath and statement before the Tribunal has more value than FIR. 9. Thus, on the basis of the aforesaid analysis it is held that the Tribunal has committed an error in rejecting the claim petition on the ground of delay in lodging the FIR. 10. So far as Ex, P-10 is concerned, the Tribunal has not assigned any I cogent reason for finding it to be suspicious merely because Ex. P-10 was sent by post to the police, that would not make the document suspicious without there being any material creating suspicion in respect of that document. 11. Thus, it is found that the Tribunal has committed an error in holding that the accident was not caused due to the rash and negligent driving of the tractor concerned. The said finding of the Tribunal is a perverse finding. The evidence on record clearly establishes that the accident was caused due to the rash and negligent driving of the tractor No. MP-09-MA-2878 by respondent No.2. 12. Consequently, the award of the Tribunal is set aside and the matter is remitted back to the Tribunal to take further proceeding in a respect of determination of the compensation amount and to pass a fresh award in accordance with law. Parties are directed to appear before the Tribunal on 17.1.2011. Let the original record be sent back to the Tribunal.