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2012 DIGILAW 1655 (ALL)

GAURA DEVI v. SHAHZAD KHAN

2012-07-25

ANIL KUMAR SHARMA, RAKESH TIWARI

body2012
JUDGMENT By the Court.—The appellants have challenged the award dated 2.4.2012 passed by MACT/Additional District Judge (Court No. 11, Agra in MACP No. 177 of 2008, whereby the claim petition of the appellants under Section 166 Motor Vehicles Act had been dismissed. 2. The claimants filed the claim petition alleging that on 3.3.2007 deceased Rampal parking his bike near Manoj Dhaba on Fatehabad Road, Agra was talking with Constable Ramesh Babu, then at about 4 p.m. the driver of Jeep registration No. UP 80M/6760 driving the vehicle rashly and negligently knocked down the deceased and he succumbed to the injuries. It was alleged that deceased was hale and hearty man of 32 years and was whole-sale fruit seller and his monthly income was Rs. 10,000/-. The widow, children and parents of the deceased filed claim petition for an award of Rs. 18,87,400/-.They contended that the offending vehicle was owned by respondent No. 2, insured with respondent No. 3 and at the time of accident it was being driven by respondent No. 1. The respondent Nos. 1 and 2 denying the factum of accident stated that on the date of accident the alleged offending Jeep was insured with respondent No. 3. They further contended that in the FIR it was stated that the accident took place with tractor-trolly, while they are owner and driver of the jeep, so the petition is liable to be dismissed. The respondent No. 3 also denied the allegations of the claimants and alleged collusion between the claimants and owner of the vehicle and that the driver of the jeep had no valid and effective driving license on the date of accident. The claimants examined widow of the deceased Gaura Devi PW 1, brother of deceased Nathi Lal PW 2 and alleged eye-witness Bhoop Singh PW 3. The learned Tribunal after evidence of parties and hearing argument has dismissed the claim petition as stated above. Aggrieved, the claimants have come up in appeal. 3. We have heard the learned counsel for the appellants and perused the impugned award. 4. The learned counsel for the appellants has vehemently argued that the learned Tribunal has failed to appreciate the evidence on record in correct perspective and has erroneously rejected the testimony of eye-witness Bhoop Singh PW 3, who has proved the factum of accident as also the rash and negligent driving of Jeep driver. 4. The learned counsel for the appellants has vehemently argued that the learned Tribunal has failed to appreciate the evidence on record in correct perspective and has erroneously rejected the testimony of eye-witness Bhoop Singh PW 3, who has proved the factum of accident as also the rash and negligent driving of Jeep driver. Findings on issue No. 1 have been challenged on behalf of the appellant. This issue was framed as under : 1- D;k fnukad 3&3&2007 dks e`rd jkeiky vkxjk Qrsgkckn jksM ij fLFkr eukst /kkck ds lkeus lMd fdukjs ij viuh ekVj lkbZfdy ij cSB dj vU; fdly ls ckrphr dj jgk Fkk rHkh le; djhc 6-30 cts 'kke Qrsgkckn dh vksj ls rsth o ykijokgh ls vkrh thi la[;k ;w0ih0 80,e@6760 us e``rd dks Vddj ekjnh] ftlds ifj.kkeLo:i mldh e`R;q gks x;h \ 5. The learned Tribunal has found that the report of the accident was lodged by Constable Ramesh Babu wherein he has noted that the deceased was hit by an unknown tractor-trolley which was being driven by its driver rashly and negligently, while he was talking with some one sitting on his parked motor-cycle. Contrary to this report Bhoop Singh PW 3 the alleged eye-witness examined by the claimants has stated that the deceased was hit by driver Shahzad who was driving jeep UP 80M/6760 rashly and negligently while he was overtaking a tractor. He has further stated that he knew Rampal from before, but had gone to distribute milk and he told about the accident to Natthi Lal brother of deceased two months after the accident when he visited his village. Natthi Lal PW 2 has stated that the accident was seen by Bhoop Singh and two months after the accident he told him about the vehicle, which caused the accident. He has further stated that wrong report of the accident was lodged by Constable Ramesh Babu. He has admitted in cross-examination that he lodged the report with the police two months after the accident, but no case was registered thereon. From the evidence adduced by the claimants it transpires that Bhoop Singh informed about the accident to the family members of the deceased two months after the accident. When Bhoop Singh PW 3 knew the deceased from before then why he did not accompany him to the hospital and he kept mum for two months? From the evidence adduced by the claimants it transpires that Bhoop Singh informed about the accident to the family members of the deceased two months after the accident. When Bhoop Singh PW 3 knew the deceased from before then why he did not accompany him to the hospital and he kept mum for two months? This conduct of the witness creates doubt about the veracity of his testimony and the case of the claimants about the involvement of jeep UP 80M/6760. It is important to note that in the report lodged by Constable Ramesh Babu after the accident it was clearly mentioned that an unknown tractor-trolley had hit the deceased while he was talking with him sitting on the stationery motor-cycle. It clearly shows that Constable Ramesh Babu knew the deceased from before then why he would lodge incorrect report about the vehicle involved in the accident? The claimants have not examined Constable Ramesh Babu before the Tribunal. There is lot of difference in the make and type of tractor-trolley and jeep. The conduct of Bhoop Singh is not above board and in the facts and circumstances of the case it is hard to place reliance on his statement and the learned Tribunal has rightly rejected his testimony. 6. The statement of Natthi Lal PW 2, the brother of the deceased is also self contradictory. In examination-in-chief he has stated that the report of the accident was lodged by some constable against wrong vehicle, but in cross- examination he has stated that he lodged the report of the accident two months after the accident when Bhoop Singh gave him correct information about the accident and prior to that no report of the accident was lodged. In examination-in-chief itself this witness has admitted that Bhoop Singh and others who were present at the spot, had told him about the offending vehicle, but surprisingly he has not stated as to when Bhoop Singh informed him about the vehicle. However, reading his stated as a whole it comes out that Bhoop Singh informed him about involvement of the jeep two months after the accident. It has already been observed above, that conduct of Bhoop Singh after the accident has not been straight forward. He knew the deceased from before, but after the accident he did not stay at the spot for a moment and went away. It has already been observed above, that conduct of Bhoop Singh after the accident has not been straight forward. He knew the deceased from before, but after the accident he did not stay at the spot for a moment and went away. He did not accompany him to the hospital, nor informed the police or the family members of deceased Ram Pal. 7. Learned counsel for appellants has argued that after investigation police has submitted charge-sheet against the respondent No. 1, so no other conclusion can be drawn except that the accident took place due to his rash and negligent driving of the jeep. This argument has no force. The claimants have not examined the investigation officer in support of their case. Charge-sheet by the police in a criminal case pertaining to the accident does not ipso facto proves that the concerned accused is solely responsible for the accident. In motor accident claim petition under Section 166 of Motor Vehicles Act no such inference can be drawn. In this case the claimants have not examined the material witness to prove the rash and negligent driving of respondent No. 1. Merely because respondent No. 1 has been charge-sheeted by the police in criminal case pertaining to the instant accident, it cannot be held that he was responsible for the accidental death of the deceased. The claimants have miserably failed to prove that the accident was caused by the jeep, while the prompt police report lodged by uninterested police official clearly indicated that an unknown tractor-trolley had hit the motor-cycle of the deceased. 8. For the aforestated reasons, we find that there is no infirmity, factual or legal in the findings recorded by the learned Tribunal. The appeal has no merits and is accordingly dismissed. ——————