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2013 DIGILAW 442 (ALL)

TAPESARI DUBEY v. SANGITA DEVI

2013-02-06

ANIL KUMAR SHARMA, RAKESH TIWARI

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JUDGMENT Hon'ble Rakesh Tiwari, J.—Heard learned counsel for the appellants and perused the record. 2. This First Appeal From Order is preferred by the appellants challenging the validity and correctness of the judgment and order dated 21.11.2012 passed by the Motor Accident Claims Tribunal/District Judge, Mahraganj in M.A.C.P. No. 42 of 2008, Sangita Devi and others v. Tapesari Dubey and others. 3. The claim petition was filed by Smt. Sangita Devi against Tapesari Dubey and two others. The owner of vehicle i.e. the appellant inter alia alleged that on 26.11. 2007 at about 2.25 P.M. i.e. the relevant date and time of the accident, the tractor of the appellants was at Nepal where all the taxes (Bhansar) had been paid for entry of the vehicle regarding which the Nepal Government had issued requisite slip of the Bhansar office at Bhairhwa (Nepal) which was filed by the appellants before the Tribunal. 4. By the claim petition, the claimant-opposite parties prayed for compensation amounting to Rs. 6,62,000/- for the death of Bhola (aged about 1-1/2 years), minor son of the claimants from the appellants. According to the claimants, Bhola (since deceased) was playing in front of the door on 26.11.2007 when Om Prakash Dube son of Tapeshwari Dube, appellant driving his tractor aforesaid (claimed to be in Nepal at the relevant time) in a rash and negligent manner hit their son causing death of the child. FIR was lodged by the claimants on 6.11.2007 at 7.10 P.M. on the same date by one Ram Adhar Dube son of Brij Narayan Dube who died on 14.4.2010 during trial. 5. The Tribunal vide its award dated 21.11.2012 held the appellants to be liable for payment of compensation amounting to Rs. 1,80,000/- to the claimants. 6. Learned counsel for the appellants submits that the Tribunal has passed the impugned award dated 21.11.2012 solely on the basis of surmises and conjectures as it did not examine the material on record properly and has proceeded in an arbitrary manner in the case. 1,80,000/- to the claimants. 6. Learned counsel for the appellants submits that the Tribunal has passed the impugned award dated 21.11.2012 solely on the basis of surmises and conjectures as it did not examine the material on record properly and has proceeded in an arbitrary manner in the case. It is stated that the Tribunal has fixed responsibility on the appellants merely because he has violated rule 3 of Central Motor Vehicle Regulations Act, 1989 and though appellants’ tractor No. UMB-3934 was not involved in the accident on 26.11.2007 at about 3.00 P.M. at Baluwa, P.S. Kothibhar, District Mahrajganj, yet the Tribunal has saddled with the appellants excessive compensation, who has falsely implicated the tractor in the accident due to enmity. 7. It is lastly submitted that on the date of accident the permit and fitness of the vehicle were valid and the same was not considered by the trial Court. 8. No other point has been argued before us. 9. Upon hearing the counsel for the appellants and from perusal of record we find that Tribunal had on basis of pleadings of the parties framed two issues regarding death of Bhola (since deceased) due to accident on 26.11.2007 at 3.00 P.M. with tractor No. UMB 3934 alleged to be driver in a rash and negligent manner by its driver and regarding the quantum of compensation. 10. The claimant as well as the appellants had submitted documentary evidence and produced witnesses in support of their respective cases. On behalf of the claimant she herself appeared as P.W.1 and produced Ram Adhar Dube as P.W.2 whereas Tapeshwari Dube and Suresh Prasad appeared as D.W.1 and D.W.2 respectively. 11. The Tribunal on issue No. 1 repelling the argument of the counsel for opposite party, appellants in the present case held that even if it is assumed that they have been falsely implicated due to old enmity & litigation between the parties, it is not proved by any incorrigible evidence. Moreover, the police, after investigation, had submitted chargesheet against Om Prakash Dube- the tractor driver on which cognizance has been taken by the learned Magistrate and that the factum and manner of accident is proved by the claimant from the statement of eye witnesses and the chargesheet which have not been denied by the appellants in this appeal. Moreover, the police, after investigation, had submitted chargesheet against Om Prakash Dube- the tractor driver on which cognizance has been taken by the learned Magistrate and that the factum and manner of accident is proved by the claimant from the statement of eye witnesses and the chargesheet which have not been denied by the appellants in this appeal. Thus, accident by the offending tractor driven in a rash and negligent manner causing death of Bhola aged about 1-1/2 years is proved. 12. As regards compensation is concerned, the Tribunal considering upon the judgment in New India Assurance Co. Ltd. v. Satendra and others, (2007) ACJ 160 and considering the facts and circumstances of the case aforesaid allowed the claim in part for Rs. 1,80,000/- as compensation with simple interest to be paid by the appellant Tapeshwari Dube and others, vehicle owners within a period of two months to the claimants by cheque. 13. Regarding the argument of the counsel for the appellants that tractor alleged to have been involved in the accident being elsewhere i.e. at Bhairhwa is concerned, the Tribunal considered the paper Nos. 69 Ga & 71Ga and found that though the registration number of the offending tractor has not been mentioned in the FIR but from the investigation report of the police it is established that the tractor of the appellants was involved in the accident regarding which case is pending against Om Prakash, the driver of the offending tractor for the offence punishable under Section 279 and 304A IPC. 14. The Tribunal also found that in the alleged permission letter dated 26.11.2007 of tractor in question for entry into Nepal border issued by Bhansar office of Bhairhwa the date ‘26’ appears to be written by overwriting on the original date and in any case the appellants could not prove by any permit when the said tractor re-entered into Indian territory. Suresh Prasad, D.W.2 could only state that the said tractor had been taken to Nepal about 8-9 times in the month of November, 2007 but he does not remember those dates whereas D.W.1 stated that the tractor was taken into custody by the police on the very next day of the accident, which was being driven by her son Om Prakash Dube. This witness also admitted overwriting on permit No. 27 MMNo. 064/8/10 time 02.25 P.M. vehicle No. UMB tractor No. 3934 HMT Jetter 2511 on which the date was written as 16.11.2007 and by overwriting made into 26.11.2007. Thus by changing the date by overwriting it in the permission letter the appellant wanted to give an impression that the offending tractor was in fact in Nepal on 26.11.2007 i.e. the date of accident. 15. The appellant also did not file the permission letters showing entry of the said tractor from Nepal into India. The eye-witnesses have proved the accident by the offending tractor in which Bhola succumbed to injuries. The Tribunal as a matter of fact found that tractor No. 3934 HMT Jetter driven rashly and negligently by Om Prakash Dube was involved in the accident on 26.11.2007 in which Bhola had died. 16. For all the reasons stated above, we are of the opinion that appeal sans merit. We accordingly, uphold the impugned award and dismiss the appeal. No order as to costs. ——————