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2013 DIGILAW 540 (ALL)

NEW INDIA ASSURANCE CO. LTD. v. PRABHAWATI DEVI

2013-02-14

ANIL KUMAR SHARMA, RAKESH TIWARI

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JUDGMENT Hon’ble Anil Kumar Sharma, J.—Heard learned counsel for the appellant and learned counsel for respondent Nos. 1 to 7 and perused the impugned award as also the papers filed alongwith the memo of appeal. 2. The appellant being insurer of dumper registration No. UP-58T 0494 has challenged the award dated 31.10.2012 passed by the Motor Accident Claims Tribunal/Special Judge (E.C. Act), Basti in M.A.C.P. No. 127 of 2009, Prabhawati Devi and others v. The New India Assurance Company Limited and others, whereby compensation of Rs. 42,13,904/- together with simple interest at the rate of 7% per annum had been awarded to respondent Nos. 1 and 3 to 7 on account of death of Pramod Kumar Tripathi a Junior Engineer, P.W. D., Santkabir Nagar in the instant motor accident. 3. It appears that on 15.4.2009, the deceased was travelling in jeep No. U.P-51, 4618 and when it reached near Haryana ‘Dhaba’ in the vicinity of village Kaniyara at about 5.30 p.m. the driver of dumper No. UP-58T, 0494 driving vehicle rashly and negligently dashed with the aforesaid jeep resulting in instantaneous death of Pramod Kumar Tripathi. Nine (9) other people travelling in the jeep also lost their lives in the accident. The report of the accident was given to P.S. Kotwali Khalilabad District Santkabir Nagar, on the basis whereof case crime No. 898/2009, under Sections 279, 337, 338 and 304A I.P.C. was registered against driver of vehicle No. UP-58T, 0494. It is alleged that the vehicle was owned by respondent No. 3 and it was insured with the appellant. 4. The police after investigation submitted charge-sheet against drivers of both the vehicles. Respondent Nos. 1 to 7 being legal representatives of the deceased filed claim petition for an award of Rs. 87,17,600/-. The owner of dumper No. UP-58T, 0494 denied the involvement of their vehicle in the accident, inter alia alleging that the vehicle was insured with the New India Assurance Company and their driver Gopal Das was having valid and effective driving licence on the date of accident. The driver and insurer of jeep No. U.P-51,4618 also contested the claim petition and alleged that the accident took place due to rash and negligent driving of driver of dumper No. UP-58T, 0494. 5. The driver and insurer of jeep No. U.P-51,4618 also contested the claim petition and alleged that the accident took place due to rash and negligent driving of driver of dumper No. UP-58T, 0494. 5. The claimants examined Smt. Prabhawati, P.W. 1 (widow of the deceased), Pradeep Kumar, P.W. 2 (eye-witness of the accident) and Amar Nath, P.W. 3 and also filed documentary evidence. The owner of the dumper did not adduce any oral evidence and has filed the copy of driving licence of the driver and insurance document of their vehicle. 6. The appellant examined their investigator Tayyab Ali as D.W. 3. The owner of jeep No. U.P-51, 4618 has examined himself as D.W. 2 while the insurer of the aforesaid jeep produced Madhusudan Shukla as D.W. 1. 7. After hearing parties’ counsel the learned Tribunal did not find composite negligence of drivers of both the vehicles and held that the accident took place due to rash and negligent driving of dumper No. UP-58T, 0494 by its driver and accordingly, partly allowed the claim petition as detailed earlier in the judgment. 8. Learned counsel for the appellant placing reliance on the report of their investigator and the site plan has vehemently argued that the Tribunal has grossly erred in fixing sole responsibility of the accident on the driver of dumper No. UP-58T, 0494. 9. The appellant has examined their investigator Tayyab Ali as D.W. 3, who is an Advocate. The accident took place on 15.4.2009 whereas he has investigated the case since 9.11.2010. His report is based on site plan prepared by the police. The copy of the site plan has been annnexed as Annexure-3 with the appeal. The date on which the site plan was drawn by the I.O. is not available. The site plan shows that the accident took place on Khalilabad-Basti road which runs east to west it has divider and northern part of the road was under construction. The accident took place on southern part of the road and in its northern side the dumper No. UP-58T, 0494 had been shown and it is mentioned that the jeep has dashed with the stationary dumper. As per the case of the claimants, the deceased was going from Khalilabad to Basti, so as per the site plan the jeep was on its left side of the road. As per the case of the claimants, the deceased was going from Khalilabad to Basti, so as per the site plan the jeep was on its left side of the road. It is very important to note that the site plan prepared by the I.O. investigating a crime is based on hearsay evidence. The I.O. has no personal information about the incident or the accident. He prepares site plan on the basis of information conveyed to him either by the first informant or the eye-witness of the incident/accident. In these circumstances, site plan can never be treated as substantive evidence. 10. Similarly for disposal of claim petition filing of charge-sheet by the police against the drivers of both the vehicles involved in the accident would not necessarily mean that they were responsible for the accident. The claim petition is to be decided on the evidence adduced by the parties in the case. In a claim petition under Section 166 of M.V. Act proof of rash and negligent driving of the offending vehicle by its driver is necessarily to be proved by the claimant. If the opposite party raises a plea of either contributory negligence or composite negligence the burden to prove it would squarely lie on him or them. 11. In the instant case, the owner of the dumper has not dared to examine their driver Gopal Das against whom the police has filed the charge-sheet. Even, the appellant did not make any effort to get him summoned to prove the alleged negligence of the driver of jeep No. UP-51,4618. The claimants have examined Amar Nath, P.W. 3 as an eye-witness of the accident, who has been cross-examined by the opposite party at length but the opposite party could not shake his testimony. No doubt, his name is neither figured in the FIR nor in the charge-sheet as an eye-witness of the accident but considering the fact that in the instant accident ten (10) people have succumbed to the injuries, it may be possible that he was not known to either first informant or other eye-witness. The report of the incident may be lodged by any person related to other deceased or other eye-witness, who may not be known to the claimants or Amar Nath, P.W. 3. The Learned Tribunal has dealt with this issue elaborately in the impugned award. 12. The report of the incident may be lodged by any person related to other deceased or other eye-witness, who may not be known to the claimants or Amar Nath, P.W. 3. The Learned Tribunal has dealt with this issue elaborately in the impugned award. 12. Much reliance was placed by the learned counsel for the appellant on the report of the investigator appointed by the appellant who has also been examined as D.W. 3 before the Tribunal. We have perused his report which is Annexure-2. We find that he has investigated the case more than one and a half years after the accident. He could not meet any eye-witness of the accident. First of all, he has tried to find out the claimants and was successful in locating the father of the deceased and has mentioned the facts about the age, profession and income of the deceased as also his dependents etc. As regards factum of accident he has solely relied on the site plan prepared by the police during the investigation. At the sake of repetition, it would be pertinent to note that the report of the investigator based on site plan has no value unless the person who prepared it or at whose instance it was prepared is examined. Therefore, the report and testimony of the investigator about rash and negligent driving of drivers of vehicles involved in the accident has no relevance. 13. The deceased was a Junior Engineer in P.W. D. District Santkabir Nagar and his monthly pay was Rs. 27,990/-. The Tribunal has calculated the compensation payable to the claimants on the basis of age and income of the deceased which is not disputed to the appellant as the same finds place in the report of their investigator. 14. In view of the above discussion, we find that the appeal has no force and is accordingly, dismissed at the stage of admission. 15. Let the statutory amount deposited by the appellant in this Court be remitted back to the Tribunal within four weeks. ——————