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2013 DIGILAW 733 (ALL)

Kamla and Others v. Rohan Saxena and Others

2013-03-06

ANIL KUMAR SHARMA, RAKESH TIWARI

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Anil Kumar Sharma, J.;— We have heard Sri Sharad Sharma, counsel for the appellants, as also perused the impugned award and papers filed along with memo of appeal. This FAFO is preferred by the appellants challenging the validity and correctness of the impugned award dated 12.11.2012 passed by Special Judge/Motor Accident Claims Tribunal, Bijnor in M.A.C.P. No. 50 of 2011: Smt. Kamla & others vs. Rohan Saxena & others. Brief facts giving rise to this appeal are that deceased Anil Kumar Bishnoi was standing on the footpath of the road on 1.12.2010. At about 5.00 A.M. on 1.12.2010, he was hit there by a Maruti car having registration no. UP 22B-6464 as result of which he died. At the time of accident, the deceased was aged about 42 years and posted as constable in Police Lines, Bijnor, getting salary of Rs.16,000/- per month. After his death, FIR was lodged by appellant no. 2 against driver of unknown offending vehicle which was registered as Case Crime No. 1192 of 2010 under sections 279 and 304-A IPC at police station-Civil Lines, District-Moradabad. After investigation, charge sheet was filed against respondent no. 2/Gendaram son of Sri Nandram, R/O Gangapur Awas Vikas Police Station, Civil Lines, Rampur, who was driving the aforesaid offending vehicle. After filing of charge sheet, case no. 417 of 2011: State Vs. Gendaram was started against respondent no. 2 before A.C.J.M. Court No. 5, Moradabad. The appellants also filed claim petition before the MACT, Bijnor in M.A.C.P. No. 50 of 2011: Smt. Kamla & others Vs. Rohan Saxena & others, claiming a sum of Rs.25,00,000/- from the respondents. The case was contested by the respondents who filed their written statements. Appellant no. 2 filed his statement on affidavit in evidence in the case on 16.9.2011, whereas statement of witness P.W. 2/Kuldeep was recorded on 28.10.2011. The Tribunal after considering the evidence before it, rejected the claim petition of appellants vide its award dated 12.11.2012 holding that the claimants have failed to establish that the accident had been caused by alleged vehicle no. UP 22B-6464 said to be driven in rash and negligent manner by respondent no. 2 and as such claimant-appellants are not entitled to any relief. Assailing the impugned award, learned counsel for the appellant submits that the Tribunal has failed to consider the fact that the deceased died due to accident caused by respondent no. UP 22B-6464 said to be driven in rash and negligent manner by respondent no. 2 and as such claimant-appellants are not entitled to any relief. Assailing the impugned award, learned counsel for the appellant submits that the Tribunal has failed to consider the fact that the deceased died due to accident caused by respondent no. 2 with the vehicle of Respondent no. 1/Rohan Saxena, son of R.P. Saxena, R/O Jwalanur, near Rafat School, Police Station-Civil Lines, Rampur (owner of vehicle no. U.P. 22B-6464). Learned counsel for the appellants has also relied upon the report of Investigator in support of his case which is appended as Annexure-5 to the appeal. From a perusal of the award and the report of Investigator, we find that the Investigating Officer had submitted his report wholly based on presumption. The Tribunal on considering the report, aforesaid decided issue no. 1 holding that accident had not taken place from the alleged vehicle no. U.P. 22B-6464.. To our mind report of Investigator has no evidenciary value as he is under contract or employment of the company working for its benefit and his report is based on hear-say evidence. Moreover, conduct of P.W. 2 is wholly unnatural. He has stated that on seeing the accident by vehicle in question driven in rash and negligent manner, he himself chased the offending vehicle on his motorcycle, instead of helping the deceased and lodging the FIR, or informing the police to chase the said vehicle. Thus, the conduct of the said witness does not appear to be aboveboard; firstly for the reason that when he neither knew the deceased from before nor he helped the victim after the accident, he tried to chase the vehicle and thereafter went home and left the place for three days. How he had seen the registration number of said vehicle from a distance when he could not catch the speeding offending vehicle and not reported either to the police or claimants immediately. It may also be noted here that when he had not known the victim or his family members what prompted him to search them out after three days of accident and inform about registration number of vehicle in question on his own. It may also be noted here that when he had not known the victim or his family members what prompted him to search them out after three days of accident and inform about registration number of vehicle in question on his own. His evidence and conduct does not appear to be trustworthy, hence, the Tribunal also has rightly come to the conclusion that witness-P.W. 2 had in fact neither seen the accident nor the vehicle in question was involved in the said accident. For all the reasons stated above, we uphold the award. The appeal sans merit and is accordingly dismissed. _____________