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2015 DIGILAW 1469 (HP)

Sanjogita Devi v. Krishna Sood

2015-10-09

MANSOOR AHMAD MIR

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JUDGMENT Mansoor Ahmad Mir CMP No.10339 of 2015 1. The appellants have moved this application for recalling the order, dated 31st July, 2015, passed by this Court, whereby the appeal came to be dismissed in default and for nonprosecution. The learned counsel for the respondents have no objection in case the application is granted. Accordingly, the application is allowed and the order dated 31st July, 2015, is recalled. The appeal is ordered to be restored to its original number. The application is disposed of. FAO No.609 of 2008 2. The appeal is taken on Board for final disposal with the consent of the parties. 3. Heard. 4. This appeal is directed against the award, dated 20th September, 2008, passed by the Motor Accident Claims Tribunal (I), Kangra at Dharamshala (H.P.), (for short, “the Tribunal”) in MACT Petition No.96-P/2005, titled Sanjogita Devi & another vs. Krishna Sood & others, whereby the claim petition came to be dismissed (for short the “impugned award”). 5. Heart and soul of the appeal is whether the claimants-appellants have been able to prove issue No.1, which is reproduced hereinbelow:- “1. Whether on 14.07.2005 Motor Cycle No.HP-37-A- 3964 driven by Atul Kumar was hit by jeep No.HP-37A-2030 driven by respondent No.2 in a rash and negligent manner resulting in injuries to Atul Kumar who died, as alleged? OPP.” 6. The claimants have specifically pleaded that respondent No.2, namely, Ramesh Kumar had driven the jeep bearing registration No.HP-37A-2030 rashly and negligently on 14.07.2005 and hit the motorcycle bearing registration No. HP-37- A-3964, which was being driven by deceased Atul Kumar rashly and negligently, who sustained injuries and succumbed to the same. 7. The parties have led evidence. The Tribunal, after making discussion in paragraphs 6 to 10 & 13 to 15 of the impugned award, held that deceased Atul Kumar was driving the Motorcycle without any valid and effective driving licence, who was 16 years of age at the time of accident. Further, the FIR bearing No.198/2005, registered at Police Station, Palampur, Ext.PW-2/A, was lodged against Ramesh Kumar, driver of the jeep, which was cancelled by the competent Court of law. 8. The Tribunal in paragraphs 7 to 9 of the impugned award has made discussion and has rightly come to the conclusion that the driver of the jeep was not driving the said vehicle rashly and negligently. 8. The Tribunal in paragraphs 7 to 9 of the impugned award has made discussion and has rightly come to the conclusion that the driver of the jeep was not driving the said vehicle rashly and negligently. It is apt to reproduce paragraphs 7 to 9 of the impugned award herein: “7. This Tribunal has carefully appraised the entire evidence placed on record. The learned counsel for the petitioners had argued that the evidence of petitioner No.2 and his three witnesses, coupled with the FIR and post mortem report, had proved and established the charges of rash and negligent driving against respondent No.2. The respondent No.2 had been booked under Section 304-A I.P.C. by the local police immediately after the accident. Due weight was liable to be attached to the first version of the accident recorded in the First Information Report. There was no reason to reject the evidence of the petitioner No.2 and his three witnesses. 8. This Tribunal finds no merit in the submissions of the learned counsel for the petitioners. Nothing much could be worked out in favour of the petitioners on the strength of evidence of petitioner No.2 and his three witnesses. PW3 had not seen respondent No.2 driving jeep No.HP-37-2030 rashly and negligently. PW3 had stated having carried out the spot inspection and local investigation immediately after the accident PW3 says having concluded the charges of rash and negligent driving against respondent No.2. The local investigation and spot inspection, if any, carried out by PW3 after the accident could not establish the charges of rash and negligent driving against respondent No.2. The evidence of PW4 could not be upheld for obvious reasons. PW4 had been the registered owner of motor cycle No.HP-37A-3964. The petitioner No.2, as also PW4, had stated that at the time of accident, Sh Atul Kumar had been below 18 years in age. The petitioners had produced copy Ex. PW3/A of matriculation certificate of Sh. Atul Kumar. The date of bright of Sh. Atul Kumar was 10.07.1989. As such, he was 16 years in age at the time of accident. PW4 could not have handed over his motor cycle to the deceased. PW4 had permitted a minor to drive the motor cycle. PW4 had rendered himself liable for punishment under Sections 5/177 of the Act. 9. The motor cycle was owned by the husband of the sister of petitioner No.1. PW4 could not have handed over his motor cycle to the deceased. PW4 had permitted a minor to drive the motor cycle. PW4 had rendered himself liable for punishment under Sections 5/177 of the Act. 9. The motor cycle was owned by the husband of the sister of petitioner No.1. The petitioners as also Sh. Mehar Singh (PW4) had not produced the registration and insurance certificates of motor cycle. With a view to cause confusion to the defecne of the respondents, PW4 had stated having disposed of motor cycle No. HP-37A-3964 after the accident. Undoubtedly, the rider of motor cycle No. HP-37A-3964 required a valid and effective driving licence. In the petition, the petitioners had no where stated that their son Sh. Atul Kumar had been in possession of valid and effective driving licence. The respondent Nos. 1 and 2 in their reply had clearly stated that the deceased had not been in possession of a valid and effective driving licence. Since the deceased had been a minor, he could not have been granted a licence to drive the motor cycle with gear. The petitioners had field re-joinder to the reply of respondent Nos. 1 and 2. In the re-joinder, the petitioners had proceeded to state as follows:- “It is pertinent to point out here that the deceased was driving the motor cycle on the command and dictates of pillion rider who was holding driving licence and deceased was fully trained and was driving under the supervision of the pillion rider who held a valid driving licence as stated above.” 9. Having said so, the findings returned by the Tribunal on issue No.1 are upheld. 10. In view of the above discussion, there is no merit in the appeal and the same is dismissed.