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2016 DIGILAW 3357 (ALL)

Km. Pooti (Minor) v. Ram Sanehi

2016-09-30

ANANT KUMAR, NARAYAN SHUKLA

body2016
JUDGMENT (Delivered by Hon'ble Mr. Justice Anant Kumar) 1. This first appeal from order under Section 173 of Motor Vehicles Act, 1988 has been filed by the claimant against judgment and award dated 09.12.2014 passed by the Motor Accident Claims Tribunal/ Additional District Judge, Court No.7, Unnao in respect of Motor Accident Claim Petition No.122 of 2013 (Km. Pooti Vs. Ram Sanehi & Others). 2. The brief facts, relevant for disposal of this appeal are that the claimant had filed the aforesaid claim petition against the opposite parties with the fact that on 29.10.2011, the claimant Km. Pooti alongwith her father Musharrat Ali @ Munnu and mother Smt. Chand was traveling in an auto-rickshaw from Sherpur Kala Bridge to Takiya Chauraha at about 7.00 am, which was not having any registration number. The said auto-rickshaw was driven rashly and negligently and when the said rickshaw reached at Lucknow-Bangarmau Road, near Takiya crossing, it dashed against a standing truck bearing registration no. UP 78 BT/3025 from the back side, due to which the claimant sustained serious injuries on her head, right leg and left leg. At first she was admitted at District Hospital, Unnao, but since the injuries were serious in nature, she was referred to Gandhi Memorial Hospital, Lucknow (Trauma Centre), where she was given treatment from 30.10.2011 to 19.11.2011 and on the said treatment about Rs.1 lac (Rs. 1,00,000/-) was spent and thereafter she had been spending Rs. 5 thousands per month for her treatment. It was further stated that later on registration number of the said auto-rickshaw was searched as UP 35 T-0914. It was also stated that the claimant was doing stitching and embroidery work at her home and was earning Rs. 3,000/- per month, so she claimed Rs. 7 lac as compensation. It was further stated that the matter was reported to P.S. Fatehpur Chaurasi, District - Unnao and a case was registered as Crime No. 1864/2011, under sections 272, 338 & 337 I.P.C. The owner and driver of the said vehicle as well as the insurance company appeared in the said case. 3. 7 lac as compensation. It was further stated that the matter was reported to P.S. Fatehpur Chaurasi, District - Unnao and a case was registered as Crime No. 1864/2011, under sections 272, 338 & 337 I.P.C. The owner and driver of the said vehicle as well as the insurance company appeared in the said case. 3. The owner and driver of the vehicle, i.e. Opposite Parties No. 1 and 2 had filed their joint written statement, wherein it was stated that on the date of accident, all the papers of the said auto-rickshaw were valid and it was driven by duly licensed driver, however, the said accident was denied and it was stated that in fact the said accident had taken place due to rash and negligent driving of the vehicle, having registration number as HR 38 L-2554 and in the said accident the claimant had sustained serious injuries. But the father of the claimant had entered into compromise with the owner of the said vehicle and accepted Rs. 20,000/- as full and final settlement of his claim. In respect of the settlement, an agreement was also executed between the parties, which was filed alongwith the written statement. It was further stated that the father of the claimant is very cunning and greedy person, as such, a wrong claim has been filed against the owner and driver of the present auto-rickshaw with the legal advise, so his claim is not maintainable. The Insurance Company i.e. Opposite Party No.3 had also appeared and filed written statement, wherein it was denied that the said vehicle was insured with the insurance company. It was also stated that the vehicle was driven by a driver, who was not having a valid driving license. 4. On the basis of the pleadings of the parties, learned Tribunal had framed as many as six issues. While deciding Issue No.1, the learned Tribunal came to the conclusion that the claimant has failed to prove that the said accident had taken place due to rash and negligent driving of the said auto-rickshaw, rather it was proved that the accident had taken place with the truck bearing registration number HR 38 L - 2554 and the father of the claimant had accepted Rs. 20,000/- in compromise and Issue No.1 was decided against the claimant. 20,000/- in compromise and Issue No.1 was decided against the claimant. While deciding Issue No.2, learned Tribunal had came to the conclusion that the cover note of the insurance company, which had been produced before the Tribunal shows that the period of insurance of the said vehicle was from 9.11.2011 to 8.11.2012, whereas the said accident has taken place on 29.10.2011, so it is evident that on the date of accident the said auto-rickshaw was not covered under the said cover note. In view of the facts, the learned Tribunal has dismissed the claim. Hence, this appeal has been filed. 5. We have heard learned counsel for the appellant as well the opposite parties and gone through the record. 6. Learned counsel for the appellant has argued that in fact the finding recorded by the learned Tribunal are perverse and the claim has been rejected on technical grounds, whereas it was clear from the statement of the eye witnesses that the accident had taken place due to the negligence of driver of the vehicle having registration number UP 35 T-0914 (auto-rickshaw) and the claimant had sustained grievous injuries in the said accident. Learned counsel for the appellant has further argued that the learned Tribunal has committed mistake in relying upon the said compromise, whereas the said compromise was not verified by the truck owner and other witnesses in the light of the Evidence Act. 7. Learned counsel for the respondents have argued that it is evident from the record that the accident in this case is alleged to have taken place on 29.10.2011, whereas F.I.R. was lodged on 28.12.2011 i.e. after about two months and no cogent explanation for this delay has been given. It is also evident that in this case brother of Musarrat Ali @ Munnu i.e. Mukku Ali has given statement against the claimant. Another witness Samsuddin, who was running a shop at the said crossing, where the alleged accident took place, has given statement that in fact the accident had taken place by the Truck bearing registration no. HR 38L - 2554. After the said accident, the police had come and the said truck was taken to police outpost, Takiya Crossing and by intervention of the local police, the matter was amicably settled between the parties and Rs. HR 38L - 2554. After the said accident, the police had come and the said truck was taken to police outpost, Takiya Crossing and by intervention of the local police, the matter was amicably settled between the parties and Rs. 20,000/- was paid to the father of the claimant for her treatment and the compromise was also reduced in writing, which is Ext. Kha I of the claim petition, that is why immediately no F.I.R. was lodged in the matter but, later on, out of greed, this F.I.R. was lodged wherein the auto-rickshaw was wrongly involved. 8. Perusal of the record shows that on behalf of the claimant, two witnesses of fact have been produced, in which one is the mother of the claimant Smt. Chanda, who has supported the contents of the claim petition but she has stated that she is an illiterate lady. She has seen the occurrence but she could not read the registration number of the alleged vehicle. She has further stated that registration number of the auto-rickshaw was detected after two months of the occurrence. In her cross-examination, she has stated that after the accident, police had come on the spot but she has not seen any police personnel. Another witness is claimant Km. Pooti herself, who was minor at the time of incident. She has supported the version of the claim petition but she has not disclosed the registration number of the vehicle, which was involved in the accident. No other independent witness of the accident was produced. Whereas, from the side of the opposite parties, DW.1-Samsuddin has been produced, who has stated that Musarrat Ali @ Munnu is the resident of the same village in which he is living. This witness is having a shop at Takiya crossing. He has stated that on 27.10.2011, a Truck bearing registration no. HR 38 L- 2554 had hit the daughter of the Musarrat Ali @ Munnu, due to which she had sustained injuries, the accident was seen by him. He has further stated that alongwith Km. Pooti, her uncle Mukku Ali had also come to Government Hospital, Unnao for her treatment, from where she was referred to Gandhi Memorial Hospital, Lucknow (Trauma Centre). He has further stated that alongwith Km. Pooti, her uncle Mukku Ali had also come to Government Hospital, Unnao for her treatment, from where she was referred to Gandhi Memorial Hospital, Lucknow (Trauma Centre). After two days, they had come back to Takiya Police outpost where the said truck was standing and then a compromise was entered into between the parties and in the said compromise Rs.20,000/- was paid to Musarrat Ali, regarding treatment of Pooti (claimant). This witness has further stated that the said compromise was written by him in his own handwriting. After writing the compromise, the same was read over to the parties. This witness has proved the said compromise, which is Ext. Kha I of the claim petition. Another witness DW.2 is Mukku Ali, who has also stated the same thing in his statement that the said accident had taken place by the said truck. 9. Looking to the entire evidence produced on behalf of the parties, it is evident that from the side of the claimant no independent witness of the occurrence has been produced. In the facts and circumstances of the present case when it was disputed that no accident had taken place with the said auto-rickshaw, rather from the side of the opposite parties, two witnesses i.e. DW.1 and DW.2 have been produced, one of them Samsuddin (DW.1), who is the resident of same village where the claimant is residing, whereas the another witness, uncle of the claimant, both have given statement that the incident had not taken place with the said auto-rickshaw rather the accident had taken place from the said truck. A compromise has also been prepared between the claimant's father and truck owner. A copy of compromise is on record which contains signature of Samsuddin (DW.1) & Kamruddin @ Mukku (DW.2). So there appears no reason to disbelieve these evidence. Nothing has been brought on record to show that these evidences which were given against the claimant out of any enmity. The learned Tribunal has well discussed the facts and circumstances of the case and has taken into account the statement given by the witnesses. This apart, the learned Tribunal had further taken into account the inordinate delay in lodging the F.I.R. The claimant has failed to prove that the accident had taken place by the said auto-rickshaw. The learned Tribunal has well discussed the facts and circumstances of the case and has taken into account the statement given by the witnesses. This apart, the learned Tribunal had further taken into account the inordinate delay in lodging the F.I.R. The claimant has failed to prove that the accident had taken place by the said auto-rickshaw. So to our view, the learned counsel for the appellant has failed to show any illegality in the order of the learned Tribunal. The finding recorded by the learned Tribunal are well-founded and are based on consideration of all the materials available on record. There is no error in the award, which is impugned before this Court. 10. In view of above, this first appeal from order has got no force and is liable to be dismissed. Accordingly, it is dismissed.