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Madhya Pradesh High Court · body

2017 DIGILAW 849 (MP)

Muniyabai v. Madanlal

2017-07-20

S.K.AWASTHI

body2017
JUDGMENT 1. The appellants/claimants have preferred this appeal under section 173 of Motor Vehicles Act, 1988 (For brevity “the Act”) assailing the award dated 8.4.2006 passed by the IInd Motor Accident Claims Tribual, Pichore, Disttrict Shipuri in Claim Case No.58/2005, by which the application filed by the appellants under section 166 of the Act has been dismissed. 2. The facts which are requisite to be stated are that on 22.5.2005 the deceased Gyasi Ram was traveling on a motor cycle which belongs to respondent Ajay alias Ajju Pathak. When the said motorcycle was proceeding towards Badarwas it was hit by the Tractor bearing Registration No. MP 33 M 5659 and Trolley No. MP 33 M 5660 which was driven rashly and negligently by the respondent No.2 Prabhu, as a result, Gyasi Ram sustained injuries and he died on the spot. The driver of the motor cycle Ajay alias Ajju Pathak has also sustained injuries. Accident was reported to the Police Station Pichore. The dead body of the deceased was sent for the post-mortem and after completion of investigation, the police filed charge sheet against the respondent No.2 before the Judicial Magistrate First Class Pichore. 3. The appellants filed claim petition under section 166 of the Act before the Claims Tribunal praying for compensation of Rs. 18,05,000/- along with future interest etc on the ground that at the time of accident the deceased was a healthy person aged about 50 years, and was engaged in contractorship. He was earning Rs. 8,000/- per month. 4. The Claims Tribunal after framing the issues invited the parties to adduce their evidence and the Tribunal after appreciation of the evidence dismissed the claim petition filed by the appellants vide impugned awarded dated 8.4. 2006 holding that the appellants have failed to prove that the accident was occurred due to rash and negligent driving of the Tractor No. MP 33 M 5659. Being aggrieved by the findings recorded by the Claims Tribunal, the claimants/ appellants have filed this appeal. 5. Learned counsel for the appellants submitted that the Tribunal has committed error in holding that the accident did not occur due to Tractor No. MP 33 M 5659. Being aggrieved by the findings recorded by the Claims Tribunal, the claimants/ appellants have filed this appeal. 5. Learned counsel for the appellants submitted that the Tribunal has committed error in holding that the accident did not occur due to Tractor No. MP 33 M 5659. The appellants/ claimants have proved accident by producing eye witnesses Murari Lal (AW2) and Daya Ram (AW3) but the Tribunal has wrongly disbelieved their evidence on the premises that in the first information report, it is not mentioned that the accident was caused by Tractor No. MP33 M 5659. It is submitted by the learned counsel for the appellants that the approach adopted by the Tribunal is contrary to the well established position of law, therefore the award deserves to be set aside. 6. Per contra, learned counsel for the respondent has supported the findings recorded in the award passed by the learned Tribunal and submitted that the same are just and proper and do not call for any interfrence. 7. Appellants/claimants have examined three witnesses to prove their claim. One is the appellant No. 2 Amrit Lal (AW1) who deposes in his statement that on 22.5.2005 at about 7 pm his father Gyasi Ram was traveling on motor cycle, which belongs to Ajay alias Ajju Pathak and when he reached between Jarai and Badarwas, the Tractor Trolley No. MP 33 M 5659 dashed the motor cycle, due to which his father Gyasiram died on the spot but he has admitted in his cross examination that at the time of the accident he was not present on the spot. He reached the spot after getting information about the accident and he found that dead body of his father was lying near the motor cycle. Thus, it is clear that he is not the eye witness of the accident. 8. Murari Lal (AW2) stated that on the date of the accident he was traveling in the Tractor No.MP 33 M 5659 which was driven by Prabhu. When the Tractor reached between Jarai and Badarwas, the Tractor dashed the Motorcycle due to which the motor cyclists fell down on the spot and Prabu Jatav took away the Tractor-Trolly. After few days he came to know that Gyasi Ram and Ajay alias Ajju Pathak were traveling on the above motorcycle and Gyasiram died in the said accident. When the Tractor reached between Jarai and Badarwas, the Tractor dashed the Motorcycle due to which the motor cyclists fell down on the spot and Prabu Jatav took away the Tractor-Trolly. After few days he came to know that Gyasi Ram and Ajay alias Ajju Pathak were traveling on the above motorcycle and Gyasiram died in the said accident. After few days of the accident he made Amrit lal known of the accident. 9. Daya Ram (AW3) has also claimed to be the eye witness of the accident and he deposed that 10 months ago at about 7:30 he was returning from village Pichore, when he reached between Jarai and Badarwas, he saw that a Tractor-Trolly coming from Badarwas hit the motorcycle, as a result, both the motorcycle riders fell down on the ground and Gyasi Ram died on the spot whereas Ajay alias Ajju Pathak sustained injuries. In his cross-examination, Dayaram admits that he was going by foot and he was one furlong away from the scene and when he reached the spot, he did not find any vehicle there. Considering his statement, it cannot be believed that he has seen the accident. 10. The accident was occurred on 22.5.2005 at about 20:45 pm and the FIR was lodged by Ajay alias Ajju Pathak who was driving the Rajdoot Motorcycle in which Gyasiram was travelling at the time of accident. In the FIR Ajay alias Ajju Pathak narrated that when he went towards Jarai Kali Pahadi a Truck was going ahead of his motorcycle when he tried to over take the Truck, the Truck driver did not give the side and negligently turned the truck, due to which his motorcycle hit the back side of the Truck and, therefore, Gyasiram fell down and sustained injuries, but he could not see the registration number of the offending Truck. On this information, Police Station Pichore registered an FIR at Crime No. 170/2005 for commission of the offence under sections 279 and 337 of IPC against the unknown Truck Driver, whereafater Police reached the spot and found that the Gyasiram died due to the injuries sustained in the accident and Police seized the Motorcycle MP 08 C 6248 from the spot. It is indicated in the seizure memo that the head light of the motorcycle is damaged, which substantiates the version of the FIR that the motorcycle hit the back side of the truck concerned. 11. From the averments of the FIR, it is crystal clear that the accident took place due to rash and negligent driving of the unknown truck driver. During the investigation, Police failed to trace the offending vehicle and it's driver. In the FIR, it is nowhere mentioned that any Tractor bearing registration No. MP 33 M 5659 and Trolley No. MP 33 M 5660 was also going towards Pichore to Muhar and it dashed the motorcycle in which Ajay alias Ajju Pathak and deceased Gyasiram were travelling. If the accident happened by the Tractor Trolley then certainly Ajay alias Ajju Pathak would have mentioned this fact in the FIR also. He has no occasion to lodge the report against the unknown vehicle rather than driver of the Tractor-Trolley who was actual culprit. Police recovered offending vehicle after two and half months of the accident and no explanation to that has been given. The appellant has not examined the Investigating Officer, who can properly explain as to on what basis he has concluded that the accident occurred due to the Tractor-Trolley bearing Registration No. MP 33 M 5659 and Trolley No. MP 33 M 5660. In these circumstances learned Tribunal has rightly concluded that the appellants have failed to prove that the accident was caused by the Tractor-Trolley No. No. MP 33 M 5659 and Trolley No. MP 33 M 5660. 12. It is undisputed fact that at the time of the accident the deceased Gyasiram was sitting on Rajdoot Motorcycle No. MP08 C6248, which was driven by the Ajay alias Ajju Pathak who is also the owner of the said motorcycle. The motorcycle hit the back side of the unknown truck and due to which the deceased Gyasi Ram fell down and received injuries, as a result of which, he died on the spot. Therefore, involvement of the aforesaid motorcycle in the accident is established. Although it is not proved that the accident was happened due to rash and negligent driving of Ajay alias Ajju Pathak, but on the basis of no fault liability as provided in section140 of the Act, the appellants are entitled to get Rs. Therefore, involvement of the aforesaid motorcycle in the accident is established. Although it is not proved that the accident was happened due to rash and negligent driving of Ajay alias Ajju Pathak, but on the basis of no fault liability as provided in section140 of the Act, the appellants are entitled to get Rs. 50,000/- from the legal heirs of the deceased respondent No. 4 Ajay alias Ajju Pathak. 13. In view of the aforesaid discussion, the appeal succeeds and is hereby allowed in part. The appellants are entitled to receive Rs. 50,000/- as compensation from the legal heirs of deceased respondent No. 4/Ajay alias Ajju Pathak, who are already on record. It is also directed that the compensation awarded shall fetch 6% interest from the date of filing of the claim petition i.e. 8.9.2005 till realization. Let amount be paid to the appellants within a period of two months from today. Parties to bear their own costs.