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2018 DIGILAW 1282 (GAU)

Prabhat Choudhury v. Gauri Sankar Dutta

2018-08-30

RUMI KUMARI PHUKAN

body2018
JUDGMENT : 1. Heard Mr. S.C. Biswas, the learned counsel appearing for the appellant. Also heard Mr. K.K. Bhatta, learned counsel appearing for and on behalf of the New India Assurance Co. Ltd. (respondent No. 3). 2. The present appeal has been preferred under section 173 of the Motor Vehicles Act, 1988, challenging the order dated 29.3.2012, passed by the learned Member, Motor Accident Claims Tribunal, Sonitpur, Tezpur, in the MAC Case No. 186/2006. 3. The appellant, as a claimant preferred a claim petition before the learned Member, Motor Accident Claims Tribunal, Sonitpur, Tezpur, on the facts that on 4.3.2004, while he was travelling in a bus bearing Regn. No. AMZ/7975 from Borgaon Bazar towards Dhekiajuli, the vehicle met with an accident near Thelamara Police Station on NH-52 and knocked the motorcycle bearing Regn. No. AS-12C/4498. The accident occurred due to rush and negligent driving of the bus he travelled. As a result of the accident, claimant sustained certain injuries on his person along with fracture in hands and he was also admitted in the Skylark Hospital & Research Centre, Tezpur. In that respect, the Thelamara P.S. Case No. 20/2005, under section 279/337/338/427/304A of the IPC, was also registered. Praying for compensation for the injuries he sustained in the said accident, he preferred the aforesaid claim petition. 4. Notice was served upon all the respondents, i.e., the driver, owner and insurer of the vehicle. The owner of the vehicle in his written statement admitted about the occurrence but denied any rush and negligent driving on the part of the driver of the vehicle. On the other hand, the driver of the vehicle did not contest the case, so the case proceeded ex parte against him. The Insurance Company in their written statement also admitted about the factum of accident but also denied the negligence on the part of the driver. It is also stated that even the vehicle was insured with the said Insurance Company but until and unless the claimant duly proved his case about the rush and negligent driving on the part of the driver, the claimant is not entitled to get any compensation. 5. The learned Tribunal, upon the pleadings, framed necessary issues and also examined two witnesses including the claimant and finally dismissed the claim petition on the ground that the claimant himself has not been able to prove his case. 5. The learned Tribunal, upon the pleadings, framed necessary issues and also examined two witnesses including the claimant and finally dismissed the claim petition on the ground that the claimant himself has not been able to prove his case. Firstly, it was held that the claimant/appellant could not produce any sort of relevant documents like FIR, etc., that has been lodged against the said driver of the bus. On the next, it was held that the medical documents that were filed by the appellant vide Exhibit 46 (discharge certificate) reveals that the claimant was admitted in the Hospital on 4.3.2005 and he was discharged on 5.3.2005. But the claimant failed to produce any medical documents relating to the date of occurrence, i.e., 4.3.2004. It was observed that the owner of the vehicle in his written statement has mentioned that the accident occurred as on 4.3.2005. So the Tribunal held that the claimant sustained injuries on 4.3.2004, remained unproved and has dismissed the claim petition. 6. Being aggrieved with the aforesaid finding, the present appeal has been preferred by the appellant challenging the aforesaid order. 7. I have heard the arguments of learned counsel for both the parties. 8. According to the learned counsel for the appellant, there may be some mistake in recording the date of the occurrence in the medical documents which has not been relied by the learned Tribunal but otherwise the appellant has proved the factum of accident, involving the said vehicle. So the learned Tribunal could have decided the matter considering all entities of the matter. 9. Per contra, the learned counsel for the respondent has submitted that the case of the appellant cannot be accepted to be the true version of the incident and in every stage, there is wrong mention of the date of occurrence by the claimant himself, which cannot be rectified at this stage. It has also been pointed out that the claimant himself failed to produce any sort of authentic documents, i.e., the original medical vouchers, etc., to prove that on the fateful day, he sustained grievous injuries. 10. Pursuant to the submission of the learned counsel for both the parties, this court also examined the lower court's record as well as the pleadings and evidence. 10. Pursuant to the submission of the learned counsel for both the parties, this court also examined the lower court's record as well as the pleadings and evidence. It is found that in the claim petition as well as the evidence, the claimant has referred the date of accident as 4.3.2004 in clear terms and there is no overlapping, etc. The claimant further asserted in the cross-examination that the incident occurred on 4.3.2004. Further, his other witness (CW.2) has also stated the same thing. So that being the position of the evidence and the discharge certificate dated 4.3.2005, obviously the learned Tribunal is not in a position to accept the same, which is contrary to the case of the claimant. It is also notable that in his written statement, the owner of the vehicle has also mentioned the date of occurrence as 4.3.2005. For such inconsistent matters on record, the learned Tribunal has rightly came to the conclusion that the factum of injury by the claimant/appellant now remain unproved in the said case. Moreover, some of the medical documents which are stated to be filed by the claimant, are found to be photo copies which is not authenticated in course of hearing and some of documents were hand-written and accordingly, the learned Tribunal has not accepted the said medical documents. 11. In view of the matters on record, it appears that there is no illegality in the order so passed by the Tribunal and there appears no reason to interfere with the said award. 12. The appeal accordingly stands dismissed. Return back the LCR immediately.