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2019 DIGILAW 1151 (ALL)

Moinuddin Khan v. Sundarui

2019-05-01

JASPREET SINGH

body2019
JUDGMENT : Jaspreet Singh, J. 1. Heard Shri Qazim Ibrahim holding brief of Shri S.H. Ibrahim, learned Counsel for the appellant and Shri Rajendra Jaiswal for the respondent No. 1 and 2 in FAFO No. 600/2003 and Shri J.N. Mishra, learned Counsel for the respondent No. 6 in FAFO No. 600/2003. None has appeared on behalf of the respondent in FAFO No. 452/2006. Accordingly, the appeals have been heard. 2. The aforesaid two appeals arise from a single accident which took place on 2.12.1999. In the aforesaid accident three persons namely Bhagauti Prasad, Dharam Singh and Sanjay Sahu, who were riding on a motorcycle, expired. Three claim petitions came to be filed. Claim petition of Bhagauti Prasad bearing C.P. No. 145/2000 was allowed in favour of the claimants, which gave rise to FAFO No. 600/2003. Claim petition relating to the death of Dharam Singh bearing C.P. No. 161/2000 was allowed and it has gave rise to FAFO No. 452/2006 while the third claim petition relating to Sanjay Sahu bearing No. 90/2002 which was allowed on 23.10.2009, however the said award was not assailed and no appeal was filed. It is in this fashion that FAFO No. 600/2003 and FAFO No. 452/2006 have been connected and heard together. 3. Shri Qazim Ibrahim, learned Counsel for the appellant has urged that the Tribunal has committed an error in failing to note that it was a clear case of contributory negligence. The evidence which was led on behalf of the claimants was not assessed independently inasmuch as the witnesses were related and, therefore/they being interested witnesses, the Tribunal ought to have exercised more caution in accepting their statements. It has further been urged that it proper appreciation of the evidence is made then a clear case of contributory negligence is made out and, therefore, the award which has been passed is on the higher side and only 50% of the amount should have been granted and the remaining was outcome of the negligence of the persons travelling on the motorcycle. Consequently, the award is not in consonance with the settled principles, therefore, requires interference. 4. Consequently, the award is not in consonance with the settled principles, therefore, requires interference. 4. Per contra, learned Counsel appearing for the respondents has submitted that since the findings regarding contributory negligence was a issue in all the three claim petitions which were filed before the Tribunal and in all the three claim petitions which were decided by the Tribunal on three separate dates and in all the claim petitions, the truck driver was not examined as a witness and after assessment of the evidence, the Tribunal has arrived at a finding that no case of contributory negligence was made out. Significantly, the said findings returned in respect of the same accident involving the same two vehicles in C.P. No. 90/2000 which relates to the death of Sanjay Sahu has not been assailed by the owners by filing any appeal. Since, no appeal has been filed, accordingly, the aforesaid findings has attained finality and now it is not open for the appellant to raise a contrary plea in the aforesaid two appeals pending before this Court. Consequently, the submission of the learned Counsel for the appellant deserves rejection. 5. The Court has heard learned Counsel for the parties and also perused the record. 6. Briefly stated the facts giving rise to the above appeals are being noted first. 7. On 2.12.1999, Shri Bhagauti Prasad alongwith two others namely Dharam Singh and Sanjay Sahu were riding on motorcycle bearing No. UP-32-Q-3105. As the said motorcycle had reached Arjungunj under the Police Station Gosaiganj, the offending truck bearing No. UP-32-T-1227 which was coming from back, hit the motorcycle and crushed the three riders as a result of which they died on the spot. The brother of Dharam Singh reported the accident to the police. It is in respect of the aforesaid accident, that three claim petitions came to be filed. The heirs of Bhagauti Prasad preferred C.P. No. 145/2000; the heirs of Dharam Singh preferred C.P. No. 161/2000 and the heirs of Sanjay Sahu preferred C.P. No. 90/2000. The aforesaid claim petitions were contested by the truck owner Shri Moinuddin Khan, who by filing his written statement denied that the accident was an outcome of rash and negligent driving of his truck driver. The aforesaid claim petitions were contested by the truck owner Shri Moinuddin Khan, who by filing his written statement denied that the accident was an outcome of rash and negligent driving of his truck driver. He further took a plea that three deceased, who were riding the motorcycle bearing UP-32-Q-3105 were also responsible for the accident inasmuch as three persons were riding the motorcycle and this in itself was an act which contributed to the accident. The owner also submitted a cover note of the insurance regarding the truck in question which was valid for a period 9.12.1999 to 6.12.2000. It is on the pleadings of the parties that the Tribunal framed six issues. 8. Primarily, the issue No. 1 related to the fact whether the accident occurred on 2.12.1999 was on account of rash and negligent driving of the offending truck bearing No. UP-32-T-1227 and issue No. 4 was to the effect whether the riders of the motorcycle bearing No. UP-32-Q-3105 contributed to the said accident. The Tribunal in all the three claim petitions considered the aforesaid issues Nos. 1 and 4 together and recorded a finding that the accident was an outcome of the rash and negligent driving of the offending truck in question whereas it found that there was no negligence on the part of the riders of motorcycle. It also recorded a finding that though the cover note of the insurance policy was placed on the record, however, it was valid for a period subsequent to the date of the accident However as on 2.12.1999 the insurance of the truck in question was not valid. Accordingly, upon assessment of compensation, the Tribunal in Claim Petition No. 145/2000 relating to Bhagauri Prasad passed an award of Rs.1,80,000/- alongwith 9% interest by means of the award dated 19.7.2003 whereas the Claim Petition No; 161/2000 was decided by the Tribunal on 8.3.2006 awarding a sum of Rs.50,000/- alongwith interest @ 7.5% per annum. It is the aforesaid two awards dated 19.7.2003 and 8.3.2006, which have been assailed by the appellant before this Court. 9. From the perusal of the record it would indicate that on behalf of the claimants Shri Ram Saran was examined in the case of Bhagauti Prasad while in the case of Dharam Singh his brother Manmohan Singh was examined. Both the aforesaid witnesses clearly established the factum of the accident. 10. 9. From the perusal of the record it would indicate that on behalf of the claimants Shri Ram Saran was examined in the case of Bhagauti Prasad while in the case of Dharam Singh his brother Manmohan Singh was examined. Both the aforesaid witnesses clearly established the factum of the accident. 10. The aforesaid witnesses have also been cross-examined, however, no material contradiction could be elicited from the testimony which could cast a doubt over the veracity of their statements. 11. On the other hand, the owner of the truck in question ought to have produced the driver to substantiate its plea of contributory negligence. In none of the three cases, any evidence was led on behalf of the owner. Thus, finding regarding the contributory negligence was not established and it is based on proper appreciation of the evidence and does not require any interference from this Court especially when the appellant did not examine the driver of the offending vehicle in question, who otherwise would have been one of the key witness to have narrated the actual events since the other three persons, who were riding on motorcycle, had expired in the accident itself. 12. Another aspect of the matter is that third claim petition, which was preferred in respect of Sanjay Sahu bearing No. 90/2000, which was decided by the Tribunal on 23.10.2009 and a sum of Rs.60,000/- was awarded, however, in the aforesaid claim petition also a similar issue regarding contributory negligence was framed. The said issue was also decided against the owner of the offending truck in question. However, for the reasoning best known, he has not assailed the award. Thus, in respect of the same accident, where in a claim petition bearing No. 90/2000, the finding regarding the contributory negligence having not been established and the said finding has not been assailed by the appellant, therefore, the aforesaid finding operates as res judicata against the appellant as it shall not be open for him to assail the said finding in the present appeals on the said ground. 13. This Court is satisfied that the award dated 19.7.2003 passed in C.P. No. 145/2000 giving rise to FAFO No. 600/2003 and the award dated 8.3.2006 passed in C.P. No. 161/2000 giving rise to FAFO No. 452/2006 do not suffer from any error and the same are affirmed. 13. This Court is satisfied that the award dated 19.7.2003 passed in C.P. No. 145/2000 giving rise to FAFO No. 600/2003 and the award dated 8.3.2006 passed in C.P. No. 161/2000 giving rise to FAFO No. 452/2006 do not suffer from any error and the same are affirmed. The aforesaid FAFO No. 600/2003 and FAFO No. 452/2006 are devoid of merits and are accordingly dismissed. There shall be no order as to costs. 14. The amount deposited before this Court shall be remitted to the Tribunal concerned to be released in favour of the claimants. The registry is directed to remit the Lower Court record to the Tribunal concerned within two weeks from today.