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2019 DIGILAW 270 (MP)

Mehmood (Deceased) through LRs v. Faij

2019-04-01

PRAKASH SHRIVASTAVA

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ORDER 1. By this miscellaneous appeal under section 173 of the Motor Vehicles Act, 1988 the appellants have challenged the award dated 6.7.2005 passed by the Motor Accident Claims Tribunal, Indore dismissing the Claim Case No. 62/2004. 2. The original claimant Mehmood (since deceased) had filed the claim petition before the tribunal under section 163A of the Motor Vehicles Act, 1988 (for short "the Act") with the plea that on 3.11.2003 when he was driving the scooter No. MP09-U-7703 belonging to his friend Faij and taking his brother Abbas as pillion rider, the accident was caused by Gujarat passing half body truck driven in rash and negligent manner, as a result of which he had received injuries and was hospitalized. A report was also made against the unknown truck and since the truck or the driver could not be traced during investigation, therefore, final report was filed by the police. Accordingly the compensation was claimed. 3. The claim was opposed by respondent No. 1 by filing the reply. 4. Respondent No. 2 also by filing the reply had denied the claim by raising the plea that the accident was caused by the claimant himself and that the driver and owner of the offending truck have not been impleaded and the claim was also denied on merit. 5. The tribunal had proceeded ex parte against the respondent No. 1 and after permitting the parties to lead evidence and examining the same, had found that though the appellant had received injuries in the road accident but he could not prove that he was driving the scooter or the injuries were caused because of the accident from the unknown truck. The tribunal further found that the claim under section 163A of the Act was not maintainable since the income of the claimant was more than Rs. 40,000/-. The tribunal accordingly dismissed the claim petition. 6. Learned counsel appearing for the appellant submits that the tribunal has committed an error in dismissing the claim petition without properly appreciating the evidence and without considering that from Ex. P/1, P/2, P/4, P/6, P/7 & P/8 the causing of the accident from the truck was proved. He further submitted that there was no denial of pleadings by the insurance company. 7. P/1, P/2, P/4, P/6, P/7 & P/8 the causing of the accident from the truck was proved. He further submitted that there was no denial of pleadings by the insurance company. 7. As against this, learned counsel for the insurance company has opposed the claim by submitting that since the claimant was driving the scooter after borrowing it, therefore, he had stepped into the shoes of owner and was not entitled for compensation. He further submits that the income was more than Rs. 40,000/-, therefore, claim under section 163A of the Act has rightly been rejected and that in the meanwhile the appellant has died, therefore, the personal claim for injuries is not maintainable and findings of the tribunal on merit are correct. 8. Learned counsel for the respondent No. 1 has also opposed the appeal. 9. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the claims tribunal while passing the impugned award has duly and properly appreciated the entire evidence. The appellant had failed to produce any cogent evidence showing that the accident was caused by the unknown truck or he had received injuries on account of the accident from the scooter. According to the statement of claimant Mehmood and PW-2 Abbas, they could not see the number of the offending truck. The tribunal, after examining the MLC (Ex. P/9), had noted that the claimant had received injuries only in right knee and thigh and had not received any other injuries as claimed in the claim petition. The overwriting relating to date from 3.10.2003 to 3.11.2003 in the MLC (Ex. P/9) is clear. The tribunal has also noted that as per this report, Smt. Akhtar had brought the claimant to the hospital, whereas it is not the case of the claimant that he was taken to the hospital by his mother. The Rojnama Sanha Ex. P/3 mentions that claimant was taken to the hospital by Mohd. Abbas but this fact does not tally with the MLC Ex. P/9, hence conflicting evidence has been found in respect of the person who had taken the claimant to the hospital. The tribunal had also taken note of that pillion rider Abbas had only received minor scratches in the accident, which is contrary to the statement of the claimant in this regard. Hence the tribunal has rightly found the story of Mohd. The tribunal had also taken note of that pillion rider Abbas had only received minor scratches in the accident, which is contrary to the statement of the claimant in this regard. Hence the tribunal has rightly found the story of Mohd. Abbas to be a pillion rider at the time of the accident as suspicious. The tribunal has also considered that if Mohd. Abbas had received only minor injuries, he could have taken note of the truck number. The claimant also could not produce any evidence relating to the damage caused to the scooter No. MP09-U-7703 which was stated to be driven by him at the time of the accident. Neither the scooter was seized by the police, nor its damage Panchnama was prepared or mechanical examination was done. Hence the tribunal has rightly found that the involvement of the scooter in the accident is not proved. It has also been noted that the owner of the scooter had not informed the insurance company about the accident. The record reflects that though the intimation of the accident was given to the police on 3.11.2003 from the hospital but the offence was registered on 4.11.2003 and spot map was prepared on 19.11.2003 and the record did not reflect as to who had taken the scooter after the accident. In view of the aforesaid analysis, the tribunal has rightly found that though the claimant had received injuries in the road accident but he could not establish that the injuries were caused on account of the accident from the unknown truck or the injuries were caused when he was driving the scooter No. MP09-U-7703. So far as Ex. P/1 to P/8 relied upon by counsel for the appellant is concerned, from these documents also the plea of the appellant is not established. 10. It is also worth noting that meanwhile, the claimant Mehmood has died and his LRs have been brought on record. In view of the Full Bench judgment of this Court in the matter of Smt. Bhagwati Bai and another v. Bablu @ Mukund and others reported in 2007 (1) MPHT 25, in the injury case not resulting in death where the injured person dies subsequently for some other reason, the legal representative cannot maintain the claim for compensation for personal injury sustained in the accident. 11. That apart, the claimant was driving the scooter after borrowing it from its owner. 11. That apart, the claimant was driving the scooter after borrowing it from its owner. The Supreme Court in the matter of Ningamma and another v. United India Insurance Co. Ltd. reported in 2009 ACJ 2020 in similar circumstances has held that the legal representative of a person driving a vehicle after borrowing it from the owner would not be entitled to claim compensation under section 163A, as the borrower steps into the shoes of the owner and cannot claim himself to be a recipient of compensation as liability to pay the same is on him. Same is the view taken by the Division Bench judgment of Chhattisgarh High Court in the matter of Sakun Kushwaha and others v. Dhaniram and another reported in 2012 ACJ 391 and this Court vide order dated 9.4.2013 in M. A. No. 1399/2006 in the case of New India Assurance Company v. Rambabu and others. 12. The record further reflects that the claim petition was filed under section 163A of the Act with the plea that the claimant was earning Rs. 5,000/- per month, i.e. Rs. 60,000/- per annum which is more than Rs. 40,000/-, hence in view of the judgment of the Supreme Court in the matter of Deepal Girishbhai Soni and others v. United India Insurance Co. Ltd. reported in 2004 ACJ 934 and Rajasthan High Court in the matter of National Insurance Co. Ltd. v. Indu Saraswat and another reported in 2009 ACJ 2413, the tribunal has rightly held the claim to be not maintainable. The judgment of this Court in the matter of Ashish v. Iffco Tokio General Insurance Co. Ltd. and another reported in 2011 ACJ 2263 relied upon by counsel for the appellant is distinguishable as in that case the risk of the owner was covered. 13. Having regard to the above analysis, I do not find any merit in this appeal which is accordingly dismissed.