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2019 DIGILAW 6 (ORI)

Prafulla Kumar Mishra v. Indrasen Sharma

2019-01-04

A.K.RATH

body2019
JUDGMENT Dr.A.K.RATH, J. - This appeal challenges the award dated 19.6.2014 passed by the learned 2nd M.A.C.T., (S.D), Berhampur, Ganjam in M.A.C.No.30/2005 (512/2004-GDC), whereby the learned Tribunal dismissed the claim application. 2. The appellant as claimant filed an application under Section 166 of the Motor Vehicles Act, 1988 for compensation before the learned Tribunal. The case of the claimant was that he was working in the Sambad Office, Berhampur. On 11.11.2002 at 3.30 A.M. he was carrying the daily Sambad copies to Berhampur bus-stand in an auto-rickshaw bearing Registration No.OAG 3298. He was driving the vehicle. There was dense fog. On the way near Ankuli bypass the auto-rickshaw dashed against the back side of a truck parked on the left earthen flank of the road without lightening any indicator or glowing sign, as a result of which, he sustained injuries. He was shifted to M.K.C.G. Medical College and Hospital, Berhampur for treatment and subsequently referred to S.C.B. Medical College and Hospital, Cuttack. He was treated as an indoor patient till 6.12.2002. The matter was reported to the police station. 3. The owner as well as the insurer of the offending truck entered appearance and filed written statement denying the assertions made in the petition. 4. To substantiate the case, the claimant had examined two witnesses including himself and seven documents had been exhibited on his behalf. No evidence was adduced by the opposite parties. Learned Tribunal came to hold that charge sheet was submitted against the claimant that he was driving the auto-rickshaw in a rash and negligent manner. He sustained injuries. Held so, it dismissed the case and passed nil award. 5. Heard Ms.Deepali Mohapatra, learned Advocate for the appellant and Mr.Saumendra Kumar Ghose, learned Advocate for respondent no.2. 6. Criticizing the award, Ms.Mohapatra, learned Advocate for the appellant submits that charge sheet is not a sacrosanct piece of evidence. Learned Tribunal committed a manifest illegality in discarding the testimony of the witnesses examined by the claimant. To buttress the submission, she places reliance on a decision of this Court in the case of Mataji Bewa and others v. Hemanta Kumar Jena and another, 1994 ACJ 1303. 7. Per contra, Mr.Ghosh, learned Advocate for the Insurer submits that the claimant was driving the auto-rickshaw in a rash and negligent manner. He sustained injuries. The accident took place due to fault of the claimant. 7. Per contra, Mr.Ghosh, learned Advocate for the Insurer submits that the claimant was driving the auto-rickshaw in a rash and negligent manner. He sustained injuries. The accident took place due to fault of the claimant. Rightly the learned Tribunal has passed the nil award. 8. In Mataji Bewa, placing reliance on the charge sheet, the Tribunal came to hold that the deceased was a passenger in the truck which was involved in the accident. The said truck was being driven rashly and negligently by the driver. Held so, it exonerated the insurer from its liability. The matter came to this Court. This Court held that the contents of the charge sheet cannot possibly be treated as an evidence in the claim proceedings. The Tribunal obviously committed gross error of law in relying upon the charge sheet to come to the conclusion that the deceased was travelling on the truck as a passenger, though the positive evidence of the claimants that the deceased was a pedestrian and the truck came and knocked him down had not been impeached in any manner by way of cross-examination. There was no justification on the part of the Tribunal to ignore that evidence of the claimants. The finding of the Tribunal on that score was set aside. It was held that the deceased was a pedestrian. The matter was remitted back to the learned Tribunal. 9. The ratio in Mataji Bewa proprio vigore applies to the facts of this case as well. 10. Resultantly, the impugned award of the learned Tribunal is set aside. The matter is remitted back to the learned Tribunal for de novo trial. In order to avoid further delay, the parties shall appear before the learned Tribunal on 8th February, 2019 on which date the learned Tribunal shall fix a date of hearing and conclude the hearing of the case by end of April, 2019. It is open to the parties to adduce further evidence. 11. The appeal is accordingly disposed of. No costs. Appeal disposed of.