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2022 DIGILAW 264 (ALL)

Adesh Kumari v. Naresh Chandra Yadav

2022-02-25

SIDDHARTH

body2022
JUDGMENT : (Siddharth, J.) 1. Heard Sri Sanjeev Kumar Pandey, learned counsel for the appellants and Sri Komal Malhotra, Advocate holding brief of Sri Arvind Kumar, learned counsel for the respondent no. 3. 2. Record of the Tribunal has been received. 3. This first appeal from order has been preferred against the judgement and award dated 21.12.2019 passed by Motor Accidents Claims Tribunal/Additional District Judge/FTC (Ist), Etah, in M.A.C. Petition No. 231 of 2005, Smt. Adesh Kumari and others Vs. Naresh Chandra Yadv and others. 4. The claimants filed a claim petition claiming compensation for the death of one Naresh Chandra, who died in the accident dated 04.06.2020. The accident was caused by the vehicle of the opposite party no. 1/respondent no. 1 being Jeep No. U.P.82B/4647 (hereinafter referred to as “Jeep” only). 5. The National Insurance Company Limited/opposite party no. 3, in its written statement stated that the accident was not caused on account of rash and negligent driving of the jeep nor the deceased died on account of accident. He was beaten by number of persons by logs which resulted in his death. The opposite party no. 3, Insurance Company, is not liable to make payment of any compensation. Even otherwise, the compensation claimed is on a higher side. 6. The owner and the driver of jeep also denied their liability in their written statement and stated that the accident was not caused on account of rash and negligent driving of their jeep. 7. The Tribunal framed issue no. 1 as to whether the accident in dispute took place on the date mentioned in the claim petition. Issue no. 2 was regarding the driver of the jeep having valid driving license. Issue no.3 was as to whether the jeep was legally insured by the National Insurance Company Limited and issue no. 4 was as to what relief the claimants are entitled to ? 8. Issue no. 1 was decided by the Tribunal holding that the claimants have failed to prove that the accident was caused on account of rash and negligent driving of the driver of the jeep and issue no. 1 was decided against them. Issue no. 2 was decided holding that the driver of the jeep had valid and effective driving license on the date of accident. Issue no. 3 was decided holding that the cover note of insurance produced in evidence appears to be fake. 1 was decided against them. Issue no. 2 was decided holding that the driver of the jeep had valid and effective driving license on the date of accident. Issue no. 3 was decided holding that the cover note of insurance produced in evidence appears to be fake. After perusing the monogram of the insurance company, the Tribunal found that the jeep was not insured with the National Insurance Company Limited. Issue no. 4 was decided holding that the claimants are not entitled to any compensation. 9. Learned counsel for the claimants/appellants has held that issue no. 1 has wrongly been decided by the Tribunal. P.W.2, Rampal, who was the eye witness of the incident, has been disbelieved only on the ground that his name has not been mentioned in the first information report. He has submitted that the standard of proof required before the Motor Accidents Claims Tribunal is based on the principle of preponderance of probability and not proof beyond reasonable doubt. The claimants/appellants established their case on the touchstone of preponderance of probability. He has further submitted that the issue no. 3 has also been wrongly decided against the claimants/appellants on the ground that the face of “peacock” in monogram of insurance policy is towards left when in the monogram, it is towards right. He has further submitted that no officer of the insurance company was produced in evidence to prove that the insurance policy was not issued by the insurance company. In the written statement, the insurance company never denied the insurance of the jeep. Mahendra Pal Singh, the authorized insurance agent who issued the insurance policy, was neither examined nor called to ascertain the authenticity of the insurance policy in dispute. The original policy placed before the Tribunal was not rebutted by any evidence and the Court has only disbelieved the same on the basis of suspicion. 10. Learned counsel for the respondents has supported the finding recorded by the Tribunal and has stated that the Tribunal has rightly dismissed the claim petition of the claimants. 11. After considering the rival submissions, this Court finds that the Tribunal has disbelieved the testimony of the eye witness on the ground that he was not named as a witness in the first information report. 11. After considering the rival submissions, this Court finds that the Tribunal has disbelieved the testimony of the eye witness on the ground that he was not named as a witness in the first information report. It has been repeatedly held by this Court as well as the Hon’ble Apex Court that even if the first information report is not lodged and the accident is proved before the Tribunal by other evidence, the same is admissible in evidence. The statement of P.W.2 has been disbelieved also on account of the fact that the deceased was chased by Jeep and after he fell down due to collision with the Jeep, he was beaten by number of persons. The case under Section 302 I.P.C. is also pending in this regard. Regarding issue no.3, it has also been noted by the Tribunal that the monogram on the policy was not found to be genuine. However, no witness was produced to prove the aforesaid fact. Only by looking to the policy, the Court presumed it to be fabricated. 12. The finding regarding issue no. 1 recorded by the Tribunal appears to be justified since it was clearly stated in the first information report that deceased was chased by the jeep and he fell down after being dashed by the jeep. Thereafter, on account of the enmity regarding election, he was beaten by number of persons by logs. The postmortem report of the deceased shows that he suffered lacerated wounds on his face and skull, bone deep. 5 abraded contusions were also found on different parts of his body. Lacerated wound on face could have been caused by falling on ground but the abraded contusions shows that the deceased was beaten mercilessly by logs before his death. It is not a case of accident but murder. Therefore, the finding regarding issue no. 1 recorded by the Tribunal appears to be justified. 13. In view of the fact that the finding regarding issue no. 1 is justified, even if the finding on issue no. 3 was unjustified, no interference can be made with the award of the Tribunal. 14. The appeal is accordingly, dismissed.