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2022 DIGILAW 282 (ALL)

Maneesha Dubey v. Aakash Gupta

2022-03-03

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT : Ajai Tyagi, J. 1. By way of this appeal, the claimants have challenged the judgment and order dated 24.10.2018, passed by Motor Accident Claims Tribunal (MACT)/V-Additional District Judge, Kanpur Nagar (herein after referred to as 'the Tribunal') in MACP No.470 of 2014 (Smt.Manish Dubey and others vs. Ashish Gupta and another), by which the claim petition of petitioners was rejected by the Tribunal. 2. Brief facts of the case are that this claim petition is filed on account of death of deceased Rajeev Dubey in road accident. It is averred in claim petition that on 17.6.2012 at about 8:00 p.m., deceased Rajeev Dubey was going from his home to Sachan Guest House by motorcycle bearing No.UP- 78-CL/5855 and when he reached Govind Homeo Hall, a Hyundai-car bearing No.UP-78-AK/9049 came from behind, which was being driven very rashly and negligently by its driver, dashed the motorcycle of the deceased from behind. In this accident, deceased sustained fatal injuries and died during the treatment. 3. Respondent No.1-Akash Gupta filed written statement and submitted that he was driving the aforesaid car at the time of accident and was having valid driving-licence. It was also stated that owner and insurer of motorcycle were not made party. 4. Respondent No.2-M/s Sri Ram General Insurance Co.Ltd. also filed its written statement and submitted that accident did not take place by the aforesaid Hyundai-car. This car is falsely planted in order to secure the amount of compensation. Hence, in this way, the involvement of car was vehemently denied by the Insurance Company. 5. Learned Tribunal, while deciding Issue No.1, relating to the factum of accident, held that accident took place due to dashing the motorcycle by the deceased in divider of the road and motorcycle was not hit by car from behind. With these observations, learned Tribunal rejected the claim petition. Hence, this appeal. 6. Heard Shri Ram Tiwari, learned counsel for the appellants-claimants, Shri Vijay Prakash Mishra, learned counsel appearing for the respondent-Insurance Company and perused the record. 7. Learned counsel for the claimants submitted that Tribunal has failed to appreciate the evidence on record, the fact of involvement of car in accident is very-well proved by the cogent evidence, but learned Tribunal did not agree to it. 7. Learned counsel for the claimants submitted that Tribunal has failed to appreciate the evidence on record, the fact of involvement of car in accident is very-well proved by the cogent evidence, but learned Tribunal did not agree to it. It is also submitted that PW2 was the eye-witness of the accident and he has clearly stated that he saw the accident, which was caused by the car in question. It is strongly submitted that the charge-sheet is filed against the driver of the car by the police after thorough investigation and this fact is ignored by learned Tribunal. It is submitted that initially a closure-report was filed by Investigating Officer, but he subsequently, filed the chargesheet after collecting the evidence and competent magistrate has also taken cognizance in the matter. He next submitted that it will be presumed that official and judicial acts were performed in due course unless proved otherwise. 8. Learned counsel for the respondent No.2-Insurance Co. submitted that FIR of this accident is highly belated; it was lodged after one year of the accident. He further submitted that just after the accident, injured/deceased was taken to Regency Hospital and in Medico-Legal Report of that hospital, it is clearly mentioned that motorcycle was dashed in the divider of the road. It is also submitted that after the death of deceased, a written information of the accident was given by Shravan Kumar Shukla, who is brother-in-law of the deceased, to the Police Station-Barra, District-Kanpur Nagar, and he has written in aforesaid report/information that the motorcycle of the deceased was dashed with divider, due to which the deceased sustained head-injuries. He was admitted on 17.6.2012, the day of accident in Regency Hospital wherein he died on 25.6.2012 and in this matter, nobody is responsible. Hence, it is evident that the car is falsely involved in the said accident after nearly one year of the accident otherwise the eye-witness says that he remained present on the spot of the accident about 1/2 hour and saw the number of the car also, but this number was not told to the family members of the deceased because if it would have been so, then the first information report should have been lodged just after the accident. 9. 9. Learned counsel for the appellant relied on the judgments in the case of Ravi vs. BadriNarayan and others, 2011 (0) Supreme(SC) 201 & Vimla Devi and others vs. National Insurance Co.Ltd. and another, (2019) 2 SCC 186 . These two judgments are on the point that delay in lodging the FIR in claim-cases should not be the ground of dismissal of the petition, but in the case in hand, the facts are entirely different. In this case, the FIR was lodged after 10 months of the accident, and it shows the fabrication because in Medico-Legal Report of the hospital, it is mentioned that the motorcycle of the deceased dashed in the divider. After death of the deceased, his brother-in-law informed the police at P.S.-Barra, District-Kanpur Nagar that deceased sustained head-injuries on account of being his motorcycle dashed in the divider due to which he died. In the aforesaid two documents, there is no mention of the involvement of any car in the accident as stated in the FIR, which is lodged after 10 months of the accident. 10. Perusal of the record also shows that the so-called eyewitness, namely, PW2 has said in his evidence that he saw the accident and remained present on the spot for 1/2 an hour. It is also said by him that the family members of the deceased reached on the spot, but there is no such evidence or reason as to why he did not tell the number of the car to them when he claims that he saw the number of the car. Although, chargesheet submitted in this matter against the driver of said car after filing the closure-report earlier, but in spite of this fact, the Medico-Legal Report of the Regency Hospital and the information given to the Police Station-Barra, District-Kanpur Nagar by the brother-in-law of the deceased cannot be ignored. 11. Hence, after threadbare analysis of evidence on record, we are of the considered view that learned Tribunal has rightly appreciated the evidence on record and we are in full agreement with the conclusion expressed by the learned Tribunal that accident took place by dashing the motorcycle in divider of the road and it was not occurred due to hitting the motorcycle by car from behind. 12. Hence, the appeal sans merit and is dismissed, accordingly.