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2023 DIGILAW 1981 (ALL)

Department of Commercial Tax Gonda v. Sanju

2023-08-17

JASPREET SINGH

body2023
JUDGMENT Jaspreet Singh, J. Heard Shri Devendra Mohan Shukla, learned Standing Counsel for the appellants and Shri Rajesh Trivedi, learned counsel for the claimants-respondents. 2. The instant appeal has been preferred under Section 173 of the Motor Vehicles Act assailing the award dated 05.12.2019 whereby the Motor Accident Claims Tribunal/4th Additional District Judge, Bahraich in Claim Petition No.38/70/2016 has awarded a sum of Rs.11,18,320/- alongwith 7% interest in favour of the claimants-respondents. 3. Submission of the learned counsel for the appellants is that the accident in question did not occur with the vehicle belonging to the appellants. This was clearly pleaded in the written statement and even the driver of the vehicle deposed before the Court that no accident took place with his vehicle and despite no contradiction in his statement yet the version was disbelieved which is an error committed by the Tribunal. 4. Learned counsel further submits that the main basis upon which the Tribunal has delivered the award by relying upon the statement of two eye witnesses but they were known to the claimants and being interested witnesses their evidence could not be accepted with absolute credibility rather it should have been screened cautiously. It is thus submitted that the factum of accident itself was not proved and in the given facts and circumstances, the award fastening the liability on the appellants is erroneous and as such deserves to be set aside. 5. Learned counsel for the claimants, on the other hand, submits that the accident occurred with the vehicle belonging to the appellants. It was a day time accident and two eye witnesses were examined who clearly deposed that the accident had occurred on account of rash and negligent driving of the driver of the offending vehicle. An FIR was promptly lodged and the vehicle as well as the driver was apprehended. Only upon an application moved by the appellants, the vehicle was released and the driver was enlarged on bail. The driver was also charge sheeted and in light of the corroborated documents and the testimony of the eye witnesses, it was clearly proved that the accident occurred on account of rash and negligent driving of the vehicle in question belonging to the appellants which has been appropriately considered by the Tribunal and as such the award requires no interference and the appeal deserves to be dismissed. 6. 6. The Court has considered the rival submissions and also perused the material on record. However, before dealing with the same ,it will be relevant to take a glace at few relevant facts. 7. A claim petition bearing No.38/70/2016 came to be filed by the claimants with the averments that on 05.01.2016 at around 2.30 P.M. while Rahul and the deceased Ram Mahipal were returning from Nawabganj Nandani, College and they had reached Wakeel Kunwa (Dumariya Deeh), the offending vehicle bearing No. U P 43/G-0118 which also had a blue beacon light was being driven rashly and negligently and hit a motorcycle from the back as a result both Rahul and Ram Mahipal sustained injuries. The people of the vicinity had taken them to the district hospital where Ram Mahipal died during his treatment. 8. The appellants contested the claim petition and denied the accident. It was stated that the accident must have occurred from some other vehicle; inasmuch as it is stated by the claimants that the alleged offending vehicle hit from back rather the vehicle being driven by the defendants was moving from Nawabganj to Gonda. It is also stated that no negligence was of the driver nor any accident took place and thus the claim petition deserves to be dismissed. 9. The Tribunal considering the oral as well as documentary evidence and relied upon the evidence of the two eye witnesses and also took note of the corroborated documentary evidence in the shape of the FIR which was named against the vehicle as well as the fact its driver who later charge sheeted. The Tribunal held that the accident was on account of rash and negligent driving of the vehicle bearing number U P 43/G-0118. It found that the driver had a valid and a subsisting licence and since the vehicle was of the State of U.P., accordingly it computed the compensation and made an award of Rs.11,18,320/- by means of order dated 05.12.2019 payable to the claimants-respondents along with 7% interest. 10. It is this award which is under challenge and having considered the submissions and from the perusal of the material on record, the only issue that requires consideration is whether the vehicle bearing number U P 43/G- 0118 was involved in the accident which led to the death of Ram Mahipal. 11. 10. It is this award which is under challenge and having considered the submissions and from the perusal of the material on record, the only issue that requires consideration is whether the vehicle bearing number U P 43/G- 0118 was involved in the accident which led to the death of Ram Mahipal. 11. At the outset, it may be noticed that a claim petition is decided on the basis of prepondreous of probabilities and strict rules of evidence are not applicable; inasmuch as the occurrence is not to be proved beyond reasonable doubt (see Sunita and others v. Rajasthan State Road Transportation Corporation, and another (2020) 13 SCC 486 ). 12. Keeping in mind the principles laid down by the Apex Court in the case of Sunita (supra), if this Court examines the statement and the material on record, it is found that in order to prove the case the appellants have examined Dinesh Chand and Rahul Kumar who are the eye witnesses. Dinesh Chand was examined as P.W.2 who stated that he had seen the accident with his own eyes. He stated that he was on another motorcycle behind the motorcycle which was involved in the accident. He categorically stated that the vehicle bearing number U P 43/G-0118 hit the motorcycle from the back. On account of the accident Ram Mahipal received grievous injuries and the persons of the vicinity had taken him to the district hospital, Gonda where he expired. The claimants have also filed the documents relating to the release of the offending vehicle from the court of Magistrate, the FIR, the Postmortem Report and the Charge sheet which also corroborate the incident. 13. On the other hand, the defendants have produced two witnesses. In the instant case, the statement of the driver who stated that no accident took place from his vehicle apparently is a self serving statement; inasmuch as he could not dispute the fact that after the accident the vehicle in question was confiscated and that the same was released from the court. He also admitted that he was apprehended and was enlarged on bail coupled with the fact that he has been charge sheeted in Case Crime No.2 of 2016 and he is still under trial. 14. He also admitted that he was apprehended and was enlarged on bail coupled with the fact that he has been charge sheeted in Case Crime No.2 of 2016 and he is still under trial. 14. If the statement of the witnesses is seen of both claimants and defendants in contrast with each other, it would indicate that the eye witness has categorically explained and narrated the manner in which the accident has occurred and even in his cross-examination apart from certain minor contradictions, the foundational fact regarding the occurrence of the accident the rash and negligence of the driver and the death of Ram Mahipal stood amply corroborated and proved. This Court further finds that the accident is said to have occurred at around 2.30 P.M. and the FIR was lodged at 6.20 in the evening. The vehicle was clearly identified with its correct number. 15. In light of the evidence available on record, this Court finds that the submissions made by the learned counsel for the appellants has no legs to stand for the reason that even though the claimant witnesses may be known but that does not mean that there is any law which prohibits them to depose. The statement of the claimant witnesses including the eye witness has been perused by this Court and there does not appear to be any major inconsistency which creates a doubt over the credibility of the witnesses or on the occurrence of the accident. 16. On the other hand, the statement of the defendant witness who is the driver merely made a bald statement that the accident did not occur from the vehicle but he did not deny the fact that the said vehicle was available at that given point of time at the given place. He also could not deny the fact that in pursuance of the FIR so lodged the vehicle was confiscated and he was apprehended too and both were released by orders of the court and the driver was enlarged on bail and he is still under trial as the charge sheet has been filed and in the aforesaid facts and circumstances, this Court does not find that there is any error committed by the Tribunal in passing the award. 17. In light of the aforesaid, the appeal is dismissed. 17. In light of the aforesaid, the appeal is dismissed. The order dated 05.12.2019 passed by the Motor Accident Claims Tribunal/4th Additional District Judge, Bahraich in Claim Petition No.38/70/2016 is affirmed. Any amount deposited by the appellants before this Court shall be remitted to the Tribunal to be released in favour of the claimants-respondents and any shortfall in terms of the award shall also be deposited before the Tribunal within 60 days to be released in favour of the claimants-respondents. The record of the Tribunal shall be returned forthwith.