Shiv Nayak Singh vs Ram Autar & Others
2012 Latest Caselaw 3209 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

COURT NO. 33
 

 
F.A.F.O. No. 802 of 2005
 
Shiv Nayak Singh
 
Versus
 
Ram Autar and others
 

 
Counsel for the appellant : J. N. Misra
 

 
CORAM:
 
HON. RAKESH TIWARI, J
 
HON. ANIL KUMAR SHARMA, J
 

 
	The appellant has challenged the award dated 18.12.2004 passed by MACT/Addl. District Judge FTC-6, Banda  in MACP no. 75/70/95 whereby the claim petition of the appellant u/s 166-Motor Vehicles Act had been dismissed.
 
	It appears that on 5.4.1993 the claimant, an army pensioner along with his wife Smt. Ram Kali was going on foot to his village from Pailani and when they reached on the bridge near Pailani Dera at about 9 a. m. driver of Eicher tractor no. UHI-426 Brajesh @ Guddu driving the vehicle rashly and negligently knocked them down and the tractor turtled on the slope of the bridge.  The wife of the claimant died instantaneously on the spot and claimant suffered fractures in both legs and his several ribs were also broken.  He was taken to District Hospital, Banda for treatment and then to Central Command Hospital Lucknow, Base Hospital, Lucknow where he was hospitalized up to 8.9.1993.  Thereafter he was shifted to ALC Hospital, Pune and undergone treatment up to 12.2.994.  The claimant contended that during treatment his leg has been amputated and he has become permanently disabled and is unable to perform agricultural work as before. He prayed for an award of Rs. 4.78 lacs.  The respondent no. 1 contested the claim petition and stated that the wife of the claimant was aged about 65 years and she was infirm.  The factum of accident with the aforesaid tractor has also been disputed.  It was further stated that the claimant is retired Subedar from Army and  there was no occasion for him to go cover distance of 6 Kms. from Pailani to his village on foot as there are lot of transport facilities.  He further stated that he does not own the tractor nor the name of his son is Brajesh @ Guddu and he does not know driving.  In fact there was scuffle between him and claimant on 3.4.1993 at his hotel Jai Jawan Stall, Kutchery, Banda wherein the claimant and his son Anil Singh had damaged his crockery etc and he realized damages from the claimant, so he threatened him for dire consequences, therefore, false claim has been lodged against him.  It  was further stated by respondent no. 1 that earlier a claim petition no. 151/70/93 was filed by claimant's son Anil Singh regarding death of his mother Smt. Ram Kali which was dismissed by the Tribunal; that no police report was ever lodged about the alleged accident, nor the tractor was seized by the police, so the claim petition is liable to be dismissed.  In order to prove his case, the claimant examined himself and produced Guddu Yadav PW 2 and filed several papers.  The respondent no. 1 examined himself as DW 1 and also produced Sia Ram DW 2 and also filed several papers.  Learned Tribunal after hearing parties' counsel found that the claimant has failed to prove the factum of alleged accident, its manner and involvement of tractor UHI-426 and that it was not owned by respondent no. 1.  It was also not proved that on account of injuries sustained in the motor accident the leg of the claimant was amputated and, therefore, the claim petition was dismissed.  	Aggrieved the claimant has come up in appeal.

We have heard the learned counsel for the appellant and perused the impugned award.

Learned counsel for the appellant has vehemently argued that the learned Tribunal has not appreciated the evidence in correct perspective; that the FIR of the accident was lodged by Chaukidar; that the wife of the claimant suffered death on account of injuries sustained by her and claimant sustained grievous injuries in instant motor accident, therefore, the impugned judgment and order is liable to be set aside.

After evaluating the testimony of claimant and his witness Guddu Yadav PW 2 with reference to other evidence on record, the learned Tribunal has given following findings:

"---------bu nksauksa lkf{k;ksa ds mi;qZDr c;ku fo'oluh; ugha izrhr gksrs gSA nq?kZVuk fnukad 5-4-93 dh lqcg 9 cts fnu dh crkbZ tkrh gSA nq?kZVuk ds laca/k esa fdlh Hkh Fkkus esa dksbZ izkFkfedh ugha vafdr djkbZ x;h gSA nq?kZVuk ds laca/k esa fdlh Hkh Fkkus esa izkFkfedh D;ksa ugha vafdr djk;h x;h] blds laca/k esa ;kph dh rjQ ls dksbZ larks"ktud funku rFkk Li"Vhdj.k ugha fn;k x;k gSA ;kph vFkok mlds iq=x.k fnyhi] vfuy rFkk iznhi us Hkh nq?kZVuk ds laca/k esa dHkh dksbZ izkFkZuk i= fdlh iqfyl vf/kdkjh dks vFkok U;k;ky; esa fn;k gks] ;g vfHkys[k ls lkfcr ugha gksrkA vkt ds bl ;qx esa ;g lkspk Hkh ugha tk ldrk fd bruh Hkh".k nq?kZVuk gks] ftlesa jkedyh dh tku pyh x;h vkSj ;kph dks xEHkhj pksaVs vk;h] mlds laca/k esa izkFkfedh u vafdr djkbZ tkrhA bl laca/k esa mYys[kuh; gS fd nq?kZVuk dk dkj.k VsªDVj ua0 ;w,pvkbZ&426 ds pkyd foi{kh la0 2 c`ts'k mQZ xqM~Mw dh rsth vkSj ykijokgh crkbZ tkrh gSA Fkkuk iSykuh ds jkstukepkvke dh izfof"V jiV ua-0&12 fnukafdr 5-4-93 le; 9-30 ,0,e0 dh izfrfyfi isij ua0&134x i=koyh esa nkf[ky dh x;h gS] ftlesa ;g mYys[k gS fd pkSdhnkj lq[knso us Fkkuk iSykuh esa ;g lwpuk fn;k Fkk fd fnukad 5-4-93 dks lqcg yxHkx 9 cts xkao okyksa us mls ;g crk;k Fkk fd ,d VsªDVj iqy ds ml ikj myVk iMk gS vkSj ,d vkSjr ejh iMh gSA bl lwpuk ij rRdkyhu Fkkuk/;{k jktiky flag vkj{kh lar izdk'k f=ikBh o egsUnz flag rFkk ih-vkj-Mh- f'kodqekj ds iapk;r ds dkxtkr ds lkFk nq?kZVuk Lfky ij x;s Fksa jkstukepkvke dh mDr izfof"Vh esa ;g dgha vafdr ugha gS fd iqy ds ml ikj myVk iMk VsªDVj ua0 ;w,pvkg&426 FkkA e`rd Jherh jkedyh ls lacaf/kr iapk;rukek vkSj 'ko ijh{k.k fjiksVZ dh dksbZ izfrfyfi eq>s i=koyh esa ugha feyhA i=koyh esa ,slk dksbZ lk{; vFkok nLrkost ugha gS] ftlds vk/kkj ij ;g dgk tk lds fd iqfyl us dHkh VsªDVj ua0 ;w,pvkbZ&426 dks vius dCts esa fy;k gksaA ;fn nq?kZVukLFky ij VsªDVj ua0 ;w,pvkbZ&426 nq?kZVukxzLr gksdj myV dj ogkW iMk gksrk rks iqfyl fuf'pr :i ls mDr VsªDVj dks dCts esa ysdj fof/k ds vuqlkj vko';d dk;Zokgh djrhA bu fLFkfr;ksa esa ;kph dk ;g vfHkdFku rFkk mlds vkSj xqM~Mw ;kno ih- Mcyw- 2 ds ;g c;ku fo'oluh; ugha izrhr gksrs gSA fd fnukad 5-4-93 dks fnu esa yxHkx 9 cts iSykuh Msjk dks ikl lMd iqy ij VsªDVj ua0 ;w,pvkbZ&426 ls dksbZ nq?kZVuk ugha gqbZ FkhA"

The learned counsel for the appellant could not show any infirmity in the above findings of the Tribunal or that they are perverse and not based on evidence of the record. A witness may lie, but circumstances and scene of occurrence depicts the true picture of the incident unless they are proved incorrect. It is not the case of the claimant that the police has in connivance with the owner or driver of the tractor had prepared false report. The claimant has no where stated that the report of the alleged accident was ever made by him or on his behalf by any other family member with the police. No medical person was examined on behalf of the claimant to prove the injuries sustained by him in the alleged motor accident. Even the inquest report or post-mortem examination report of deceased Smt. Ram Kali were not filed, which could have substantiated the case of the claimant, about her death in road accident on account of rash and negligent driving of tractor by opposite party no. 2.

The learned Tribunal has also recorded finding to the effect that alleged driver of the offending tractor Brajesh @ Guddu opposite party no. 2 is not the son of opposite party no. 1 and nor the tractor in question was owned by him, rather the copy of registration certificate shows that opposite parties no. 4 and 5 were its owners and it was never owned by opposite party no. 1. It has also come in evidence that prior to the instant petition, MACP no. 151/70/93 pertaining to accidental death of Smt. Ram Kali w/o claimant, was filed by his son Anil Singh u/s 166/140 Motor Vehicles Act, but it was dismissed by the Tribunal on 17.8.1993 and thereafter without getting the said petition restored, the instant petition was filed by the claimant. The learned Tribunal has drawn adverse inference against the claimant on this score as well. Provisions of Order IX are applicable to motor accident claim cases as per Rule 221 of U.P. Motor Vehicles Rules, 1998. It is also pertinent to note that the medical papers filed by the claimant did not show that the leg of the claimant had to be amputated on account of injuries sustained by him in the instant accident.

After appreciating the evidence of the parties, the learned Tribunal has found that the claimant has miserably failed to prove that on 5.4.93 at about 9 a.m. Road bridge near Pailani Dera opposite party no. 2 Brajesh @ Guddu driving tractor no. UHI-426 had dashed the claimant and his wife Smt. Ram Kali from behind causing serious injuries to the claimant and instantaneous death of Smt. Ram Kali. The claimant also could not prove that on the date of accident tractor UHI-426 was owned by opposite party no. 1 Ram Autar. The claimant failed to establish that any criminal case pertaining to the instant road accident was ever registered against opposite party no. 2 or he was prosecuted for the offences committed by him. The claimant is not an illiterate rustic villager but he is retired army personnel and had the accident took place in the manner as alleged by him, he would not have left any stone unturned to bring the offender to books.

For the afore stated reasons we do not find any error, factual or legal in the findings recorded by th learned Tribunal. Resultantly the appeal fails and is accordingly dismissed.

Dated: July 26, 2012

CPP/-