Allahabad High Court
Khalid Arman And Another vs Mahesh Kumar Mishra And Another on 28 February, 2023
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- FIRST APPEAL FROM ORDER No. - 58 of 2023
Appellant :- Khalid Arman And Another
Respondent :- Mahesh Kumar Mishra And Another
Counsel for Appellant :- Shiv Shankar Singh
Counsel for Respondent :- Saurabh Kumar
Hon'ble Alok Mathur,J.
1. Heard Sri Shiv Shankar Singh, learned counsel for the appellants and Sri Saurabh Kumar appearing for excavator-respondent No.s 1 and 2 (claimants).
2. In the present appeal the appellants have assailed the judgment and order passed by Motor Accidents Claims Tribunal /Presiding Officer, Motor Accidents Claims Tribunal, Sultanpur (hereinafter referred to as the Tribunal) in Motor Accident Case No.119 of 2018 which has been decided on 20.1.2023 and the appellants have been saddled with the liability of Rs.2,95,000/-.
3. It has been submitted by learned counsel for appellants that the accident occurred on 22.1.2018 at 9.00 in the morning where when a small child (the deceased) Daya Shankar Mishra was standing on the site of the road near a pan shop, a motor cycle bearing No.UP 44 AB-8838 being driven by the appellant No.2 negligently hit the deceased child, who received serious injuries and subsequently succumbed to the same on the same day. It is stated that the appellant who was driving the said motor cycle ran away from the site after the said accident. It has further been informed that with regard to the said accident a First Information Report was also lodged being Case Crime No.13 of 2018 under Section 279, 304 A IPC. The claimants (respondent No.s 1 and 2 herein), who are father and mother of the of the deceased filed claim petition before the Tribunal.
4. In support of the claim petition P.W.-1 Mahesh Kumar Mishra,P.W.-2 Rajesh Kumar and P.W.-3 Amar Nath Mishra were examined who supported the claim petition and produced copy of the F.I.R., post mortem report and all other relevant documents before the Tribunal. The appellants had produced D.W.-1 Sunil Khan, who had produced registration papers of the offending vehicle No U.P. 44 AB-8838 and also driving license of Sunil Khan.
5. The Tribunal after considering the entire evidence taken note of the fact that P.W.-2 Rajesh Kumar was the eyewitness of the said accident. P.W.2 Rajesh Kumar stated that he was sitting next to the shop in front of which the accident had occurred. on 22.1.2018. He has clearly stated that the motorcycle was being driven by the driver in a very negligent manner coming from the side of Musafirkhana hit the child (deceased) with great impact due to which he received serious injuries and was immediately rushed to the hospital where he was declared brought dead. The driver of the motor cycle was apprehended on the spot and told his name to be Sunil Khan while the motorcycle was owned by Khalid Arman- the appellant No.1. The said witness was also subjected to cross examination but he unequivocally supported the case of the claimants.
6. After considering the entire conspectus of the facts, the factum of accident was proved and it was also proved that at the time of the accident the offending vehicle was being driven by appellant No.2 Sunil Khan. It has further come on record that on the date of the accident i.e. 22.1.2018 the offending vehicle No. U.P. 44 AB-8838 was insured. Once it has come on record that the vehicle was insured and that the insurance company stated before the Tribunal that they would not have be liability to pay compensation is one of the well known defence of the insurance wherein it is stated that they did not have any liability towards the deceased (aged about 6 years).
7. Learned counsel for the appellant has assailed the said judgment on the ground that it was the child who had come infront of the motor cycle and there was no negligence on part of the driver.
8. I have considered the arguments of the appellant as well as of the respondents and perused the record.
9. It is noticed from the evidence available on record, especially the evidence given Rajesh Kumar Pal-P.W.-2. It is noticed that the deceased child was walking along with his grandfather at the side of the road when the said accident occurred. It has clearly come on record that motor cycle was being driven at a very high speed and in a very negligent manner and no evidence has come on record which may indicate that it was the child who was traveling on the road or was crossing the road.
10. It is in the aforesaid facts that no evidence is available to conclude or to take a view different from the view taken by the Tribunal. In view of the above, there is no merits in the contentions of the appellants nor is there any question of law which arises for determination by this Court in the present case.
11. No other point has been urged by learned counsel for the appellants.
12. In view of the above, the appeal is devoid of merits and is accordingly dismissed.
Order Date :- 28.2.2023 (Alok Mathur, J.)
RKM.
