Allahabad High Court
Maiku Yadav @ Maikulal And Another vs Smt. Bhagwan Dei And Others on 23 May, 2024
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:39054
Court No. - 5
Case :- FIRST APPEAL FROM ORDER No. - 157 of 2024
Appellant :- Maiku Yadav @ Maikulal And Another
Respondent :- Smt. Bhagwan Dei And Others
Counsel for Appellant :- Lalit Mohan Joshi,Rajesh Kumar Misra,Shiv Om
Hon'ble Rajnish Kumar,J.
1. Heard, Shri Rajesh Kumar Mishra, learned counsel for the appellants.
2. This First Appeal From Order under Section 173 of the Motor Vehicles Act, 1988 has been filed challenging the judgement and award dated 16.02.2024/28.02.2024, passed in Claim Petition No.344 of 2013; Smt. Bhagwan Dei and others Versus Maikulal and another, by means of which the Claim Petition has been allowed.
3. Learned counsel for the appellants submits that the appellant no.1 is the owner of the tractor and the appellant no.2 is the Driver of the tractor in question bearing No.UP-32-T-9401. He submits that the tractor of the appellant no.1 was not involved in the accident in question occurred on 05.10.2012 at 7 in the evening, in which Babu Lal is said to have been died because on the said date the tractor was in the workshop for repairs and it was proved by the appellants by appearing themselve in evidence as well as producing the owner of the Workshop as D.W.4, who also admitted that the tractor was under repair in his shop on the date of accident. He further submits that P.W.2 Desh Raj is eye witness, who also could not give the number of the tractor. The First Information Report was lodged after three days, but the number of the tractor was not given and the number of the vehicle has been given after Police visited the residence of appellant no.1 and the tractor of the appellant has been implicated. The tractor was neither seized nor any technical examination was made. Thus the submission is that the respondents have failed to prove the accident by the tractor of the appellant no.1, but learned Tribunal failed to consider it and wrongly and illegally allowed the claim petition and awarded the amount.
4. Having considered the submissions of learned counsel for the appellants, I have perused the records.
5. The claim petition was filed alleging therein that on 05.10.2012 the deceased Babu Lal was coming from Jakharbagh crossing to Durgaganj alongwith his maternal brother Vijay Kumar with the motorcycle at about 7 in the evening. The motorcycle was being driven by Vijay Kumar and Babu Lal was sitting on the back seat. The driver of tractor No.UP-32-T-9401 driving rashly and negligently coming from the opposite site hit the motorcycle of the deceased, in which Babu Lal suffered serious injuries and died during treatment on 06.10.2024 in the Trauma Center on account of the injuries suffered by him in the accident. The First Information Report was lodged on 09.10.2012 disclosing the accident.
6. The accident has been proved by P.W.2 Desh Raj, who is the eye witness and was coming alongwith Vijay Kumar and Babu Lal. He stated in his evidence that while he was coming alongwith Babu Lal and Vijay Kumar by motorcycle on 05.10.2012 the tractor No.UP-32-T-9401 being driven rashly and negligently had hit the motorcycle between Jakharbagh village to Maulvi Khera village in Police Station Kakori, Lucknow-Hardoi Road while coming from the side of Durgaganj. In the accident Babu Lal had sustained serious injuries. In the cross examination he has repeated the same things and nothing can be extracted which may disbelieve his evidence. Therefore merely because the number of the tractor was not given at time of lodging of the First Information Report and the same was lodged after three days, it cannot be a ground for disbelieving his evidence.
7. The appellants have taken a plea that the tractor could not have at the place of accident on 05.10.2012 because it was in the workshop of Guddu Mistri since 04.10.2012 for repairs and it was repaired after two days. The appellant no.2, who is driver of the tractor, appeared as D.W.3 and stated that the tractor was being repaired at the workshop of Guddu Mistri and the workshop is registered, but he does not give the receipt. He also admitted that he is an accused in the criminal case, which is going on in the criminal court. The alleged Guddu Mistri appeared as D.W.4 and his affidavit of examination-in-chief has been filed disclosing him as Arvind Kumar @ Guddu Mistri, but in the cross examination he admitted that he has come to give the evidence because he has been brought by Lalu for giving the evidence to the effect that the vehicle was being repaired in his workshop. He also stated that there is no Registration of his shop and only one boy works in his shop. He admitted that his name is not Guddu Mistri and his name is Arvind Kumar, whereas his examination-in-chief was filed disclosing his name as Arvind Kumar @ Guddu Mistri, therefore it is apparent that it is not proved from the evidence of D.W.4 that the vehicle was under repairs in his workshop or even he was running any workshop. In any case it cannot be disputed that just to create alibi the appellants have produced D.W.4, but could not prove. Whereas the accident has been proved by the respondent-claimants by adducing cogent evidence, which cannot be disbelieved.
8. In view of above and considering the overall facts and circumstances of the case this court is of the view that the impugned judgment and award has been passed in accordance with law after considering the pleading, evidence and material on record by recording the findings on the basis of same, which does not suffer from any illegality or error. The appeal has been filed on misconceived and baseless grounds.
9. The First Appeal From Order is, accordingly, dismissed.
10. The statutory amount deposited before this court shall be remitted to the concerned Tribunal expeditiously and in any case within four weeks from today to be adjusted in the payments to be made to the claimant-respondents.
.
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.......................................(Rajnish Kumar,J.)
Order Date :- 23.5.2024
Banswar
