Bombay High Court
Jubedabano S/O Shaikh Jalil vs Jawed Khan S/O Saied Khan And 2 ... on 29 November, 2016
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 1106 of 2016
Appellant : Jubedabano Shaikh Jalil, aged about 55 years,
Occupation : Household work, resident of
Mugalipura, Paratwada, Tahsil Achalpur, District
Amravati
versus
Respondents: 1) Jawed Khan s/o Saied Khan, aged major,
Driver, resident of Railway Station, Achalpur,
District Amravati
2) Shaikh Yusuf Shaikh Rasul, aged Major,
resident of 19-A, Tagor Nagar, Jilhapeth, Jalgaon
3) Iffco-Tokio General Insurance Co. Ltd.,
The Divisional Manager, Iffco-Tokio General
Insurance Co. Ltd., Divisional Office at First
floor, 701-A, Shriramshyam, Beside NIT Complex,
Kingsway, Sadar, Nagpur
Shri P. R. Agrawal, Advocate for appellant
Shri A. J. Pophly, Advocate for respondent no. 3
Coram : S. B. Shukre, J
Dated : 29th November 2016
Oral Judgment
1. Heard. Admit. Shri A. J. Pophly, learned counsel waives
notice for respondent no. 3. Notice of final hearing to respondents no. 1
and 2 dispensed with.
2. By this appeal, legality and correctness of the judgment and
order dated 19th July 2013 delivered by the Member, Motor Accident
Claims Tribunal, Achalpur in MACP No. 27 of 2009 is challenged.
3. Appellant, widow of Shaikh Jalil, the deceased who died in a
vehicular accident on 14th February 2009, filed petition under Section 166
of the Motor Vehicles Act claiming compensation of Rs. 3 lacs for loss of
her husband. Deceased Shaikh Jalil along with his grandson Parwej was
going by Paratwada-Achalpur Road towards Juice Centre. At that time, a
motor-cycle driven in a rash and negligent manner, suddenly appeared in
front of the deceased and gave dash to him. Deceased Shaikh Jalil and his
grandson sustained injuries and they were admitted in a hospital.
However, Shaikh Jalil succumbed to the injuries suffered in the accident.
About five days after the accident, son of the deceased lodged oral report
with the police. In oral report which was taken down in writing, he stated
that the dash was given to his father by a motor-cycle bearing registration
number MH-19-T-2605. But, later on, as the investigation proceeded, he
changed the version and stated that the accident occurred due to
involvement of another motor-cycle bearing registration number MH-19-
AR-9699.
4. The claim petition was contested on merit by the
respondents. The learned Member found that there was serious doubt
about involvement of motor-cycle bearing registration number MH-19-
AR-9699 owned by respondent no. 2, a resident of Jalgaon. Therefore,
by order dated 13th July 2013, the petition was dismissed by the learned
Member of the MACT. Not being satisfied with the same, the petitioner is
before this Court.
5. I have heard Shri P. R. Agrawal, learned counsel for the
appellant and Shri A. J. Pophly, learned counsel for respondent no. 3 at
length. Notice indicating final disposal was served upon respondents no. 1
and 2, but they did not respond. As aforesaid, notice on admission of
appeal to the said respondents, has been dispensed with. I have carefully
gone through the impugned judgment and order.
6. The only point that arises for my consideration is -
"Whether the Tribunal has committed an error of fact
and law in its finding that involvement of motor-cycle
bearing registration number MH-19-AR-9699 was in
serious doubt ?"
7. On going through the evidence available on record, I find
that learned Member of the Tribunal has properly appreciated the
evidence and rightly drew the conclusion on considering the probabilities
of the case. It is seen from record of the case that the appellant in her
cross-examination itself gave an admission as regards the discrepancy
arising from wrong mentioning of registration number of the motor-cycle
in question in First Information Report that her son was in a better
position to explain the same. Her evidence further shows that she was
not able to explain as to why initial registration number of the motor-
cycle as stated in the First Information Report was not maintained and
later on, for what reason, it was changed to registration number MH-19-
AR-9699. There was also delay of about five days in lodging the oral
report. Had the son of appellant who lodged the oral report been
examined, proper explanation perhaps could have been there on record.
Moreover, no police officer nor the investigating officer was examined by
the appellant. Respondent no. 1, according to the own case of the
appellant, was riding the motor-cycle involved in the accident.
Admittedly, he was the friend of appellant's son. Curiously enough, crime
was not registered against him. No explanation for non-registration of
crime against him, has been put forth. Combined effect of the glaring
deficiencies in the evidence of the appellant, obviously could have been
none else than what has been found by learned Member of the Tribunal,
and rightly so. He found that there was a serious doubt about the
involvement of motor-cycle bearing registration number MH-19-AR-9699
in the accident, which resulted into the death of husband of the appellant.
This finding leaves no scope for me to accept the argument of learned
counsel for the appellant that there was flaw in appreciation of evidence
and incorrect conclusion is drawn by the Tribunal. The point is answered
accordingly. Appeal deserves to be dismissed.
11. In the result, appeal is dismissed. No costs.
S. B. SHUKRE, J
joshi
