Mohd. Aslam vs Kamleshwar Singh
2023 Latest Caselaw 6449 MP

                                                                       1
                                        IN    THE      HIGH COURT OF MADHYA PRADESH
                                                            AT JABALPUR
                                                                  BEFORE
                                                    HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                            ON THE 21 st OF APRIL, 2023
                                                          MISC. APPEAL No. 3147 of 2021

                                       BETWEEN:-
                                       MOHD. ASLAM S/O SHRI MOHD. NATTHU, AGED
                                       ABOUT 40 YEARS, OCCUPATION: MOTOR MECHANIC
                                       NEAR GHOGHAR TAKIYA MAJAR CITY KOTWALI
                                       REWA DIST. REWA MP (MADHYA PRADESH)

                                                                                                 .....APPELLANT
                                       (BY SHRI ALOK TIWARI - ADOVOCATE)

                                       AND
                                       1.    KAMLESHWAR SINGH S/O SHRI RUKMAN SINGH
                                             WARD NO. 9 VILL. BAGHWAR P.S. RAMPUR
                                             NAIKIN DIST. SIDHI (MADHYA PRADESH)

                                       2.    RAMESH YADAV S/O MAHESH YADAV, AGED
                                             ABOUT 30 YEARS, BAGHWAR POLICE STATION
                                             RAMPUR NAIKIN (MADHYA PRADESH)

                                       3.    NATIONAL   INSURANCE     CO.LTD. THROUGH
                                             BRANCH MANAGER NEAR SAVITRI NURSINGH
                                             HOME IN FRONT OF NAYA BUS STAND PS SAMAN
                                             (MADHYA PRADESH)

                                                                                               .....RESPONDENTS
                                       (SHRI D.N. SHUKLA - ADVOCATE FOR RESPONDENT NO. 3)

                                             This appeal coming on for admission this day, th e court passed the
                                       following:
                                                                        ORDER

This appeal is filed by the claimants being aggrieved of award dated

Signature Not Verified SAN 25/2/2020 passed by the learned Sixth Additional Motor Accident Claims

Digitally signed by VAIBHAV YEOLEKAR Date: 2023.04.25 11:27:05 IST Tribunal, Rewa in MACC No. 400650/2015 whereby the learned Tribunal has

rejected the claim filed on behalf of the claimant/appellant.

Learned counsel for the appellant submits that near delay of 45 days in recording F.I.R. is treated to be a circumstance against the appellant and arbitrarily overlooking the evidence of the eye-witness, claim has been rejected.

Shri Alok Tiwari places reliance on the decision of the Supreme Court in Anita Sharma and others Vs. The New India Assurance Company Limited and another decided on 8/12/2020 in Civil Appeal Nos. 4010-4011 of 2020 arising out of SLP (c) Nos. 32011-32012 of 2018.

Placing reliance on this judgment and reading para 22, it is submitted that matters like motor accident claim cases should be decided on preponderance of

probabilities rather than seeking evidence beyond reasonable doubt. The Hon'ble Supreme Court has deprecated the practice of the courts while examining evidence in accident claim cases and has held that the object cannot be to find fault with non-examination of some best eye-witnesses as may happen in a criminal trial but instead should only analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true.

Shri D.N. Shukla, learned counsel for the Insurance Company submits that the accident took place on 6/06/2015. The FIR was lodged on 22/07/2015. It is submitted that as per Ex. P-8, which is issued by the Department of Orthopaedics, Shyam Shah Medical College and SGMH Rewa (M.P.) a Government Medical College and Hospital, there is a specific mention of the fact of history of RTA (bike Vs. bus) at Bagwar on 6/06/2015 at 2:30 P.M. at Raipur Naikin, District Satna.

Signature Not Verified SAN

It is submitted that later on, a truck has been falsely implicated. It is Digitally signed by VAIBHAV YEOLEKAR Date: 2023.04.25 11:27:05 IST

further submitted that general condition of the patient was fair, afebrile, vitals

stable. Reading this document, it is submitted that it is a case of false implication.

Shri Alok Tiwari in his turn submits that appellant was infact admitted at Jamdaar Hospital on 7/06/2015 and there is an incorrect mention of the fact of his absconding on 9/06/2015.

Reading documents from the Jamdaar Hospital, it is submitted that claimant was taking his treatment and once, he recovered, he lodged F.I.R.

Shri Alok Tiwari has read evidence of the eye-witness who was travelling as a pillion rider on the said motorcycle being driven by claimant namely Noor Afzal who has admitted that he had taken injured Aslam with the help of an Ambulance to Sanjay Gandhi Hospital, Rewa and, thereafter, he has deposed that due to his serious condition, he was shifted to Jaamdar Hospital, Jabalpur.

After hearing learned counsel for the parties and going through the record, it is evident that this claimant witness Noor Afzal in his cross- examination has admitted that he had not given any intimation about the accident to the Doctor. In para 5 third line, he admits that he had not lodged any report. He has admitted in para 4 of his cross-examination that he had left Aslam only upto the gate of the hospital. Thereafter, he says that after seven days or fifteen days of the accident, he had lodged the report. He has denied the suggestion

that he had lodged the report after 11/2 months. He admits that he had visited

the police station along with Aslam on lodging of the report.

This witness admitted that he had seen number of the truck from the front. Whereas in examination-in-chief affidavit, this witness Noor Afzal has Signature Not Verified SAN deposed that they were travelling on the motorcycle on 6/06/2015 where

Digitally signed by VAIBHAV YEOLEKAR Date: 2023.04.25 11:27:05 IST slightly ahead of Badwar toll plaza, a truck no. MP 53 HA 1439 had come from

behind and hit the motorcycle which was driven by Mohd. Aslam. When truck had hit the motorcycle from behind and witness Noor Afzal was sitting as a pillion rider, then there was no occasion for him to had seen the number of truck from front.

This exposes the falsity of the statements of Noor Afzal. Thus, this witness is not a credible witness. When a Government Hospital document is to be examined vis-a-vis a private hospital document, then more credibility will have to be given to a Government Hospital document as contained in Annexure P-8. Petitioner never called the concerned RMO from the concerned Government Hospital to depose that how the writing in the said Ex. P-8 are false or concocted.

In the absence of any contradiction, it is evident that there is an undue delay of 45 days in lodging the report. The discharge card issued by Dr. Jaamdar is available on record as Ex. P-49 in which date of discharge is shown as 13/06/2015 at 11 A.M. The condition of the claimant is shown to be stable, then it is for the claimant to explain that why he did not lodge the report till 22/07/2015. There is an unexplained delay. The story of Noor Aslam is false and concocted. He never lodged any report even after seven days or fifteen days of the incident. He has given wrong description and once, it is mentioned that the accident had taken place with the bus, then implication of the truck cannot be said to be just and correct.

In under such facts and circumstances, since there is no cogent material to contradict that what is mentioned in Ex. P-8 and to explain that how a bus came to be replaced with a truck and also there being no reason for the co- Signature Not Verified SAN

passenger who had not sustained any grievous hurt or not lodging the report, Digitally signed by VAIBHAV YEOLEKAR Date: 2023.04.25 11:27:05 IST

the impugned award passed by the Tribunal cannot be faulted with.

Accordingly, the appeal fails and is dismissed. At this stage, Shri Alok Tiwari submits that respondent nos. 1 and 2 were ex parte before the Tribunal, that circumstance is not sufficient to accept their guilt and admission of the accident.

(VIVEK AGARWAL) JUDGE vy

Signature Not Verified SAN

Digitally signed by VAIBHAV YEOLEKAR Date: 2023.04.25 11:27:05 IST