Madhya Pradesh High Court
Arun Kumar Singh Gond vs Fatima Bi on 11 December, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 11 th OF DECEMBER, 2023
MISC. APPEAL No. 222 of 2015
BETWEEN:-
1. ARUN KUMAR SINGH GOND S/O LATE
RAMKHELAWAN SINGH GOND, AGED ABOUT 21
YEAR S, SAMARKOINI THANA MANPUR DISTT.
UMARIA (MADHYA PRADESH)
2. SMT. RADHABAI W/O RAMKHELAWAN SINGH
GOND, AGED ABOUT 47 YEARS, SAMARKOINI
THANA MANPUR DISTT. UMARIA (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI DILIP PARIHAR - ADVOCATE)
AND
1. FATIMA BI W/O LATE MD. SALEEM @ MD.
SAREEF, AGED ABOUT 45 YEARS, JAITPUR THANA
JAITPUR DISTT. SHAHDOL (MADHYA PRADESH)
2. MOHD SAKEEL S/O MD. SALEEM @ MD. SAREEF,
AGED ABOUT 20 YEARS, JAITPUR THANA JAITPUR
DISTT. SHAHDOL (MADHYA PRADESH)
3. MOHD. ANEESH S/O MD. SALEEM @ MD SAREEF,
AGED ABOUT 18 YEARS, JAITPUR THANA JAITPUR
DISTT. SHAHDOL (MADHYA PRADESH)
.....RESPONDENTS
(BY MS. POOJA GUPTA - ADVOCATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This appeal under Section 173(1) of the Motor Vehicles Act, 1988
(hereinafter referred to as the 'Act' for short), is filed by the owner-driver of the
offending vehicle, being aggrieved of the award dated 24.09.2014, passed by
learned II Additional Motor Accident Claims Tribunal, Umariya (M.P.), in
Claim Case No.56/2014.
2. Shri Dilip Parihar, learned counsel appearing for appellants submits that it is
a case of false implication. Accident had actually taken place with the jeep
(Bollero) which was plying between the motorcycle, on which deceased was
travelling.
3. It is submitted that when the driver of the motorcycle on which deceased
was travelling, tried to overtook the jeep, then there was a dent from the side of
the jeep on the rear side of the motorcycle which caused accident, but present
owner-driver have been falsely implicated as a party. It is also submitted that if
a claim is filed under Section 166 of the Act, then the onus is of the claimants to
prove the aspect of negligence on the part of the offending vehicle.
4. Reading from the evidence of claimants' witness Shri Atul Mishra, it is
submitted that evidence of Shri Atul Mishra is sketchy and not reliable.
5. Reading evidence of non-applicants' witnesses, it is pointed out that Arun
Kumar Singh Gond, Shri Vinod Tripathi and Shri Hemant Singh, all have
deposed that accident took place when driver of new Hero Honda vehicle on
which deceased was travelling, tried to overtook the jeep and was hit on the rear
side by the said jeep. Thus, reading from this evidence, it is submitted that it is
a case of false implication.
6. Reliance is also placed on the judgment of Supreme Court in Surender
Kumar Arora and another Vs. Manoj Bisla and others [(2012) 4 SCC
552], to point out that if a claim is filed under Section 166, then entire
responsibility of proving the act of rash and negligent driving by the driver of
the vehicle was on the claimants.
7. It is submitted that parameters for deciding the matters are different in a
case under Section 166 of the Act from the once under Section 163-A of the
Act.
8. It is submitted that in a claim under Section 163-A of the Act,
compensation is since payable on a structured formula basis, therefore, aspect
of negligence is not required to be proved.
9. Reliance is also placed on the judgment of Delhi High Court in New India
Assurance Company Limited Vs. Harsh Mishra and others, decided in
MAC App.No.592/2011 on 29.06.2015 , to point out that a claim unless being
proved beyond reasonable doubt, is not admissible.
10. On the last date, this Court had asked learned counsel for appellants to
point out as to whether acquittal in Criminal Case will entitle the appellants to
read that evidence to the effect that the liability of the owner-driver should be
set aside, fairly submits that Lucknow Bench of High Court Judicature at
Allahabad in Rajkumar Hans and others Vs. Saroj and others, in First
Appeal from Order No.737/2013, decided on 14.07.2021), has clearly held
that liability is not shifted of the owner-driver are exonerated in a criminal case.
11. After hearing learned counsel for appellants and going through the record,
it is evident that in Civil Appeal No.9094/2023, arising out of S.L.P.(C)
No.13239/2009 (Dulcina Fernandes and others Vs. Joaquim Xavier Cruz
and another), it is held that claimants have to only show preponderance of
probability and not proof beyond reasonable doubt.
12. In the present case, presence of the owner-driver of the offending vehicle
is admitted by them in their examination-in-chief and their cross-examination.
PW/2 Vinod Tripathi has also admitted in para 5 of his cross-examination that
they never raised any dispute before any senior police official in regard to
accident taking place from their vehicle or showing false implication of their
vehicle.
13. When these facts are taken into consideration, then in view of the
evidence of Atul Mishra, since claimants could prove the factum of accident
taken place with the Discover vehicle belonging to the present appellants and
there being a mechanical report in favour of the claimants against the owner-
driver of the offending vehicle, I am of the opinion that when impugned award
is tested, then it cannot be said to be faulty or illegal, calling for interference in
the appellate jurisdiction.
14. Appeal fails and is dismissed.
15. Record of Claims Tribunal be sent back.
(VIVEK AGARWAL)
JUDGE
A.Praj.
