Madhya Pradesh High Court
Shesh Mani Singh vs Puran Lal Kol on 27 February, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
MISC. APPEAL No. 3728 of 2024
SHESH MANI SINGH
Versus
PURANLAL KOL AND OTHERS
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Appearance:
Mr. Shailendra Singh - Advocate for the appellant.
Mr. Raghuwansh Prasad Mishra - Advocate for the respondents..
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RESERVED ON : 19.02.2025
PRONOUNCED ON : 27.02.2025
This appeal having been heard and reserved for judgment, coming on for
pronouncement on this day, the court passed the following
ORDER
The Misc. appeal has been filed by the appellant under Section 173(1) of
the Motor Vehicle Act, 1988 against the award dated 02.05.2024 passed in
MACC No. 18/2022 by Member Additional M.A.C.T, Shahdol seeking setting
aside of impugned award.
2. Brief facts of the case are that on 05.10.2021, deceased Brijbhan Kol was
going on his bike with Rajesh Kol for purchasing of cloth to Sidhi. At about
5:30 near village Sidhi on Bansukli road, non-applicant No.1 by riding vehicle
bearing registration No. MP-18-MJ-4971 rashly and negligently, hit his vehicle.
On account of which deceased as well as Rajesh Kol fell down and they were
taken to the hospital. Where deceased succumbed to the injuries. Thereafter,
FIR was registered. After completion of investigation, charge sheet was filed
against non-applicant No.1 before court of JMFC Jaisingh Nagar.
3. Learned counsel for the appellant submits that learned tribunal has not
taken into consideration the testimony of non-applicant No.2 witness Rajesh
Kol who was sitting on motorcycle ridden by the deceased as pillion rider at the
time of accident. Above fact is not in dispute in the case. Non-applicant No. 2
witness Rajesh Kol has clearly deposed in his testimony that at the time of
incident, deceased was under the influence of alcohol and accident occurred on
account of rash and negligent riding of motorcycle by deceased. It is urged that
non-applicant No.2 witness Rajesh Kol has also deposed that deceased had
caused accident by going on the wrong side of the road. But aforesaid testimony
of non-applicant No.2 witness Rajesh Kol has not been discussed and taken into
consideration by the tribunal. In the instant case, appellant has also suffered
injuries and appellant has also reported the matter. Incident has occurred on
account of negligence on the part of deceased. As post mortem was conducted
after 28 hours of accident, therefore, in post mortem report, it is not mentioned
that any alcohol was found in the blood of deceased. On above grounds, it is
urged that learned trial court has wrongly held that it is a case of contributory
negligence and accident also occurred on account of rash and negligent riding of
motorcycle by the appellant.
4. Learned counsel for the appellant further submits that in the instant case,
identity of deceased is not proved and from evidence on record, it is not
established that deceased is son of respondent/claimant Pooran Lal Kol. In all
police documents ( Ex. P/1, Ex. P/2, Ex. P/3, Ex.P/5, Ex.P/10, Ex. P/11 and Ex.
P/13), name of deceased is mentioned as Dashrath Kol. In aforesaid documents
name of deceased is not mentioned as Brijbhan or Brijbhan @ Dashrath Kol. In
the instant case, there are no documents on record to establish that name of
Dashrath Kol is also Brijbhan, and Brijbhan and Dashrath Kol are one and the
same person. Pooran Lal Kol (PW-1) is not an eye witness and it is not proved
that he is father of deceased. Pooran Lal Kol (PW-1) has deposed that he was
informed about the accident by one Yadav, but name of such Yadav is not
mentioned in the witness list of charge sheet. Name of applicant's witness
Sanjay Jaiswal is not mentioned in the witness list of charge sheet and Pooran
Lal Kol (PW-1) did not state that he was informed about the accident by Sanjay
Jaiswal. Hence, findings recorded by the tribunal in para 19 are erroneous. On
above grounds, it is urged that appeal filed by the appellant be allowed and
impugned award be set aside.
5. Learned counsel for the respondents, after referring to impugned award,
especially paras 17, 18 and 19, submits that findings recorded by the tribunal
with respect to rash and negligent riding on the part of appellant as well as
identity of deceased are well supported by the evidence available on record.
Hence, no interference is required in the same. Hence, appeal filed by the
appellant be dismissed.
6. I have heard learned counsel for the parties and perused record of the
case.
ANALYSIS AND FINDINGS:-.
7. So far as whether accident occurred solely on account of rash and
negligent riding on the part of deceased is concerned, in the instant case, from
evidence on record it is not in dispute that on 05.10.2021 at about 5:30 on
Bunsupli - Sidhi rod, instant accident occurred in between motorcycle ridden by
the deceased as well as motorcycle ridden by the appellant. It is also not in
dispute in the case that in aforesaid accident, deceased expired and appellant
and his daughter sustained injuries. It is also not in dispute in the case that
reports were lodged on behalf of the appellant as well as on behalf of deceased
and closure report was filed with respect to report lodged by the appellant as
deceased expired in the accident and charge sheet was submitted against
appellant with respect to report lodged on behalf of the deceased. From
evidence on record, it is also clearly established that motorcycle ridden by the
appellant has also got damaged in the accident.
8. Sole issue before this Court is whether accident occurred solely on
account of rash and negligent riding of motorcycle by deceased. It is correct that
incident occurred on 05.10.2021 at about 5:30 and deceased's post mortem was
conducted on 06.10.2021 at about 9:40 am and in post mortem report, it is
nowhere mentioned that deceased was smelling alcohol or any alcohol was
found in his blood. Though, no blood test has been conducted in the instant
case for presence of alcohol in the blood. It is not in dispute in the case that non-
applicant No.2 witness Rajesh Kol was sitting as pillion rider on the motorcycle
ridden by deceased. Above Rajesh Kol has been examined as non-applicant
No.2 witness by appellant. For appreciating the testimony of Rajesh Kol, it
would be appropriate to reproduce the examination-in-chief of witness which is
as follows.:-
"1.
"
9. In this Court's opinion, if facts, deposed by non-applicant No.2 witness
Rajesh Kol, are correct i.e. deceased was under the influence of alcohol, he was
riding motorcycle rashly and negligently/speedily/waveringly and prior to the
instant accident, deceased had already taken the bike of the road into the field,
then it is highly unnatural and improbable that despite of aforesaid the witness
did not refuse to go on the bike with deceased and did not get down from the
bike. No explanation has been furnished on behalf of witness for his aforesaid
conduct.
10. Further, non-applicant No.2 witness Rajesh Kol has deposed that
deceased had hit appellant's motorcycle after going on the wrong side of the
road but in site map prepared by the police Ex. P/8 and Ex. D/4, scene of
accident has been shown almost on the middle of the road. Further, from
aforesaid site map, it is also evident that at the scene of incident, road was
straight one and there was not any curve and turning etc. Further, accident has
occurred at about 5:30 in the evening and it was not dark. Hence, looking to the
time of accident and scene of accident, other motorcycle coming from the front
would be clearly visible to other motorcycle coming from other side.
11. Further, from deposition of appellant Shesh Mani Singh, it is evident that
appellant had not made any complaint to any police officer with respect to that
he has been falsely implicated in the case and he did not initiate any proceeding
for quashment of proceedings/FIR. Appellant Shesh Mani Singh has also
admitted in para 7 of his testimony that he did not file any claim and
compensation with respect to his daughter etc.
12. Perusal of paras 17 and 18 of impugned award reveals that tribunal has
appreciated evidence on record in the right prospective. Hence, evidence on
record, especially, testimony of non-applicant No.2 witness Rajesh Kol and
appellant Shesh Mani Singh do not establish that present accident occurred
solely on account of rash and negligent riding on the part of deceased. Hence,
submissions of learned counsel for the appellant are rejected and findings
recorded by tribunal with respect to contributory negligence both on the part of
deceased as well as appellant in para 17 and 18 are affirmed.
13. So far as appellant's contentions with respect to identity of deceased is
concerned, it is correct that in police documents (Ex. P/1, P/2, P/3, P/5, P/10,
P/11 and P/13), name of deceased is mentioned as Dashrath Kol and not
Brijbhan and neither Brijbhan @ Dashrath Kol is mentioned. In the claim
petition, name of deceased is mentioned as Brijbhan Kol. It is also correct that
respondents have not filed any documentary evidence to establish that Brijbhan
Kol and Dashrath Kol are one and the same person and that name of deceased
was Brijbhan @ Dashrath Kol/Dashrath Kol @ Brijbhan Kol. But applicant
witness Pooran Lal Kol and Sanjay Jaiswal have clearly deposed that Brijbhan
Kol and Dashrath Kol are one and the same person.
14. In the instant case, it is not in dispute that non-applicant No.2 witness
Rajesh Kol was traveling with deceased as pillion rider at the time of accident
and from testimony of Rajesh Kol as well as from other evidence on record, it is
also clearly established that deceased and non-applicant No. 2 witness Rajesh
Kol were well acquainted with each other prior to the accident. In FIR (Ex. P/2),
marg intimation (Ex. P/3) and Dehati Nalishi (Ex. P/5) which have been lodged
by one Ramesh Kol and therein it is mentioned that his nephew, Nan Bhai @
Rajesh Kol (non-applicant No.2 witness) and grandson Dashrath Kol have met
with an accident.
15. Hence, with respect to identity of deceased, testimony of Rajesh Kol
assumes great significance and is of utmost importance. Non-applicant No.2
witness Rajesh Kol has deposed in para 4 of his cross-examination that it is
correct that deceased Dashrath Kol @ Brijbhan Kol did not consume lilquor in
front of him. This witness has nowhere deposed that Brijbhan Kol and Dashrath
Kol are two different persons/Dashrath Kol and Brijbhan Kol are not one and
the same person. Further, in his written statement, appellant did not challenge
that Brijbhan Kol and Dashrath Kol are different persons and they are not one
and the same person. Further, non-applicant No.2 witness Rajesh Kol is resident
of village Mahua Tola and respondent/claimant, as well as deceased are also
resident of same village i.e. Mahua Tola. There is nothing on record to show
that in village Mahua Tola, there are two different persons in the name of
Brijbhan and Dashrath Kol, and Brijbhan Kol @ Dashrath Kol is not the son of
respondent No.1 Pooran Lal Kol. Further, there is nothing on record to show
that if Dashrath Kol is not son of Pooran Lal Kol, then, what is the name of
Dashrath Kol's father and what is the address of his residence, if he is not of
resident of Mahua Tola.
16. Perusal of para 19 of impugned award reveals that tribunal has discussed
relevant evidence on record with respect to identity of deceased. In this Court's
considered opinion, having regard to discussion in the forgoing paras as well as
evidence on record, tribunal has not committed any illegality in concluding that
Brijbhan Kol and Dashrath Kol are one and the same person. Hence,
submissions of learned counsel for the appellant with respect to aforesaid are
also negated.
17. Hence, in view of discussion in the foregoing paras, in this Court's
considered opinion, no ground is made out for interfering in the findings
recorded by the Tribunal.
18. Hence, this appeal filed by the appellant is dismissed and findings
recorded by the tribunal are affirmed.
[
(ACHAL KUMAR PALIWAL)
JUDGE
Digitally
L.R.signed by
LALIT SINGH RANA
Date: 2025.02.27
18:50:41 +05'30'
