1.0 This appeal is directed against the judgment and award dated 22nd April 2002 passed by the learned Motor Accident Claims Tribunal (Main), Bhavnagar in Motor Accident Claim Petition No.547 of 1996 whereby the said petition came to be dismissed.
2.0 The case of the claimants was that Bhaskarrao was serving in Police Department. On 17th May 1994 he had gone from Bhavnagar to Ahmedabad for office work in vehicle No.GJ 1 G 1387. After completing the work he was returning towards Bhavnagar. When the vehicle stopped at BhavnagarAhmedabad State Highway the accident had occurred in which said Bhaskarrao died. Hence the aforesaid claim petition was filed which came to be dismissed.
3.0 Learned Advocate for the appellant submitted that the Tribunal has not considered various aspects and the Tribunal ought not to have relied upon the Panchnama which is not exhibited. According to the deposition of respondent No.1 the jeep was parked on left side whereas the accident had taken place on right side. The Panchnama of the place of incident shows that there was no wheel marks or blood found at the place. If it was the place of incident the blood or wheel marks could have been found there. Even the complaint lodged by one Hussainbhai shows that the deceased was bleeding from head and absence of blood or wheel marks negates the credibility of the Panhnama and raised a question about the real place of incident.
4.0 As a result of hearing and perusal of the record it is evident that the Tribunal has elaborately discussed the evidence before coming to a definite conclusion. In para 4 it is held as under:
“… It is worth to note that the petitioners have not produced either true copy or certified copy of the panchnama. Nor the petitioners have examined any pancha or eye witness giving correct position of the place of accident and the place of parking of the jeep. So far as the deposition of Mr. P.M. Gohil Exh.53 is concerned, he has specifically deposed that he had parked his vehicle extremely on the left side and deceased was lying at a distance of 5 feet away from the edge of Highway and on kacha road on the right side of the road. Xerox copy of the panchnama is produced by the petitioners at Mark 14/2. No doubt, it is neither certified nor true copy nor it is exhibited but to decide this petition, it is very much relevant and therefore I relied on that panchnama also. The said panchnama corroborates the say of witness Mr. P.M. Gohil. It is an admitted fact that the jeep was coming from Ahmedabad and was going to Bhavnagar. It is also an admitted fact that the road is from North to South. So, the jeep was coming from North to South. So, the left side of the jeep would be eastern side. As per panchnama also, the place of accident is on the western side of kacha road and distance between the place of accident and highway is 5 feet towards Eastern side and the distance between the place of accident and place of parking of the jeep has not been mentioned by the petitioners in the petition or clarified in the deposition of any witness. As I have discussed above in the deposition of Mr.
P.M. Gohil, he has specifically mentioned that the place of accident was on the right side of the road. He had parked the vehicle on the left side of the road. The distance between the place of accident and the road was 5 feet and it was happened on the kacha road on the right side. So, the say of this witness has not been challenged or controverted by the LA for the petitioners in the cross examination. No question in this regard has been asked to this witness. So, I have no reason to disbelieve the say of this witness that the accident was occurred on the right side of the kacha road. The vehicle was parked extremely on the left side of the road. This say is also corroborated by the panchnama as I have discussed above. It is nobody’s case that the truck was in any way touched with the offending jeep. Merely because the jeep was parked on the highway and where the jeep was parked was not marked as a parking zone, he was negligent for causing the accident and is liable to pay the compensation is not believable. It has come on record of the case that besides deceased, other five police personnels were also traveling in the said offending jeep but the petitioners have not examined any of such independent witness to prove the involvement of the said vehicle and situation of parking of the jeep and place of accident. When it it is the specific case of the petitioners that the opponent No.1 has given false complaint and false panchnama had been drawn of the scene of accident, it was the duty of the petitioner to prove the same by cogent and convincing evidence.”
5.0 Thus, the claimants have not examined any witnesses even though available and they did not even produce the panchnama. The claimants have miserably failed to prove the case. It is also the finding that the claimants have failed to prove the involvement of the jeep itself and therefore the Tribunal found that the liability cannot be fasten on the owner, driver and the insurer of the vehicle.
6.0 I am in complete agreement with the reasoning adopted and findings arrived at by the Tribunal. The appeal is therefore dismissed with no order as to costs.
(K.S.JHAVERI, J.) niru*