Court No. - 40 Case :- FIRST APPEAL FROM ORDER No. - 2599 of 2014 Appellant :- Baliraj Pandey Respondent :- Sahab Lal And Another Counsel for Appellant :- D.P. Singh,Mukul Pandey Counsel for Respondent :- Manoj Srivastava,Udai Narayan Khare Hon'ble Harsh Kumar,J.
1. The present first appeal from order has been filed by appellant against impugned judgment and award dated 23.2.2008 passed by Motor Accident Claims Tribunal/Additional District Court, Court No.3, Kanpur Nagar (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.319 of 2005 (Baliraj Pandey Vs. Sahab Lal and others), by which claim petition was dismissed.
2. The brief facts relating to the case are that claimant-appellant filed Claim Petition No.319 of 2005 in the Court of Motor Accident Claims Tribunal, Kanpur Nagar under Sections 140 & 166 of Motor Vehicles Act with the allegations that his 17 years old daughter Manisha Pandey was going by her bicycle on side of road and opposite “Singh Dhaba” a Truck No.U.P.-78-T-7806 (hereinafter referred to as 'offending vehicle') dashed her from behind resulting in her death on spot and offending truck which was being driven rashly and negligently was owned by Sahab Lal and was duly insured with New India Insurance Company Ltd. at the time of accident. It was also contended in para 23 that deceased Km. Manisha Pandey was going to attend a ceremony in “Ruchi Guest House” and at the time of accident she was sitting as pillion rider on bicycle of Anoop Kumar Pandey, the son of claimant-appellant and brother of deceased. Learned Tribunal after analysing the evidence on record came to the conclusion that claimant has failed to prove that accident in question did take place by use of offending vehicle in question and consequently dismissed the claim petition.
3. Heard Sri Mukul Pandey, learned counsel for appellant and perused the record as well as lower court record. Since No one appeared on behalf of respondent nos.1 & 2 even on revised call, despite putting appearance through counsel, the appeal was heard ex-parte.
4. Learned counsel for appellant-claimant contended that it was proved from the evidence on record that accident in question did take place due to rash and negligent driving of offending truck in question; that Mahavir Prasad in his statement on oath as P.W.-3 has stated that accident in question did take place before him in which offending Truck No.U.P.- 78-T-7806 dashed the bicycle, on which deceased was sitting on carrier, from behind and truck fled away from the spot, of which number was noted by him; that learned Tribunal acted wrongly in not relying on statement of P.W.-3; that impugned judgment and award dismissing the claim petition is liable to be set-aside and by allowing appeal the appellant is entitled to be awarded a compensation of Rs.6,20,000/- as claimed in para 22 of claim petition.
5. Upon hearing learned counsel for appellant and perusal of record as well as lower court record, I find that as per averments made in claim petition, accident in question is alleged to have occurred on 9.5.2004. The claimant-appellant has filed five papers per list 24-C viz. (i) certified copy of F.I.R., (ii) certified copy of post-mortem report of deceased and (iii) photo copies of three affidavits of (a) Baliraj Pandey claimant-appellant, (b) Vinod Kumar Awasthi and (c) Sapna Singh and has also filed four papers per list 5-C viz. (i) copy of application dated 23.8.2004 of claimant-appellant to S.O., P.S. Barra, District Kanpur (ii) photo copy of post-mortem report of deceased, (iii) & (iv) photo copies of certificate of funeral of deceased. The certified copy of F.I.R. paper no.25-C on lower court record states that same was lodged by Baliraj Kumar Pandey, claimant-appellant himself at 13:15 on 9.5.2004 within a period of 1 hour 15 minutes of accident at Case Crime No.143 of 2004, against a white coloured truck with the allegations that on 9.5.2004 at 12:00 in noon his daughter Km. Manisha Pandey was going to attend a marriage in “Maa Vaishno Guest House” and near 'Singh Dhaba' on Bye Pass Road a white coloured Truck coming from Naubasta side being driven rashly and negligently by its driver crushed his daughter to death and truck driver fled away along with truck and the accident was seen by his son Son Deo Pandey and Anand Pratap son of Shiv Kumar Singh. In F.I.R. no registration number or other particulars of vehicle in question have been mentioned. After a period of 3½ months of lodging of above prompt F.I.R. without number of offending vehicle on 23.8.2004 an application, photo copy paper no.6-C on lower court record, was given by claimant-appellant to S.H.O., P.S. Barra, Kanpur Nagar with the allegations, 'that regarding above accident F.I.R. was lodged by him at Case Crime No.143 of 2004, under Sections 279, 304-A I.P.C. and Section 184 of M.V. Act. Apart from his son Son Deo Pandey and Anand Pandey son of Shiv Kumar Singh, the accident was also seen by Vinod Kumar Awasthi and Sapna Singh and their affidavits along with his own affidavit are being annexed for sending to I.O. Paper Nos.27-C, 28-C & 29-C are photo copies of affidavits dated 20.8.2004 of claimant-appellant Baliraj Kumar Pandey, Vinod Kumar Awasthi and Sapna Singh and in photo copies of affidavit of Baliraj Kumar Pandey, claimant-appellant in para 3 it has been mentioned that on 15.8.2004 (after a period of over 3 months) Vinod Kumar Awasthi told him that his daughter was dashed by Truck No.U.P.-78-T-7806 which was seen by him and Sapna Singh also reported him accordingly. Similar averments were made in the affidavits of Vinod Kumar Awasthi and Sapna Singh Paper No.28/C & 29/C.
6. It is pertinent to mention that in order to prove allegations made in claim petition, claimant-appellant produced himself as P.W.-1, his son Anoop Kumar Pandey as P.W.-2 and one Mahavir Prasad as P.W.-3. In his statement P.W.-1 has stated that he was told by Mahavir Prasad about the truck number while his son Anoop Kumar P.W.-2 has supported the averments made in F.I.R. paper No.25-C by stating that deceased was going as pillion rider on carrier of his bicycle when truck dashed the cycle from behind and he was 14 years old at the time of accident. He has not disclosed any number, colour or other description of offending truck.
7. It is pertinent to mention that as per averments made in claim petition, at the time of accident deceased was going to attend a ceremony at “Ruchi Guest House” as pillion rider on the bicycle of his brother Anoop Kumar Pandey in contradiction to which as per averments made in prompt F.I.R. 25/C lodged by claimant-appellant himself, she was going on bicycle to Maa Vaishno Guest House (not to Ruchi Guest House). It is also pertinent to mention that there is no whisper in F.I.R. that she was going on bicycle of her brother. Rather it has been mentioned therein that incident was seen by his son Son Deo Pandey (brother of deceased) and one Anand Pratap son of Shiv Kumar Singh, who were going by the side of deceased, which further rules out the possibility of deceased being pillion rider of Anoop Kumar Pandey. Moreover by application dated 23.8.2004 claimant-appellant has informed S.H.O., P.S. Barra that incident was seen by Son Deo Pandey.
8. During arguments, learned counsel for appellant submitted that Anoop Kumar Pandey and Son Deo Pandey is one and the same person known by two names. Though there was no such whisper in petition or in statement of petitioner as P.W.-1 or in statement of his son Anoop Pandey as P.W.-2 and even if such contention is accepted for sake of arguments, it is pertinent to mention that in the F.I.R. there is no whisper that at the time of accident deceased was going as pillion rider on the carrier of bicycle of either Anoop Kumar Pandey or Son Deo Pandey.
9. In application dated 23.8.2004 copy at 6/C moved by claimant- appellant after 3½ months of accident it has been reported that accident was also seen by Vinod Kumar Awasthi and Sapna Singh whose affidavits were annexed as per copies 28-C & 29-C on lower court record but neither Vinod Kumar Awasthi nor Sapna Singh was produced in witness box to depose accordingly, rather one Mahavir Prasad was produced as eye witness whose name does not find place either in prompt F.I.R. of accident dated 9.5.2004 or in subsequent application dated 23.8.2004 or in affidavits 27/C, 28/C & 29/C of appellant, Vinod Kumar Awasthi & Sapna Singh. In the circumstances Mahavir Prasad is a stranger and appears to be planted witness whose presence at the time and place of accident could not be established by claimant-appellant. The claimant-appellant has not assigned any reasonable cause or excuse for not producing either Anand Pratap son of Shiv Kumar Singh, the eye witness mentioned in prompt F.I.R. 25/C or Vinod Kumar Awasthi or Sapna Singh, the alleged eye witnesses mentioned in application 6-C dated 23.4.2008 and for not producing the best evidence, there is sufficient ground for drawing adverse inference against the claimant- appellant. The evidence of claimant-appellant is vague with material contradictions and he has failed to prove his case by any cogent or reliable evidence.
10. In view of discussions made above, I have come to the conclusion that Tribunal has not committed any mistake in analyzing and appreciating the evidence on record as well as in disbelieving the claimant's case of accident having taken place with offending vehicle. The Tribunal has rightly dismissed the claim petition. The appeal is devoid of merits and is liable to be dismissed.
11. The appeal is dismissed, accordingly and the impugned award is affirmed.
12. Let lower court record be sent back to court below along with a copy of this order for information and necessary action, if any.
Order Date :- 29.5.2019 Kpy