THE HON’BLE SMT. JUSTICE ANIS
CIVIL MISCELLANEOUS APPEAL NO. 946 OF 2004 JUDGMENT:
This appeal is filed by the appellant/petitioner under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act’), aggrieved by the award dated 19.11.2003 passed by the Motor Accident Claims Tribunal-cum-I Additional District Judge, Medak at Sangareddy, in O.P.No.64 of 1994, dismissing the petition.
2. The claimant filed the above O.P under Section 166 of the Act, claiming compensation of Rs.1,00,000/- on account of the injuries sustained by him in a motor vehicle accident.
3. For the sake of convenience, the parties are referred to as arrayed in the O.P. before the Tribunal.
4. The brief averments made in the petition are that on 02.07.1993 when the petitioner started from Parli to go to Hyderabad in a car bearing No.AIY 8177 and when the car crossed Nizam Sugar Factory, Madhunagar, one lorry bearing No.ADT 5168 came in front of the car with high speed and suddenly stopped the lorry in between the road without applying brake lights and parking lights and without showing the hands, due to which the car hit the lorry which was stopped in the middle of the road, resulting which the driver of the car died on the spot and the car was also damaged. The petitioner received fractures to the right side jaw bone and left collar bone, injuries to the forehead and lost two teeth and other teeth also dislocated. Immediately, the petitioner was taken to Government Hospital, Zaheerabad and subsequently, the petitioner took treatment at Pune. The Zaheerabad police registered a case in Crime No.120 of 1993 for the offences punishable under Sections 304-A and 338 of the Indian Penal Code.
At the time of accident, the petitioner was aged about 43 years, working as Railway Contractor and used to earn Rs.4,500/- per month. The entire family of the petitioner depends on the earnings of the petitioner. Due to the accident, the petitioner lost his income for about five months and spent Rs.40,000/- towards medical expenses. The petitioner claimed Rs.10,000/- towards pain and suffering, Rs.10,000/- towards permanent disability and Rs.40,000/- for loss of future earnings. Thus, in total, the petitioner claimed Rs.1 lakh as compensation.
The petitioner also contended that the first respondent being the insurance company of the lorry bearing No.ADT 5168 and the second respondent being the owner of the said lorry, are jointly and severally liable to pay compensation to the petitioner.
5. The brief averments made in the counter filed by the first respondents are as follows:
The respondent put the petitioner to prove the manner of accident, age and income of the petitioner. The respondent stated that the driver of the car was negligent and he dashed against the stationed lorry, resulting which the accident was caused. The respondent put the petitioner to prove that the driver of the lorry was having valid driving licence and valid insurance policy to the said lorry. The respondent stated that the compensation claimed by the petitioner is high and excessive and prayed the Court to dismiss the petition.
6. The second respondent remained ex parte before the Tribunal.
7. Basing on the pleadings, the Tribunal framed three issues and to substantiate the claim, the petitioner himself examined as PW1 and got marked Exs.A.1 to A.4. On behalf of the first respondent, no oral or documentary evidence was adduced.
8. It is an admitted fact that the Tribunal, after considering the oral and documentary evidence, dismissed the petition at the first instance on 30.06.1999. Aggrieved by the order of the Tribunal, the petitioner preferred C.M.A.No.2265 of 1999 before this Court and this Court remanded the matter to the Tribunal for fresh disposal according to the law by giving opportunity to both the parties and by taking further evidence if any. After remand, the learned counsel for the petitioner reported no further evidence and accordingly, the Tribunal closed the evidence on behalf of the petitioner. Therefore, there is no additional evidence on either side except the evidence adduced by both the parties at the earlier occasion prior to the remand.
9. Basing on the oral and documentary evidence, as the petitioner failed to prove the manner of accident, the Tribunal again dismissed the petition vide impugned judgment.
10. Aggrieved by the nil award passed by the Tribunal on 19.11.2003, the appellant/claimant preferred the present appeal.
11. The learned counsel for the appellant argued that the Tribunal has not considered the evidence of PW1 and thereby not granted any compensation, and therefore, prayed the Court to award compensation under no fault liability.
12. On the other hand, the learned counsel for the first respondent vehemently opposed for granting compensation on the ground that the appellant/petitioner has not produced any evidence to prove that the accident was caused due to rash and negligent driving of the driver of the lorry bearing No.ADT 5168 and further, the petitioner has not filed the copy of Charge sheet to show the investigation done by the police in Crime No.120 of 1993 and even the policy particulars of the lorry has not furnished; that the appellant/petitioner failed to prove that he received injuries in the accident by examining the doctors either at Zaheerabad or at Pune; that the Tribunal rightly held that the petitioner failed to prove the rash and negligent driving of the driver of the lorry and that the petitioner did not file any copy of Charge sheet or the Motor Vehicle Inspector’s report to show that the driver of lorry was at fault. Therefore, it is prayed that there is no evidence on record, as such, the Tribunal rightly dismissed the petition filed by the petitioner, which needs no interference.
13. Having regard to the submissions made by both the learned counsel, the only point that arises for consideration is:
Whether the appellant/petitioner has made out any case to set aside the judgment dated 19.11.2003 passed by the Tribunal?
14. Point:
As per the evidence of PW1, on 02.07.1993 while the petitioner was travelling in a car bearing No.AIY 8177 from Pareli to Hyderabad and when the car crossed the Nizam Sugar Factory, Madhunagar, one lorry bearing No.ADT 5168 came in front of the car with high speed and stopped without showing the caution lights, then the driver of the car dashed the lorry, due to which the driver of the car died on the spot and the petitioner sustained grievous injuries.
15. To prove the manner of accident, PW1 filed Ex.A.1 – copy of F.I.R. A perusal of copy of F.I.R. shows that whatever alleged to have happened at the scene of offence, PW1 mentioned in the complaint. The police after receiving the complaint, registered the same as a case in Crime No.120 of 1993 under Sections 304-A and 338 I.P.C. against the driver of the lorry. The petitioner has not filed either the copy of Charge sheet or M.V.I. report or other relevant documents to show the manner of accident. The petitioner also has not examined the Investigating Officer who conducted the investigation in Crime No.120 of 1993 to show that the driver of the lorry was at fault. In the absence of any independent evidence to prove the manner of accident, the claim of the petitioner that the driver of lorry was rash and negligent while driving the lorry, has to be negatived and the appellant/petitioner failed to prove the said aspect.
16. Admittedly, the petition is filed by the petitioner under Section 166 of the Act and further, the appellant/petitioner has not pleaded in the petition that he is entitled for compensation under no fault liability. The grounds mentioned in the appeal is also contrary to the observations of the Tribunal and the Tribunal after considering the evidence on record, rightly held that the petitioner failed to prove that the accident was caused due to rash and negligent driving of the driver of the lorry bearing No.ADT 5168. Further, after remand by this Court, the learned counsel for the petitioner reported no further evidence before the Tribunal. Therefore, the appellant/petitioner failed to prove the manner of accident.
17. For the aforesaid reasons, I do not find any merit in this appeal so as to interfere with the judgment of the Tribunal passed on 19.11.2003.
18. The appeal is, accordingly, dismissed. No order as to costs. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
(ANIS, J) 01.08.2014 Anr
THE HON’BLE SMT. JUSTICE ANIS
CIVIL MISCELLANEOUS APPEAL NO. 946 OF 2004 Anr 01.08.2014