Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 1740 of 2020 Appellant :- Dinesh Kumar Mishra Respondent :- Munni Devi And 5 Others Counsel for Appellant :- Pavan Kishore,Anand Kumar
Hon'ble Vivek Agarwal,J.
1. Heard Sri Anand Kumar, learned counsel for the appellant.
2. This appeal has been filed by the driver of the offending vehicle being aggrieved of the award dated 01.09.2020 passed by learned Motor Accident Claims Tribunal, Varanasi in Claim Case No. 13 of 2017.
3. The only ground on which award has been assailed is that the appellant is engaged in agricultural activities and his brother is owner of Tata Magic bearing registration no. UP 63 H 9515 and whenever it is required, appellant drives this vehicle only, therefore, there is no question of his driving any other vehicle when a Tata Magic is available in his own family. On the basis of such evidence, it is submitted that he has been falsely implicated because of local rivalry and was never engaged in driving Tempo Mahindra Alpha, which was not registered at the time of the accident.
4. It is also submitted that witnesses, who have been examined on behalf of the claimants are not the one who have been sighted as eye witness in the chargesheet. On such premises, he prays for setting aside the award passed against him and exonerating the appellant from any liability fastened by the learned tribunal.
5. After hearing arguments and going through the record, it is apparent that learned tribunal has observed that in cross examination, appellant has admitted that profession of his brother in whose name Tata Magic is registered is driver and therefore has discarded the evidence led by the appellant to the extent that since there is a vehicle available in the family, there was no occasion for him to drive vehicle of anybody else.
6. This finding of fact is not rebutted through any other cogent evidence rather on the contrary it has come on record that respondent no. 2-Smt. Nirmala Devi, owner of the offending vehicle has also admitted factum of appellant as driver in criminal proceedings, though she has not appeared before the learned tribunal.
7. Under such facts and circumstances, onus was on the appellant, to have examined Nirmala Devi in his defense to rebut the contentions of the claimants that the offending vehicle was being driven by the appellant at the time of the accident. But this onus has not been discharged by the appellant. Therefore, finding of fact recorded by the learned tribunal and which have not been appropriately rebutted, no infirmity and illegality can be attributed to the impugned award to interfere with it.
8. Therefore, appeal fails and is dismissed.
Order Date :- 6.1.2021 Vikram/-