Heard learned counsel for the appellant as well as Sri A.A. Siddiqui, learned counsel for the respondent no. 7. None has appeared on behalf of the respondent nos. 2 to 6.
The submission of learned counsel for the appellant is that in his written statement, he had raised a specific plea that the accident in question which on 24.05.2003 did not take place with the vehicle belonging to the appellants, inasmuch as, in the year 1999 he had surrendered his papers before the R.T.O. In light of the aforesaid fact, there was no question of the vehicle being plied on the road, coupled with the prevailing circumstances that the alleged date of accident is 24.05.2003 while the deceased expired on 29.05.2003 and the First Information Report is said to have been lodged on 03.06.2003 and it is only thereafter that the vehicle of the appellant was seized, which indicated that the vehicle of the appellants was wrongly implicated.
It has also been submitted that since the appellant had attempted to get the vehicle released from the Court, accordingly, he had to pay the road tax which was paid up to the period of 30.06.2003 and taking this as a document, the Tribunal held that there was no material to indicate that the vehicle in question was not plied on the road. The submission is that once the documents were brought on record by the appellants indicating that the papers have been surrendered with the R.T.O. and there was delay in filing the First Information Report, there was no material by which the Tribunal could have come to the conclusion that the accident occurred with the vehicle belonging to the appellants and it is on the aforesaid basis that the finding returned on issue no. 1 and 3 has been assailed by the learned counsel for the appellant.
The respondent no. 7 who is represented by Sri Siddqui is none other than the driver of the vehicle in question and his plea and the plea of the appellants is common. Since the respondent nos. 2 to 6 have not appeared, therefore, the appeal is being decided on the basis of the submissions made by learned counsel for the appellants.
Before dealing with the submissions of learned counsel for the appellants, certain brief facts giving rise to the above appeal are being noted first:-
The respondent no. 2 to 6 preferred a Claim Petition bearing No. 44 of 2003 before the Second Additional District Judge acting as MACT, Gonda with the averments that on 24.05.2003 at around 02:00 PM the deceased Yogendra Singh was riding his motorcycle and was moving from Paraspur Bazar, however, while he had reached Lalipurva area at that time the vehicle bearing No. UP 43A 6311 which was being rashly and negligently hit the motorcycle from the back as a result the deceased received serious injuries. He was taken to the District Hospital at Gonda from where he was referred to the Higher Center at Lucknow and ultimately on 29.05.2003 Sri Yogendra Singh succumbed to his injuries. It was also stated that his nephew namely Sri Anand Kishore was also seated with the deceased on the said motorcycle and in the aforesaid incident he also received minor injuries.
The aforesaid Claim Petition was contested by filing a written statement. The owners took a specific plea in para 27 of the written statement that the accident could not occurred with the vehicle in question, inasmuch as, prior to 24.05.2003, the owners had already surrendered the relevant papers of the vehicle with the Regional Transport Authority. The dependent further had brought on record the documents to indicate that the papers were surrendered with the Regional Transport Authority on 10.05.1999. On the strength of the aforesaid it has been stressed that since the papers were already surrendered with the R.T.O., the vehicle in question could not be plied on the road. Moreover, the alleged accident is said to have taken place on 24.05.2003 whereas the First Information Report was lodged only on 03.06.2003 after much delay and, therefore, it is the vehicle of the appellants which has been falsely implicated and despite having raised the aforesaid plea, the Tribunal has not given its finding nor discussed the same.
The Tribunal upon framing the relevant issues considered the evidence of the parties and found that the accident in question occurred on account of the rash and negligent driving of the vehicle bearing No. UP 43 A 6311. It found that since the papers were already surrendered and there was no insurance, accordingly, the award was saddled on the appellant by awarding a sum of Rs. 3,21,500/- along with 6% per annum by means of its award dated 07.04.2010.
The learned counsel for the appellants has assailed the aforesaid award on the grounds as mentioned above.
In order to test the veracity of the submissions of the learned counsel for the appellants and on the perusal of the record it would indicate that apart from raising the plea in its written statement, the appellants did not lead any evidence before the Tribunal, neither he examined himself nor examined the driver. On the other hand, as far as the claimants are concerned, they examined two witnesses, P.W. 1 namely Anoop Kumar was the son of the deceased, however, P.W. 2 namely Anand Kishore Singh was the nephew of the deceased and since he was riding with the deceased on the motorcycle in question on the fateful day, when the accident took place, he was also an eye-witness.
Apart from the aforesaid, documentary evidence was filed which also included the First Information Report, the postmortem report, the Panchayatnama as well as the copy of the charge sheet. In light of the aforesaid documentary evidence wherein Sri Syed who is the driver of the vehicle in question and was chargesheeted in the aforesaid case and has been facing trial but nevertheless none of these persons turned up as a witness to support the plea of the defendant. The claimant while examining P.W. 2 has clearly given a statement that he had seen the accident which occurred with the vehicle bearing No. UP 43 A 6311 and this witness was also cross examined by the appellants, however, there was no contradiction nor there was any statement which could be elicited to cause a doubt on the veracity of the statement of P.W. 2.
On the contrary, if the evidence of P.W. 2 is lead, it would indicate that he has clearly narrated the manner in which the accident took place and he has reiterated the aforesaid stand even in his cross-examination. Thus, the testimony of the P.W. 2 is quite categoric and cannot be brushed aside merely upon the assumption and submissions of the learned counsel for the appellants who has failed to substantiate its own plea. It is also settled law that the delay in filing the First Information Report is not fatal more so in the present case where the accident occurred on 24.05.2003 and the deceased was admittedly in the District Hospital where he was referred to the Higher Center of Lucknow and he expired at Lucknow on 29.05.2003. It is only thereafter when the claimants and the family members returned to District Gonda and after the cremation and funeral, they lodged the First Information Report on 03.06.2003 and thus cannot be said that there was any delay in filing the First Information Report in the facts and circumstances of the case.
In light of what has been discussed above, this Court is satisfied that the finding returned by the Tribunal do not suffer from any error. This issue can also be seen from another angle, inasmuch as, merely because the documents of a vehicle are surrendered does not mean nor can it give rise to a presumption that the vehicle cannot be plied on the road on the alleged date. In case, if such a plea was raised, then it was the duty of the appellants to have examined himself as well as the alleged driver who could have led the appropriate evidence to substantiate the plea. Moreover, the appellant has also not stated in clear terms that the accident did not occur with the vehicle of the appellants as it was not in a workable condition or that it could not have been on the road. In absence of the same, this Court does not find that the Tribunal has committed any error.
Accordingly, the appeal is devoid of merits and is consequently dismissed. The award dated 07.04.2010 passed in C.P. No. 44 of 2003 is affirmed and any amount deposited by the appellants before this Court shall be remitted to the Tribunal concerned to be released in favour of the respondents.
With the aforesaid,the appeal is dismissed. There shall be no order as to costs.
The lower court records shall be remitted to the Tribunal concerned within a period of two weeks from today.
Order Date :- 27.11.2019 Asheesh