Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 1301 of 2019 Appellant :- Malwati @ Malti And 2 Others Respondent :- Anil Kumar And 2 Others Counsel for Appellant :- Shashi Kumar Verma,Lokendra Kumar Counsel for Respondent :- ,Ashok Gupta,Radhey Shyam
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Lokendra Kumar, learned counsel for the appellant, Sri Radhey Shyam, learned counsel for the respondent and perused the judgment and order impugned.
2. This appeal, at the behest of the claimants, challenges the judgment and order dated 8.3.2019 passed by Motor Accident Claims Tribunal/ Additional District Judge, Court No. 12, Buland Shahar (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 140 of 2017 rejecting the claim petition preferred by the claimant-appellants herein.
3. It is submitted that the First Information report was not delayed and as such this should not have been a ground for rejection of the claim petition; that from the evidence of P.W.2 who was an eye- witness, it is proved that the deceased was hit by the offending vehicle due to rash and negligent driving of its driver.
4. It is further submitted that the accident happened on 10.10.2015, the deceased was admitted in the Sudhir Hospital in Bulandshahr and had undergone medical treatment in two other hospitals before succumbing to the injuries in the Safdarganj Hospital in Delhi on 21.10.2019 and that is why the claimants could not lodge the F.I.R. during that period. On 20.11.2015 when she recovered from the shock of the death of his husband, the widow moved an application before the Senior Superintendent of Police, Bulandshahar for lodging F.I.R. but no steps were taken by the SSP and ultimately by the order of the Chief Judicial Magistrate, the F.I.R. was lodge on 14.3.2016.
5. In support of his argument, learned counsel for the appellant has relied on the decision in Sunita and Others Vs. Rajasthan State Road Transport Corporation and Anr., 2019 LawSuit (SC) 190.
6. As far as issue of delay in F.I.R. is concerned, it has now been a settled law and as has been held in the decisions reported in 2014 ACJ 469 (Mad.) and 2014 ACJ 585 (Chatt.) that the F.I.R. is not a sine quo non.
7. Moreover, it is clear from the record that P.W.1 had seen the accident. The D.W.1 has accepted the accident having taken place, this itself shows that the finding is perverse. I am even supported in my view by the decision of this Court in First Appeal From Order No.1249 of 2019 (Sanjay Kumar Sachan and Another Vs. Ashok Kumar Dixit and two others) decided on 13.9.2019 wherein this Court has held as under:
"4. The claimants had preferred claim petition which came to be dismissed on hyper technical ground namely that witness was not believed. Even in the cross-examination, just because the witness could not give the number of the loader, it has been held that the loader was not involved. The F.I.R and Panchnama proved that the vehicle was involved. The F.I.R. has been misread by the Tribunal. The hyper technical stand taken by the Tribunal cannot be accepted. D.W.1 has contended that the loader was not involved in the accident. Prima facie charge-sheet was filed and the cite plan was there.
5. In view of the above, the appeal is partly allowed.
6. The matter be listed on 26.9.2019 for deciding whether quantum be decided here or the same be remanded."
8. In that view of the matter, the appeal is allowed. The judgment and order impugned is set aside. The matter is remanded to the Tribunal to decide the same afresh. The record and proceedings is sent back to the Tribunal forthwith.
Order Date :- 19.12.2019 DKS