Court No. - 26
Case :- FIRST APPEAL FROM ORDER No. - 640 of 2007 Appellant :- Rahisuddin & Another Respondent :- Virendra Kumar Jain & Another Counsel for Appellant :- Anju Shukla,Nigamendra Shukla Counsel for Respondent :- A.K.Pandey,Ajay Singh
Hon'ble Saral Srivastava,J.
Heard Sri Nigamendra Shukla, learned counsel for the appellants and Sri Ajay Singh, learned counsel for respondent No.2.
The present appeal has been preferred by the claimants/appellants challenging the judgement and order dated 09.01.2007 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Meerut in MACP No. 479 of 2004 whereby the Tribunal has rejected the claim petition filed the claimants/appellants claiming compensation of Rs.22 lacs for the death of their son Ishrar.
The claim petition was instituted by the claimants/appellants on the ground that Ishrar was travelling on Bus No.U.P.-14-E- 7437. The driver of the bus was driving the bus rashly and negligently and all of sudden, he turned the bus as a result of which, Ishrar, who was standing on the bus, fell down from the window of the bus and suffered injuries and died. It was further pleaded that deceased Ishrar was aged about 19 years and was engaged in the business of selling milk. In this backdrop, claimants/appellants claimed compensation of Rs.22 lacs.
The claim petition was contested by the owner of the Bus No.U.P.-14-E-7437 (hereinafter referred to as 'offending vehicle') by filing written statement. The owner has denied the factum of the accident and also denied the fact that deceased was travelling on the bus on the fateful day.
The insurance company also contested the claim petition by filing written statement wherein, it has denied the factum of the accident and also pleaded that the liability of the insurance company is subject to the terms and conditions of the insurance policy.
The Tribunal framed as many as five issues. The Tribunal on issue No.1 relating to involvement of offending vehicle in the accident has returned the finding that the claimants/appellants have failed to prove that Ishrar had died in the accident with offending vehicle. Since, finding on issue no.1 has been returned by the Tribunal against the appellants, therefore, Tribunal did not proceed to decide other issues.
Challenging the finding the Tribunal on issue no.1 relating to involvement of the offending vehicle in the accident, learned counsel for the claimants/appellants has contended that PW-2 Sitaram, who was the eye witness of the accident, has deposed before the Tribunal that he had seen the accident by the offending vehicle and Ishrar died as he fell down from the offending vehicle. He has further stated that he had taken the deceased to the hospital and informed the police about the said accident. He further submits that testimony of PW-2 Sitaram is unrebutted and the presence of PW-2 Sitaram on the spot of accident is also established from the panchanama wherein, it is recorded that deceased was taken to the hospital by Sitaram, who has appeared as PW-2 before the Tribunal and thus, in view of the said fact, claimants/appellants have proved that the accident was caused by the offending vehicle.
He further contends that Tribunal has misdirected itself in holding that since in the postmorterm report, the date of death has been shown four days prior to postmorterm, therefore, as per the documents of claimants/appellants, it is proved that the accident was not caused by the offending vehicle.
Per contra, learned counsel for the respondents submits that the person who has lodged the report on the next day of the accident had not appeared before the Tribunal and further the fact that the number of the offending vehicle was not given to the police and this itself proves that the offending vehicle has been falsely implicated in the accident, thus finding of the Tribunal holding that the appellants have failed to prove that the accident caused by the offending vehicle is correct.
I have considered the rival submissions of the parties and perused the record.
Claimants/appellants have produced PW-2 Sitaram to prove that accident was caused by the offending vehicle. PW-2 Sitaram has categorically stated in his statement that accident was caused by the offending vehicle. He had further stated that he had seen the deceased falling from the window of the offending vehicle due to which, Ishrar suffered injuries and later on died. The presence of PW-2 Sitaram on the place of occurrence of accident is also established from the panchanama. The testimony of PW-2 Sitaram is unrebutted and there is no material on record to indicate that the testimony of PW-2 Sitaram is not authentic. Further, the accident was also proved by the panchanama and the information given to the police.
Considering all the circumstances as per material available on record, claimants/appellants have established the occurrence of accident by the offending vehicle in which Ishrar had suffered injuries and died. The Tribunal has completely misdirected in placing reliance upon the postmorterm report which cannot the sole basis to arrive at a finding regarding the occurrence of accident.
Thus, in view of the said fact, the finding of the Tribunal on issue no.1 is set aside and it is held that deceased Ishrar had died in the accident by the offending vehicle being driven by its driver rashly and negligently. Thus, in view of the said fact, issue no.1 is decided in favour of claimants/appellants and against the respondents.
Thus, for the reasons given above, the appeal is allowed. The matter is remitted back to the court below to decide other issues expeditiously preferably, within a period of six months from the date of receipt of certified copy of this order.
Order Date :- 19.12.2018 Sattyarth