Hon'ble Subhash Chand,J.
1. Heard Sri Shreesh Srivastava, learned counsel for appellant and Sri Pawan Kumar Singh, learned counsel for respondent and perused the record.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 22.07.2020 and the decree dated 29.09.2020 passed by Motor Accident Claims Tribunal, Kanpur Nagar (hereinafter referred to as 'Tribunal') in M.A.C.P. No.1153 of 2014 (Sanjay Kumar Sadwani and another Vs. M/s Ramlal and others) whereby the claim petition filed by the claimant-appellants has been dismissed.
3. Factual data as culled out from the record will go to show that the deceased was not tort feasor. Factual data as revealed from the record is that on the fateful day the deceased along with his friend wanted to go for a ride at night though on the date of the night the driver of the car drove the vehicle rashly and negligently and the car turned turtle and due to this accident occurred in the night on 05.09.2014. Unfortunately the death of only son of the claimant occurred on 11.09.2014 after being treated in the hospital.
4. The claimants instituted the claim seeking compensation. The father of the deceased deposed though as P.W.1 and one Raman Deep Katariya as P.W. 2.
5. The P.W.2 Ramadeep Kataria was himself travelling in the car with the deceased he was an eye witness of the incident and appeared before the Tribunal and established the factum of accident having taken place but the learned Tribunal without any rebuttal from opposite side disbelieved the factum of the accident and straight way rejected the claim petition.
6. The driver and owner of the vehicle have disputed the facts as alleged in the claim petition. The insurance company has lastly filed its reply of rebuttal contending therein that the vehicle was not insured with them. The respondent no.3 Vishal Arora filed its reply and contended that accident did not occur due to his negligence or because of it. The tribunal has framed as far as four issued but decided issue nos. 1 and 4 against the claimants and dismissed the claim petition.
7. The tribunal while dismissing the claim petition recorded finding of fact which is based on conjecture and surmises holding that it was the duty of the friends of the deceased, who were sitting with him to inform about the accident to the concerned police station.
8. The learned counsel for the appellants has placed reliance in the case Sunita and others Vs. Rajasthan State Road Transport Corporation and another [2019 LawSuit (SC) 190] and Mangla Ram Vs. Oriental Insurance Co. Ltd. and others [2018 LawSuit (SC) 303].
9. Sri Pawan Kumar Singh, learned counsel for respondent has contended that the judgment which is assailed cannot be found fault with as it is unbelievable how the person travelling alone sustained injuries rather fatal. The postmortem report is also silent about the same.
10. The Tribunal has erred on facts while deciding the issue of delay in lodging the FIR but the factum of delay has been clearly explained by the claimants stating therein that just after the accident, they took the deceased to the hospital where he was remain admitted for six days and during this interregnum period the claimant was busy in providing best treatment to his only son so that the life of his son could be saved. Ultimately, they could not saved the life of his son and he succumbed to the injuries but the learned Tribunal has ignored all these facts and has illegally rejected the claim of the claimants.
11. It is admitted position that the deceased son of the claimants' remained hospitalized for about six days. The medical certificate as well as documentary evidence also go to show the factum of accident. It appears that learned Tribunal has been over hyper technical while rejecting the claim of the claimants. Had not it been a cause of collision the respondent would not have filed its reply disputing his presence also. The charge-sheet was laid against the vehicle of the driver. The first information report was belated because of the reason that the father of the deceased was busy with the care of his own son who was battling for life.
12. The decisions on which reliance has been placed would permit us to hold that the death was caused due to the injuries which the deceased had sustained when the Car turned turtled. The FIR was lodged on 11.09.2014 and that the deceased was shifted to the hospital where he breathed his last on 26.09.2014. The deceased was non tort feasor. The evidence of P.W.2 has not been believed. The Tribunal has given reasons that three friends of the deceased did not file any report and that on 05.09.2014 at 1.00 AM the deceased whether was in the vehicle or not was not known. The learned Tribunal has heavily relied on the decision in the case of Parshuram Pal Vs. Ram Lakhan, 2014 (1) TAC 621, which according to us is misreading of factual data. The documentary evidence produced goes to show that the charge-sheet which was laid on the medico legal report also shows that one Ankit Sadwani was also brought and it was reported that his condition was critical as he was in a vehicle which hit on a pole.
13. The Tribunal has further misdirected itself in brushing aside the factual data. The judgment of Jai Prakash Vs. National Insurance Company Ltd., (2010) 2 SCC 607 where the detail guidelines are given the Tribunal should have before rejecting the claim petition on minor contradictions ought to have considered the evidence of eye witnesses, which was such, which brought home the facts alleged in the claim petition.
14. The recent judgments of the Apex Court in Vimla Devi and others Vs. National Insurance Company Ltd. and another (2019) 2 SCC 186 and Anita Sharma and others Vs. The New India Assurance Company Limited and another 2021 (1) SCC 171 will also not permit us to concur with the Tribunal that on hyper technical and cryptic manner in which the claim petition has been dismissed, cannot be permitted. The claim petition under the provisions of Motor Vehicle Act, 1988 has to be decided with all preponderance of probability and on taking holistic approach in such matters.
15. Thus in view of the decisions of Apex Court and the injury on the temporal bone and the postmortem report will permit us to hold that the vehicle was involved in the accident and that the deceased died due to accidental injuries, as a recent matter we do hesitate to decide the quantum and other aspects, hence the Tribunal is directed to decide the same, as expeditiously as possible but not later than 31st of December, 2021.
16. We are thankful to the counsel for the parties who have assisted the Court in disposing of this appeal finally.
17. Let record of court below be sent back to the concerned Tribunal.
Order Date :- 31.8.2021 Prajapati