Heard Shri Rahul Sahai, learned counsel for the appellant-insurance company and Shri Shyam Narain Pandey, learned counsel for respondents.
This appeal has been filed by the insurance company aggrieved of the award dated 30.05.2019 passed by learned Motor Accident Claims Tribunal/ Additional District Judge, Court No.1, Kanpur Nagar on twin grounds namely there was a delay of seven months in lodging of F.I.R. and that the owner of the bus took a plea that bus was in a workshop under repair and overlooking such evidence impugned award has been passed. It is submitted that in the final report, police had initially exonerated the involvement of the bus and overlooking such facts award has been passed.
As far as the issue of final report is concerned, it is graciously submitted by Shri Rahul Sahai that it was not accepted by the concerned Magistrate and therefore, rejection of such final report cannot be faulted within the hands of the learned tribunal. However, Shri Sahai submits that there was plethora of evidence on record in the form of affidavit of the mechanic Kailash Chandra Saini which was filed as document no.50GA to show that bus was taken to the workshop, its engine was dismantled on 03.12.2012, it was sent to Kanpur for repair and was fixed on 05.12.2012 and thereafter vehicle was despatched for running on 06.12.2012 after repairs.
It is submitted that even a document written by the President of Motor Union Sorik, P.S. Bidhuna has produced on record as document 40GA so show that on 02.12.2012 in the evening when bus was started there was some unusual sound in the engine when the engine was shut down and towed through a tractor to Chibra Mau for repair. Reading these two documents it is submitted that learned tribunal has erred in overlooking such evidence, which is illegal and arbitrary.
Shri Pandey in his turn submits that insurance company has been given a right of recovery on the ground that bus was not having proper fitness certificate at the time of the alleged accident and therefore, insurance company is not justified in challenging the findings of the tribunal, especially when neither the insurance company nor the owner of the bus made any attempt to lead evidence of concerned motor mechanic viz., Kailash Chandra Saini to the effect that bus was standing in his workshop for repairs since 03.12.2012.
After hearing the arguments and going through the records, it is apparent that prima facie there is no illegality in the impugned award inasmuch as factum of bus not being on road could have been proved by giving the best possible evidence i.e., of the concerned motor mechanic Kailash Chandra Saini by examining him before the tribunal, but that is not done.
Tribunal has rightly discarded affidavit of Kailash Chandra Saini inasmuch as he was not examined before the court of law and no opportunity of cross-examination was afforded to the claimants to cross examine him on his affidavit. Letter of the so-called President of motor union has no evidentiary value, especially when he too was not produced as a witness to prove such letter and therefore, there is no error apparent on the face of record calling for interference.
Appeal fails and is dismissed.
Order Date :- 18.1.2021 VS