Court No. - 25
Case :- FIRST APPEAL FROM ORDER No. - 560 of 2004 Appellant :- Shyama Charan Respondent :- U.P.S.R.T.C. And Others Counsel for Appellant :- S.D.Ojha Counsel for Respondent :- Ajit Kr. Singh,L.D.Rajbhar
Hon'ble Ram Krishna Gautam,J.
This appeal under section 173 of the Motor Vehicle Act has been filed by the claimant- appellant against U.P.S.R.T.C. and two others against judgment and award dated 22.12.2003 passed by the M.A.C.T./ Additional District Judge, Court No. 4, Azamgarh, in M.A.C.P. No. 129 of 1995, Shyama Charan Vs. U.P.S.R.T.C., Lucknow, and others, on the ground that the Tribunal has failed to appreciate the facts and law placed before it rather the aforesaid judgment and award was passed on the basis of conjectures and surmises. It was fully established that Shiv Govind had received injuries in the motor accident, which occurred on 30.3.1995 at about 9.30 P.M. by U.P. Roadways Bus No. UP 32A/7068 being driven rashly and negligently by O.P. No. 3. PW1 Suman Kumar Singh, an eyewitness account, was examined by the claimant, who has proved the factum of accident. No register of workshop of Roadways was filed by the respondents to prove the contention that the Bus was not plied on the above date, time and place of accident. DW1 Prem Chandra, in his statement has failed to prove that the Bus in question was not plied on the date of the accident, hence, this appeal.
Heard learned counsel for both the sides and perused the impugned judgment and evidence placed on record.
Claim Petition No. 129 of 1995 u/s 166 of the Motor Vehicle Act was filed by Shyama Charan against U.P.S.R.T.C. and driver of the offending vehicle for claim of Rs. 5,41,000/- with the contention that deceased while driving a Jeep on 30.3.1995 at 9.30 P.M. was coming to Azamgarh from Atrauliya, a Roadways Bus of Qaisar Bagh Depot bearing No. UP 32A 7068, which was being driven rashly and negligently by the driver, dashed the Jeep from wrong side in village Madanpur within the police station Atrauliya resulting in grievous injury to Shiv Govind, son of the claimants and his instantaneous death. The deceased was earning Rs.1000/- per month and was maintaining the claimants. This was rebutted by filing written statement that no such accident ever occurred by Roadways Bus No. UP 32A 7068 on above date, time and place rather this Bus had met an accident in the area of police station Maharajganj, District Faizabad, in the night of 21/22.3.1995 and was standing at police station Maharajganj. It was delivered in possession of H. C. Pant, of above Depot on 28.3.1995 by the release order of the Court and it was under maintenance at the Service Depot on 29th and 30th March, 1995. The claim was highly excessive and on wrong facts. The Tribunal framed issues and after taking evidence of both sides, dismissed the claim petition, hence this appeal.
Admittedly, PW1 Suman Kumar Singh was the informant of this case crime number and he has not disclosed the registration number of the Bus concerned excepting that the Bus was of Quaisar Bagh Depot. This crime number was investigated and final report was submitted meaning thereby this accident owing to the Bus in question and its driver driving rashly and negligently could not be substantiated in the police investigation, hence, final report was submitted. This PW1 neither in the first information report nor in his statement u/s 161 Cr.P.C. has disclosed the number of the Bus concerned. For the first time he disclosed the number of the Bus in the evidence of this claim petition where he said the registration number of the Bus concerned and this was proved by documentary as well as oral evidence of DW1, a public servant, that on the date of the accident in question the above Bus was in Service Depot for maintenance because it had met an accident in the night of 21/22.3.1995 and had not plied on 30.3.1995. There was documentary evidence and testimony as well. PW2 is the father of the deceased, who is claimant in this petition. Admittedly, he was not present on the spot. The witness PW1, who is being highly pressed by learned counsel for the appellant as eyewitness, has not disclosed the registration number of the Bus concerned either in the first information report or in the previous statement recorded u/s 161 Cr.P.C. and what has been stated by him on oath has been rebutted on oath as well by documentary evidence adduced by DW1, hence, on the basis of the evidence on record the registration number of the offending vehicle, as alleged in the claim petition, was not substantiated and the Tribunal has rightly appreciated the facts and circumstances placed before it.
Under section 166 of the Motor Vehicle Act condition sine-qua- non is the claimant, who has to prove the rash and negligent driving of the offending vehicle. In the present case this could not be proved because the registration number and identity of the offending vehicle could not be proved by the claimant.
Learned counsel for the appellant argued that since very beginning it was said to be a Roadways Bus of Quaisar Bagh Depot. This may be easily presumed that Qaisar Bagh Depot use to ply hundreds of Buses on various routes even the Buses undertaken by the U.P.S.R.T.C. Which was the bus, who was the driver and how it was being driven rashly and negligently by the driver were the facts to be proved by the claimant, but they were not proved by the claimant. Under above circumstances, this appeal merits dismissal.
Dismissed accordingly.
Order Date :- 21.1.2019 Pcl