1. Heard Sri Rahul Sahai, leraned counsel for the appellant.
2. This appeal has been filed by the Insurance Company being aggrieved of award dated April 10, 2012 passed by learned Motor Accident Claims Tribunal/Additional District Judge, Court No.13, Allahabad in Claim Petition No.668 of 2009.
3. Appellant's contention is that learned Claims Tribunal has failed to appreciate vital facts necessary for adjudication of the present case. It is submitted that, admittedly, accident took place on 19.07.2009, when deceased was travelling in Max Jeep bearing Registration No.U.P.-42T/4292, which was hit by a truck bearing Registration No.M.P.-19-H.A.-0690. It is submitted that neither the owner of the truck, nor the driver or the Insurance Company were impleaded as a party and, therefore, there was mis-joinder of necessary parties. It is also submitted that somewhere, there is contradiction in the evidence of P.W.-2, Mohd. Safi and the evidence of P.W.-1, inasmuch as, P.W.-1 had deposed that her husband had gone to Faizabad on 19.07.2009 in connection with his business, when accident took place, whereas, P.W.-2 deposed that when they were returning back from Kedar Nagar, then accident took place. Placing reliance on such contradiction in the evidence of P.W.-1 and P.W.-2, it is submitted that factum of accident could not be proved by the claimants.
4. After hearing learned counsel for the appellant and going through the available documents, it is apparent that P.W.-1 is wife of the deceased. She was not present at the spot, therefore, her testimony is limited to the fact that she lost her husband coupled with the fact that she deposed about the number of dependents, age of the deceased and income of the deceased. P.W.-2 is an eye-witness and, therefore, testimony of P.W.-2 is more relevant than that of P.W.-1. Thus, for the present, such minor omission is not sufficient to contradict the evidence which has come on record, especially when it has come on record that Insurance Company had not examined any witness to contradict the findings recorded by the learned Claims Tribunal.
5. In fact, learned Claims Tribunal framed issue no.1 in regard to the negligence of the driver of the Jeep and issue no.2 in regard to the effect of non-joinder of the owner, driver and insurer of offending truck bearing Registration No.M.P. 19-HA/0690. It is true that as far as claimants are concerned, deceased Ansar Ahmad was travelling as a passenger, therefore, accident took place due to negligence of the driver of the Jeep, due to which Ansar Ahmad died will be a case of composite negligence and claimants are free to recover their compensation from any of the joint tort feasor therefore, no adverse inference can be drawn due to non-impleadment owner, driver/insurer of the offending truck.
6. Thus, it is apparent that in absence of any evidence denying the factum of accident, though, proved by the claimants, for which there is a prompt FIR available on record along with spot map etc., it cannot be said that accident was not proved
7. In view of such facts and the evidence, which has come on record, impugned award cannot be faulted with. There is no illegality or arbitrariness in the impugned award calling for any interference, therefore, appeal fails and is dismissed.
Order Date :- 9.2.2021 Ashutosh