Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 361 of 2020 Appellant :- Vimlesh Kumari And 5 Others Respondent :- Shiv Shankar And 2 Others Counsel for Appellant :- Sushil Kumar Srivastava,Ramgee Prasad Counsel for Respondent :- Anubhav Singh,Atul Kumar Singh
Hon'ble Vivek Agarwal,J.
1. Heard Sri Sushil Kumar Srivastava, learned counsel for the appellants, Sri Anubhav Sinha, learned counsel for the respondent no. 2 and Sri Atul Kumar Singh, learned counsel for the respondent no. 1.
2. Appellant has filed this appeal being aggrieved of the award dated 31.10.2018 passed by learned Motor Accident Claims Tribunal/First Additional District Judge, Etawah in M.A.C. No. 520 of 2015, on the ground that learned claims tribunal has arbitrarily dismissed the claim petition holding that appellant/claimants could not prove the factum of accident from the vehicle mentioned in the claim petition namely, Mahindra Pickup No. UP 84 F 9453.
3. It is submitted that husband of appellant no. 1, Hridesh Kumar, who was 30 years old and an employee of Police Department, was working as constable and he being the sole bread earner, his loss needs to be compensated by awarding adequate compensation, but overlooking credible evidence to the effect that death had taken place due to accident by Mahindra Pickup No. UP 84 F 9453, learned claims tribunal has arbitrarily dismissed the claim petition.
4. Learned counsel for respondent nos. 1 and 2 submits that tribunal had framed as many as four issues, out of which issue no. 1 is in regard to factum of accident. An issue has been framed to the effect as to whether on 22.07.2015 at about 2 pm, whether on National Highway No. 2 in front of Rekha Palace, did Mahindra Pickup No. UP 84 F 9453 caused an accident, resulting in death of Sri Hridesh Kumar.
5. It has come on record that this issue was required to be proved by the claimants who had examined two witnesses namely, PW1-Smt. Vimlesh Kumari and PW2-Awadhesh Kumar.
6. As per the story of the claimants, accident took place when deceased was waiting with his friend Virendra Singh S/o Maharaj Singh Yadav to board a transport to reach home, when Max Pickup No. UP 84 F 9453 being driven rashly and negligently, approached them from the side of Kanpur and hit Hridesh Kumar. This incident was seen by Virendra Singh, Pradeep Kumar and Updesh Kumar.
7. Learned claims tribunal has recorded a finding that neither Virendra Singh nor Updesh Kumar or Pradeep Kumar have been examined, though, in the FIR name of eye-witness is mentioned as Updesh Kumar S/o Sobran Singh Yadav, resident of Manikpur Said, Police Station Karhal, District Mainpuri Etawah is mentioned. It has been held that since none of the eye-witnesses have been examined, therefore, factum of accident with the offending vehicle could not be proved inasmuch as though statement of Awadhesh was recorded by the Investigating Officer, but as per the 'tahrir', Awadhesh is not an eye-witness and there is no explanation as to how chargesheet was filed within 10 days of lodging of the FIR.
8. Learned tribunal has discussed in detail evidence of PW2- Awadhesh Kumar and after discussing the situation in detail, has come to a conclusion that evidence of PW2 is not credible. Learned claims tribunal also recorded a contradiction in evidence of PW1-Smt Vimlesh Kumari and PW2-Awadhesh Kumar to the extent that according to PW1, intimation of the incident was given by Virendra whereas according to PW2, he had called father of the deceased. It has also discussed the law in regard to filing of the chargesheet against respondent no. 1- Shiv Shankar S/o Rajveer Singh, on the ground that as per the law laid down by Allahabad High Court in case of Parashuram Pal and Others vs. Ram Lakhan Rajwat and Others, 2003 (2)
A.I.C.C. 1407, wherein it has been held that filing of chargesheet is not primary evidence. Tribunal has also recorded a finding that after accident took place, with a view to file claim petition, a false and frivolous record has been created.
9. After hearing learned counsel for the parties and going through the record, it is evident that even if Updesh is treated as Awadhesh, then also there is delay in the FIR, which was recorded on 29.07.2015 for an incident which took place on 22.07.2015. Postmortem had taken place on 23.07.2015, wherein it is mentioned that deceased was brought dead at 3:40 pm on 22.07.2015 and was identified by G144CP Niyaj Ahmad and Om Prakash. In the evidence, led by DW1-Amit Kumar, Branch Manager of United India Insurance Co. Ltd., it has come on record that policy in question showing insurance of Mahindra Pickup No. UP 84 F 9453, is not pertaining to the Office of the concerned Branch and there is specific finding in this regard by the learned tribunal that policy in question was not issued by the Officer of respondent no. 2 and is a fake policy i.e., the offending vehicle was not insured with respondent no. 2 at the time of the accident.
10. Irrespective of the fact as to whether so called offending vehicle was insured with respondent no. 2 or not, it is of utmost importance that whether accident had taken place with the alleged offending vehicle or not.
11. Evidence led by so called eye-witness Awadhesh Kumar and appreciation of the fact that he is not an eye-witness inasmuch as this witness had admitted that he was over the highway whereas the road intersection where accident took place is below the place where witness was standing. At the time of the accident, he was urinating and his face was on the southern side. Deceased was standing at a distance of 5-6 meters on the south. The offending vehicle had arrived from the west. This witness in examination-in-chief though deposed that on the date of the accident, he had taken the injured along with Virendra Kumar to J.K. Hospital, but this is not corroborated from any documentary evidence. Moreover in cross-examination, this witness admitted that one more person was standing with the deceased, who was not known to him, meaning that this witness did not knew Virendra.
12. This witness also deposed that he had noted number of Pickup on his palm. He further deposed that police had not come to the spot and they had taken the injured to the hospital where police had arrived, but he had not given any information to the police. After hospital of Manoj, deceased was taken to District Hospital, Etawah where he was declared brought dead and that time this witness was in the hospital and had telephoned father of the deceased. This witness further submits that after his call, relatives of the deceased had arrived. After postmortem was conducted, then he had returned back to his home and police recorded his statement after 8-9 days. This witness has further deposed that after 1-2 day, he had visited the house of the deceased and shown number written on his palm to the police. There is no corroborative evidence that why number of the vehicle, which was noted by PW2 was not given to the police though police had arrived at hospital in his presence. There is no explanation as to whether this witness had noted down the number on piece of paper because it is improbable that he could preserve the vehicle number on his hand, as has been deposed by him that he had shown it to the police.
13. In the 'police suchana', there is no mention of the vehicle number. Name of the person, who brought the deceased, is mentioned as Virendra Singh (dost), resident of Nala Chetram, Police Station Vedpura, Janpad Etawah and there is no mention of name of PW2 as the person, who brought the deceased, therefore, learned tribunal has rightly discarded the evidence of PW2 as planted witness.
14. There is no infirmity in the impugned award calling for any interference inasmuch as claimants have failed to prove factum of the accident with the alleged offending vehicle through any cogent or any credible evidence.
15. Thus appeal fails and is dismissed.
Order Date :- 7.1.2021 Vikram/-A