1. Heard, Ms. Suman Lata, learned counsel for the appellant and Sri Rajendra Pratap Singh, Advocate holding brief of Sri Shishir Pradhan, learned counsel for the respondent.
2. The instant appeal has been preferred against the judgment and order dated 15.10.2009 passed in Motor Accident Claim Petition No. 116 of 2007 (Virendra Singh versus Radhey Shyam Tiwari and others) by the Motor Accident Claims Tribunal/ Additional District Judge, Court No.8, Raibareily, by which the claim petition has been rejected.
3. The brief facts of the case, for adjudication of the present case, are that the appellant-claimant had filed the claim petition alleging therein that the respondent no.1 is the owner of Truck No.U.P.70 A.T./5840 and the respondent no.2 is the Insurance Company, with whom the truck was insured. The appellant-claimant is the driver of the aforesaid truck and is having the driving license of heavy vehicle, which was valid upto 02.03.2009 and was getting Rs.6,000/- per month salary from the respondent no.1. On 04.04.2007, the appellant-claimant, after loading potato in the truck, was going from Allahabad to Mughalsarai. As he reached near Hanumanganj Petrol Pump on Allahabad- Banaras Road, Police Station-Saray Inayat, at about 5:00 a.m., a man was coming with a child on his cycle with high speed from the front side. The appellant-claimant tried to save the cyclist and in the said effort, the truck overturned and the appellant-claimant came under the dala of the truck. Consequently, his one leg was broken. On the information about the accident, the owner of the truck and other persons gathered, who got the truck lifted by a crane.
4. The appellant-claimant was taken to a nearby nursing home and thereafter to Alka Hospital, Plastic and Micro Colour Surgery Centre, Allahabad. The doctors, tried to save the broken leg but looking to the danger to his life, amputated the leg on the same very day. On information, the father and brother of the appellant came and the father of the appellant gave the information to the police Station-Sarai Inayat, Allahabad about the accident but the first information report was not lodged. Therefore he gave an application to the Superintendent of Police, Allahabad and sent it by registered post but no action was taken therefore he filed an application under Section 156(3) of the Criminal Procedure Code in the Court of First Additional Chief Judicial Magistrate, Allahabad and stated that after lodging of the F.I.R., he will produce the copy of the same. He further stated that on account of amputation of leg, the appellant-claimant has become completely handicapped and the handicapped certificate has also been issued indicating 70% disability.
5. The claim petition was contested by the respondent no.1- owner of the vehicle who admitted that the appellant-claimant was a professional driver having valid and effective driving license. He also admitted the accident in question on 04.04.2007 at about 5:00 a.m. near Hanumanganj Petrol Pump. He also filed an affidavit stating therein that the accident occurred in saving the cyclist. However, he stated that the excess compensation has been demanded and if any compensation is fixed by the Court, the same is payable by the Insurance Company i.e., the respondent no.2. The respondent no.2 had also filed its written statement denying the contents of the claim petition. On the basis of the pleadings of the parties, six issues were framed.
6. The appellant-claimant had filed the photocopy of application filed under Section 156(3) in the court of First Additional Chief Judicial Magistrate, Allahabad, the receipt of registry, Original admit and discharge certificate, receipts of medicine, original and photocopy, photocopy of the driving license, Insurance Policy, form 23 of the Transport department, U.P., contract certificate, Permit certificate, Pollution Control certificate and handicapped certificate. The appellant-claimant;Virendra Singh got himself examined as P.W.-1 but on behalf of the respondents, no oral or documentary evidence was filed.
7. After considering the pleadings of the parties and the evidence available on record, the learned Tribunal decided issue no.1 in favour of the appellant recording the finding of accident on the basis of the admission of the respondent owner. The issue nos. 2,3, and 4 were also decided against the Insurance Company holding the validity of the driving license and insurance policy and also that the vehicle was being driven in accordance with the terms and conditions of the policy. However, the issue no.5 as to whether the appellant is entitled for any compensation or not was decided against the appellant-claimant because the claim petition was filed under Section 163(A) of the Motor Vehicles Act,1988, under which the claim could have been decided where the income of the claimant or deceased was less than Rs.40,000/- per annum but the income of the appellant as proved before the Tribunal was Rs.72,000/- per annum. Therefore the claim petition was dismissed by means of the judgment and order dated 01.04.2008. The same was challenged before this Court by means of filing F.A.F.O. No.408 of 2008.
8. The said appeal was disposed of by means of the order dated 29.07.2009 and the judgment and order dated 01.04.2008 was set aside and the matter was remanded back to the Tribunal concerned with liberty to the party to file amended claim petition, which shall be decided on the basis of records available with Tribunal. After remand, the claim petition was amended by the appellant-claimant and it was converted from under section 163(A) to 166 of the Motor Vehicles Act. Thereafter after hearing the learned counsel for the parties and perusing the material and evidence available on record, the learned Tribunal has decided the claim petition by means of the impugned judgment and order dated 15.10.2009 and rejected the claim petition, which has been challenged in the present appeal.
9. The learned Tribunal has decided the issue no.1 against the appellant holding that the appellant has failed to prove the accident. One of the main ground taken by the learned Tribunal is that no proof of submitting any application for lodging of F.I.R. in any police station before filing application under Section 156(3) in the court of First Additional Chief Judicial Magistrate, Allahabad is available on record. It has also been recorded that the alleged accident had occurred two steps ahead of Hanumanganj Market and while going to Allahabad a person has to pass from the front of Sarai Inayat Police Station but no proof has been given of giving any information on the said Police Station. The appellant has also not got himself examined or treated in any government hospital while there is a primary health centre in the Hanumanganj itself. The other ground taken is that the discharge certificate etc. have not been got proved by producing any employee of the hospital. The learned Tribunal further recorded that in reply to para 3 and 4 of claim petition, in which the description of the accident and treatment has been given, the respondent no.1;owner of the truck has not accepted the same and in paragraph 26 it has been stated that to save a dog, which suddenly came in front of the vehicle, the truck got disbalanced and the accident occurred. While the appellant-claimant has stated in his claim petition that the accident had occurred due to sudden coming of a cyclist in front of the vehicle. Therefore it cannot be treated that the respondent no.1 has accepted the averments in the Claim-Petition regarding accident. The respondent no.2;Insurance Company has also denied the averments and stated that it has to be proved by the appellant-claimant. The issue nos. 2,3 and 4 have been decided against the Insurance Company. But since the accident has not been proved therefore issue nos.5 and 6 have been decided against the appellant-claimant.
10. So far as the question of proof of lodging of F.I.R. is concerned, lodging of F.I.R. in a Motor Accident Claim is not mandatory and non-lodging of F.I.R. cannot be a ground for rejecting the claim petition.
11. The leg of the appellant was broken in the accident as claimed therefore primary concern would have been the medical aid, therefore if the information was not given at the police station while passing from the front can also be not a ground to disbelieve the accident and reject the claim, if it is proved by cogent material and evidence.
12. Perusal of the written statement filed by the respondent no.1 indicates that in reply to para no.3 he has admitted the validity of the driving license,though denied the remaining stating that the additional statements may be seen. Paragraph 4 has also been denied for want of knowledge. However, it has been stated that the additional statement may be seen. However, the sub para 1 to 4 of paragraph 4 regarding the income of the injured, the address of the injured and occupation of the injured have been accepted. Sub Para 3 regarding the age of the injured has been denied but further stated that additional statement may be seen.
13. In the additional statement in paragraph 25 it has categorically been stated that at the time of accident, the truck No. U.P. 70 A.T./5840 was being driven by an intelligent and perfect driver who had valid and effective driving license. In paragraph 26 it has been stated that on the date of the alleged accident, the said vehicle was going from Allahabad, after loading potato, when in trying to save a cyclist on 04.04.2007 at about 5:00 a.m. on Allahabad-Banaras Road near Hanumanganj Petrol Pump, a dog suddenly came in front of the vehicle and to save him the driver of the truck abruptly took a break, on account of which the vehicle got disbalanced and since the potato was loaded in the truck, it overturned and the accident had occurred. Therefore it is apparent that the respondent no.1 has not denied the accident rather accepted the same and also the happening of the accident on account of saving the cyclist. Therefore merely because it has further clarified that some dog has also come before the truck, it cannot be said that the accident has been denied by the respondent no.1 i.e. owner of the vehicle. It is also to be noted that in the earlier judgment dated 01.04.2008 when the claim petition was decided under Section 163(A) of Motor Vehicles Act, the accident was accepted on the basis of the admission of the respondent no.1, i.e. the owner of the vehicle.
14. In view of above, this Court is of the considered opinion that the learned Tribunal has decided the issue no.1 without considering the pleadings and evidence in its correct perspective and without application of mind. Therefore the impugned judgment and order is not sustainable in the eyes of law and is liable to be set aside and the matter is liable to be remanded to the concerned Tribunal to decide the matter afresh.
15. The appeal is allowed. The impugned judgment and order dated 15.10.2009 passed in Motor Accident Claim Petition No. 116 of 2007 (Virendra Singh versus Radhey Shyam Tiwari and another) is hereby set aside. The matter is remanded back to the concerned Tribunal for deciding afresh, in the light of observations made hereinabove in this judgment, after affording opportunity to the parties in accordance with law. Since the accident had occurred in the year 1997, therefore I deem it proper to direct the concerned Tribunal to decide the claim petition expeditiously and preferably within a period of three months from the date of receipt of certified copy of this order. No order as to costs.
16. The lower court record shall be remitted to the concerned Tribunal forthwith.
Order Date :-28.08.2019 Akanksha ( Rajnish Kumar,J.)