Balu vs The New India Insurance Co. Ltd. and others

Hon''ble Shri. N.K. Mody, J.—Being aggrieved by the award dated 29/08/2007 passed by MACT, Jhabua in claim case No. 37/2005 whereby claim petition filed by the appellant for compensation on account of injuries sustained in a motor accident which took place on 12/04/2000 was dismissed, present appeal has been filed. Short facts of the case are that appellant filed claim petition before the learned tribunal alleging that on 12/04/2000 appellant was going on as passenger in Bus bearing registration No. M.P.-11/A/3546 which was being driven by respondent No. 2 rashly and negligently with the result the said Bus met with an accident and appellant sustained grievous injuries. It was alleged that the offending Bus was owned by respondent No. 3 and insured with respondent No. 1. It was prayed that claim petition be allowed and compensation be awarded. The claim petition was contested by the respondents. After framing of issues and recording of evidence learned tribunal dismissed the claim petition filed by the appellant against which the present appeal has been filed.

Learned counsel for the appellant argued at length submits that the impugned award passed by the learned tribunal is illegal, incorrect and deserves to be set-aside. It is submitted that ample evidence is on record to demonstrate that appellant was going on in the offending Bus when it met with accident. It is submitted that Doctor was also examined to demonstrate the injuries sustained by the appellant. It is submitted that in the facts and circumstances of the case learned tribunal was not justified in dismissing the claim petition filed by the appellant. It is submitted that appeal be allowed, impugned award be set-aside and adequate compensation be awarded.

Learned counsel for the respondent No. 1 submits that after due appreciation of evidence on record learned tribunal found that no accident was occurred by the offending Bus. It is submitted that findings recorded by the learned tribunal are based on due appreciation of evidence which requires no interference. It is submitted that appeal be dismissed.

From perusal of record, it is evident that to prove the case appellant has filed three documents which are Ex.P/1 to P/3. Ex.P/1 is X-ray report, Ex.P/2 is MLC and Ex.P/3 is the copy of Rojnamcha. Apart from this appellant has examined himself as AW/1, Vinod AW/2, Dilip AW/3, Pravin Saxena AW/4, Dr. BS Baghel AW/5, Vikram Singh Rawat AW/6 and Attaullah Khan AW/7. Respondent No. 2/Riyaz is the driver who has examined himself. There are some important circumstance which has to be taken into consideration which are as under :

(i) Appellant has stated that appellant was hospitalized for a period of one month. No discharge ticket has been filed to demonstrate that appellant was hospitalized for a period of one month.

(ii) Appellant has stated that at the relevant time he was travelling with his son/Vinod who was examined as AW/2 in the earlier round of litigation when case proceeded ex parte against respondents No. 2 and 3 but did not appear for cross-examination in second round when the respondents No. 2 and 3 contested the case. Apart from this, Vinod, son of the appellant was also eye-witness of the accident but did not remain present at the time when the case was fixed for cross-examination for the best reasons known to the appellant.

(iii) Appellant was Ward Boy in the Hospital. All the witnesses who were examined by the appellant are the employees of Hospital and they stated nothing about the accident and also they have not stated that appellant was hospitalized for a period of one month.

(iv) Because of application of brake suddenly appellant fell down as he was seated on the back seat of the Bus is unbelievable. No other co-passenger was examined by the appellant.

In the facts and circumstances of the case, this Court is of the opinion that learned tribunal committed no error in dismissing the claim petition filed by the appellant. In view of this, appeal filed by the appellant has no merits and the same stands dismissed.