Basavant and Others vs Parashuram and Others

Budihal R.B., J.—This is the appeal preferred by the appellants/claimants being aggrieved by the judgment and award passed by the tribunal dismissing the claim petition. The appellants have also challenged the legality and correctness of the judgment and award passed by the tribunal, on the grounds as mentioned in the appeal memorandum.

As per the averments, the case of the petitioners before the tribunal that on 28.07.2001, at about 9.30 p.m., the deceased Shankar on Ilakal - Hunagund road, near Ilakal IB, he was checking the motorcycle in front of showroom as daily duty. But, suddenly the vehicle owned by the 1st respondent driven by its driver truck bearing No. GDS-4983 came in a very rash and negligent manner, the driver has lost control on the vehicle and dashed to the deceased Shankar. The driver ran away without stopping the vehicle and the deceased succumbed to the injury on 01.08.2001. The accident took place at the night time and there are no other persons to know the vehicle number. The police came to know about the accident and in order to escape from the liability they have registered a case against the deceased and filed abated charge sheet. Later, petitioner No. 1-Basavant came to know about real accused persons, who caused the accident and gave requisition to the CPI Hunaguda to take action against the said accused. Hence, the private complaint was filed, which is pending.

Respondents appeared in the matter. Respondent No. 2 filed the objection statement and contended that involvement of truck bearing registration No. GDS-4983 has been specifically denied. It has denied that there was rash and negligent driving of 1st respondent and death of the deceased was caused due to the accident. It has also contended that the compensation claimed is exorbitant and unreasonable and there was breach of policy conditions. Hence, respondent No. 2 is not liable to pay the compensation amount and prays for dismissal of the petition.

On the basis of the pleadings, the tribunal has framed as many as four issues and with regards to issue No. 1, costing burden on the petitioners about causing of the accident by the vehicle bearing No. GDS-4983 and driving the same by rash and negligent act of the driver, the tribunal has recorded negative finding and ultimately, the tribunal has dismissed the claim petition. Being aggrieved by the same, the appellants/petitioners are before this Court.

Heard the argument of learned counsel appearing for the appellants/petitioners and also learned counsel appearing for the respondent - Insurance Company.

Learned counsel for the appellants submitted that when the accident took place, the driver of the said lorry without stopping the lorry went away. P.W. 2 is the eyewitness to the incident but as he did not knew the person, who sustained injuries, not lodged the complaint immediately. But, after three years, when he came in contact with the father of the deceased and when father of the deceased has mentioned about the death of his son then P.W. 2 came to know that the deceased was the son of the said person. He told that he has witnessed the incident and because of rash and negligent driving of the lorry by its driver, the accident was occurred. Hence, the learned counsel submitted that though the complaint was registered at the first instance by the PSI, he was not an eyewitness to the incident. But, the tribunal has not at all taken into consideration the evidence of P.W. 2, only picking up some sentences here and there and ultimately, the tribunal has dismissed the claim petition. Hence, learned counsel made the submission that there are materials placed before the tribunal to show involvement of the said lorry and it was because of rash and negligent act of the driver of the said lorry, the accident has taken place. Hence, learned counsel submitted to allow the appeal and to award just and reasonable compensation.

Per contra, learned counsel appearing for the respondent - Insurance Company during the course of her argument, made the submission that the incident has taken place in the year 2001 but, the witness P.W. 2 came forward to say about the incident after lapse of three years. Learned counsel also made the submission that his evidence was properly appreciated by the tribunal and the tribunal comes to the conclusion that it is not worth believable. Learned counsel submitted that no material has been placed, except the evidence of P.W. 2 to show the involvement of the said vehicle and the accident said to have been caused by the driver of the said vehicle. It is submitted by the learned counsel that on the contrary, the material goes to show that the deceased himself is a tortfeasor and because of his negligent act, he fell down and sustained injuries hence, counsel submitted no illegality has been committed by the tribunal. There is no merit in the appeal and the same may be dismissed.

I have perused the grounds urged in the appeal memorandum, the judgment and award passed by the tribunal, oral and documentary evidence and also the documents produced before the tribunal, which are called for.

Looking to the materials placed on record, it is the claim of P.W. 2 that he has witnessed the incident but the conduct of P.W. 2 is most material in appreciating the case of the appellants/petitioners. When he has personally witnessed the incident, his normal conduct would be either immediately go to nearest police station to inform about the incident or to the relatives of the said persons. Here as contended by the appellants/petitioners that he did not know the name of the said persons, he has not taken any steps to inform to the relatives of the deceased person. But, further material also goes to show that even the case was registered against the deceased himself and it is because of his negligent act, the accident was caused. Subsequently, after lapse of three years, the private complaint was also filed by the appellants/petitioners but what has happened to the private complaint and the results are not before the Court.

I have also perused the oral evidence of P.W. 2, who said to be the eyewitness to the said incident. But, looking to his oral evidence before the tribunal, he has stated that on the date of the accident, he reached Ilakal at 12.00 noon and he went there to purchase the materials required for his tractor but, he has admitted in the cross-examination that he has not produced any document to show that the said tractor belongs to him. He has also admitted in his cross-examination that he has not produced any document to show that he went to Ilakal on that day for purchasing the materials for the tractor. Admittedly, he has stated about the accident before the father of the deceased after lapse of three years. Looking to his evidence particularly in the cross-examination, it will not inspire the confidence in the mind of the Court that really he was an eyewitness to the said incident. Accordingly, the tribunal has appreciated the oral evidence of P.W. 2 and ultimately, disbelieved his evidence. Looking to these materials placed on record, the tribunal has rightly appreciated each and every aspect of the matter and ultimately, dismissed the claim petition. I do not find any fault with the judgment and award passed by the tribunal so as to interfere into the findings of the tribunal in this appeal.

Perusing the entire materials, there is no merit in the appeal and accordingly, the same is hereby dismissed.