Mukesh (Smt.) and Others vs Mahipal and Another

Rakesh Tiwari, J.—Heard learned Counsel for the appellants and perused the impugned award. The appellants challenge the validity and correctness of the judgment and order dated 28.2.2013 passed by the Motor Accident Claims Tribunal/Additional District Judge, Ex-Cadre No. 3, Saharanpur in MACP No. 109 of 2012, Smt. Mukesh and Others v. Mahipal and Another, whereby the claim petition of the appellants was dismissed.

Briefly stated the facts giving rise to the instant appeal are that an accident took place on 19.5.2012 at about 9.00 p.m. between Motorcycle No. UA-08N/9349 and Tractor No. UK-08N/9349 at Luxur-Haridwar Road in which Adesh Kumar who was pillion rider on the said motorcycle died on the spot on account of the injuries sustained by him in the aforesaid accident. The First Information Report of the accident was lodged by Yashpal, son of Sri Genda Ram, resident of village Chehdi, P.S. Rampur Maniyaran, District Saharanpur on the same day i.e. 19.5.2012 at 11.50 p.m. at P.S. Kotwali Luxur and a case crime No. 128/12, under Sections 279, 337, 338, 304A and 427, IPC was registered against unknown driver of the tractor. The claimants filed Claim Petition No. 109 of 2012 for a sum of Rs. 23,10,000 as compensation alleging that the deceased was aged about 28 years at the time of accident and was earning Rs. 12,000 per month.

The opposite parties, i.e. the owner and driver of the offending tractor contested the claim petition denying the factum of accident and also the averments made in the claim petition.

In support of their claim the claimants examined Smt. Mukesh, wife of deceased Adesh Kumar, as PW-1 and Vijay Pal as PW-2 whereas in defence the respondent-opposite parties examined Anurag Kumar as DW-1, Azad Singh as DW-2 and Mahipal Singh as DW-3. The parties also filed documentary evidence in support of their respective cases.

After considering the evidence on record and hearing the parties, the Tribunal dismissed the award of the claimants vide judgment and order dated 28.2.2013, hence the instant appeal has been preferred on the ground that the Motor Accident Claims Tribunal has not properly considered the oral as well as documentary evidence led by the claimant-appellants before it; that it has wrongly held that the evidence collected by the I.O. could not be relied upon for deciding the claim petition; that the claimant-appellants have failed to prove that the accident had been caused due to rash and negligent driving by the driver of the tractor; that the Tribunal ought not to have considered the money paid to the wife of the deceased by the Union of the employees and Life Insurance Company where the deceased was working and hence the Tribunal has illegally dismissed the claim of the appellants.

From a perusal of the impugned judgment and order it is apparent that FIR of the accident was lodged against an unknown driver of the tractor and the registration number of the tractor had also not been mentioned in it. PW-1, Smt. Mukesh is not an eye-witness of the accident, who stated that the accident took place on 19.5.2012 at about 2.00 p.m. in the night whereas as per averments made in the claim petition the accident took place at about 9.00 p.m. in the night. PW-2, Vijay Pal, who claimed himself to be an eye-witness of the accident, stated that he was present on the spot when the incident had occurred. He in his examination-in-chief stated that it was mentioned in the FIR that the motor cycle was being driven by Pramod and his son Adesh Kumar and Omveer were the pillion rider whereas it has also come in his evidence that Adesh Kumar was driving the motorcycle and Omveer and Pramod were the pillion rider. He further stated that he had narrated the whole story regarding the accident to the police and that he recognizes the tractor and its driver but neither the name of the driver of the tractor involved in the accident nor the registration number nor any other identification such as its colour had been mentioned by him in the FIR. In these circumstances, the Tribunal found the statement of this witness to be doubtful.

The Tribunal has observed that in the aforesaid accident Adesh Kumar, Omveer and Pramod were riding the motorcycle together had received injuries due to which one of them namely Adesh Kumar died but the other two were not produced as witnesses. The Tribunal observed that if these two injured would have been produced as witness, they could have given best evidence before the Tribunal regarding the accident. Azad, the defence witness DW-2 stated that the aforesaid tractor was in the name of his father and neither any person had died or injured by his tractor as it was not involved in any accident. It appears from record that the police had seized the tractor from his house and that he had no land near the place of incident.

In the aforesaid circumstances, in our considered opinion, the Tribunal has rightly come to the conclusion that the claimants have failed to prove that the accident took place from the tractor in question. There is no illegality or infirmity in the impugned judgment and order, hence no interference is required by this Court in these circumstances. For all the reasons stated above, the appeal sans merit and is accordingly, dismissed.