Rajani vs Mahesh Kumar Dixit and Others

Rakesh Tiwari, J.—Heard learned Counsel for the appellant 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, Court No. 3, Jhansi in MACP No. 489 of 2010, Smt. Rajani v. Mahesh Kumar Dixit and Others, whereby the claim petition of the appellant was dismissed.

Briefly stated the facts giving rise to the instant appeal are that Ashok Kushwaha was the driver of Dumper No. UP-78 BN/4926 and was going on the dumper to Kanpur. On 15.8.2010 at about 12.00 hours when the dumper reached within the limit of P.S. Kotwali Moth, near Semari village Truck No. UP-78, BN-1241 driven rashly and negligently by its driver collided with the said dumper in which Ashok and Ram Swaroop received grievous injuries. Both the injured were taken to the Medical College, Jhansi where they died on account of the injuries sustained in the accident. An FIR of the accident was lodged by Brijesh Kumar son of Shiv Ram Pal at P.S. Kotwali Moth, District Jhansi and a case crime No. 553/2010, under Sections 279, 337, 338 and 304A, IPC was registered against the driver of Truck No. UP-78, BN-1241. The claimants filed Claim Petition No. 489 of 2010 for a sum of Rs. 18,66,000 as compensation stating that the deceased was aged about 26 years at the time of accident and was earning Rs. 9,000 per month.

Respondent No. 1, the owner of Truck No. UP-78, BN-1241 contested the claim petition denying the factum of accident and also the averments made in the claim petition. It was stated by him that the driver of the truck in question was having valid and effective driving licence on the date of accident; that he had lodged an FIR against the driver of the dumper at P.S. Kotwali Moth, which was registered as case crime No. 553/2010, under Sections 279, 337, 338 and 304A, IPC and that the truck in question was insured with Bajaj Allianze General Insurance Company from 1.9.2009 to 31.8.2010. It was further alleged that the accident took place due rash and negligent driving of dumper by its driver in which drivers of both the vehicles died; that the claimant had not produced any document regarding age and income of the deceased;

Respondent No. 2, the Bajaj Allianze General Insurance Company filed its written objection denying the averments made in the claim petition stating that according to the site plan the truck in question was coming from wrong side and the accident took place due to rash and negligent driving of dumper by its driver; and that the drivers of the both the vehicles were not having valid and effective driving licence on the date of accident.

Respondent No. 3, Suresh Kumar Rochlani, the owner of dumper No. UP-78/BN-4926 also filed his objection admitting that deceased Ashok Kushwaha was the driver of the aforesaid dumper; that he was driving the dumper in question slowly and cautiously while going to Kanpur; that when he reached near village Semari, truck No. UP-78, BN/1241 coming from Kanpur being driven rashly and negligently by its driver caused accident with the dumper in question which Ashok Kushwaha and Ram Swaroop Kushwaha received grievous and fatal injuries of which they died. It was alleged that the driver of the dumper was having valid and effective licence on the date of accident and it was insured with respondent No. 4, Reliance General Insurance Company, Kanpur w.e.f. 20.1.2010 to 19.1.2011.

Respondent No. 4, the Reliance General Insurance Company, Kanpur also filed its written objection denying the claim of the claimant. It was alleged that it had no information about the incident and no documents such as copy of the FIR, site plan, Injury report and charge-sheet, etc. had been filed along with the claim petition by the claimant.

In support of her claim, Smt. Rajani wife of deceased Ashok Kushwaha examined herself as PW-1 and also filed documents. She also produced another witness namely, Ashok Kumar as PW-2 whereas in defence the respondent-opposite parties did not adduce any oral evidence and only submitted documentary evidence in support of their case.

After considering the evidence on record and hearing the parties'' Counsel, the Tribunal dismissed the award of the claimant vide judgment and order dated 28.2.2013, hence the instant appeal has been filed on the ground that the Motor Accident Claims Tribunal has failed to consider and appreciate the material available on record and has illegally and wrongly rejected the claim petition of the claimant-appellant only on technical ground which is not sustainable in the eye of law and deserves to be set aside by this Court.

From a perusal of the impugned judgment and order it is apparent that PW-1, Smt. Rajani was not an eye witness of the accident and with whose carelessness and negligence it had been caused. PW-2, Ashok Kumar, an eye witness of the incident, stated in his evidence that dumper was being driven slowly on the left side of the road whereas the truck in question was coming from the opposite direction i.e. from Kanpur towards Jhansi; that the driver of the truck in question driving the truck rashly and negligently hit the dumper by coming to the wrong side of the road causing the accident.

The Tribunal has found that from perusal of paper No. 68C/2 it is apparent that one Brijesh Kumar, who was working as cleaner on the truck, had lodged an FIR, which was registered as case crime No. 663/2010 under Sections 279, 337, 338 and 304A, IPC at P.S. Kotwali Moth on 15.8.2010 at 14.30 against the driver of dumper No. UP-78, BN-4926 causing the accident by him. The Tribunal has further found from paper No. 51-C, 1/2, i.e. site plan relating to case crime No. 553 of 2010, pursuant to FIR lodged by Brijesh Kumar son of Shiv Ram Pal against driver of the dumper under Sections 279, 337, 338, 427 and 304A, IPC that the driver of the dumper had gone on the wrong side of the road and hit the truck in question; that the facts mentioned in paper No. 49-C1/2 relating to case crime No. 553-A/2010 and paper No. 51-C, 1/2 relating to case crime No. 553/2010 are contradictory to each other; that Kailash Rochlani had lodged the FIR on the information given by another driver namely, Dharmendra Kumar of another truck, who had himself not seen the incident. The Tribunal in the circumstances, held that from a close scrutiny of the facts mentioned in paper No. 51-C, 1/2 and the statement of PW-2, the presence of PW-2 on the spot when the accident took place was doubtful as he in his statement had stated that dumper in question was being driven slowly by its driver on its left side of the road and that the claimant has failed to prove her case that the accident took place due to rash and negligent driving of truck by its driver whereas it is fully established that the accident took place due to rash and negligent driving of dumper in question by its driver.

In the aforesaid facts and circumstances, in our considered opinion, 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.