Smt. Sunahari Devi and Others vs Munazir Husain and Others

Rakesh Tiwari and Anil Kumar Sharma, JJ.—Heard learned counsel for the appellants on delay condonation application and on merit of the appeal as well as perused the record. The appeal is reported to be beyond time by 54 days. We have perused the affidavit filed in support of the delay condonation application in the F.A.F.O. The cause shown for delay is found sufficient. The delay condonation application is allowed and the delay is accordingly, condoned. The appellants challenge the judgment and order dated 7.2.2011 passed by the Motor Accident Claims Tribunal/Additional District Judge (Court No. 8), Moradabad in Motor Accident Claim Petition No. 406 of 2008, Smt. Sunahari Devi and others v. Munazir Hussain and others. They have prayed for relief of setting aside the aforesaid judgment and order dated 7.2.2011 and for grant of Rs. 9,11,000 as claimed by them in the claim petition.

The judgment is assailed on the ground that the factum of accident as well as involvement of the vehicle is prima facie proved by the claimants because registration number of the vehicle was noted by P.W. 2 Gopal Singh who was present on the spot but the Tribunal has committed an error in rejecting the claim of the appellants. It is stated that the accident took place on 4.4.2006 at about 8.15 p.m. by Truck No. U. P. 21 N-2506 near Godhuli Hotel when the deceased was going for duty at the Brass Factory, Fazalpur. P.W. 2 Gopal Singh eye-witness of the incident neither knew the claimants from before nor he was their relative. He was an independent witness who had seen the accident from Godhuli Hotel where there was sufficient light, hence there is no reason to discard his testimony. Therefore, the Tribunal in an arbitrary manner and against evidence on record has wrongly dismissed the claim of the claimants-appellants as such the judgment rendered by it suffers from illegalities and is incorrect on face of record, hence the same is liable to be set aside.

The contention of the appellants before the Tribunal is that deceased Rajvir was a labourer in Lohia Brass Factory, Lakari, Fajalpur on monthly salary of Rs. 3,000 ; that on 4.4.2006 when he was going to his work place via Pakbada for duty and reached Godhuli Hotel at about 8.15 a.m. he was hit by Truck No. U. P. 21 N-2506 driven rashly and negligently by its driver which was coming from Moradabad, as a result of which he died on the spot: that the report of the accident was lodged with Police station Pakbada at Case Crime No. 440 of 2006, under Sections 279 and 304A, I.P.C. ; that the owner of the aforesaid truck No. U. P. 21 N-2506 is Munazir Hussain son of Sri Anwar Hussain and it was insured with respondent No. 2, the New India Assurance Company Limited and its insurance papers were valid and effective ; that the accident has occurred due to rash and negligent driving of truck No. U. P. 21 N-2506 by its driver ; and that on account of death of the deceased in the accident the appellants have suffered irreparable loss ; that when no amount of compensation was paid by the owner of the truck, the appellants approached the Tribunal.

The record shows that opposite party No. 1 Munazir Hussain is the owner of Truck No. U. P. 21 N-2506 and claimed that his truck on the date and time of accident was Insured with respondent No. 2, New India Assurance Company Ltd. According to him, on the date of incident all the papers of the vehicle were valid and further that no accident took place as alleged by the claimants from the said truck No. U. P. 21 N-2506 on which driver Ataullah son of Bhure was driver who was possessing valid driving licence which was effective from 21.7.2005 to 20.7.2008 and that the policy was also in force w.e.f. 5.8.2005 to 4.8.2006. It is lastly stated by him that the F.I.R. was lodged against unknown person.

Respondent No. 2, insurance company denied the averments made in the claim petition and submitted that no cause of action has arisen for the claimants against it ; that allegations in the claim application are baseless and against law. It was stated that the claim petition was not filed on the format in accordance with law. The relevant documents such as copy of the F.I.R., post-mortem report, charge-sheet, site plan and technical report of the Investigator have not been filed. The claimants were neither dependent upon the deceased nor his heirs. Rather, all the legal heirs of the deceased have not been arrayed as parties in the claim petition as such the claim petition is liable to be dismissed. In the end it is also submitted that truck No. U. P. 21 N-2506 was not involved in the said accident and has wrongly been implicated in this case.

Respondent No. 3, Atul also denied the claim petition inter alia, that he has neither committed any accident on the said date and time as claimed in the claim petition nor he was ever caught by the police in Criminal Case No. 440 of 2006, under Sections 279 and 304A, I.P.C. P.S. Pakbada. He admitted that he has a valid driving licence No. 4709/N.T.P.C./M.B.D./98, which is valid from 21.7.2005 to 20.7.2008 and that the owner of the said truck is Munazir Hussain. The truck was having valid papers in all respects on the date of alleged accident and as such the truck was not involved in any accident, hence the claimants are not entitled to any compensation.

On the basis of the aforesaid pleadings of the parties, the Tribunal framed following issues:

After considering the pleadings of the parties as well documentary and oral evidence on record the Tribunal has recorded findings of fact that the claimants have totally failed to prove that the accident had occurred by truck No. U. P. 21 N-2506 as claimed by them. This truck was not involved in the said accident. Smt. Sunhari Devi, P.W. 1 has clearly admitted in her statement that information of the accident was given to her by her brother Sugar Pal at 4.00 a.m. on 4.4.2006 but neither she nor Sugar Pal had seen the accident. She has not pursued the matter in the police station as such her statement on oath has rightly been discarded by the Tribunal being hearsay evidence.

As regards evidence of P.W. 2, Gopal Singh is concerned, it was admitted by P.W. 1 that Gopal Singh was not known to her from before nor he used to come to the village but she had gone to his house about a month back and it is only after about two and a half months of the death of her husband when she was going to take medicine for her child and crying that she had a chance meeting with Gopal at Godhuli Hotel. He had asked her the case of her crying and on being informed about the death of her husband in the accident, he told her that he was eye-witness of the accident and there was no one else present in the hotel at the time when the said accident is alleged to have taken place. The relevant discussion by the Tribunal wherein evidence of opposite party No. 5 Sugar Pal is discussed in this regard reads:

It appears that the first information report was lodged at 9.15 p.m. within a period of one hour of the accident by Sugar Pal Singh the brother of Smt. Sunhari wife of the deceased. He had stated in his evidence that an unknown truck which was coming from the opposite side hit the cycle of his brother-in-law from front at about 8.15 p.m. who died on the spot. The persons present at the site of accident could not see the number of the offending vehicle.

The Tribunal on appreciation of the evidence accepted the case of the insurance company that truck no U. P. 21 N-2506 was not involved in the accident and that no body was also eye-witness of the incident. The claimants have lodged the F.I.R. due to greed for getting compensation. Even the truck number is said to be one which has been told by Gopal Singh to the claimants.

After hearing counsel for the parties we find substance in the reasoning of the Tribunal. The whole evidence of P.W. 1 appears to be hearsay and that Gopal Singh had not lodged any F.I.R. there was no explanation in this regard as to when he knew the number of the truck and had seen the accident, he did not lodge the F.I.R. immediately. There is no indication in the F.I.R. that the truck had hit the deceased from front or from behind which ought to have been found place in the F.I.R. had the said eye-witness been there. The relevant discussion by the Tribunal in this regard is as under:

It appears from the award that Smt. Sunhari Devi had gone to the police station with Gopal Singh after two and a half hours of the alleged incident but did not lodge any case. The Tribunal rightly came to the opinion that if she had come to know about the incident and the truck number from Gopal Singh then not lodging the case against truck driver or informing the Investigator of the case wherein the incident is said to have taken place by unknown truck creates serious doubt about the story of the claimants as even Gopal Singh had not mentioned as to whether the offending truck had caused the accident from front of the motor cycle or from behind.

To our mind, the accident in fact took place by an unknown vehicle as was given in the first information report and not by truck No. U. P. 21 N-2506 which is claimed to have been involved in the accident. It was rather a case of hit and run. Gopal Singh, P.W. 2 could not have seen the number of the truck from his hotel which is at a distance from the middle of the road. Only the side of the truck would have been visible at about 8.15 p.m. even if the hotel is well lighted and is situated on the side of road. The number plate on a vehicle is on its front and back fender.

There is no evidence on record from which it can be conclusively proved that accident was caused by alleged truck No. U. P. 21 N-2506 by its driver on the date, place and time claimed by the claimants. Ataullah in his evidence also had stated the said truck was at Bahraich where it was engaged in transportation of chaff between March, 2006 to June, 2006. Even in the investigation report of the police the said truck No. U. P. 21 N-2506 has not been found to be involved. For all the reasons stated above, we find that the Tribunal has rightly come to the conclusion that the claimants were not entitled to any compensation from respondent Nos. 1, 2 and 3 as the truck No. U. P. 21 N-2506 was not involved in the alleged accident. The appeal has no merit and it is accordingly, dismissed. No order as to costs.