Sukhdev Kurre vs Paretan Bai and Others

I.M. Quddusi and P.K. Mishra, JJ.—Heard. This is owner''s appeal questioning the liability.

This case was taken up for hearing on 16th March, 2011 but even after revision of list, none appeared on behalf of the respondents and on that day, Learned Counsel for the appellant has argued the appeal to some extent, however, with an intention to give a chance to the respondents, this Court has fixed the matter today for further hearing, but today also when the matter is called out twice none appeared on behalf of the respondent, though the notices have been served on them, and therefore, we have no other option except to proceed ex parte against the respondents.

By way of this appeal u/s 173 of the Motor Vehicles Act, 1988 (for short the ''Act'') the appellant-owner has impugned the award dated 7th May, 2008 passed by the learned 10th Motor Accident Claims Tribunal, Raipur (CG) (for short the ''Claims Tribunal'') in Claim Case No. 131/2007 allowing the claim application of the claimants, awarding a compensation of ` 3,97,000/- to the claimants and fastening liability on the appellant-owner to pay the amount awarded.

Facts of the case, in brief, are that on 10th May, 2007 at about 7.30 p.m. in the night a tractor bearing registration number C607-D-4549, due to rash and negligent driving by its driver, dashed the bicycle of deceased Santram Sahu. As a result he sustained various grievous injuries on his body. He was admitted in Savitri Hospital for treatment where he died on 11th May, 2007. Report of the accident was lodged in the Police Station Kumhari on the basis of which offence was registered against the appellant herein and after completion of the investigation, the charge sheet was filed before the Court below. The claimants, who are unfortunate, widow, children and parents of the deceased, have filed a claim application before the Claims Tribunal seeking compensation to the tune of ` 6,90,000/- on the ground that they were dependent on the deceased, who was the sole earning member in family, and due to his death, they have suffered loss of income.

On the pleading of the parties, the Claims Tribunal has framed as many as five issues and after hearing the parties and considering the material available on record arrived at a conclusion that the claimants are entitled for compensation as the incident had taken place due to rash and negligent driving of the appellant herein and accordingly, allowed the claim petition and awarded a sum of ` 3,97,000/- as compensation and fastened the liability on the appellant herein to pay the compensation to the claimants.

We have heard Learned Counsel for the parties and perused the records of the Tribunal as also the findings given in the impugned award.

On careful examination of the record, we found that in the claim application the date and time of accident has been mentioned as 10th May, 2007 at 7.30 p.m. but in the first information report, which was lodged on 11th July, 2007 the time of receipt of information has been mentioned as 15.30 hrs. and the time of accident has been mentioned as 3.00 p.m. on 11th July, 2007. Even in the post-mortem report letter for post-mortem examination was shown to be written on 11th May, 2007 at 2.45 p.m. All these documents do not corroborate each other. Further, from perusal of the report it is evident that at first point of time registration number of the tractor has not been mentioned in the first information report and subsequently on 7th August, 2007 the tractor bearing registration CG06-4549 was seized and this fact is suggestive of the fact that accident had taken place with some unknown tractor.

Somal Sahu (AW-2), who is reported to be an eye-witness of the accident, has stated that after the accident the deceased, who was injured at that time, was brought to Savitri Hospital. It has come in his statement that the police station is located on the way to the hospital, however, FIR was not lodged immediately. This witness has further stated that he did not inform anything to the doctor and his companions must have informed which he did not know. He had also stated that a person, who was chased and caught at the time of accident, told himself to be the owner of the tractor, however, he was not handed over to the police and what happened to that person thereafter, it is not known to him and therefore, the story regarding catching-hold of the owner of vehicle appears to be concocted and afterthought.

In view of the foregoing discussion, we are of the opinion that the claimants were not successful in proving the fact that the vehicle in question i.e., CG07-D4549, has caused the accident.

Accordingly, the appeal is allowed, the impugned award awarding compensation to the claimants and fastening liability on the appellant herein is hereby set aside and the appellant is exonerated from the liability to pay compensation to the claimants. However, if any amount of compensation is deposited by the appellant with the Claims Tribunal and the same has not been withdrawn by the claimants so far, then the same be refunded to the appellant and in case the amount deposited by the appellant has been withdrawn by the claimants then the same would be recoverable by the appellant. However, it is made clear that though the respondents/claimants are not represented despite service but this order will not debar them to move an application u/s 163 of the Act i.e., scheme for payment of compensation in case of hit and run motor accidents. Certified copy as per rules.