IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 807 of 2006 Ravindra Kumar …Appellant Versus Driver Anil Kumar & others …Respondents Sri H.M. Bhatia, Advocate holding brief of Sri Arvind Vashist, Advocate for appellant Sri K.K. Shah, Advocate for respondent no. 3 Dated: November 20, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and order dated 14.9.2006 passed by Additional Sessions Judge/First Fast Track Court, Roorkee, District Haridwar, in Motor Accident Claim Petition No. 72 of 2005, Ravindra Kumar vs. Driver Anil Kumar and others, whereby the claim petition of claimant-appellant has been dismissed. Brief facts of the case, according to the claimant, are that on 8.5.2005 at about 7.25 p.m. when claimant-Ravindra Kumar was coming Roorkee from Haridwar through Bus No. U.P.12D- 2450, which was being driven by its driver rashly and negligently, driver of the said Bus hit another vehicle from one side, due to which, right hand of claimant was injured and he was taken to Saharan Nursing Home, Roorkee and thereafter due to critical condition of claimant he was referred to Meerut Hospital, where doctors of Narayan Hospital 2 amputated right hand of the claimant. According to the claimant, he used to earn a sum of Rs.4000/- per month at the time of accident. The claimant claimed a sum of Rs.7,50,000/- as compensation against opposite parties. Insurance company has refuted the contents of the claim petition made by the claimant and pleaded that claim petition has been filed in collusion with opposite parties no. 1 and 2, therefore, the same is liable to be dismissed. The factum of accident and injuries sustained by the claimant in the accident has been denied by the insurance company. It has also pleaded that claimant was not travelling in the offending bus at the time of accident and hence the claim petition is liable to be dismissed. The claim petition has been filed by the claimant in order to get undue advantage. It has also been pleaded that claimant has put his hand outside from the window and his hand was got injured from another vehicle, for which the claimant himself was responsible. It has further been pleaded that it is wrong to say that driver was driving the bus rashly and negligently. Therefore, the claimant is not entitled to get any amount of compensation. Driver-Anil Kumar also denied the contents of claim petition and pleaded that case has wrongly been filed by the claimant. Driver of bus was not at fault and said bus was insured. The driver was holding valid driving licence to ply the bus. The same stand has also been taken by owner of vehicle in question. 3 The learned Tribunal on the basis of pleadings adduced by the parties framed relevant issues in the claim petition, which were discussed in great detail. Parties led evidence in support of their cases. The Tribunal after having considered the entire evidence available on record and hearing learned counsel for the parties, dismissed the claim petition filed by claimant, vide judgment and order dated 14.9.2006. Feeling aggrieved by the aforesaid impugned judgment and order, the appellant-claimant has preferred the present appeal before this Court. Heard Sri H.M. Bhatia, Advocate holding brief of Sri Arvind Vashist, learned counsel for appellant- claimant, Sri K.K. Shah, learned counsel for respondent no.3-insurance company and perused the record. Learned counsel for the appellant has submitted that learned Tribunal has illegally dismissed the claim petition without there being any evidence on record. From perusal of the record it shows that the Tribunal has framed issue no. 1 pertaining to rash and negligence of the driver of bus and also framed issue no. 2 whether the claimant sustained injury due to his own fault or not. The burden of proving this fat that claimant did not suffer injury due to his own negligence, was upon the claimant and to discharge this burden he has been examined in the claim petition and alleged that his hand was not 4 outside the window of the bus, but he sustained injuries on the knee of his right hand due to collision of another vehicle. The Tribunal has recorded the finding that the claimant has not been able to narrate other facts whether any other passengers also sustained injury in the accident, showing his inability to tell that the bus was driven at a high speed and carelessly. The bus and the truck were plying in the opposite direction to each other and there was no question of overtaking the truck as has been stated by the claimant. The Tribunal also took the note of this fact that had the claimant would have received serious injury on his hand, he certainly would have lodged the report at the Police Station with regard to said accident, but he has not lodged any such report. The claimant was not able to give the answer in his cross- examination that whether the bus was overloaded or it was carrying lesser number of passengers. If the bus has actually collided with the truck, then it is impossible that only the claimant would have sustained injury. The nature of injury of the claimant also make his deposition suspicious. The claimant in his claim petition also pleaded that soon after the accident his hand was amputated but the doctor could not see the palm of the claimant when he was brought to the hospital and the claimant could not describe the absence of his palm. It is not the case of the claimant that his hand was cut out in the bus, but he has pleaded this much that he sustained injuries on his hand. In the aforesaid circumstances, the deposition of the claimant is not corroborated by the medical evidence, therefore, the Tribunal has rightly came to the conclusion that the claimant did not sustain injury while travelling in 5 the bus and accordingly dismissed the claim petition. I do not find any infirmity in the conclusion drawn by the Tribunal. On rest of findings also the Tribunal also appears to be justified and does not require any interference. For the reasons stated above, the appeal lacks merit and is liable to be dismissed. Accordingly, appeal is dismissed. The impugned judgment and award dated 14.9.2006 is hereby confirmed. (B.C. Kandpal, J.) SP