CORAM: Hon’ble Shri Satish K. gggotri 8s Hon’ble 8hri N.K. wing, JJ. MISC. APPEAL (C) No. 194(2008 > APPELLANT Sunil Kumar Verma I COURT OF CHHATTISG BI SPUR Versus Mohammad Ramjan and others ORDER For consideration Sriiu N'K- Agarwa! Judge W HON’BLE SHRI‘ 3ATISH K. AGNIHOTRI J \I a7~L‘ SdJ- Satish K. Agnihotri ,, Edge Post for order :lg -1 1—2009 N.K. Agrawal Judge ’._ mmmmmmm HIGH COURT OF CHHATTIsGARH, BILASPUR Misc. AgPEAL ‘q No. 194/2008 APPELLANT Sunil Kumar Verma son of Lakhan CLAIMANT Lal Verma, aged about 27 years, resident of village Pandar Police Station Patan, Tahsil Patan, Disu‘ict Durg (CG) Versus 1. Mohammed Ramjan Son of Mohammed Jafar, aged 26 years, resident of village Seluda, Police Station Utai, Tahsil Patan, District Durg (CG) 2. Sohjl Ahmed Khan son of Late M.S. Khan, aged about 41 years, R/o Quarter No. 5/A, Street 35, Sector 10, Bhilai Nagar, RS. Kotwali, Bhilai, Tahsil and District Durg (CG) 3. Manager, the Oriental Insurance Company Limited, Official address Divisional Oiiice P.B. 51, Malviya Nagar, Durg, Tahsil and District Durg (CG) DIVISION BENCHH Hon. Shri Satish K. Agnihotri and Hon. Shri N.K. Agaiwal, JJ ' PREsEN'r :- r Shri Aijun ’Singrol, Advocate, for the appellant Per N. K. Agxawal, J l. Petition by Vllth Additional Motor Accident Claims Tribunal (FTC) Durg, District Durg in Claim Case No. 04/2007 vide award dated 12—10—2007. The facts briefly stated are as under:- . On 9- l 1-2006, as per the claimant, while he was going along with one Santosh Kumar Verma on motorcycle No. CG 07 LT 0968 from Pandar to Durg behind truck (Dampher) No. CG Shri Sudhir Agawal, Advocate for the respondent No. 3. ORDER ( 1.3 —1 1—2009) This is claimant’s appeal arising out of dismissal of Claim 2@ O7 ZC 4400, due to bursting of tyle of the truck, the Gitti loaded in the truck fell into his eye, as aresult of which he sustained serious injury in his right eye. He was treated in Sai Hospital, Utai, then he was referred to Sector-9 Hospital, Bhilai and then to Arvindo Hospital, Raipur. Report was lodged on 16—11-2006 in Police Station Utai against respondent No. 1 for oh‘ence under Sections 279 and 338 of I.P.C. and challan was also filed. 3. The claimant preferred an application under Section 166 of the Motor Vehicles Act, 1988 (briefly, ‘the Act’) against the driver, the owner and the Insurance Company of the said truck claiming Rs. 12,30,000/ - as compensation. 4. The respondents by filing their written statements denied such accident arising out of the use of said truck. . Learned Tribunal on a close scrutiny of the evidence led, material available on record and the submissions made by the parties, held that the injury sustained by the claimant is not out come of any accident with the said, truck and dismissed the claim petition. Hence this appeal. . Shri Singrol, learned counsel for the appellant would submit that due to bursting of tyre of the truck which was overloaded with the Damer Gitti, some of the Gitti fell upon the claimant’s eye, as a result of which, he sustained injury - and therefore, the injury sustained by him is out come of negligent driving and poor maintenance of the truck in question; learned Tribunal went wrong in dismissing the claimant’s petition. 7. Per contra, Shri Sudhir Agawal, learned counsel appearing for the respondent No. 3/ Insurance Oompany would submit that the award passed by learned Tribunal is based on appreciation of evidence and no fault can be found in it and the same deserves to be upheld. 8. We have heard learned counsel for the parties, perused the award impugned and the record of the Tribunal. 9. The appellant / claimant examined himself, pillion rider Santosh Kumar Verma, Dr. Pmshant Shrivastava and Dr. K. Bhatia. The respondents examined Mohd. Ramjan, driver of the truck. 10. A careful reading of the evidence adduced by the parties would reveal that the appellant fell down hom motorcycle on 9-1 1-2006 and tyre of the truck got punctured on that date; the claimant was sent to Utai Hospital; the fact of accident was not disclosed to the treating doctor nor the matter was reported to police immediately; on 16-11—2006, the matter was reported to police (Ex. P— 1); thereafter spot map was prepared (Ex. P—2); vehicle was seized (Ex. P-3); the appellant was sent for medical examinau'on (Ex. P—S). l 1 . The controversy revolves around the question whether ~ the appellant sustained the injury by falling of Gitli on his eye from the truck or not ? 12. Had it been a case of accident of falling of Gitti upon his eye from the alleged on‘ending truck, then the authorities of Sai Hospital, Utai, Durg must have reported the matter to police immediately and after examining the injury sustained by the appellant, may have referred the appellant to another hospital. In the instant case, it is admitted position that the appellant was immediately taken to Sai Hospital, Utai, no report was lodged on the same day by him or by his mend - Santosh Kumar Verma. When the appellant was in the Sai Hospital for treatment on 9—11—2006, then how he can be sent for medical examination on 1741—2006 to the same hospital. These questions were not answered or explained by the appellant. More over the appellant failed in proving the accident by producing clinching evidence in this regard. Therefore, leaned Tribunal has rightly recorded a finding that the accident did not occur due to rash and negligent driving by the driver of the truck and rightly dismissed the claim, which is based on appreciation of evidence. The appellant failed to point out any material suggesting the accident on account of rash and negligent driving of the truck. It is trite law that initial burden to prove negligence of the driver and involvement of vehicle is upon the claimant in which he failed to discharge his burden. In View of the above, learned Tribunal has rightly dismissed the claim. For the foregoing reasons, the appeal being devoid of substance is liable to be dismissed and is hereby dismissed. 14. No order as to costs. Sd/— Sd/~ Satish K. Agnihotri N.K. Agrawal Judge Judge