c HIGH COURTOF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, M.A.No.467/2003 APPELLANTS RESPONDENTS Rajnath Sao Versus Vijay Kumar Chaudhary and others. ORIlEil For Pronouncement of Order .12.2010 Sd/- R.L. Jhawar Judge i HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI R.LJHANWAR. J. APPELLANT Claimant RESPONDENTS Miscellaneous ADDealNo. 467/2003 Rajnath Sao, S/o late Ram Padarath Sao, Caste-Kamlapuri Vaishya, Occupation- Business, r/o village Sanna, Tehsil Bagicha, Dist. Jashpur, C.G. VERSUS 1. Vijay Kumar Chaudhary, s/o Late Jagdevan Chaudhary, Occupation-Business, r/o Main Road Lohardaga, Distt. Lohardaga, Jharkhand. (Owner) 2. Parashuram s/o Ram Nageena Rai, age 35 years, occupation Driver, r/o village Hehal. Ratu Road, Ranchi, Jharkhand. (Driver) 3. United India Insurance Co. Ltd. Branch ; r 'iOffice, Main Road, Ranchi, Jharkhand, Local Branch Office, Raigarh, C.G. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLESACT. 1988 e- Appearance: Shri A.K.Prasad counsel forthe appellant. None for respondents No. 1 & 2. Shri Pankaj Agrawal, counsel for respondent No.3. ORDER (Passed on^ .12.2010) This is an appeat filed by the owner of the vehicle against the award dated 31.01.2003 passed.nby. the .2nd-Motor Accidents Glaims Tribunal (F.T.C.), Jashpur in claim case No. 25/2002 whereby the Claims Tribunal has rejected the claim petition filedby the owner. f. f:' • . . . 2. Brief factsof the case are that the appellant is the owner of truck bearing registration No.C.P.L.8355 (for short 'the truck'). On fateful day of 29.06.2001 the said "truck, which was loaded with sand, was going and at the same time, on way at the bridge of Ram Bandh, the Bus bearing NO.B.R.14/P-2511 (for short 'the Bus') being driven by its driver / respondent No.2 in a rash and negligent manner, dashed the truck, as a result ofwhich, the said truckfell down beneath the bridge of Ram Bandh. -^?-,... , ^"\ '%.. ^^ y t. 3. Seeking compensation of Rs.2,37,700/- for the damages caused to the said truck in the accident, the appellant filed a claim petition pleading that the driver of the truck was not negligent since he was driving the same very slowly whereas driver ofthe Bus was negligent and due to his negligence the accident took place. The said Bus was owned by respondent No.1 - Vijay Kumar Chaudhary and insured with respondent No.3 - United India Insurance Company. Therefore, the respondents are liable to pay compensation for the damages caused to his truck in the truck. 4. Respondents No.1 & 2 by filing written statement before the Tribunal denied all the averments mentioned in claim petition. Respondent No.3 by filing written statement stated that the truck was loaded with sand and fitness certificate of the truck was not produced by its owner, therefore, the said truck was not in a fit conditioh to drive and owner has also not informed to the insurance company about the incident and the driver ofthe said truck was himself negligent. On these premises, it urged that no compensation should be awarded. 5. All the parties led their evidence and the learned Tribunal after affording opportunity of hearing, perusal of documents and evidence adduced by the parties, held that driver ofthe truck was negligent and no evidence was adduced by the owner of the truck about the negligence of the Bus driver and that noevidence was adduced about the expenses incurred in repairing the truck. On these grounds, the Tribunal rejected thepetition. 6. Learnedcounsel for theappellant argued thatthe driver ofthe truck was not negligent. Driver of bus was negligent and caused accident, due to that the said truck fell down beneath the bridge of Ram Bandh. He also argued that two persons have died and three persons got injured. It was also argued'that heither th'e' bwh'er'ofthe Bus nbr'ihsurer 6f the Bus did adduce evidence. Since the accident occurred due to negligence ofdriver of Bus, therefore, the respondents are wholly liable to pay compensation towards damages caused to the truck in the said accident. Lastly, he argued that the learned Tribunal has not given any chance to prove his case and urged that the case be remanded back. -^^ ,< <e <.''"vi'-' ('i • . . ;^^i. ^ .^ '"%. l't.^^t%i X5KW .: ^^^^^- 7. On the other hand, learned counsel for respondent / insurance company argued that truck driver was negligent. The accident took place atvalleyarea and if the driver of the truck would have been vigilant, the accident would not have occurred and that the driver of Bus was not negligent; he was driving his Bus very slowly. It was further argued that the appellant did not adduce any evidence regarding negligence on the part of the driver of the Bus. 8. I have heard learned counsel for the parties at length and have perused the evidence and documents on record. 9. In the present case, the accident occurred on 29.06.2001 at Loroghat near Rama Bandh bridge was not disputed by the parties. The burden of proof regarding the fact that the driver of truck was, not negligent in driving the said truck and the driver of the Bus was negligent is on the appetlant. In order to prove this fact, the appellant examined himself, his grandson Hemant Kumar A.W.2 and Kailash Sharma A.W.3, As a matter of fact, the appellant did not witness the accident as to the manner in which it took place. In his cross-examination, this fact was admitted by him. Therefore, it is clear that the driver of the truck was negligent in drivin'g'its trock in 'a'raSh'a'h'd'he'gli^nfmanner and not the driverofthe Bus. In that situation, it can easily be discarded that driver of the truck was not negligent and driver of the Bus was negligent. It is evident from the evidence of Heman Kumar that at the time of accident he was sitting in the truckbeside the driverand afterthe accident he atso receivedinjuries but he did not produce such medical certificate to that effect. It is also clear that after the accident he went to his house and was unaware of the fact as to whether or notthe driver of the truck was inquired. 10. It has come in evidence that on the date of accident, Shantanram was driving the truck and Shantanram would have witnessed the accident and the appellant did 'not examihe'Shantariram, although he is the key eye witness, so that this Court could know as to the manner in which the accident took place. In the absence of examination of Shantanram, it cannot be presumed that the said accident took ptace due to rash and negligent driving of the Bus driver. More over, it is also clear from the F.1.R. Ex.P.2 that it was lodged on the basis of Dehati Nalishi but on perusal of record,_nejther the copy of Dehati Nalishi nor the true copy "-^1 •V-,^- Y i- thereof was produced by the appellant. As a matter of fact, whether grandson of the appellant i.e. Hemant Kumar was found to have been sitting in the truck is also not clear from the evidence of the appellant. If Hemant Kumar also got injuries, the certainly, he would have produced medical certificate of concerned Doctor but no such medical certificate was produced by him. It also shows that the appellant remained completely slumber in leading itsevidence regardingthe manner in which the accident took place. This apart, it is apparent from the affidavits of Parshuram, driver of the Bus so also of Khalasi of Bus namelySujit Kumar, that the Bus was being driven very slowly by Parshuram and at Loroghat near the bridgeof Ram bandh he also gave signal by pressing the Bus horn but due to rash and negligent driving oftruck driver, the said truck in turn dashed the Bus, due to which, the truckwas uncontrolled and fell down beneath the bridge. 11. So far as the argument that the appellant was not given proper opportunity is concerned, on perusalof record it is clearthatthe appellant was given last opportunity on 06.01.2003 and 07.01.2003 but neither he was present nor any information was made available to the Court. In that situation, the Court below was left with no option to close the evidenceof fhe appellant; On''perusaTbf'rec6'rcl; it 'also clear 'that ho' documeht to show that as to how much expense incurred in repairing the said truck was produced. Even according to the statement of the appellantrecorded on 4.10.2002 he was not in a position to get his truck repaired on account of his bejng poverty, which shows that on the date of evidence, the truck was not repaired, therefore, no question of granting Rs. 2,37,7001- towards damages to the truck in the accident does arise and thus is not reliableon this point. 'lt also reveals from fhe evidence ofA.W.2 Hemant Kumar Gupta that the truck was not repaired and the same was abandoned at Sanna. In the absence of such documents, the Tribunal did not rightly grant even single penny. 12. For the foregoing discussion, it is clear that on 29.06.2001 accident took place and in that accident the truck of the appellant was involved and in order to prove that the truck was got damaged by the said Bus, the burden was on the appellant to prove the fact regarding the manner in which the said truck was got damaged butthe appellant has notbeen able "v^.:...^^/ ^ to prove such fact. More over, on perusal of record, it emerged that no documents relating to repairing of the truck were produced by the appellant and the appellantwas also given a last opportunity. 13. Having thus considered, l do not find any illegality and infirmity in the impugned award. The impugned award is purely based on clinching, cogent and reliable evidence available on record. The Tribunalhas rightly rejected the claim petition and thus no interference is called for. 14. In the result, the appeal filed by the appellant / owner is dismissed being devoid of merit and substance.No order as tocosts. Sd/- R.L. Jhavvar judge •r" ^n