IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 216/2007 Smt. Sharan jeet Kaur and others … Appellants. Versus The Oriental Insurance Company and another .. Respondents. Sri H.M. Bhatia, learned counsel for the appellants. Sri Deepak Rawat, Advocate for respondent No.1. Dated: 18-3-2009 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, has been preferred by the claimants against the judgment and order dated 10-5-2007, passed by Motor Accident Claim Tribunal/District Judge, U.S. Nagar, in MACP No. 168/2006, Smt. Sharan Jeet Kaur and others Vs. Sekhar Dutt Pan and another. 2- Brief facts of the case giving rise to this appeal are that the claimants/appellants preferred a motor accident claim petition before the tribunal for compensation in lieu of death of Preetam Singh in a motor accident. According to the claimants on 30-3- 2006 at about 4.15 P.M. when Preetam Singh riding in his Motorcycle No. U.A. 06-D/ 6452 reached near Sanjivani Hospital at Kashipur road, the driver of Canter bearing registration No. U.A. 02-0563 dashed his Motorcycle from behind in a rash and negligent manner due to which he fell down and succumbed to the injuries at the spot. The deceased was doing the work of agriculture and Dairy and was earning Rs. 6,000/- per month. 2 3- The opposite party No.1, owner of offending canter U.A. 02-0563, contested the petition and denied the accident. He alleged that his truck did not involve in the accident. According to him on the date of the alleged accident his truck was inside Sitarganj Sugar Mill for transporting the sugar and came out of the gate of the Sugar Mill at 3.00 P.M. filled with sugar. The sugar merchant was also in the said truck. He further alleged that the place of accident is at a far off place from the Sugar Mill and the distance could not be covered within the time of accident. The driver of the canter was possessing valid driving license at the time of accident and the vehicle was insured with Oriental Insurance Company. 4- The opposite party No.2, Oriental Insurance Company also contested the claim petition and alleged that information of the accident was not given to it. The insurer further alleged that the accident has occurred due to rash and negligence of its driver and the driver was not having valid and effective driving license. 5- The learned tribunal on the pleadings of parties framed relevant issues in the claim petition. Thereafter parties led evidence in support of their contentions. 6- The tribunal after hearing learned counsel for the parties and perusing the entire material available on record, dismissed the claim petition. 7- Feeling aggrieved the claimants have preferred this appeal before this court. 3 8- Heard Sri H.M. Bhatia, learned counsel for the claimants/appellants and Sri Deepak Rawat, Advocate for the respondent/Oriental Insurance Company. None has appeared on behalf of the respondent No.2, owner of the canter in question in spite of service upon him. 9- Learned counsel for the claimants/appellants has submitted before me that the truck in question was involved in the accident. The claimants have produced eyewitness account of the accident before the trial court but the trial court has committed a manifest error in not relying on the testimony of P.W.2 Satnam Singh, an eyewitness of the accident and without any cogent reason dismissed the claim petition. He, therefore, urged that the impugned judgment and order passed by the tribunal is not sustainable in eye of law and is liable to be set aside. 10- On the other hand learned counsel appearing on behalf of the Insurance Company has contended that the tribunal after careful consideration of the evidence on record has given a just and appropriate decision holding therein that the accident has not occurred by the offending canter and accordingly dismissed the petition. Learned counsel, therefore, urged that the appeal is liable to be dismissed. 11- I have considered the rival contentions advanced by the learned counsel for the parties and perused the evidence on record. 12- The contention of the claimants/ appellants is that on 30-3-2006 at about 4.15 P.M. deceased 4 Preetam Singh was going by his motorcycle near Sanjivani Hospital at Kashipur road and the driver of Canter No. U.A. 02-0563 dashed his motorcycle from behind in a rash and negligent manner due to which he fell down and died at the spot. On the other hand the allegation of the owner of the truck is that his truck on the date of accident was in Sitarganj Sugar Mill and after filling sugar it came out from the Mill at about 3.00 P.M. Half an hour was spent in tying the Tirpal and ropes of the said truck. The place of accident is at a far off place from the Sugar Mill and it was not possible for the truck to have reached at the place of accident at about 4.15 P.M. and a false claim has been filed against the truck in question only with a view to get compensation on wrong facts. 13- The claimants to prove their case got examined P.W.1, Smt. Sharanjeet Kaur and P.W.2, Satnam Singh. P.W.1, Smt. Sharanjeet Kaur has admitted that she has not seen the accident with her own eyes. However, P.W.2, Satnam Singh is alleged to have seen the accident. According to this witness on 30- 3-2006 at about 4.12 P.M. he was going from Rudrapur towards Kashipur. Suddenly, the Canter in question, dashed the Motorcycle of the deceased from behind in a rash and negligent manner. In his cross-examination this witness has deposed that at the time of accident he was going in front of Sanjivani Hospital, the said Hospital is situated in a lane away from the main road. He further deposed that he was two steps behind from the Sanjivani Hospital. 14- To rebut the allegations of the claimants, Baldeo Singh, D.W.2, driver of the truck in question has been produced. This witness has deposed that on the 5 date of accident he had started for Kashipur after filling the sugar at 4.00 P.M. from Sugar Mill and crossed Rudrapur at 5.15 P.M. He has specifically deposed that his truck did not involve in the accident. He was given the information of the accident by his truck owner after 7-8 days of the alleged accident. In his cross examination this witness has deposed that he had come out of the gate of the Mill at about 3.15 P.M. Gate pass of 3.15 P.M. has been filed on record. This witness further deposed that the accident had occurred earlier. D.W.3, Sekhar Pant, also denied the involvement of his truck in any accident. 15- The learned tribunal has disbelieved the statement of P.W.2, Satnam Singh on the ground that in the site-plan paper No. 32-C/6 the place of occurrence could not be seen from the place where P.W.2, Satnam Singh was moving at the time of accident. According to Satnam Singh, P.W.2, Sanjivani Hospital is situated in a lane leading from the main road and he was two paces behind Sanjivani Hospital. In the aforesaid circumstances the learned tribunal was justified in reaching to the conclusion that P.W.2, Satnam Singh had no occasion to see the accident with his own eyes, and he was a got up witness. 16- The tribunal further held that the place of occurrence is far away from Sitarganj Sugar Mill and it was not possible for the Canter in question to reach to the place of occurrence after filling sugar in it and coming out of the gate at about 3.15 P.M. and spending half an hour in tightening the Tirpal and ropes of the Canter outside the gate. Admittedly the truck in question was not caught at the place of accident. It is pertinent to mention here that beside the above 6 evidence of P.W.2, Satnam, which was not found reliable by the trial court, no other cogent and reliable evidence has been adduced by the claimants so as to connect the involvement of the Canter in question in the alleged accident. In this way there is no reliable and sufficient material available on record to reach to a definite conclusion that the accident has occurred due to the involvement of the Canter in question. 17- In the aforesaid facts and circumstances of the case and the material available on record, I do not find any infirmity in the impugned judgment and order passed by the learned tribunal. 18- The appeal lacks merit and is liable to be dismissed. 19- Accordingly, the appeal is dismissed. The impugned judgment and order is hereby confirmed. (B.C. Kandpal, J.) ISB