IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 798 of 2006 Thakursheel and another … Appellants Versus Khim Singh Mehta & another … Respondents Sri J.S. Virk, Advocate for appellants Sri Lalit Sharma, Advocate for respondent no. 1 Sri Manish Dalakoti, holding brief of Sri D.S. Patni, Advocate for respondent no. 2 Dated: June 17, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 29.08.2006 passed by Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar, in M.A.C. Petition No. 85 of 2005, Thakur Sheel & another versus Khim Singh Mehta and another. Brief facts of the case are that on 18.10.2004 at about 2.30 p.m. when deceased- Gopal Sheel was standing beside the road in front of F.C.I., Mahindra Bulero bearing Registration No. U.A.-04-4243 came rashly and negligently and dashed the deceased, due to which he sustained injuries on his person. The deceased was admitted in Jawahar Lal Nehru Hospital and thereafter he was referred to Sushila Tiwari Hospital and later on he was shifted to Keshlata Hospital, Bareilly. Sushant Roy, Ranjeet Tiwari and Arun Das sitting in Tea 2 Stall saw the said accident. The claimants have alleged that Rs.1,00,000/- was expended over the treatment of deceased and on 4.2.2005 deceased succumbed to his injuries sustained in the accident. The deceased was 12 years of age at the time of accident. The claimants claimed a sum of Rs.5,50,000/- as compensation along with interest against the opposite parties. The opposite party no. 1-Khim Singh Mehta filed written statement denying the contents of claim petition for want of knowledge. He took additional plea that claimants lodged an F.I.R. on 19.10.2004 against Vehicle No. U.P.-04-4243 and said vehicle was motorcycle and in the claim petition the model of Jeep has been mentioned as ‘Marshal’, whereas the vehicle of opposite party no. 1 is Mahindra Bulero and opposite party no. 1 along with his driver Naveen Chandra went to Bageshwar by Vehicle No. U.A.- 04-4243 on 18.10.2004. He has also pleaded that he has been falsely implicated by claimants in order to get compensation and his vehicle was insured with opposite party no. 2-The National Insurance Co. Ltd. on the date of the accident and driver was holding valid and effective driving licence on the date of accident. Therefore, the claim petition is liable to be dismissed. The opposite party no. 2-insurance company filed written statement denying the contents of claim petition and took the 3 additional plea that no information with regard to alleged accident was communicated to insurance company and on the date of accident the driver of offending vehicle was not having valid and effective driving licence. Hence, insurance company has prayed that claim petition be dismissed. The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties dismissed the claim petition vide judgment and award dated 29.08.2006. Feeling aggrieved by the aforesaid impugned judgment and award the appellants– claimants have preferred the appeal before this Court which has been placed before me for final disposal. Heard Sri J.S. Virk, learned counsel for appellants-claimants, Sri Lalit Sharma, learned counsel for respondent no. 1, Sri Manish Dalakoti, holding brief of Sri D.S. Patni, learned counsel for respondent no. 2-insruance company and perused the record. The short controversy in this case is as to whether the vehicle involved in the accident is 4 bearing Registration No. U.P.-04-4243 or U.A.- 04-4243. The impugned judgment and award passed by the court below shows that issues no. 1 and 2 were framed in order to decide this point which read as follows: 1- Whether the driver of Mahindra Bulero bearing Registration No. U.A.- 04-4243 on 18.10.2004 at 2.30 p.m. dashed Gopal Sheel standing beside the road in front of F.C.I. by driving rashly and negligently, due to which Gopal Sheel sustained injuries and died. If yes, its effect? 2- Whether the claimants falsely implicated the opposite party no. 1 in the accident in collusion with Investigating Officer due to the fact that Vehicle No. U.P.-04-4243 was not insured at the time of accident, as has been alleged in paragraph no. 10 of written statement 15-B? If yes, its effect? I have gone through the impugned judgment and award thoroughly. Ther record reveals that PW-2 Ranjeet Tiwari who was produced by claimants, has been cross examined and stated that Sushant Roy did not see the accident, whereas Arun Das saw the accident and offending vehicle was not Marshal. 5 This witness has not been able to tell as to how Sushant Roy indicated the model of Jeep as Marshal. This witness also stated that he does not remember the colour as well as registration number of offending vehicle as he saw the number of offending vehicle from the rear side. This witness also stated in his cross- examination that he told about the seeing of Marshall Vehicle No. U.P.-04-4243 but told the Inspector about the registration number of Marshall Vehicle as U.A.-04-4243. PW-3 Sushant Roy stated in his deposition that the accident in question occurred due to rash and negligence of driver of Marshall Vehicle No. U.A.- 04-4243 on 18.10.2004, but he got mentioned the registration number of offending vehicle as U.P.-04-4243 instead of U.A.-04-4243 due to haste. This witness told himself as an eye witness of the said accident, but PW-2 clearly stated in his cross-examination that PW-2 Sushant Roy did not see the said accident. DW-1 Naveen Chandra was produced by opposite parties and he has stated that he was driver of Bulero Jeep No. U.A.-04-4243 and on 18.10.2004 he along with his owner went to Bageshwar and reached Haldwani on 19.10.2004 at 7.00 p.m. This witness has also been cross examined and stated that he had been driving Vehicle No.U.A.-04-4243 for the last six years. DW-2 Pan Singh Rawat stated in his deposition that U.P.-04-4243 is the 6 registration number of motorcycle which is registered in the name of Teeka Ram. The claimants filed certified copy of F.I.R. in which registration number of offending vehicle has been mentioned as Marshal Vehicle No. U.P.-04-4243. Sushant Roy on behalf of opposite party no. 1 filed affidavit before Station House Officer concerned in which he stated that he mentioned the number of offending vehicle in the F.I.R. as U.P.-04-4243 in haste and subsequently he came to know that exact number of offending vehicle was U.A.-04-4243. The learned Tribunal after having considered the entire evidence adduced before it came to the conclusion that alleged accident did not take place due to rash and negligence of Bulero Jeep No. U.A.-04-4243 owned by opposite party no. 1, rather it took place due to rash and negligence of Vehicle No. U.P.-04-4243 and vehicle of opposite party no. 1 has been falsely implicated in the accident due to the fact that said vehicle was not insured on the date of accident. Therefore, the claimants are not entitled to get any compensation. I do not find any illegality in this finding recorded by the Tribunal. Thus, the Claims Tribunal has rightly dismissed the claim petition filed by claimants. For the reasons stated above, the appal lacks merit and is liable to be dismissed. 7 Accordingly, the appeal is dismissed. The impugned judgment and award dated 29.08.2006 is confirmed. (B.C. Kandpal, J.) SP 8