IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 669/2006 Balvindar Kaur and others ….. Appellants. Versus Kabul Singh and another … Respondents. Mr. S.K. Mandal, learned counsel for the appellants. Mr. Pankaj Purohit, learned counsel for respondent No.2. Dated: 11-12-2008 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and order dated 24-7-2006, passed by Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar, in MACT Case No. 2 of 2005, Balvindar Kaur and others Vs. Kabul Singh and others. 2- Brief facts of the case giving rise to this appeal are that on 20-9-2004 at about 3.00 P.M., when Jogendra Singh, husband of claimant Smt. Balvindar Kaur, was coming to his house situated in village Pandari from Virendra Nagar, suddenly Motorcycle bearing registration No. U.A. 06-B/0841 coming from Sitarganj side in a rash and negligent manner dashed him, due to which he succumbed to the injuries. The deceased at the time of accident was 45 years of age and he used to earn Rs. 7500/- from the work of Tractor Mechanic. The claimants filed petition for a sum of Rs. 17,20,000/- as compensation against the opposite parties. 3- The opposite party No.1, owner of Motorcycle No. U.A. 06-B- 0841, filed his written statement and alleged that the accident has occurred due to own 2 negligence of the deceased. However, the driver of the Motorcycle was possessing valid driving license and the vehicle was insured with United India Insurance Company and the liability of compensation, if any is there, the same is upon the insurer. 4- The opposite party No.2, United India Insurance Company also filed its written statement and denied the allegations made in the petition. According to the insurer, the accident has occurred due to the negligence of the driver of Motorcycle No. U.A. 06-B/ 4090, in which the deceased was riding and the Motorcycle No. U.A. 06-B/ 0841 did not involve in the accident, therefore, the insurance company cannot be held liable to pay any compensation. 5- The learned Tribunal, on the pleadings of parties, framed issues in the claim petition. Thereafter, parties, in support of their case, adduced evidence before the Tribunal. 6- The learned Tribunal, after considering the material available on record, and having heard learned counsel for the parties, dismissed the claim petition. 7- Feeling aggrieved, the claimants have preferred this appeal before this Court. 8- I have heard Sri S.K. Mandal, learned counsel for the appellants and Mr. Pankaj Purohit, learned counsel for the respondent No.2/United India Insurance Company and perused the record. 9- The grounds for disposal of the claim petition, which have been taken into consideration by the 3 Tribunal are firstly that the First Information Report was lodged at Police Station after two months; secondly the police has submitted final report in the criminal case U/Ss 279/304-A I.P.C. and thirdly that as per the Surveyor report submitted by the Insurance Company, the accident took place by another Motorcycle No. U.A. 06-B-4090. 10- The first submission of the Insurance company that the First Information Report was lodged after a period of two months is of no avail. It is quite clear from the statement of claimant Balvindar Kaur, P.W.1, that when she went to the Police Station to lodge the report after about 10 days of the accident, then the police station did not accept the report by saying that she must know the name of the person driving the Motorcycle at the time of the accident and on account of the same reason she had to file an application U/S 156 (3) Cr.P.C. before the Court concerned. It is further made clear that the claimant in the claim petition has taken the stand that the deceased was going on foot and he was hit by the Motorcycle No. U.A. 06-B-0841. The eye witness P.W.2, Kuldip Singh has also supported the case of the claimant by stating that he was standing by the side of the road at the time of accident and he saw that the Motorcycle No. U.A.06-B/0841 was being driven rashly and negligently and it hit the deceased from behind on account of which he fell down and sustained injuries and thereafter he died on account of the injuries. The claim compensation petition is in nature of summary proceeding. This is a beneficial Legislature and the court should not enter into the technicality in dismissing the claim petition. Further it is quite clear from the eyewitness account and the pleading taken by the claimants in the claim petition that on the date of the 4 accident the deceased was going on foot and he was hit by the Motorcycle involved in the accident from behind due to which he succumbed to the injuries. I do not find any reason as to why and how the eyewitness account has been disbelieved by the Tribunal. 11- The second aspect which has been taken into consideration by the Tribunal is that the police submitted final report in the matter, therefore, the factum of the accident and the manner in which the accident took place, is not proved. I again do not find any reason that merely on the ground that the police submitted final report in the matter the claim petition should be dismissed. None of the police official, who conducted the investigation in the criminal case, was produced by the insurance company in order to establish this aspect that any other Motorcycle was involved in the accident and the accident did not take place in the manner as stated by the claimants. 12- The next aspect which has been taken into consideration by the Tribunal is that as per the report submitted by the Surveyor on behalf of the Insurance Company, the deceased was travelling in Motorcycle No. U.A. 04-B- 4090, which hit the Motorcycle No. U.A. 06-B- 0841 and on account of the same the deceased sustained injuries on his person and ultimately he died. The Surveyor report cannot be said to be a convincing document on account of the reason that the Surveyor did not collect any evidence as to what are the factors which indicate that Motorcycle No. U.A. 04-B-4090 was involved in the accident. No proceeding was ever initiated against the owner or the driver of the Motorcycle No. U.A. 04-B- 4090 by any of the authority. Further no evidence has been adduced by the Insurance Company 5 that the Motorcycle No. U.A. 04-B- 4090 has ever been involved in the accident. It is further made clear that the Surveyor in his report has indicated that he took the statement of Balvindar Kaur in which she has stated that her husband was going on Motorcycle No. U.A. 04-B- 4090 as a pillion rider but surprisingly to note that no question was put to Balvindar Kaur in her cross- examination when she has given her evidence before the Tribunal concerned. Even no suggestion has been made to Balvindar Kaur with regard to aforesaid aspect as to whether she gave any statement before the Surveyor or not. Under these circumstances I am of the view that the Surveyor report is not convincing at all and the tribunal has put unnecessary emphasis on the surveyor report in dismissing the claim petition. 13- For the reasons stated above, I am of the view that it is not a case which could have been dismissed by the tribunal in such a cursory manner as the approach has been adopted by the court below. The court below could have examined the evidence on record in a correct perspective. I am of the view that the impugned judgment and order passed by the tribunal is liable to be set aside and the matter is to be remanded back for deciding the claim petition afresh. 14- Accordingly, the appeal is allowed. The impugned judgment and order dated 24-7-2006, is set aside and the matter is remanded back to the Tribunal concerned to decide the claim petition afresh in view of the evidence available on record as well as in the light of the observations made by me in the body of judgment. 15- It is further made clear that the Tribunal shall decide the claim petition expeditiously and without 6 causing any unreasonable delay, preferably within a period of three months in accordance with law. (B.C. Kandpal, J.) ISB 7