•-5- HIGH COURT OF CHHATTISGARH AT BiLASPUR SInale Bench : Hon'bie Shn' Diiip Raosaheb Deshmukh. J. Ao0ellant Owner Resisondent Clainiant 1.A. (C.)No.l 3^2007 Angad Sinha, S/o Dhanourarn Sinha, Aged about 41 years, Caste Kaiar, R/'o Village & Post Khamaria, Thana Mahasamund, District Mahasamund Versus Kishan Patel, S/o Bartia Patei, aged about 36 years, Caste-Marar, R/o Gram Khatori, Post Tusda, Thana & District Mahasamund, At present R/o Gram Goienda, Post Chatera, Thana Arang, District Raipur (C.G.) Appeai under Section 173 ofthe l^otor VehJcles Act. 1988. Present : - Shri Yogesh Pandey, counsei for the appeiiant. Smt. indira Trjpathi, counsel for the respondent. ORALORDER (Passed on this 13th day of January, 2009) The appelianVowner has preferred thls appea! against the dated 28-06-2006 passed by the 2nd Additionai Motor Accidents Ciaims Tnbunal, Mahasamund (henceforth "the Tribunal") in Claim Case No.19/2005 whereby upon a flnding of culpable negligence the appelianVowner, compensatlon of Rs.35,000/- has been awarded by the Tribunal to the respondenVclalrnant for the grievous injuries sustained In the accident. (2) Brief facts are that on 27-09-2004 at about 9 P.M., the respondenVclaimant was riding his cycle from viilage Khuteri towards IVIahasamund. The appeliant drove Motorcycle bearing No.C.G.-06-ZE-1195 (henceforth "the motorcycle") in a rash and negilgent •2-— ^ h»»»NNr' manner and dashed against the cycle of the rsspondent/cialmant. Grievous injuries were sustained by the respondenVciaimant In the !eft leg and the right hand. Report was lodged by Vishnu, A.W.3, the brother of the responderittelaimant in Police Statiori Mahasamund on 28-09--2004 vide Ex.P-2. In the said report, It was stated that the respondent?c!almant had toid ihim in the night, unknown motorcycie had his cycie, due to which, the respondenyclairnant had sustalned Injuries in the left ieg and the right hand. (3) Before the Tribunal, the respondent/ciairnant and Narottam Singh, A.W,2 and VIshnu, A,VV.3< evldence was not -adduced. The appeiiant/owner also testified and Harinath, NA.W.2 the Tribunal. The Tribunai upon a flnding of negjigence the appellant awarded. of Rs.35,000/-. (4) in thls the has an (i.A.No.1) under Order 41 Ruie 27 C.P.C. for filing copy ofthe log book to show that on the date of the accldent, he was performing duty eisevi/here. Arguments were heard on the sald appiication. The appellant had Harinath, N.A.W.2 in this regard, Since the not to show that the document couid not been fi!ed by him before ths Tribunal desplte due djligence, the application (i.A.No.1) Is dismlssed. (5) Learned counsel for the appeiiant/owner the respondenVciaimant had failed to estabiish that he had injuries due to an accident which had taken due to and of the motorcycle by the It vyas urged no •^^'^ff^ /^^ \\ * f -^^^ - ^ />•> .1 evidence v^as adduced by the resporsdenVclaimant. Smt. Indira Tripathi, iearned counsei for the respondent/claimant argued In support of the impugned award. Having considered rival submissions,! have perused the record. (6) Vishnu, A.VV.3, brother of the respondenVcJaimant who had the first informatlon report a day after the accldent, had categorically that at the time of iodging first information report, of the motorcycle by vvtiich and the person who had caused the accideswit, were not known. NarotSam Singh, A.W.2 has also stated that he had no knowiedge about the accident. In para 3 of his testimony, he has mereiy that cn the next day, the appeliant-Angad Sinha had admitted the factum of the accident. Frorn this testimony, it cannot be inferred that the appeliant-Angad Sinha had admitted causlng the accident wlth the cycle of the respondent/cialmant. Aithough, it was that the mudguard of the motorcycle ofthe appeilant/owner-Angad Sinha had a dent yet the copy of the seizure memo Ex.P-5 does not corroborate this fact. if the factum of the accident having caused by the motorcycie v^as knov^n on the verv next: day, there is no explanatlon for the non-mention of thls fact In the first Information report or for the inordlnate delay in the seizure of the motorcycie on 07-12-2004. The respondent/clalmant-KJshan Patel, A.W.1 has a!so testlfled in para 12 that he did not before the Poiice as to who was the author ofthe accldent. In para 5, he has deposed that on 29- 09-2004, l.e. t¥/odays after the accident, sorne villagers of Khamharia had informed him that the motorcycle of the appeiJanVovmer-Angad Sinha was involved In the accident. No such viiiager was examined by the respondent/ciaimant before the Tribunal. It was also stated that the appeSIant/ov^ner had offered to pay an amount of ^ Rs.1,000/" to the respondenVcIaimant. However, in my considered opinion, this is not sufficient to conc!ussveiy determine that the accident in which the respondenVciairnant had sustained injuries was caused by the motorcycle owned and driven by the appeliant. The appellant/owner- Angad Sinha has categorically stated on oath that no accldent was caused wlth his motorcycie. (7) Having thus considered the evldence ied by the respondenVclaimant In its entlrety, 1 am of the considered oplnjon that the finding recorded by the Tribunal regarding proof of cuipable negligence of the appeiiant-owner cannot be sustained. The appeal therefore deserves to be and is accordingly aiiowed. The Impugned award passed by the Tribunal Is set aside. The appiication under Section 166 of the Motor Vehides Act filed bv the claimant Is dismlssed. Sd/- Dilip Raosaheb Deshmukh Judge