IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.626 of 2008 1. Smt. Shanti Devi, Wife of Late Parmeshwar Sao. 2. Dilip Kumar (Driver), Son of Late Parmeshwar Sao. Both are resident of Mohalla – Bhaisasur, P.O. and P.S. – Biharshariff, District – Nalanda. (Owner and Driver respectively). (Opposite party No. 1 and 2 respectively) -------- Appellants Versus 1. Nand Lal Sao , Son of Late Sadhu Sao. 2. Sumanti Devi, Wife of Nand Lal Sao. Both are resident of village – Pawa, P.O. – Pawa, P.S. Deepnagar, District – Nalanda. (Claimant No. 1 & 2 respectively) ------- Respondents ---------------------------------- 12 21.11.2011 Heard Sri Ajay Kumar, learned counsel for the appellants. The present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘M.V. Act’) has been preferred against the judgment dated 08.09.2008 and award dated 17.09.2008 passed by the 1st Additional District Judge-cum- Claims Tribunal, Nalanda at Biharsharif (hereinafter referred to as the ‘Claims Tribunal’) in Claim Case No. 26 of 1992. By the impugned judgment and award the learned Claims Tribunal has allowed the claim case and directed the appellant no. 1 /owner of the offending vehicle to pay the compensation amount of Rs. 1,94,000/- within one month, failing which, the appellant no. 1 was required to pay interest on the amount at the rate of 6% per annum till the date of payment. In the present case in the year 1992 son of both the respondents died in a motor vehicle accident in which the vehicle i.e. the Trekker bearing Registration No. BHY/3061, owner of which was the appellant no. 1, was involved. At the time of 2 accident, the appellant no. 2 /son of the owner, himself was driving the vehicle and the offending vehicle was not insured. Though both the respondents lost their son long back in the year 1992 and the learned Claims Tribunal on the basis of evidence directed the appellant no. 1 to pay the compensation amount, the appellants, one way or the other, succeeded in defeating the legal right of the respondents for a long period. The claim petition itself was filed in the year 1992. However, finally, the claim case was decided in the month of September, 2008. There was specific direction by the learned Claims Tribunal to pay the compensation amount within one month, failing which, the appellant no. 1 was required to pay interest. The present appeal was filed on 20.10.2008 even without depositing statutory amount in view of Section 173 of the M.V. Act. Subsequently, on 23.04.2009, this court passed a peremptory order, only thereafter, the statutory amount was paid. It was not the end of the matter. Though the appeal was filed after expiry of the period of limitation, no limitation petition was earlier filed and the matter remained pending before this court. On 08th September, 2011, a limitation petition vide I.A. No. 6186 of 2011 was filed with a prayer to condone the delay of 134 days in filing the appeal, and as such, the delay in filing the appeal has not been condoned, till date. Fact of the case is that on 12.05.1992, as alleged by the informant, he along with the son of the respondents was traveling in 3 the offending vehicle. In the F.I.R. it was mentioned that the offending vehicle i.e. Trekker was carrying about 20 passengers. The son of the owner of the vehicle himself was driving the vehicle rashly and negligently. As per the F.I.R., the Trekker while moving in high speed from left side scratched a standing Tractor loaded with sand, due to that reason, the son of the respondents received injuries and fell down from the vehicle. Subsequently, the informant got down from the offending vehicle and the injured was carried to the hospital. During treatment he died. After the death, post-mortem examination was conducted on the dead body. On the basis of fard- beyan of one Birendra Kumar, who was occupant of the offending vehicle, F.I.R. vide Deepnagar P.S. Case No. 60 of 1992 was registered. The appellants have brought on record a copy of fard- beyan as ‘Annexure-1’ to the Memo of Appeal. It was submitted that the F.I.R. was got exhibited as Exhibit-2. After investigation, Police submitted charge sheet against the appellant no. 2 /driver of the offending vehicle and charge sheet has been exhibited as Exhibit-3. The parents i.e. the respondent no. 1 & 2, whose young son was earning sufficiently and died in the accident, filed petition before the learned Claims Tribunal, claiming total compensation of Rs. 11,83,000/-. It further appears that no interim compensation amount was paid to the claimants under section 140 of the M.V. Act. Before the learned Claims Tribunal three witnesses were examined out of whom the respondent no. 1 was examined as C.W.- 1 and the informant as well as one of the occupant were examined 4 as C.W.-2 & 3, who supported the claim case filed by the claimants. Before the learned Claims Tribunal the owner of the offending vehicle was also examined as a witness opposing the claim. Since before the learned Claims Tribunal no cogent evidence was brought on record regarding exact income of the deceased, the learned Claims Tribunal on the basis of notional income as prescribed in Schedule-2 of the Motor Vehicles Act calculated the compensation and the total compensation amount was directed to be paid to the tune of Rs. 1,94,000/- which includes expenses, cremation cost, loss of consortium etc. The learned Claims Tribunal ordered the appellant no. 1 to pay the compensation amount within one month, failing which, she was directed to pay interest at the rate of 6% per annum till the date of payment. In normal course the learned Claims Tribunal was required for directing payment of interest on compensation from the date of filing of the claim petition, but lenient view was taken by the learned Claims Tribunal, and as such, the appellants/owner was not directed to pay interest on compensation from the date of filing, but on failure to pay the compensation amount within one month direction was made to pay the interest on the compensation amount. It has already been indicated above that how the appellants have succeeded in frustrating the right of the old parents of the deceased for such a long time. Sri Ajay Kumar, learned counsel for the appellants has taken the plea that the learned Claims Tribunal has completely 5 failed to appreciate the evidence which was brought on record to show that no accident had taken place as alleged by the claimants. Learned counsel for the appellants has drawn my attention to ‘Annexure-2’ to the Memo of Appeal i.e. certificate issued by Inspector of Motor Vehicles. It was submitted that the offending vehicle was examined by the Inspector of Motor Vehicles. However, no damage was found on the offending vehicle. It was argued that had it been a case of accident there would have been mark of accident on the offending vehicle. It was submitted that non-appearance of any mark on the offending vehicle is sufficient to prove that without any accident a false claim petition was filed. It was submitted that the appellant no. 1 / owner of the vehicle while being examined as witness opposing the claim case had categorically asserted that on the date of accident her vehicle was not plying nor any accident had taken place. The appellant had also taken a plea that due to some ulterior motives a false claim case was filed, and as such, the impugned judgment and award is required to be interfered with. I have also perused the impugned order as well as the materials available on record of the case particularly the copy of the F.I.R. as well as certificate granted by the Inspector of Motor Vehicles. The fard-beyan i.e. ‘Annexure-1’ to the Memo of Appeal which has been marked as Exhibit-2 categorically states that the offending vehicle was carrying about 20 passengers. The informant has asserted that from the left side of the offending vehicle was 6 scratched with a roadside parked Tracktor loaded with sand. The deceased was on the left side of the vehicle. If the offending vehicle i.e. Trekker was carrying about 20 passengers there were every possibility that a passenger who was on the left side in such an accident would have only got injury without any scratch on the vehicle. The fact of the F.I.R. was further corroborated during investigation of the case. Due to that reason charge sheet was submitted against the driver of the offending vehicle i.e. the appellant no. 2, who is none else but the son of the owner. Before the court below copy of the F.I.R., charge sheet, post-mortem examination report and death certificate was brought on record. The defence which was taken by the appellants was primarily not satisfactory. Only ground which has been taken in support of the appellants was the non-availability of any mark of accident on the vehicle as per ‘Annexure-2’ to the Memo of Appeal, is not sufficient to persuade the court to disbelieve the entire case of the claimants. After going through the impugned judgment as well as the defence plea as per ‘Annexure-2’, the court is of the opinion that while allowing the claim case the learned Claims Tribunal has committed no error warranting any interference. Accordingly, the appeal stands dismissed. Even the limitation petition which has been filed by the appellants in the year 2011 is required to be rejected. The grounds which have been taken by the appellants in the limitation petition are not sufficient for allowing the limitation petition. Accordingly, 7 the appeal both on merit as well as limitation stands dismissed. Since the appeal has been dismissed, the statutory amount which was deposited in the present appeal is required to be remitted back to the court below for its payment to the claimants. The draft may be prepared in the name of the claimants. Praful ( Rakesh Kumar, J.)