IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 245 of 2003 Bhuwan Chand Pathak S/o Late Nanda Ballabh Pathak, R/o Gaon Naizimabad, P.O. Surya Nagar, District U.S. Nagar ... Claimant/ Appellant. Vs. Jagdish S/o Hari Singh, R/o Kashipur Motors and Tractors Kashipur, District U.S. Nagar (owner of Jeep No. UP-32/R/7030) .. Opp. Party/respondent. Sri M.K. Aggarwal, learned counsel for the appellant. None for the respondent. Dated: 14-03-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred by the claimant, against the Judgment and order dated 6-6-2003, passed by Motor Accident Claim Tribunal/Addl. District Judge/III F.T.C., Udham Singh Nagar, in M.A.C.P. No. 16/2002, Bhuwan Chandra Pathak Vs. Jagdish Singh, whereby the claim petition was dismissed. 2- The facts of the case, in short, are that the claimant/appellant presented a claim petition before the learned Motor Accident Claim Tribunal for compensation due to the injuries sustained by him in a motor accident. According to the claimant on 10-2- 2001 at about 2 P.M. he was going on foot in between Kichha and Dhora Dam. Suddenly Jeep No. U.P. 32-R- 7030 came there at a high speed and dashed him from behind, due to which he fell down and became unconscious. When he gained consciousness he came to know about the number of jeep from the local people. He was admitted in Dr. Mehar Singh Clinic. Thereafter he was brought to Sheel Nursing Home Bareilly where he was operated for his shoulder injury. The claimant alos pleaded that he had sent the written F.I.R. of the accident to the Superintendent of Police, U.S. Nagar on 11-12-2001 by registered post. According to him he spent Rs. 62,000/- on his treatment. Hence filed the petition for compensation of Rs. two lacs. 3- The Opposite Party/respondent contested the claim petition by filing his written statement, before the learned Tribunal, denying the allegations of the claimant and alleged that his jeep on the date of so called accident had gone to Ghaziabad and the accident was not done by his jeep. The claimant has preferred the claim petition on wrong facts and in order to get claim from the respondent and for that purpose false accident has been concocted. 4- On the pleadings of parties, the learned Tribunal framed following issues in the petition:- 1- Whether on 10-2-2001 at about 2 P.M. in between Pipliya Moar, Kichha and Dhora Dam the accident has taken place by the jeep No. U.P. 32-R-7030 which was being driven rashly and negligently by its driver and in the said accident the claimant sustained injuries? 2- Whether the claimant is entitled to get any compensation? If so, how much?. 3- Whether the petition is barred by limitation on the basis of the Amending Act? 5- The claimant in support of his claim produced himself as P.W.1 and one Gauri Shankar P.W.2 and also filed medical bills etc. The Opposite Party also examined himself as D.W.1 and one Kashmir Singh as D.W.2 He also filed toll tax receipt dated 10- 2-2001. 6- The learned Tribunal after considering the material on record and having heard the learned counsel for the parties, dismissed the claim petition vide impugned judgment and order dated 6-6-2003. 7- Feeling aggrieved, the claimant has filed this appeal before this Court. 8- None has appeared on behalf of the respondent. I have heard Sri M.K. Aggarwal, learned counsel for the claimant/appellant and perused the record. 9- Learned counsel for the appellant has submitted that the Tribunal has wrongly relied upon the receipt of the toll tax which is to proved by the owner of the vehicle. He also submitted that the Tribunal did not consider the facts and evidence on record while rejecting the claim of the appellant. The Tribunal also failed to consider the oral evidence of the eye witness who has seen the accident and stated on oath before the Tribunal that the vehicle No. UP 32 R 7030 was involved in the accident on 10-2-2001 and the impugned judgment and order is patently illegal and is liable to be set aside. 10- Perusal of the record shows that the claimant filed claim petition with the allegation that the jeep U.P. 32-R-7030 dashed him from behind on 10-2-2001 at about 2 P.M. when he was going at Pipliya Moar on Kichha Dhora Dam Road. The burden to prove the factum of accident was on the claimant but he has not been able to discharge his burden by adducing cogent and reliable evidence. On the other hand the O.P./respondent has completely denied the accident from his jeep and alleged that on the date of so called accident his jeep had gone to Ghaziabad. 11- Although, there is interested statement of the claimant P.W.1, and his witness Gauri Shankar P.W.2 that the jeep UP 32 R-7030 dashed the claimant from behind and caused the accident but the allegation of the claimant has not been substantiated from the other reliable evidence. The most important factor of the case is that no prompt F.I.R. of the accident was got registered at the concerning Police Station. In this regard the assertion on the claimant is that Devi Dutt Pathak, brother of the claimant, after the accident had gone to Police Station but his report was not got registered. If the Police had refused to register the F.I.R., then it was obligatory on the claimant to have sent the F.I.R. through registered post to the higher authorities then and there but it was not done. Devi Dutt Pathak has also not been produced before the Tribunal to prove this fact. According to the claimant he had sent written report to the Superintendent of Police, U.S. Nagar through registered post on 11-12-2001, after 10 months of the alleged accident. The claimant has not put forth the reasonable explanation for sending the written report of the accident so belatedly. Had the accident been caused by Jeep No. U.P. 32-R-7030 on the date, time and place, as alleged by the claimant, the claimant should have lodged prompt F.I.R at the Police Station, which is not far away from the place of the occurrence. It has also come in evidence that after so called accident the claimant had gained his consciousness and often he used to go Kichha and Bareilly in connection with his treatment. It has also come on record that where the claimant was employed he could not tell to his Assistant Director the vehicle number involved in the accident. The learned Tribunal has also taken not of the fact that in the written report, allegedly sent to the S.P. Udham Singh Nagar by registered post, the claimant has written the place of occurrence Pipliya Moar and Bigul Dam, but in the claim petition the word ‘Bigul Dam’ has been got amended later-on by adding ‘Dhora Dam’. This fact also makes it clear that the claimant was not sure about the place of occurrence. Besides above facts, from the medical examination it does not become obvious that the injuries sustained by the claimant were caused at 2 P.M. on 10-2-2001. Therefore, the place of occurrence and the injuries sustained by the claimant are not proved. 12- Contrary to the above facts, the Opposite Party/Respondent has denied the accident and stated that on the date of alleged accident his jeep had gone to Ghaziabad. The jeep was being driven by Kashmir Singh. On way to Ghaziabad, about 40-45 kilometers behind, there happens to be Kali Nadi Bridge and the toll tax was paid by the driver of the said jeep on the date of so called accident. Toll tax receipt paper No. 16- C/2 was filed on record. In the said receipt, vehicle number and date (10th Feb. 2001) have been noted and it has also been initialled. The claimant did not make effort to question the genuineness of the said receipt by producing any evidence in its rebuttal. 13- In the aforesaid facts and circumstances of the case, the learned Tribunal was quite justified in holing that the claimant/appellant has not been able to prove the accident caused by the jeep No. U.P. 32-R- 7030 on the date, time and place as alleged by him, and thereby dismissing the claim petition. I do not find any ground to interfere in the finding recorded by the learned Tribunal. 14- The appeal lacks merit and is liable to be dismissed. 15- Accordingly, the appeal is dismissed. The impugned judgment and order dated 6-6-2003 is confirmed. No order as to cost. (B.C. Kandpal, J.) ISB