IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 359 of 2006 Smt. Rajesh Kashyap & others ...Appellants Versus Mazid Ali & others …Respondents Mr. Ramji Srivastava, Advocate for appellants Mr. V.K. Kohli, Senior Advocate assisted by Mr. I.P. Kohli, Advocate for respondent no. 3-The New India Assurance Co. Ltd. Dated: 03-03-2009 Hon’ble B.C. Kandpal, ACJ. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellants-claimants against the judgment and order dated 09.03.2006 passed by Motor Accident Claims Tribunal/A.D.J./F.T.C. VII, Dehradun, in M.A.C.T. No. 132/2002, Smt. Rajesh Kashyap & others versus Mazid Ali & others. Brief facts of the case, as narrated in the claim petition, are that on 10.6.2002 Rakesh Kumar Kashyap (deceased) was going on a scooter registration No. UP-07/3885 from Vikas Nagar to Dehradun. When he reached near Sahaspur at Dhakipul, a T.V.S. motorcycle without any registration number, which was being driven rashly and negligently by its driver-Mazid Ali, dashed at his scooter, as a result of which Rakesh Kumar Kashyap and Himanshu Pundir, who was sitting on the scooter as pillion rider, sustained serious injuries. Both the injured were admitted in Doon Hospital, Dehradun in a critical condition, where on 11.6.2002 information about death of Rakesh Kumar Kashyap was given by driver of T.V.S. motorcycle at P.S. Sahaspur. The said motorcycle was insured with opposite party no. 3-The New India Assurance Co. Ltd. It has been alleged that at time of his death, the deceased had been earning a sum of Rs.6,000/- per month from the shop of tea. The claimants sought compensation to the tune of Rs. 10,10,000/- by filing claim petition No. 132 of 2002 before the Motor Accident Claims Tribunal at Udham Singh Nagar. Opposite parties no. 1 and 2 i.e. Mazid Ali and Himanshu Pundir did not file any written statement, hence an order was passed on 15.2.2003 to proceed exparte against them. Opposite party no. 3-The New India Assurance Co. Ltd. filed its written statement denying the factum of income of Rakesh Kumar Kashyap (deceased) as Rs.200/- per day i.e. Rs.6,000/- per month. At the same time, it has also denied the fact that deceased was going from Vikasnagar to Dehradun on Scooter No. UP-07-3885 and Suzuki motorcycle was being plied towards Vikasnagar from Dehradun. It has also been denied that Rakesh Kumar and Himanshu Pundir were admitted in Doon Hospital. It has also been alleged that neither F.I.R. was lodged in this regard nor vehicle was seized by police. It has further been alleged that insurance of motorcycle itself creates doubt and claim petition has been filed in collusion with claimants and opposite parties no. 1,2 and 4 and on these grounds claim petition is liable to be dismissed. Opposite party no. 4-Mahendra Singh filed his written statement stating therein that on 10.6.2002 deceased was going towards Dehradun from Vikasnagar by plying Scooter Chetak No. UP-07- 3885 and when deceased reached near Sahaspur Dhakipul a T.V.S. motorcycle, which was being driven rashly and negligently by opposite party no. 1, dashed at his scooter, as a result of which Rakesh Kumar Kashyap and Himanshu Pundir, who was sitting on the scooter as pillion rider, sustained serious injuries. Both the injured were admitted in Doon Hospital, Dehradun in a critical condition, where on 11.6.2002 Rakesh Kumar Kashyap died and since accident had taken place on account of rash and negligent driving of opposite party no. 1, therefore, answering respondent is not liable to be pay any compensation. In case, if the Tribunal imposes any liability to pay the compensation, the same is of opposite parties no. 1 to 3. Opposite party no. 4 nowhere stated in his written statement that he is the owner of Scooter No. UP-07-3885 or he is the eye- witness of the accident. The learned Tribunal on the basis of pleadings adduced by the parties framed relevant issues in the claim petition. Parties led oral as well as documentary evidence in support of their case. The learned Tribunal after having considered the entire material evidence and hearing learned counsel for the parties dismissed the claim petition filed by the claimants, vide judgment and order dated 09.03.2006. Feeling aggrieved by the aforesaid impugned judgment and order, the appellants-claimants have preferred the present appeal before this Court. Heard Sri Ramji Srivastava, learned counsel for the appellants-claimants, Sri V.K. Kohli, Senior Advocate assisted by Sri I.P. Kohli, learned counsel for respondent no. 3-The New India Assurance Co. Ltd. and perused the record. The main controversy involved in this case is as to whether deceased-Rakesh Kumar Kashyap, who was riding on scooter No. UP-07-3885, was dashed by motorcyclist in rash and negligent manner coming from opposite direction and scooterist succumbed to injuries sustained by him in the accident. To prove the above factum claimants have examined PW-1 Smt. Rajesh Kashyap, widow of deceased-Rakesh Kumar Kashyap, PW-2 Surendra Kumar, PW-3 Sanjay Kumar and PW-4 Head Constable Sobran Singh. On the other hand, opposite party no. 4 has disputed his ownership over scooter in question and registration certificate of motorcycle has not been filed by him. In the written examination also, opposite party no. 4- Mahendra Singh has not pleaded that on the date of accident he was the owner of scooter Chetak No. UP-07-3885. Although Surendra Kumar (PW-2) before the Tribunal has deposed that when he went to the P.S. Sahaspur along with some other persons he had recognized Scooter No. UP-07-3885 belonging to his jeeja, but no documentary evidence has been filed pertaining to release of the scooter from Police Station. On behalf of the claimants photocopy of G.D. dated 13.6.2002 has been brought on record in order to show that scooter No. UP-07-3885 and Suzuki motorcycle were placed at the Police Station for security reasons. In the said G.D. owner of motorcycle is shown Himanshu resident of Dhalipur, Vikas Nagar and that of scooter is shown deceased-Rakesh Kumar resident of Vikas Nagar. The S.H.O. had kept these vehicles at the police station at 8.30 p.m. on 13.6.2002. At the same time, it has been written in the G.D. that the S.H.O. along with constable Matbar Singh and constable Jeetendra Singh returned back from the duty and during patrolling duty at Sahaspur, Mohd. Iqbal informed him that on 10.6.2002 near Dhakipur one scooter and a motorcycle were involved in the accident. From the aforesaid G.D. it is quite clear that before 13.6.2002 the S.H.O. Virendra Singh had no information about the accident, whereas PW-1 Rajesh Kashyap had deposed that accident took place before her and after ten minutes the police had arrived at the spot and with the help of police persons the injured was brought to the hospital. Further, the medical report (paper no. 46/C-1) filed by claimants shows that an unknown person was brought to Doon Hospital by constable 960 Virendra Singh, P.S. Sahaspur and Sarvesh Semwal of village Chandpur, on 10.6.2002. Paper no. 85/C-1 is the information about death of an unknown person which was sent by the doctors of Doon Hospital to P.S. Kotwali, Dehradun on 11.6.2002. Post mortem report (paper no. 82C/1) is also of an unknown person. The claim of the claimants is that unknown person was the deceased-Rakesh Kumar Kashyap who was identified by his wife and brother-in-law, but in the cross examination of PW-2 Surendra Kumar it has come that ring, chain and purse of deceased were not brought by the wife of the deceased. PW-2 Surendra Kumar also could not tell the date, time of admission of deceased-Rakesh Kumar Kashyap in the hospital. He also alleged that on 10.6.2002 and 11.6.2002 neither he nor his sister lodged any report at the police station. He is totally ignorant about the factum of the accident. another witness of the case is PW-3 Sanjay Kumar and in his examination he has deposed that a cow had come in front of the motorcycle and the motorcyclist could not control over the vehicle and dashed the scooter but in his cross examination he has admitted that no summon was received to him by the court to come to the court. He had come to the court on the saying of the wife of the deceased. This witness has stated that he cannot say how the wife of the deceased had come to know that of his being an eye witness of the accident. He could not tell the number of vehicle and name of motorcyclist. The witnesses produced on behalf of claimants have not been able to establish that the unknown person died in the accident, was Rakesh Kumar Kashyap. It has also not come on record whether police made investigation in the matter or not. The learned Tribunal has also taken note of the fact that the main witnesses PW-1 and PW-2 have deposed that death of father of deceased (Rampal) has occurred on 10.6.2002 and his dead body was found lying in a field in village Sakhanpur, District Saharanpur and it was not ascertained whether it was a natural death or a murder. PW-2 further admitted in his cross examination that father of the deceased- Rakesh Kumar Kashyap had died in an accident on 10.6.2002, but he could not tell the time and place of the accident. In these circumstances, the Tribunal has not found these witnesses as reliable and cogent and the story narrated by them about the accident was totally concocted one. The Tribunal concluded that an unknown person had died who was admitted in Doon Hospital on 10.6.2002 by constable Virendra Singh and Sarvesh and the claimants could not prove that on 10.6.2002 deceased-Rakesh Kumar Kashyap had met with an accident at Dhakipul, Sahaspur as has been claimed in the petition. The Tribunal has, therefore, rightly rejected the claim petition of the claimants. I am also in total agreement with the conclusion drawn by the learned Tribunal that no cogent and reliable evidence has been adduced from the side of the claimants to show that Rakesh Kumar Kashyap had met with an accident in the manner as has been pleaded in the claim petition. For the reasons stated above, appeal lacks merit and is liable to be dismissed. Accordingly, appeal is dismissed. The impugned judgment and order dated 09.03.2006 is hereby confirmed. (B.C. Kandpal, ACJ) SP