C8) CQgV , IN THE HIGH COURT OF JUDICATURE AT BILASPUR.(C.G.) Miscellaneous AppealNo. 5‘g5’ /2003 ‘ mvisim Bamh APPELLANTS: CLAIMANTS Smt. Pirbi W/o. Shekh Ajimuddin aged about 52 yrs., H/w. Shekh Ajimuddin @ Mannu Khan S/o. Shekh Rahamuddin Aged about 55 Yer. Both are R/o. Near Kallu Gairaj Maudhapara Raipur (C.G.) VERSUS Tansen Yadav S/o. Channuram Yadav Aged about 29 Yer., Driver RESPONDENTS NON-APPLICANT V l under section 173 OF Motor Vehicles Act 1988 1 V R/o. Vill -Khakhuli, P.S. — Daundilohara Distt. — Rajnandgaon (C.G.), Present address — Jindal Still Mandir hasod Raipur Manjeet Singh Khanuja S/o. Ranjeet Singh Truch OWner, R/o. Shyam Nagar, Raipur (C.G.) l The National Insurance Co. Ltd. l i ‘4: l Through Divisional Manager, Divisional Office, Mobin Mahal, G.E. Road, Raipur (C.G.) S ’ Miscellaneous Anpea , (,7 “d @ iiIGE’I (SOURT GF JUDECATURE AT 5IL&§PL’R, SiiHATTI3GARI-g (Divisian Bench} Miscelianeous Aypeal No.8$5 of 2003 Smt. Pirbi and another - Versus - Tanssn Yadav and others ORDER FOR CONSIDERATION Sdl- L.C.BHADOO Judge 29.72004 HON’BLE THE CHIEF JUSTICE W ' 8d]— Chief Justice ‘ 4__.8‘2004 POST FOR ORDER ON g MC AUGUST, 2004 1 Sdl- L.C.BHADOO Judge @ufL.§.2OG4 HKEI'EW CQURT OF JUDXCATURE AT EILASPUR CHE!ATTISG.ARH {Divisaen Bench) COMM: - HON’BLE MR. A.S.V. MOORTHY. C.J° AND HON’ELE MR. LC. BHADoa, J. Misceuancaus Aggca! Nm8§5 of 2003 Brief facts leading r0 fm'ng of this appeal are that on 10.3.2002 at m. about 10.30 a.m., the deceased was going in a rickshaw from Chedikhedi to Raipur and by the time the rickshaw reached in front of the agricultural hostel of Village: Jora, all of a Sudden one dumper healing registration No.MPS-6089 came from behind from Mandir Hasaud side of which lespondent No. 1 was the driver and he was dn'ving the vehicle on a high speed and in negligent manner. The said dumper dashed against the rickshaw from behind as a result of which Kamaluddin (since deceased) and rickshaw puller Sheikh Anwar received grievous and simple injuries, The report of the same was lodged in Telibandha Police Station. The injured was Smt. Pirbi and axmthcr 4 ‘ Varsus - ‘ ‘ Ta11$€11 Yadav and othsrs i Present; a ML Satish Challdra Vanna, Advocate; For thc appellants. r G R D E R M {Passed on August, 2004) The following order of the Couit was paseed by LC. Bhadoo, J: - 1. Claimants/axepcllants Smt. Pirbi aind Sheikh Ajimuddin (if; Malulu Khail have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988, being aggrieved by the award dated 21.7.2008 passed by the lSt Additional Motor Accident Claims Tribunal, Raipur, in Claim Case No. 168/2002, whereby the learned Tribunal 1ejected the claim of the claimants on the ground that they have not 5' been able to prove that deceaeed Kamaluddin their adopted son wee and they ale the legal heirs of Late Kamaluddin Taken to Ambedkar Hospital from wh5re 116 was shifted £0 MMI Hospital, Raipur. Ulmnately, Kamaluddm died on 14.4.2002 on account of tho injuriEs sustained by him 3'11 tho Said accident. The present appellantsfclaimants filed a claim petition‘before the. “211d Additional MOtor Accidcnt ClajmS Tribunal, Rajpur, claiming Rs. 13, 10,0001 - on tho ground that deceascd Kamaluddin was mar adopted S011 amd he was eaim‘ng around about Rs.5,000i— per month 211d he was giving them RS.S)GOO/— per month for their maintenance. . Rettun was tiled on behalf of the respondents in which they denied u ‘that the accident took place on account of the rash and negtigent dliving of respondent No.1. They further denied that deceased Kamaluddin was the adopted son of the claimants and fumher mentioned that the claimants am not entitled for any claim. Based 011 the pleadings of the paitieS five issues were framed and parties had adduced their evidence. After hearing counsel for the partiea, learned 1‘“ Tn‘bunal reached the conclusion that respondent No.1 was dtiving the dumper rashly and negh'gently as a resuit of which the dumper dashed against the rickshaw, Kamaluddin received grievous and simple injuiies and he died on account of that. However, while deciding issue No.3, me learned Tribunal held that the claimants have failed to prove that the deceased was their adopted son and they are the legal heirs of Kamaluddin. . We have heard the leanied counsel for the appellants. . Learned counsel for the appellants argued.that the nnding of the learned Tribunal is perverse as the same is contrary to the evidence available on record. As per the evidence of AW-l Sheikh Ajimuddin @ Mannu Khan and AW—Q Shiraj, it is proved that deceased Kamaluddin was the adopted son of the appellants] claimants. . Having heard the learned counsel for the appellants, we have gone . through the evidence. In the examination-in-chief, appellant No.2 Sheikh Ajimuddin @ Mannu Khan (AW— l) stated that as they were issue-less and the parents of Kamaluddin had already died and there was no relative of Kamaluddin, therefore, they brought up Kamaluddin since his age was 6—7 years. He further stated that since they were issue—less, on humanitarian ground they brought up Kamaluddin and took him in adoption on the advise of relatives kn @ and peoples 0f the vicimty. He. has fumher stated that Kamaluddin was 35 vears of age anti he was eaming Rs.5,GOO/ - per month. in the crow—examination, this witness has stated that Kamaluddin was not his natural son, but he was his adopted son'and further stated that Kanlaluddin was not giveu 1'11 adoption by any one and he does not Imow as to Whether the aéoption is permissible under Muslim 1a * He has furiher statec‘i that father’s 112mm 01 Kamaluddin ill the pOSt—mortem report (EXP-3 (3:. EXP—4‘} and in receipt (EXP-28) was written as Badurddin, , Therefore, in View of t1}e above evidence, we are of the opinion that the learned Tribunal has rightly held that the chimants have failed to prove that Kamaluddin was adopted by them and they were hie legal hen‘S and dependent upon him. Even in the lecord, i‘e post— mortem repdrt (EXP—3 8t, EXP—4) and receipt (EXP—28), father’s name of Kamaiuddin was written as Badluddin who was the natured father of Kamaluddin. In these documente, it was nowhere. mentioned that the adopted father of. Kamaluddin is Sheikh Ajimuddin @ Mannu Khan. Moreover, claimant No.2 has not been able to proVe that under the Mohammedan law adoption is permissible. Apart from his evidence, no other evidence has been produced in cider to prove that Kamaluddin wae given in adoption by some persons and taken by the claimants, as the parents of Kamaluddin had already died. Moreover, as per the evidence of claimant No.2, at the Time of accident Kamaluddin was of the age of 13$ years, Whereas claimant No.2 was of 5:: years of age. Therefore, looking to the age digerence, it cannot be believed that the claimants took the deceased in adoption. In the circumstances, we are of the considered opinion that the finding of the Tribunal that the claimants have failed to prove that deceased Kamaluddin was taken in adoption by them is correct and we do not find any illegality or infnmity in the above finding. We have no reason to disturb the finding of the Tribunal 9, In the result, the appeal of the appellants fails an the seine is dismissed in limine at the admission stage itsel£ Sdl- L.C.BHADOO Judge gglhéomi Sd/_ Chief JustiCe . d