HIGH COURT OF ‘CHHATTISEARH AT BILASPUR M. A. (C) NO. 597 OF 2006 APPELLANT Bisahu Ram Thakur. Versus RESPONDENTS Dwarika Prasad ’Kzvn't & anofher JU$M NT ( )1 April, 2007) Pos‘r FOR ORDER ON l}-o4-2oo7 Sd/— Dhirendra Mishra Judge D (33 HIGH COURT OF CHHATI'ISGARH AT BILASPUR M. A. (C) NO. 597 OF 2006 Present Mr. M.P.$. Bhafin, AdvoanTe for fhe nppeiianf. Mr. Sanfosh Sahu, Advoca‘re for respondenf No.1. Mr. Ruvindra Agurwai, Advocnw for respondent No.2. JUDGMENT (Ddivmd on I? I04/2007) x Dhimdm Mishm, J 1) This is an owner's appeal under Secfion 173 of fhe Mofor Vehicles Acf, 1988(hereinof1er referred 1'0 as ‘ihe Act of 1988') ogninsvr ‘rhe award da‘red 26*“ Augusf 2006 passed in Claim Case No.83/06 by ‘rhe 11”" Addi'i'ional Mo1'or Accidenf Claims Tribunal (F.T.C.), burg (C.G.) whereby award for a sum of Rs.62,500/- has been passed in favour of +he claiman'r/respondenf No.1 herein. 2) Respondem No.2 herein is fhe driver & appellam is fhe owner of Tempo bearing regis‘l'rafion number MP24-7210. 3) Case before +he fribunal of respondent No.1 herein was fha't on 3.4.2001 when his moi'her namely Maanbai was crossing ‘ihe road, respondenf No.2-Kapoor Lal Sahu driving The fempo 'lbearing APPELLANT Bisahu Ram Thakur, aged 53 Non-applicant No.2 yrs, s/o Shri Kuwar Singh Thukur, r/o Sanjny Kimna Bhandnr, Azad Chouck: BMW-3, Disff. Durg. Versus RESPONDENTS LDwar'ika Prasad Keva‘f, aged Applicam 45 years, s/o Shri Mahe’ffar Kevaf, r/o 6mm: Sirsakalu, 'Bhilui-3: Tah- Pawn Disfl’: Durg CG. 2. Kapoor La! Sahu, ’aged 29 yrs, s/o Shri aise Lal r-lo Azad Chouck: Bhilai 3, Disf‘r Durg CG regis‘frafion numbcr MP24-7210 rashly and negligenfly dashed his fempo from wrong side as a result of which his mother- susmined grievous injuries and she was admif‘l'ed in the Dish-id Hospii'al Durg, where she died on 9.4.2001. Merg infimo‘rion was given and under Crime No.246/01 offence under- Sec'iion 304-A of fhe IPC was registered againsf ‘rhe driver Kapoor Lal Sohu, 1he vehicle was seized and charge shee‘r was filed agains'i' him in 'rhe cour‘i of Judicial Magisfra‘re 1" Class, Durg. The fribunal vide order dafed 23.9.2002 passed an in'l’erim award of Rs.50,0W/- in favour of The claiman‘l' under Secfion 140 of ‘l‘he Act l 4) In ihe joinf reply The owner di driver denied fha‘f 'l’heir tempo was involved in fhe accident No reporf was lodged 'iill 9.4.2001 The dafe on which Moanbai died. The accident was, in fact, mused by some scoo‘i'er belonging 'i'o fhe relafive of ihe deceased and driver Kapoor Lal Sahu and iempo of the owner‘have been falsely implicated in The accidenf wi'ih fhe collusion of fhe docfor of Governmenf Hospi‘ral and Sub Inspecfor of Police. I? was also s'rafed 'l'ha? a complaint was ‘ made 1’0 fhe higher aufhori‘ries and fhe Chief Minisfer against their false implication. 5) On the basis of the pleadings of respective parties issues have been framed by. the tribunal and it was held that accident was caused by the vehicle of non-applicant No.2 on 3.4.2001 as a result of which Maanbai died and non-applicants are jointly and severally liable to pay compensation of Rs.62,500/- to the claimant with interest @ 6% per annum from the date of application i.e. 2.7.2001. 6) The appellant has challenged the award on the following grounds:- a) The driver of vehicle was acquitted by the criminal Court with a categorical finding that there is no evidence on record to prove that the vehicle in question caused the accident. However, the tribunal on the face of it has recorded a perverse finding that .‘criminal Court has held that Maanbai died; due to injuries sustained by her- in fhe accident dand 3.4.2001 caused by Tempo bearing regisfmfion number MP26/7210, fhough *here is no wch finding recorded by the Judicial MagisTraTe 1“ Ciass ~ while acqui‘r'fing The driver Knpoor Lai Sahu. b) The claimanf was no? dependen'r on his mo+her and iherefore, fhe claim pe'rifion ough't fo have been dismissed. c) Finding of the fribunal is based on improper appreciation of evidence of respective parfies and sfa‘i'emen‘r of eyewitness namely Vudhisihir Chandrakar (DW-3), who has shied Thai fhe acciden‘r was caused by The scoofer, has nof been considered. 7) On ‘rhe ofher hand, learned counsel for fhe claimanf/respondenf No.1 submifred 'rhaf fhe driver of vehicle was prosecufed for the above acciden'l', as charge shee‘i' was filed agains‘l’ him under Secfion 304A of IPC af‘rer due inves‘rigafion. Finding of the criminal Cour? acquif‘ring fhe driver of vehicle from fhe charge under Secfion 304- A of IPC has no bearing whafsoever for adjudioa‘l'ion of The claim pe‘l’i‘rion and +he same is to be decided only on the basis of evidence adduced before the claims tribunal. The tribunal on the basis of pleadings of the respective parties and evidenoe adduced by them, has recorded a finding of fact which is based on the statement of eyewitness as also on the documentary evidence adduced by the claimant and therefore, same cannot be fmlted. The contention that the accident was mused by the scooter and not by tempo is belied from the postmortem report as nature and place on injury indicates the involvement of the type of vehicle as per Doctrine of Res-ipsa Loguifar. I have heard learned counsel for the respective parties and perused the material available on record. 9) The claimant has filed and proved the documents along with his claim application being final report, first information report, medico legal report dated 3.4.2001 of the deceased along with memo of mummy ‘ m“ concerned police sfafion, inquesf & post morfem reports of Mmnbai, seizure memo of vehicle musing acciden'r along wifh ofher' relevanf papers. Whereas, nori-applican‘rs have filed and proved fhe sfafemen‘r of wifnesses recorded in criminal case No.917/02, merg in'rima'rion, memo of invesfigafing officer fo ‘fhe doc‘l'or of Disfric? Hospital, Durg his complaint to the Superintendent of Police & the Chief Minister and cerfified copy of The judgmenf of acqui‘rfal. Applicanf—Dwarika Prasad examined himself as AW—2 and Kishunu as Aw-1 whereas me appenm herein has examined himself as Aw- Sukhram as AW-Z Yudhish'rir Chandrakar as AW—3 and driver Kapoor Lal Sahu as AW—4 10) So far as fhe finding of 1he tribunal recorded in Paragraph 10 of The award fha‘l’ from perusal of The Judgment of criminal Court if is proved fha‘l Maanbai died due to inJuries sustained hy her in the accident dated 3.4.2001 caused by tempo bearing number MP 24- 7210 is concerned, from bare perusal of Paragraph 9 of the judgment of the criminal Court the above finding appears to be perverse, because the criminal Court has acquitted the accused with a finding that there is no evidence-on record that the accident was caused by the vehicle of the appellant herein or that the vehicle was being driven at that time by accused Kapoor Lal Sahu, as no eyewitness has deposed the above fact. However, for the purpose of deciding the claim application under Section 166 of the Act, the judgment of acquittal recorded by the criminal Court cannot be made a basis and claim applications are to be decided on its own merit on the basis of documentary and oral evidence availabie on record. w- 11) In the instant case, as already mentioned earlier, the claimant has filed the documents being the complete charge sheet, which was filed by police against the driver Kapoor Lal Sahu after due investigation including memo sent by the Investigating Officer dated 3 4 2001 and pursuance thereof the medico legal repwai 37 dufed 3.4.2001 Le. ‘rhe da're of accident, in which injuries sustained by Monnbai have been described. From perusal of above document which has been exhibii'ed as Ex.P-4 and proved by AW-2 Dwariko Prasad, fhe cppiicanf himself, i‘l' is clear fhaf poiice had informa'rion on fhai day i‘rself “rhai fhe acciden'r was mused by iempo belonging fo Sanjay Decorations, Bhilai—3. There is no cross—examination of Dwarika Prasod (AW-2) wifh respec‘r +0 the document of EXP-4 and the some remains unchallenged. Kishunu (AW-1) hos stated that he had gone to Village Sirsokala in the house of Rom Sworoop Kewat, on the date of incident at about 11.00 a.m. a tempo, loaded with tent material, was coming f’rom Bhiloi side, which was being driven rashly, at that time an old lady was also coming from Bhilai side, whose name he does not know. The tempo dashed her as a result of which she fell down on the ground, driver of the tempo alighted from the tempo and told him his name as Kapoor and thereafter ran away. He has been subjected to lengthy cross-examination to highlight that he is highly interested witness. It has been suggested that since he belongs to the some caste as that of the applicant, he is giving false evidence. He has stated in cross-examination that he narrated this incident to Manoj, as he was also present in the crowd, which had gathered after the accident. 13) Appellant/non-applioant (DW~1) has stated that he is engaged in the tent house business and is the owner of tempo which he uses as a delivery van. However, on the date of incident his vehicle was parked before a shop and on that day it was not sent for any work. He learnt about the incident through newspaper that number identical to his vehicle number was involved in an accident with Moanbai. He enquired from the villagers of Village Sirsakala‘ond came to know that Maanbai was met accident with scooter. He had complained with the higher authorities and on his complaint, C.S.P., Cantt. conducted enquiry and statements of witnesses were recorded, however, charge sheet was filed against‘vhis driver Kapoor "x Lal Snhu. Similar is the evidence of driver 'Kapoor Lal Sahu. However, bofh of fhem filed join? reply fo‘fhe claim pefifion in which bofh have men'rioned Thaf on 3.4.2001 i;e. ‘ihe da'l’e of incident, fheir- fernpo had gone fo 'Hne house of Numyan of Village Sirsakoio fo bring back fhe maferial of SonjayrKiraya Bhandnr and fhey hove denied this fact in fheir stafemen‘r on oo'l‘h. The o‘iher Mo witnesses examined are Sukhrom (AW-2) & Yudhisi'hir Chondrakar (AW-3). Sukhram (AW-2) has stared fhaf he had nof wifnessed fhe inciden'r and a residenf of Sirsakola ndmely Yudhisi'hir informed him tho? one scoo‘l’er had caused ihe accidenf in which Maanbai susmined injuries. Yudhisfhir (AW-3) did no? fell him personally abouf ‘I’he some bu? he overheard him in fhe ho‘rel. Sukhram 6i Bisohu have fried to impeach fhe credibilify of Kishunu by s'rafing fhai' he is in fac‘f bro'iher-in-law of claimant Dwarika Prasad and he has suppressed this fact. This fact was narrated by them when they were re-examined on 21.4.2006 i.e. almost more than two years after the examination of Kishunu wherein they have stated that they went to Kishunu‘s village Aarkaar and enquired about him and there they learnt that he is brother-in-law of claimant Dwarika Prasad and as such he is an interested witness. Yudhisthir Chandrakar has claimed himself to be an eyewitness and stated that on the date of incident when he was going to some provision shop, he saw that one scooter was coming from Bhiali side, the scooterist dashed Maanbai with his scooter as a result of which Maanbal fell down, the scooterist also fell down. They had stopped the s'cooterist and crowd had gathered. In the meanwhile, Manoj, grandson of Maanbai, came there and said that the scooterist is his maternal uncle’s son and thereafter he was let off. In Para 3 of statement firstly he has stated that after the incident the tempowala was apprehended by Lekhram Chandrakar, however, he corrected it and said in fact the scooter wala was oppreheJrEed. \ 1 x /\ Roshan/-‘ 3? 14) From perusal of the s'raizmen‘rs of above wimesses examined by +he non-appNoanfs, I am of fhe opinion fha'r 1‘he above witnesses are no? The wifnesses of fru‘rh. Though fhere is inconsis'rency in the s‘ra'l’emenf of Kishunu also examined by The applioan+, bu'r overall considering The fac‘ls fha‘r on fhe dafe of incidenf Moanbai was admifled in ‘rhe District Hospital, Durg and on the same date police had sent a communication for obtaining medico legal report of Moanbai in which it has been mentioned that the accident was caused by the tempo of 5anjay Decorators, Bhilai-3 and the fact that the document (Ex.D-9) filed by the nonLapplicmts, a memo dated 3.4.2001 addressed to the Medical Officer; Government Hospital, burg in which it is mentioned that Maanbai has sustained injuries in an accident with tempo belonging to Sanjay Decorators of Bhilai-3 and they want to record her statement and the reply to this communication of the doctor stating that she is not in a position to make statement goes to show that the accident was mused by tempo belonging to Sonjay. Decorators and fa‘lse defence has been taken by the driver & owner, as an afterthought, that the accident was mused by scooter. 15) On the basis of aforesaid discussion, I am of the considered opinion that the finding of the tribunal below that tempo number MP24- r 7210 had caused the accident on 3.4.2001 as a result of which Mambai sustained injuries and was admitted in the hospital, where she died on 9.4.2001 is based on the evidence available on record. So far as the challenge to the quantum of compensation is concerned, in a death case where an old lady of 65 years age died in a motor vehicle accident, award of Rs.62,500/- as compensation to her son, cannot be faulted. 16) In the result the appeal being devoid of substance deserves to be dismissed and the same is hereby dismissed. No order as to costs. \ Sd/- Dhirendra Mishra Judge