u .f' '3' IN THE HIGH COURT OF JUDICATURE AT BLLASPUR (CG) Misc. Appeal (C ) No. |& t\ Of 2008 gvision Banch APPELLANT : NON APPLICANT Sukhdev Kurre S/^Kajau Ram Kurre ,aged abou-^ears, ^- resident of Daur (Lahanga) P.S. Limits Nandini, District Durg (CG). ^> ^' 'YA^A ^ ,^%': ^^" ^ VERSUS RESPONDENTS : 1, Paretan Bai W/o Late Santram 1 Sahu, aged 35 years. ^b— K, 2^ Vikeshwar S/o Santram Sahu, ^,\-t^,^' ' aged 17 years. ^^ 3.^ Arun Kumar S/o Santram Sahu, aged 15 years. 4.^ Revaram S/o Santram, aged 13 years. 5,^ Ku. Moogra D/o Santram Sahu, aged 10 years. 6.^ Ajit Ram S/o Dhukel Ram Sahu, aged 65 years. 7., Parvati Bai W/o Ajit Ram Sahu 60 years. ( All are Claimants ) Sl No. 2,3,4 and 5 are being minors, represented by mother the Respondent no.l) All resident of Mudheli, Police Station Limits Beria, District Durg (CG). MEMORANDUM OF MISC APPEAL UNDER SECTION 173 OF MOTOR VEHICLES ACT 1—'- ii Hie'M OF .4T &IVISION BENCH: MR..PRASH^NT JJ. M .4. icl Sukhdev Kurre Vs ftespoidc^ts Paretan Bai & others Prosest^ Mrs«K@nu Koch.ar, Advocate.for the appeliant. 'jMone for the respondents- though served. (OraR '-i ' ' (irh Mareh, 2011) I.M. Quddusi. J; 1. Heard. ?. 'Thjs is oi^ner's appeai quest-ionmQ the ii.abiijty, 3» This' case wo,s taken. up for.heanng. on 16.03,2011 but even afj"er revisjon of list, none appeared on beholf of the respondents and on that day, JeGrned counsel for the appeJJQnt has argued the appeal to some extent, 'hoi^ever, wlth an intentian to giv@ a chance ta,th@ respondents, this Court has fixed the'mQtter.today for further hearing, but today when the matter is caJied.out twice no.ne appeared.an behalf of the regpondent, though the notices 'have becn ^erved on them, and therefore, we have 'no-other option except to proceed ex-pQrte ciga'inst the respondersts. ' .-• 4. By way of thss appeal under Section 173 of -the Motor Vehicles Act, 1988 ('for short 'the Acr),'the.appellant-o^ner.has jmpugned the a^ard dated 07.05.2008 by the. Jearned iO AAotor Accident .Claims Tribunal, Rajpur (C&) (for short 'the ClaJms Tribunar) in CJaim Co.se No. 131/2007 aUowmg the cbim appiicQtion of the ciaimants, awardsng a compensation of. Rs»3,97,OC]0/"to the chimants and fastenjng JiQbiilty on the QppellQnt-o^ner t.o DW the amount a^arded. 5. Facts ofthe co.se, m brief, are that on 10.05.2007 at about 7.30 p.m. in the night a troctor bearing registration number C607ncD-4549, d.ue to rash and'- 1 B neqiiq6111" d^ivinQ by its driver, dashed the bicycle of deceased Santram Sahuas a result he sustained various grievous injuries on hls body. He admitted in Savitri Mospital".for treoitment whcre he died on 11.5«200Z Report ofthe accident was lodged in the Pofice Station Kumhari on the basss of which offence was registered against the appeJlant herein'ond aft-er comptetion of the jnvestsgQtion, the •charge sheet fited .before the Court below. The claimants, yi/ho are unfortunate ^idoyy, children A parents of.the deceas-ed, have filed a claim apptication before.the Claims Tribunai seeking compensation to the tune of Rs.6,90,000/" on the ground that they were- depBndent on the deceased, i^ho. wo,s the sole eQrning member in famsiy, Qnd deue to his death, they have suffered of income, . • ^ 6» On the pfecidsngs of-the parties, the CiaJsfis Tribuna! has framed a^ rriany as five issu.es and aft-er hearing the partles and considenna the .mGterial avaibbie on record arrived at a.conclusion that the ciQ.irpants are entitled for compensatlon as.the incident hod taken. place due to rash and negligent driving of the QDpeiiant herein and accordinaly, Qiiowcd th@ claim pctition and aworded a su.m of Rs,3,97,OOOA QS compensation and fastened the Jiabiiity on the appelbnt herein to paythe compensation to the claimants. 7, We have heard learned counsel for the parties and perused the records of the Tribunal as also the findings given in the impugned award. 8» On carefui exomsnation of the record, we found that in the cidim Qpplication the date 'and time of.accident hos been mentioned as 10,5,2007 at 7.30 p.m. but in the first information report, vi/hich bdged on ILZ 2007 the time of receipt of information has been m-entioned as 15.30 hrs and th@ time of occident. has been mentioned as 3,00 p.m. o.n 11.7.200Z Even' in the postmortem report, letter for postmortem exomsnotion. SA/OS sho^/n to be ^ritten on 11.5.2007 at 2.45 D.m. . Alf these documents do not corroborQte each other. Further, from perusal of the report it is evsdent'that at first point of time reaistratson number of the tractor hos not been mentsoned in the first information report and subsequentiy on OZ08,2007 fhe tractor bearinq reqsstration C&06-D-4549 P/QS seized and this fact is suggestive of the fact that accident had taken Dlace ^ith sorne unknown tractor. '.I 1 -J® ^•' 3 9. SomaJ Sahu (AW-2), who js reported To be an eyewitness of the accident, has stated that after the accident the deceased, who was jnjured at that time, was brought to Savitri Hospital. It has come in hjs statement 1+iat •rfie police stationis located on the way to the hospitaJ, however, FIR was not lodged immediately, This witness has further stated that he did not jnform anything to the doctor and his companions must have informed which he did not know. He had also stated that a person, who was chased and caught at the time accident, toid himseif to be the owner of the tractor, howeyer, he was not handed over to ttie police and what happened to that person thereafter, it is not known to him and therefore, the story reaarding 1 , catchingaahol'd of the owner of vehicle appears to be concocted and afterthought. 10.In yjew of the foregoing discussion, we are of the opinion that the cfaimants were not successful in proving the fact 1tiat the vehicle in question j.e. C&07-D4549, has caused the accident. 11, Accordingly, the appeal is aJlowed, the impugned award awardjng compensation to the claimants and fastening IjGbility on the appellant herein is hereby set asid'e and the appellant is exonerated from the Jiabjljty to pay compensation to the cJQimants. However, if any amount ©fcompensation is deposited by 1+ie appellant with the Claims Tribunal and the same has not been withdrawn by the clciimants so for, then the same be refunded to the appeIJQnt ond in case the amount deposited by the appedant has been withdrawn by the claimants, then the same would be recoverabie by the appellant. However, it is made clear that though the respondents/ciaimants are not represented despite service but this order will not debar them to move an appfication under Section 163 of the Act i*e< scheme for pQyment of compensation in case of hit and run motor accidents, 12. Certifjedcopy os per rules. . i- i Sd/- Prqshant Kumar Mishra Roshan/- Sd/- I.M.Quddusi Judge Judge