Bhunesh Kumar Gupta vs Chet Narain Singh

Sudhir Kumar Saxena, J.—This FAFO filed u/s 173 of Motor Vehicles Act is directed against award dated 27th April, 2006 passed by Sri Lal Chandra Tripathi, V Additional District Judge, Faizabad dismissing the Claim Petition No. 131 of 2002, Bhunesh Kumar Gupta and Another v. Chet Narain and Others. I have heard learned Counsel for the appellants, learned Counsel for the respondents and perused the original record.

Briefly stated facts are that Bhunesh Kumar Gupta and his wife Smt. Kiran Gupta filed a Claim Petition u/s 166 of the Motor Vehicles Act for compensation of Rs. 3,84,000 alleging that their son Suraj aged about 11 years, while watching the marriage procession, met an accident with Jeep No. UP 42-C/1414 (which was later on amended). He was sharp in study and helped his father in business. Vehicle belonged to Chet Narain Singh (Opposite Party No. 1). Subsequently, petition was amended and instead of Vehicle No. UP 42-C/1414, vehicle bearing registration No. UHU 9323 was substituted. Consequently, its owner Ambika Singh, driver Satya Prakash Singh as well as Oriental Insurance Company were also impleaded as opposite parties.

Chet Narain Singh in his statement denied the involvement of his vehicle and stated that Police has found the involvement of Vehicle No. UHU 9323 which should have been impleaded. Owner of vehicle No. UHU 9323, Ambika Singh and driver Satya Prakash both in written statement denied the involvement of their vehicle in accident and stated that their vehicle was not named in first information report but on the basis of written statement of Chet Narain Singh, they have been impleaded. Moreover, vehicle was insured with Oriental Insurance Company. It was said that earlier involvement of vehicle i.e., UP 42-C/1414 was shown and later on they have been impleaded. Insurer also denied the allegations made in the claim petition.

Tribunal framed the following issues:

"(Hindi matter omitted)"

Claimant Bhunesh Kumar as PW-1, Shiv Kumar as PW-2 and Ram Kumar as PW-3 were examined. From the side of opposite party Chet Narain Singh and Ambika Prasad were examined. Copy of F.I.R., charge-sheet, technical examination report, cite plan, educational certificates of deceased and cover note, etc. were filed.

Tribunal concluded that it was established that accident had not taken place with Jeep No. UP 42-C/1414. It was also concluded that accident had not taken place with vehicle No. UHU 9323. Since none of the vehicles mentioned in the petition were found to be involved in accident, petition was dismissed.

Learned Counsel for the appellant submits that since petition was amended, Tribunal should have proceeded on the basis of vehicle number which was added and which was duly insured, as such claim petition should have been allowed against Ambika Singh, Satya Prakash Singh and insurer.

From the evidence on record, it is established that Suraj died in accident. Post-mortem had taken place on 6th March, 2002. F.I.R. of accident was lodged within three hours in the same night at about 00.10 hours while accident is said to have taken place at about 9.30 p.m. In this promptly lodged F.I.R. not only the details of vehicle but name of owner of vehicle have also been given. It is stated in the F.I.R. that very often a Jeep No. UP 42-C/1414 frequented from Pura Bazar whose owner was Chet Narain Singh and vehicle was carrying name plate of Mahamantri of Congress Party. Claim Petition was initially filed against Chet Narain Singh, owner of vehicle No. UP 42-C/1414.

In the amendment application, it is mentioned that:

"although all actual and true facts in respect of accident and vehicle from which the accident has been committed already mentioned even then for avoiding any further confusion there is any and for better and proper adjudication of matter and for doing justice the name of vehicle owner having registration number UHU 9323 and its driver have been impleaded in the petition as an opposite party Nos. 2 and 3".

Charge-sheet has been submitted on 13th June, 2002. Claim Petition was filed thereafter. Even while moving amendment application, claimants struck to the fact and stated that the involvement of vehicle No. UP 42-C/1414 was correct. All this goes to show that claimants had known and believed that it is driver of vehicle No. UP 42-C/1414 who had caused accident.

There is no material on record to show that vehicle No. UP 42-C/1414 was insured. Vehicle No. UHU 9323 which was found to be involved by the Police in accident while submitting charge-sheet does not find mention in the claim petition which was filed after more than four months of the accident and submission of charge-sheet. This vehicle is insured.

In these circumstances, the submission of learned Counsel for the insurer that in order to get compensation from insurer, the details of vehicle were replaced as it was difficult to get anything from the owner of Jeep No. UP 42-C/1414 which was not insured, appears trustworthy.

Report was lodged by uncle of deceased. In the F.I.R. Bheemsen, Ganesh, Lavkush have been mentioned as witnesses. None of the witnesses, mentioned in charge-sheet, namely Bheemsen, Ganesh Kumar, or Lavkush Kumar have been examined by the claimants. PW-1 Bhunesh Kumar is father of deceased, PW-2 Shiv Kumar Gupta seems to have witnessed the occurrence but he has not been mentioned in charge-sheet or F.I.R. PW-3 Ram Kumar in his statement refused to be eye-witness of the accident while in the F.I.R. he says that he had witnessed the occurrence as he was present there and he had taken the boy towards hospital but in statement given in the Court he states that when he came, accident had already taken place and he found his nephew in an injured condition. In cross-examination, he mentioned that he had wrongly given the details of jeep No. UP 42-C/1414, although other details are correct, so this witness had taken a complete somersault. In cross-examination, he further says that jeep had already fled away when he reached. So far as claimant Bhunesh Kumar is concerned, he states that he had signed the claim petition without reading it. He admits that F.I.R. was lodged by his brother after two hours and he had lodged the report without consulting him. He further states that on account of mental tension, he mentioned the name of vehicle No. UP 42-C/1414 in claim petition.

Chet Narain Singh son of Harnam Singh is shown as eye-witness in the charge-sheet. Chet Narain Singh was examined as DW-1. He stated that he was owner of vehicle No. UP 42-C/1414 and no accident had taken place from his vehicle. He stated that his driver had valid licence and vehicle was registered and he can file registration certificate as well. There is no mention of insurance of the vehicle in cross-examination.

An effort has been made to involve vehicle No. UHU 9323 which was insured with Oriental Insurance Company.

Accident might have taken place by vehicle No. UP 42-C/1414, but Tribunal has rightly not held so because Bhunesh Kumar Gupta as well as Ram Kumar Gupta have categorically stated that accident had not taken place with vehicle No. UP 42-C/1414.

In view of this specific denial, Tribunal was helpless in drawing any inference. It is true that strict rules of evidence are not applicable to the Tribunal and on the basis of preponderance a view regarding involvement of vehicle No. UP 42-C/1414 could have been taken but specific and categorical denial of involvement of vehicle No. UP 42-C/1414 by claimant and his brother who lodged the F.I.R. closed such a course. Consequently, Tribunal was fully justified in holding that accident had not taken place with vehicle No. UHU 9323. Denial of involvement of vehicle No. UP 42-C/1414 went against it. Consequently, there was no option before the Tribunal but to reject the claim petition.

Learned Counsel for the appellant relied upon two decisions of this Court. In the case of The New India Assurance Company Ltd. Vs. Lekhraj and Others, it was held:

"Claim petition was filed after a period of six months and no number of the vehicle was known at the time of accident when the first information report was lodged immediately on the next date of the accident. However, the police investigation was made, the vehicle was found out and the charge-sheet has been filed against the driver before the appropriate criminal Court of the competent jurisdiction. Therefore, we cannot accept any ground with regard to non-involvement of the vehicle."

In the above noted case, number of vehicle was not known at the time of accident. F.I.R. was lodged on the next date. In the instant case, specific number of vehicle has been given and F.I.R. was lodged within three hours of the occurrence, therefore, above cited judgment is not applicable.

Another decision cited by Counsel for the appellant is distinguishable on facts Smt. Sundara Devi @ Rooprani and Others Vs. Mohammad Zaheer and Others,

In the above case, F.I.R. was lodged after 27 days. Relevant para 11 of the cited judgment is quoted hereinbelow:

"11. Perusal of the claim petition shows that column No. 16 was amended and vehicle number was substituted as UP32 AV 9788. By the same amendment dated 16th February, 2009, the name of Insurance Company i.e., National Insurance Company Ltd., 565 Ka/90 Singar Nagar, Kanpur Road, Lucknow was incorporated indicating therein that the motorcycle was insured and valid from 13th July, 2006 to 12th July, 2007. Once the Tribunal had allowed the amendment, then there appears no justification to disbelieve the same and record a contrary finding unless refuted by the defendants before the Tribunal by cogent and trustworthy evidence. Doubt expressed by the Tribunal with regard to vehicle number seems to be contrary to the pleading on record. In response to column 16 of the claim petition while filing written statement, defendant Nos. 1 and 2 had not denied the vehicle number. The respondent-Insurance Company also in response to para 16 of the claim petition in its para 16 of written statement stated as under:

"(Hindi matter omitted)"

In the case at hand, vehicle owner Ambika Singh had denied the involvement of his jeep in the accident specifically. Moreover, in amendment application, it is said that true facts have already been mentioned in the petition but in order to remove confusion, details of vehicle has been substituted. Moreover, evidence which has been discussed above, clearly supports the conclusion drawn by the Tribunal. In para 14 it is mentioned that "once the defendants themselves have not disputed the facts while filing the written statement with regard to vehicle number involved in the accident in question" which is not a case in present case. Both the owners have denied the involvement of their vehicles in the accident while it is not disputed that boy died in an accident but which vehicle was involved is not established from the evidence. Consequently, above case is of no help to appellant.

In view of the discussion made above, this Court finds no error in the impugned award. Consequently, appeal being devoid of merits is liable to be dismissed.

Appeal is dismissed.

Record of Tribunal be sent back forthwith.