SACHINDRA CHATURVEDI vs STATE OF MADHYA PRADESH

The appellants/claimants have filed this appeal under Section 173 of the Motor Vehicle Act, 1988 (for brevity ''the Act'') assailing the award dated 03.01.2006 passed by Vth Additional Motor Accident Claims Tribunal, Gwalior (for brevity ''the Tribunal'') in Claim Case No. 17/2005 whereby the application filed by the appellants under Section 163-A of the Act has been rejected.

The brief facts of the case are that the appellants No. 1, 2 to 4, 5 & 6 are the wife, children & parents of the deceased-Immamudin @ Mantu respectively. On 25.03.2005, the deceased was traveling by Hero Honda motor cycle. When the said motor cycle reached near Sorawale Hanuman Mandir, Pahadganj, some unknown vehicle dashed the motor cycle, consequently, due to aforesaid incident, Immamuddin sustained fatal injuries over vital parts of his body and he was taken to JA hospital Gwalior where during the treatment, he died. Doctor of the hospital conducted the postmortem of dead body of the

deceased and gave his opinion that the cause of death of the deceased was cardio respiratory failure due to injury to brain. The motor cycle by which the deceased was traveling was owned by respondent No.1-Mukeem Shah and was insured with the Iffco Tokio General Insurance Company Ltd. at the time of accident.

The appellants had filed a claim petition under Section 163-A of the Act before the Tribunal praying for compensation of Rs. 6,00,000/- along with interest on the ground that at the time of accident the deceased was a healthy person of 28 years of age and he was engaged in a tailor shop from where he was earning Rs.110/- per day and he was the only earning member in their family. The Tribunal after framing the issues, recorded evidence and tested the claim. The Tribunal held that in absence of definite cogent evidence, involvement of the motor cycle is not proved, therefore, the appellants are not entitled for getting any compensation amount. Accordingly, the Tribunal rejected the claim application filed by the appellants.

Aggrieved by the said findings of the Tribunal, the appellants preferred present appeal on the ground that the respondent No.1 admitted in his written statement that at the time of accident deceased Immamuddin was driving the motor cycle which is owned by him and the accident has taken place due to dash by unidentified vehicle which was being driven rashly. In the merg intimation and spot map, it is

mentioned that accident has taken place by using motor cycle. In spite of that, the learned Tribunal erred in rejecting the claim application.

Learned counsel for respondent No.2 supported the impugned order and prayed for dismissal of this appeal.

I have heard learned counsel for the rival parties and perused the record.

In the merg intimation, it is only mentioned that Immamuddin sustained injury in a road accident and he was given treatment for those injuries and he died on 25.03.2005, but it was not mentioned that at the time of accident, Immamuddin was driving the motor cycle which belongs to respondent No.1 and was dashed by some unkonwn vehicle. The contents of spot map indicate that accident has taken place on a public road near Sorewale Hanumanji temple. After the death of Immamuddin, no FIR was lodged by the appellants against the so-called unidentified vehicle. In the merg inquiry, Police did not find any material which shows that Immamudin died while driving the motor cycle and the motor cycle was dashed by some unknown vehicle. Police has not seized the motor cycle by which the deceased was traveling at the time of incident. No mechanical examination report of motor cycle is available on record by which it can be proved that the vehicle was damaged due to the accident. Appellants examined one Azgar Ali (AW- 3) who claimed to be the eye witness of the incident. Neither he has lodged any report, nor police has recorded his statement. He also

admitted that the affidavit of his examination-inchief is not prepared on his information, but it was typed by Jahur Khan and he had only signed the affidavit. In these circumstances, his statement has rightly been disbelieved by the Tribunal.

Although, the respondent No.1 had admitted the involvement of his motor cycle in the incident but it is not sufficient for proving the involvement of motor cycle in that accident because respondent No.1 had not produced the motor cycle before the Police and he had not claimed any amount for the damages of his motor cycle, nor he had examined himself before the Tribunal.

In these circumstances, the Tribunal has rightly rejected the claim application filed on behalf of the appellants for the reason that appellants have failed to prove the involvement of the motor cycle in the present accident. Hence, this appeal has no force and is hereby dismissed.