DHUMSINGH Vs. SHAILENDRA

JUDGEMENT

(1.) Being aggrieved by the award dated 11.5.2004 passed by M.A.C.T. Jhabua in Claim Case No. 162 of 2001, whereby claim petition filed by appellant for compensation on account of injuries sustained by the appellant was dismissed, present appeal has been filed. Short facts of the case are that the appellant filed a claim petition alleging that on 11.4.2001 appellant was going on his motorbike from Jhabua to Umari. It was alleged that at that time the offending vehicle bearing registration No. MP 45-G 0005, which was driven by respondent No. 2 rashly and negligently, owned by respondent No. 1 and insured with respondent No. 3, dashed the appellant from behind with the result appellant sustained grievous injuries. Appellant was brought to District Hospital, Jhabua, where it was found that appellant sustained fracture in his right hand. Appellant was in the hospital from 11.4.2001 to 23.4.2001. It was alleged that claim petition be allowed and compensation be awarded. The claim petition was contested by the respondents. After framing of issues and recording of evidence, learned Claims Tribunal held that in the motor accident appellant sustained injuries and assessed the compensation of Rs. 50,000 but dismissed the claim petition on the ground that accident did not occur with the offending vehicle bearing registration No. MP 45-G 0005 against which the present appeal has been filed.

(2.) Learned counsel for appellant argued at length and submits that impugned award passed by the learned Tribunal, whereby the claim petition has been dismissed, is illegal, incorrect and deserves to be set aside. Learned counsel for appellant submits that accident took place on 11.4.2001 at about 7.30 p.m. and F.I.R. was lodged on that very date at about 8 p.m., i.e., just after half an hour while distance of the police station is one and a half kilometres. It is submitted that in the F.I.R. vehicle number was mentioned as MP 04-1744 but it was further identified that Matador was of Indore Milk Federation. It is submitted that later on it came to the notice that the vehicle number of offending vehicle was MP 45-G 0005 and not MP 04-1744. It is submitted that criminal case was registered against respondent No. 2, wherein the respondent No. 2 confessed the guilt and learned Judicial Magistrate in his judgment dated 16.7.2001 in Cri. Case No. 71 of 2001 has taken into consideration the fact about both the vehicles of which numbers are MP 04-1744 and the offending vehicle bearing No. MP 45-G 0005. It is submitted that in the facts and circumstances of the case there was no justification on the part of the learned Tribunal in dismissing the claim petition filed by the appellant. It is submitted that appeal be allowed and the impugned award be set aside.

(3.) Mr. P.K. Gupta, learned counsel for the respondent No. 3, submits that it is true that F.I.R was lodged immediately after the accident, the informer was Ranga, who is known to the appellant. Learned counsel submits that Ranga was not examined. Juwan Singh, who was the pillion rider and was the best witness to the incident to prove as to what was the number of the vehicle, was also not examined. It is submitted that the respondent Nos. 1 and 2 virtually were supporting the appellant. In the facts and circumstances of the case, learned Tribunal committed no error in exonerating the respondent No. 3. Similarly the investigating officer and the junior officer, who assisted the investigation in preparing the seizure memo and recording F.I.R., were not examined. It is submitted that appeal has no merits and the same be dismissed. From perusal of the record it is evident that appellant has examined himself and has not examined any witness to prove the circumstances in which the accident took place. However, since the F.I.R. was lodged immediately after the accident and after investigation challan was also filed, therefore, ample evidence is on record to prove that the accident took place in which appellant sustained injuries as is found by the Tribunal. So far as involvement of the offending vehicle is concerned, it is not only the number but further identified that the vehicle was attached to the M.P. Milk Federation. In the investigation also it was found that the offending vehicle was involved in the accident. In the facts and circumstances of the case only because the number of the vehicle was different, this court is of the view that learned Tribunal committed error in dismissing the claim petition filed by the claimant. In view of this, appeal filed by the appellant is allowed and the impugned award passed by the learned Tribunal, whereby claim petition was dismissed, is set aside holding that in the accident by the offending vehicle the respondents are liable for payment of compensation as awarded by the learned Tribunal.