GOVIND KUNWAR Vs. BADRIPRASAD

JUDGEMENT

(1.) BEING aggrieved by the award dated 30.7.1998 passed by II MACT, Mandsaur in Claim Case No. 243/1997 whereby the claim petition filed by the appellants has been dismissed, the present appeal has been filed.

(2.) SHORT facts of the case are that undisputedly in a accident which took place in intervening night of 1.12.1994 and 2.12.1994 at about 11.00 p.m., deceased Devendra Singh died. Complaint was lodged at about 1.00 a.m. and thereafter, claim petition was filed by the appellants before learned Tribunal wherein it was alleged that the accident has taken place by the offending tanker bearing registration No. MP-14-C-3424 which was driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3.

(3.) LEARNED Counsel for the appellants submit that there is ample evidence available on record to demonstrate that the accident has taken place by the offending tanker. It is submitted that the accident took place in the intervening night of 1.12.1994 and 2.12.1994 near Dhaba of Ganpat. Immediately, thereafter, Ganpat rushed to the police station and lodged FIR at about 1.00 a.m. Thereafter, Ganpat has appeared as witness (A.W. 4) in the present case and stated that accident has taken place by the offending tanker No. M.P.-14-C-3424. It is submitted that Ganpat has also explained in his statement that why the number of tanker was not mentioned in the FIR. It was stated that at the time when Ganpat rushed to the Police Station, Dinanath, Head Constable asked Ganpat to sign on blank paper and upon his instructions Ganpat signed the blank paper. It is submitted that since police authorities were not taking action in the matter, therefore, number of complaints were made by the appellants, out of which first complaint was on 5.12.1994 i.e., after two days of accident wherein it is specifically mentioned that accident has taken place by the offending tanker No. M.P.-14-C-3424 which was sent by post. Thereafter, on 15.12.1994 the complaint was made to the police station. It is submitted that all these documents are Exs. P/6 to P/8. Learned Counsel placed reliance on a decision of Madras High Court in the matter of Pallavan Transport Corporation v. Saroj Goyal , wherein Divisional Bench of Madras High Court has observed that merely because eye-witness to accident did not inform the police but if his evidence is cogent, natural and probable regarding the manner of accident, it can safely be accepted. The mere fact that he has not given any complaint to the police will not diminish to the credibility of the witness to any extent as observed by the Tribunal. Further reliance was placed on a decision in the matter of Shakuntala Gajanan Naik v. Tushar V. Rajadhyax Major reported in I (1995) ACC 628 (DB), wherein the Divisional Bench of Bombay High Court has observed that it must be borne in mind that this is not a criminal case and on the contrary, a welfare statute which is designed to compensate either the victims of the accident or the dependents left behind by the victim of accident who dies in that accident. It is further submitted that in the written statement filed by respondent Nos. 1 and 2 jointly the defence was taken to the effect that the offending tanker was sold by them. It is submitted that during course of investigation evidence was produced by the respondent Nos. 1 and 2 to the effect that the offending tanker was under repair. It is submitted that on this plea of the owner and driver of the tanker Police Station, Y.D. Nagar, Mandsaur dropped the proceedings. For this contention a reliance was placed in the matter of Neeam Jha v. Manju Devi , wherein Patna High Court observed that the offending bus and their cross-examination could not dislodge them. Owner produced route permit of the bus and contended that road in question did not fall within its route but owner had not taken this defense in the written statement and it was an afterthought. Tribunal appreciated the evidence and held that bus was involved in the accident and its driver was rash and negligent.