SANDEEP Vs. SURESH

JUDGEMENT

(1.) THIS appeal is filed under section 173 of the Motor Vehicles Act assailing the award dated 25.9.2007 passed in Claim Case No. 87/06 whereby the claim filed by the appellant was rejected on the ground that the accident took place on 27.4.2005 was not found proved by the motorcycle bearing registration No. MP-43/A-8149. On 27.4.2005 injured was going from Swastik Transport to Krishi Upaj Samati on his motorcycle. At about 6:30 p.m. in front of Bharat Transport motorcycle bearing registration No. MP-43/A-8149 driven by respondent No. 1, which is of the ownership of respondent No. 2 and injured with respondent No. 3 has dashed him. Immediately he was sent to Jaora Hospital where Pre-MLC was performed by Dr. M.K. Yadav and an intimation was given by him to the police station. After investigation challan was filed and the injury was found to the injured. To the said injuries injured appellant has filed a claim petition, seeking compensation to the tune of Rs. 7,10,000/-.

(2.) RESPONDENTS No. 1 and 3 have filed their separate written statements and the accident took place by motorcycle No. MP-43/A-8149 was denied with the averment that in fact the accident took place with the motorcycle No. MP-43/M-4506 and the driver was not having valid driving licence on the date of accident, therefore, the claim deserves to be dismissed and the Insurance Company cannot be held liable for payment of compensation in the said accident. Learned Claims Tribunal has framed Issue No. 1 regarding occurrence and to prove the accident from motorcycle No. MP- 43/A-8149. After going through the statements of Sandeep Sharma AW1 (injured) and Nahid Ali AW2 and on the basis of Pre MLC report and the marg intimation, which was lodged immediately after the accident the Tribunal has recorded a finding that the accident with vehicle No. MP- 43/A-8149 is not proved. In fact, the accident took place by a motorcycle No. MP-43/M-4506, but without any plausible evidence the existence of the said motorcycle was changed, therefore, it cannot be said that the accident from the motorcycle No. MP-43/A-8149 was found proved and, accordingly, the claim petition was dismissed.

(3.) SHRI Monesh Jindal, learned counsel appearing for the respondent submits that the accident took place on 27.4.2005 at about 6:30 p.m. and within half an hour of such accident the injured was hospitalized and it is admitted by him in his statement. The said injured has given number of motorcycle from which the accident took place i.e., MP-43/M-4506. On the description of the doctor in the Pre MLC he has signed. All these facts have been admitted by him in the cross examination. On the basis of an intimation given by the injured to the doctor at the first inception the marg intimation was recorded by the police authorities. In the said sequence of events, looking to the admission of the injured in the cross examination, the finding of the Tribunal cannot be said to be arbitrary or perverse. In fact, if the injured appellant wants to rely on the final report Ex. P-1, which indicates the number of motorcycle MP-43/A-8149, then he will have to prove the contents thereof by calling the Investigating Officer to prove the accident, but in absence of such evidence and looking to the facts and circumstances of the present case the finding as recorded by the Tribunal cannot be faulted with and liable to be upheld.