Girendra Bahadur Singh v. Santosh Kumar Mishra and Ors

Reserved Court No. - 5 Case :- FIRST APPEAL FROM ORDER No. - 399 of 2014 Appellant :- Girendra Bahadur Singh Respondent :- Santosh Kumar Mishra And Ors. Counsel for Appellant :- Dhirendra Singh Counsel for Respondent :- Rajendra Jaiswal Hon'ble Manjive Shukla,J.

¶1Heard Sri Dhirendra Singh,learned counsel appearing for the appellant and Sri Rajendra Jaiswal, learned counsel appearing for the opposite parties.

¶2The appellant through this appeal has challenged the order and award dated 28.1.2014 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.5, Raebareli whereby M.A.C.P. No.111 of 2010 has been allowed with a direction to appellant to pay compensation amounting Rs.1,57,500/- to the claimants along with interest at the rate of 6% per annum from the date of filing of the claim petition before the Tribunal till the date of actual payment.

¶3Facts of the case, in brief, are that son of the claimants Master Shivansh Mishra was hit by a tractor which resulted in his death on 24.3.2009 at about 9.15 A.M. Initially an FIR was lodged which was registered as Case Crime No.246 of 2009 under Section 279, 304A IPC in Police Station Kheeron, District Raebareli and in the FIR, description of the tractor and its registration number was not given, but later on, the police investigated the matter and filed charge sheet against one Mr. Sahdev Lodh. In the charge sheet, it was mentioned that the accident in question had taken place by a tractor bearing Registration No. UP33-E/9717 due to negligent driving of Mr. Sahdev Lodh. Later on, Mr. Santosh Kumar Mishra i.e. father of the deceased filed an application before the Superintendent of Police, Raebareli mentioning therein that the police has not conducted proper investigation in the matter and has submitted charge sheet with incorrect tractor number whereas accident in question took place with a new tractor which was being driven negligently by one Mr. Nankulli Singh. On the basis of the application filed by Mr. Santosh Kumar Mishra, the Superintendent of Police, Raebareli transferred the investigation of the matter to another Investigating Officer vide order dated 17.6.2009. The Investigating Officer thereafter conducted the investigation and recalled the earlier charge sheet filed in the matter and filed a fresh charge sheet on 10.10.2009 and this time the police found that tractor bearing Registration No.UP35-H/5511 owned by Mr. Ashok Singh was involved in the accident in question and the said tractor was being driven negligently by one Nankulli Singh.

¶4The claimants filed Claim Petition No.111 of 2010 before the Motor Accident Claims Tribunal, Rarebareli and there they took stand that the accident in question has taken place by the tractor bearing Registration No.UP33-E/9717 which was being driven negligently by Mr. Sahdev Lodh. The claimants led the evidence and on the basis of evidence, the Motor Accident Claims Tribunal, Raebareli has concluded that the accident took place by tractor bearing Registration No.UP33-E/9717 owned by appellant i.e. Mr. Girendra Bahadur Singh and the said tractor at the time of accident was being driven negligently by Mr. Sahdev Lodh and thereafter the learned Tribunal has awarded compensation amounting Rs.1,57,500/- in favour of the claimants, payable by the present appellant.

¶5Mr. Dhirendra Singh, learned counsel appearing for the appellant has argued before this Court that the order and award dated 28.1.2014 passed by the Motor Accident Claims Tribunal, Raebareli in M.A.C.P. No. 111 of 2010 is unsustainable as father of the deceased Mr. Santosh Kumar Mishra himself gave an application to the Superintendent of Police, Raebareli mentioning therein that the police has not conducted proper investigation in the matter and has filed charge sheet against Mr. Sahdev Lodh with incorrect tractor number though the tractor which hit his son was new and was being driven by Mr. Nankulli Singh and on his application, the police again investigated the matter and recalled the earlier charge sheet and filed a fresh charge sheet mentioning therein that the accident in question took place by the tractor bearing Registration No.UP35-H/5511 owned by Mr. Ashok Singh and at the time of the accident the said tractor was being driven negligently by Mr. Nankulli Singh, then there was no occasion for the father of the deceased to take a different stand while filing the claim petition.

¶6Mr. Dhirendra Singh, learned counsel appearing for the appellant has vehemently argued that all the documents were placed by the appellant before the Motor Accident Claims Tribunal, Raebareli i.e. charge sheet which was later on cancelled, fresh charge sheet filed by the police mentioning Tractor No.UP35-H/5511, application given by Mr. Santosh Kumar Mishra i.e. father of the deceased and order for change of Investigating Officer passed by the Superintendent of Police, Raebareli but learned Tribunal without there being any cogent contrary evidence has not accepted the evidence led by the appellant and straightaway has relied on the version of the claimants that the accident took place by tractor bearing Registration No.UP33-E/9717 which was being driven negligently by Mr. Sahdev Lodh and thereby has awarded compensation against the appellant.

¶7Mr. Dhirendra Singh, learned counsel appearing for the appellant has concluded his arguments and has submitted that since the evidence led by the appellant has not been considered in its true perspective therefore, the order and award dated 28.1.2014 passed by the Motor Accident Claims Tribunal, Raebareli in M.A.C.P. No.111 of 2010 is liable to be set aside and the matter is liable to be remanded to the Motor Accident Claims Tribunal, Raebareli to be decided afresh.

¶8On the other hand, Sri Rajendra Jaiswal, learned counsel appearing for Opposite Parties No.1 and 2 has argued that the claimants led evidence before the Motor Accident Claims Tribunal and proved that the accident in question took place by the tractor bearing Registration No.UP33-E/9717 which was being driven negligently by Mr. Sahdev Lodh and since the appellant is the owner of the said tractor, the Tribunal has awarded compensation in favour of the claimants payable by the appellant as such, order and award dated 28.1.2014 passed by the Motor Accident Claims Tribunal, Raebareli in M.A.C.P. No.111 of 2010 does not suffer with any infirmity or illegality.

¶9I have considered the rival arguments advanced by the learned counsels appearing for the parties and have perused the record of the concerned Tribunal.

¶10I find that the Motor Accident Claims Tribunal has disbelieved the version of the appellant and the version of the police in fresh investigation and fresh charge sheet filed in relation to the accident in question only for the reason that the tractor bearing Registration No.UP35-H/5511 was registered with the concerned Regional Transport Officer in the month of September, 2009 and its insurance cover was valid from

6.9.2009 to 7.9.2010 therefore, the said tractor could not have been involved in the accident in question which took place on

24.3.2009 as on the said date the tractor itself was not in existence. For ready reference, the finding recorded by the learned Tribunal in its order dated 28.1.2014 is extracted as under: ;kphx.k ds fo}ku vf/koDrk dk rdZ gS fd okLro esa okgu VSªDVj uEcj ;wtiih033b@9717 ds pkyd }kjk rsth o ykijokgh ls mDr okgu dks pykus ds dkj.k nq?kZVuk ?kfVr gqbZ] ckn es okgu Lokeh fxjsUnz cgknqj flag us vius mijksDr VSªDVj dks cpkus ds fy, rFkk {kfriwfrZ u nsuk iM+s] okgu la[;k&;wtiih035,p@5511] ftldk vkjtilh] chek oS/k Fkk] dks lafyIr gksuk crk;kA foi{kh }kjk mijksDr rdZ dk [k.Mu fd;k x;k] rdZ j[kk x;k fd okLro esa fxjsUnz cgknqj ds VSªDVj uEcj ;wtiih033b@9717 ls dksbZ nq?kZVuk ugha gqbZ Fkh] bl dkj.k ckn esa uudqYYkh ds fo:) vkjksi i= vk;k vkSj VSªDVj uEcj ;wtiih035,p@5511 dh lafyIrrk fn[kkbZ xbZ gSA eSaus i=koyh dk foLrkj ls voyksdu fd;kA i=koyh esa layXu dkxtkr ds voyksdu ls Li"V gS fd VSªDVj uECkj ;wtiih035,p@5511 flrECkj 2009 dks iathd`r djk;k x;kA mldk chek Hkh 7-9-09 ls 6-9-2010 rd oS/k gSA dktilati 33x1 i=koyh esa layXu gSA nq?kZVuk fnukad 24-3-09 dh dgh xbZ gSA bl izdkj ;kphx.k ds fo}ku vf/koDrk ds bl rdZ esa cy gS fd nq?kZVuk VSªDVj uECkj ;wtiih035,p@5511 ls ugha gqbZ cfYd VSªDVj uEcj ;wtiih033b@9717 ls gqbZ FkhA foospd us VSªDVj uEcj ;wtiih033b@9717 dks lht fd;k Fkk ckn esa foi{kh la[;k&2 dks iqfyl us fxjQ~rkj fd;k Fkk] mlus U;k;ky; ls viuh tekur djk;hA ;kphx.k dh rjQ ls izFke lwpuk fjiksVZ vitilati 246@09] /kkjk 279] 304, Hkktintilati dh lR;kfir QksVks izfr 23x1@2] pkyd lgnso ds fo:) nkf[ky vkjksi i= dh izekf.kr QksVks izfr 24x1@2] uD'kk utjh dh izekf.kr QksVks izfr 25x1@2 rFkk e`rd f'kokax ds iksLVekVZe fjiksVZ dh izekf.kr QksVks izfr 26x1@2 nkf[ky dh xbZ gSA blds vfrfjDr vkjtilhti VSªDVj la[;k&;wtiih033bZ@9717 dh QksVks dkih 4x1@2] QksVks dkih izFke lwpuk fjiksVZ 4x1@3] QksVks dkih udy vkns'k fnukafdr&9-4-09 4x1@5] QksVks dkih udy izkFkZuk i= fnukafdr 31-3-09 4x1@7] QksVks dkih udy izkFkZuk i= fnukafdr&25-3-2009 4x1@9] QksVks dkih udy vkns'k fnukafdr&25-3-09 4x1@11 nkf[ky dh xbZ gSA bl izdkj LIk"V gS fd okLro esa nq?kZVuk foi{kh la[;k 2 lgnso }kjk VSªDVj la[;k&;wtiih033bZ@9717 dks rsth vkSj ykijokgh ls pykus ds dkj.k e`rd f'kokax dks VDdj ekjh xbZ] ftlls mls xEHkhj pksVsa vk;h vkSj mUgha pksVksa ds ifj.kke Lo:i mldh e`R;q gks xbZA foi{khx.k lwph 62x1@1 ls eqtivitilati 246@09] /kkjk 279] 304, Hkktinatifoti] Fkkuk [khjksa esa oknh larks"k dqekj feJk ds izkFkZuk i= esa ,ltiihti jk;cjsyh }kjk foospuk LFkkukUrfjr djus ds vkns'k dh lR;kfir izfr 62x1@2 rFkk oknh }kjk foospukf/kdkjh dks izsf"kr 'kiFki= dh lR;kfir Nk;kizfr nkf[ky dh xbZ gS] ysfdu tSlk fd Åij ppkZ dh tk pqdh gS] pwafd mDr okgu nq?kZVuk ds le; vfLrRo esa ugha Fkk vkSj u gh mlls

nq?kZVuk gqbZ blfy, foi{khx.k }kjk nkf[ky dkxtkr fo'oluh; ugha gSA i=koyh ds ifj'khyu ls ;g Hkh Li"V gS fd viti lati 246@09] /kkjk 279] 304, Hkktinatilati] Fkkuk [khjksa] ftyk jk;cjsyh dh foospuk esa foospd Jh jkelthou ;kno }kjk tkucw>dj =qfV dh xbZ gSA mUgksaus vius nkf;Roksa dk lgh fuoZgu ugha fd;k gSA mUgksaus VSªDVj la[;k&;wtiihti 35,p@5511 nq?kZVuk ds le; vfLrRo esa u gksrs gq, Hkh mlds pkyd ds fo:) xSj ftEEksnkjh iw.kZ d`R; djrs gq,] vkjksi i= nkf[ky fd;k gS] ;k rks mUgksaus vius drZO;ksa dk lgh <ax ls fuoZgu ugha fd;k gS ;k mUgksaus ykijokgh cjrh gSA vr% muds fo:) vyx ls izdh.kZ okn ntZ dj dk;Zokgh lqfuf'pr gksA

¶11This Court finds that the Motor Accident Claims Tribunal has discarded the evidence led by the appellant only for the reason that since tractor bearing Registration No.UP35-H/5511 was registered in the month of September, 2009 and the accident in question took place on 24.3.2009 therefore, on the date of accident in question the said tractor was not in existence but the said reason given by the Tribunal does not appear to be sustainable as for determining the existence of the tractor which has been registered as UP35-H/5511, the date of its purchase by Mr. Ashok Singh is very relevant as there may be possibility that the said tractor may have been used by Mr. Ashok Singh without getting it registered by the competent authority and later on it may have been registered in the month of September, 2009.

¶12This Court is of the view that father of the deceased Mr. Santosh Kumar Mishra himself filed an application before the Superintendent of Police, Raebareli and requested for change of the Investigating Officer on the ground that the tractor which hit his son was new and was being driven by Mr. Nankulli Singh and thereafter in the investigation, it revealed that the tractor involved in the accident in question was having registration No.UP35-H/5511 and was being driven by Mr. Nankulli Singh and on that basis charge sheet has also been filed therefore, the learned Tribunal ought to have been careful while scrutinizing the evidence led by the claimants and the appellant and further unless the date of purchase of tractor bearing Registration No. UP35-H/5511 was before the Tribunal, there was no occasion for the Tribunal to record a finding that on the date of accident i.e.

24.3.2009 the tractor bearing Registration No.UP35-H/5511 was not in existence.

¶13In view of the aforesaid reasons, this Court is of the view that Motor Accident Claims Tribunal, Raebareli has not considered the evidence available before it in its true perspective.

¶14In the result, this appeal is allowed. The order and award dated 28.1.2014 passed by the Motor Accident Claims Tribunal, Raebareli/Additional District Judge, Court No.5, Raebareli in M.A.C.P. No.111 of 2010 (Santosh Kumar Mishra and another Vs. Girendra Bahadur Singh and another) is set aside. The matter is remanded to the Motor Accident Claims Tribunal, Raebareli for deciding M.A.C.P. No.111 of 2010, afresh.

¶15Let the record of M.A.C.P. No.111 of 2010 be returned to the Motor Accident Claims Tribunal, Raebareli forthwith. Order Date :- 10.6.2024 Salim High Court of Judicature at Allahabad, Lucknow Bench