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2011 Supreme(All) 2818
[2011(9) ADJ 597 (DB)(LB)]
ALLAHABAD HIGH COURT
(Lucknow Bench)
DEVI PRASAD SINGH AND DR. SATISH CHANDRA, JJ.
Smt. SUNDARA DEVI @ ROOPRANI AND OTHERS …Appellants
Versus
MOHAMMAD ZAHEER AND OTHERS ….Respondents
(First Appeal From Order No. 345 of 2010, decided on 14th October, 2011)
Shailendra Kumar Singh and Satya Narayan Yadav for the Appellants; S. Banerji and Shiv Bhushan Tiwari for the Respondents.
Headnote:(A) Accidental claim—Pleadings therein—Necessary guidelines—Focussed—Registration No. of offending motor-cycle mentioned in F.I.R.—Found differing—But subsequently by order of Tribunal in amendment application, it was corrected in claim petition—After amendment, earlier mistake stands corrected—As such, Tribunal while assessing evidence should not base its finding on basis of earlier mistake—In the instant case, claim was rejected on ground of wrong registration number of motor-cycle, ignoring amended pleadings—Finding of Tribunal on that issue—As such, cannot be sustained—High Court corrected that finding, after examining other evidences, admission of person driving motor-cycle and police investigation reports. [Paras 11 to 14, 17, 19, 20 and 25]
(B) Motor Vehicles Act, 1988—Sections 166, 168 and 149(2)—Claim for death of employee of Railway, aged 55 years—By hitting of motor-cycle from reverse side, which was being driven in rash and negligent manner—Deceased was getting salary of Rs. 9434 per month—Person driving offending motor-cycle admitted accident—He was having valid driving licence and motor-cycle was covered by insurance on date of accident—Accident was proved by eye-witnesses—Few minor discrepancies in evidence—Found negligible—High Court examined evidence on record and found that Insurance Company was liable to pay compensation—By assessing compensation applying relevant method, High Court directed that widow and two minor daughters of deceased are entitled for compensation—It directed amounts to be paid to each of these claimants from total amount of compensation of Rs. 6,81,128. [Paras 9, 15, 16, 19, 22 and 25 to 28]
Hon’ble Devi Prasad Singh, J.—The instant appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred against the impugned judgment and order dated 21.1.2010 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 3, Lucknow in Motor Accident Claim Petition No. 564 of 2006, whereby the tribunal has rejected the claim of the appellants. Hence, the present appeal.
2. Permeshwar aged about 55 years, on 15.11.2006 at about 7.00 p.m. after arriving railway station Nigoha by train, was going to his village Mastipur. When he arrived to turning point of Mastipur road, a Motor-cycle No. UP 32 AV 9788 being driven in rash and negligent way coming from reverse direction, hit Permeshwar, in consequence thereof, he fell down on the road and sustained injuries. On 16.11.2006 he was got admitted in the railway hospital, from where he was referred to K.G.M.U. Lucknow. During the course of treatment, he succumbed to the injuries on 22.11.2006. At the time of accident and death, he was working in the railway department with salary of Rs.8810/- An FIR was lodged by the son of deceased, namely, Rakesh Kumar on 12.12.2006. In the FIR, number of Motor Vehicle has been given as UP 32 AV 4397. The case was registered as Crime No. 109 of 2006 under Sections 279, 304A and 427 IPC.
3. The claimants approached the tribunal and filed claim petition. Before the tribunal defendant Nos. 1 and 2 had filed written statement and denied the occurrence and stated that defendant No. 1 is the owner of motorcycle No. UP 32 AV 9788 and have a valid registration and driving licence insured by National Insurance Company Ltd. Kanpur Nagar, which is valid from 13.7.2006 to 12.7.2007. The police of Nigoha has taken over possession of registration certificate.
4. On the basis of pleading on record, the tribunal had framed following issues:
(i) Whether on 15.11.2006 at about 7. p.m. at Lucknow Rae Bareli Raod near village Mastipur turning within jurisdiction of police station Nigoha, deceased Parmeshwar was going on cycle and Motor-cycle No. UP 32 Av 9788 being driven rashly and negligently hit Permeshwar, in consequence thereof he fell down on the road and succumbed to the injuries on 22.11.2006?
(ii) Whether on the date of occurrence Vehicle No. UP 32 AV 9788 was insured with the National Insurance Company Ltd ?
(iii) Whether the rider of Motor-cycle No. UP 32 AV 9788 was having valid and effective driving licence ?
(iv) Whether the claimants are entitled for payment of compensation in case Yes, then what would be the quantum of compensation ?
5. On behalf of claimants Smt. Sundara appeared as PW 1 and Smt. Reeta Devi as PW-2. Documentary evidence which includes certified copy of the charge-sheet, copy of FIR, site plan, postmortem report, photo stat of driving licence of Mohd. Ayyub, registration certificate of the motorcycle, photo copy of the insurance policy, salary and copy of identity card were filed.
6. On behalf of respondent Nos. 1 and 2 Mohd. Ayyub is DW-1 and on behalf of respondent No. 3, copy of driving licence and registration certificate were filed.
7. The tribunal after considering the evidence on record had dismissed the claim petition holding that the solitary eye-witness Smt. Reeta Devi has not given correct name of motor-cycle either in the FIR or in the charge-sheet. The tribunal further held that there is discrepancy in the motor-cycle number given in the charge-sheet as well as in the FIR. In the FIR, name of rider of the motorcycle has been given as Ayyub and in the charge-sheet the number of motorcycle has been given as UP 32 AV 9788 whereas in the FIR number has been given as UP 32 AV 4397. The number to the extent of four digit given in the FIR or charge-sheet is different with each other. FIR was lodged by Rakesh Kumar son of deceased, who was not examined. Accordingly, the tribunal has disbelieved the contents of FIR.
Learned counsel for the respondent had submitted that since there is discrepa
