F.A.F.O. No. 775 of 2012. Case: Chhaya Gupta Vs Shailendra Kumar Misra. High Court of Allahabad (India)
| Case Number | F.A.F.O. No. 775 of 2012 |
| Counsel | For Appellant: R.N. Gupta, Adv. and For Respondents: Promod Shanker Shukla and Saket Gupta, Advs. |
| Judges | Devi Prasad Singh and Aditya Nath Mittal, JJ. |
| Issue | Indian Evidence Act, 1872 - Sections 106, 161, 45; Indian Penal Code 1860, (IPC) - Sections 279, 337, 338, 427; Motor Vehicles Act, 1988 - Sections 166, 173 |
| Judgement Date | March 26, 2014 |
| Court | High Court of Allahabad (India) |
Judgment:
Devi Prasad Singh, J., (Lucknow Bench)
1. Present appeal under section 173 of Motor Vehicles Act, has been preferred against the impugned order dated 17.5.2012 passed by the Motor Accident Claims Tribunal/District Judge, Hardoi in Motor Accident Claim Petition No. 167 of 2010, rejecting the application moved by the appellants for payment of compensation. Kamalkant son of Babu Ram Gupta was agriculturist and also doing certain business as source of livelihood. On 24.4.2008 at about 5:30 a.m., in the morning, he was going from his residence situated at Mohalla Gipsanganj, Railwayganj, district Hardoi to his village Jairajpur on his motorcycle bearing No. U.P.30-H-6628. Brother of deceased Kamalkant namely, Karunakant was also going to village on his own motorcycle. When they reached near a petrol pump on Hardoi-Sitapur Road, a maruti car bearing Car No. U.P.30-J-2839 coming from Sitapur side, alleged to have been driven rashly and negligently, hit the motorcycle of Kamalkant resulting in the accident in question. In the said accident, the backbone of deceased Kamalkant was fractured and later on, he was brought by Karunakant to the District Hospital of Hardoi. The doctors of District Hospital, Hardoi referred Kamalkant to King George Medical University, Lucknow. An F.I.R. was registered as case crime No. 281/2008 under sections 279, 337, 338 and 427, I.P.C. at Police Station Kotwali Dehat. On account of fracture of vertebral column, Kamalkant got paralysed and ultimately, succumbed to injuries on 15.7.2009. In consequence thereof, the dependents of the deceased Kamalkant, namely, wife Smt. Chhaya "Gupta, son Atri Gupta, daughter Km. Anshi Gupta, and mother Smt. Vidya Devi approached the Tribunal and preferred the claim petition. While filing written statement, the owner and driver of the maruti car denied the accident. Respondent National Insurance Co. Ltd., also denied the factum of accident. However, at the time of accident, it has not been disputed that the vehicle maruti car was insured by the National Insurance Co. Ltd.
2. After considering the pleading on record, the Tribunal framed the following issues:
1. Whether, on 24.4.2008, at about 5:30 a.m., on Hardoi-Sitapur Road, near the petrol pump adjacent to village Murli Purva, the accident was caused by maruti car No. U.P.30-J-2839 being driven rashly and negligently with the motorcycle bearing No. U.P.30-H-6628 and in consequence thereof, Kamalkant suffered grievous injuries as well as fracture of vertebral column and died during the course of treatment?
2. Whether, the accident was caused because of contributory negligence of drivers of both vehicles?
3. Whether, vehicle No. UP30-J-2839 as well as motorcycle No. UP30-H-6628 were possessing valid registration certificates as well as driving licence and other relevant documents valid on the date of accident?
4. Whether, on the date of occurrence, the vehicle bearing No. UP30-J-2839 was duly insured?
5. Whether, vehicle No. UP30-H-6628 was driven keeping in view the terms and conditions of the Insurance policy.
6. Whether, the claimants are entitled for any compensation?
3. A.P.W. 1 Smt. Chhaya Gupta (wife of deceased), A.P.W. 2 Karunakant Gupta (brother and eye-witness of deceased) A.P.W. 3 Jagdish Prasad (Tax Clerk District Panchayat office, Hardoi), A.P.W. 4. Dr. Ajai Singh, Medical officer, working in Bala Ji Hospital, Hardoi, under whose treatment the deceased died, A.P.W. 5 Ashok Kumar, possessing of wholesale shop near Railwayganj, Hardoi, A.P.W. 6 Ram Deen, Chief Pharmacist, District Hospital, Hardoi who proved the medical certified issued by Dr. Anup Kumar Srivastava, A.P.W. 7 Dr. Ambuj Singh who issued disability certificate, were examined by the claimants. Apart from these 7 witnesses, the claimants have filed injury report, medical receipts, discharge certificate from Gandhi Memorial and Associated Hospital, Lucknow, certificate of Indian Spinal Injury Centre, New Delhi, discharge certificate from Ram Kishan Mission Sewashram Vivekanand Poly Clinic and Institute of Medical Science, death certificate, driving licence of Ram Mohan Pandey driver of maruti car (supra), insurance policy of maruti car and other material documents were brought on record.
4. After investigation, the Investigating officer of the criminal case found that the vehicle number given in the F.I.R. i.e., U.P. 30-J-839 is not of maruti car but is of motorcycle. A final report was submitted. A protest application was filed before the Magistrate who directed for further investigation. During the course of investigation on 28.5.2008, the claimant informed the Onvestigating officer that the number of maruti car is UP30-J-2839 and in the F.I.R., incorrect number was mentioned. In pursuance of the order passed by the Magistrate, during the course of further investigation, it was found that vehicle bearing No. UP30-J-2839 is a maruti car which has caused...
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