At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE SARAL SRIVASTAVA
For the Appellant: N.B.Nigam, Advocate. For the Respondents: S.K. Mehrotra, Advocate.
Saral Srivastava, J.
1. The claimant Smt. Chandrawati Tripathi has preferred the present appeal challenging the order dated 13.12.2007 passed by the Special Judge (E.C. Act), Basti whereby the Tribunal has rejected her claim petition.
2. The brief facts giving rise to the present appeal is that the claimant appellant instituted a claim petition being MACP No.50 of 2004 on the ground that on 15.10.2002 at 4:00 P.M., claimant was coming back to her home from her daughter's house and when she reached near the house of Jaynath Mishra, she was hit by a vehicle
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UP 32P 1606 driven by one Bramhnand Pandey. In the said accident, her right leg was fractured and she also suffered head injuries. She was admitted in the hospital up till 04.11.2002. It was further alleged that F.I.R. was lodged by her son Ashwani Kumar Tripathi. In the aforesaid background, she claimed compensation of Rs.3,70,000/-.
3. The claim petition was contested by owner and driver of the vehicle UP 32P 1606 by filing joint written statement wherein they had denied the factum of accident by Ambassador Car UP 32B 1606. The respondent no.2 owner had also denied his ownership with regard to vehicle no. UP 32P 1606. They further admitted that the alleged accident had taken place due to rash and negligence driving of vehicle Ambassador Car No. UP 32P 1606. They further pleaded that the liability to pay any compensation is of the insurance company as the vehicle was insured by United India Insurance Company Limited.
4. The United India Insurance Company also filed written statement denying the factum of the accident by the vehicle. It is further stated that the vehicle was insured with the company and further the claimant appellant did not suffer any permanent or temporary disability in the accident. The insurance company prayed for dismissal of the claim petition.
5. The Tribunal on the basis of the pleadings between the parties framed as many as seven issues. The Tribunal framed issue no.1 with regard to the involvement of Ambassador Car No. UP 32P 1606 in the accident and also negligence of driver of car.
6. The Tribunal after appreciating the evidence on record held that the claimant has failed to prove that the alleged accident had taken place by Ambassador Car No. UP 32P 1606. In this regard, the Tribunal has relied upon the testimony of claimant and other two witnesses namely Manish Dubey P.W. 2 and Ashwani Kumar Tripathi P.W. 3. The Tribunal noticed that Manish Dubey who is alleged eye witness of the alleged accident was relative of the claimant and also the relative of owner of Ambassador Car No. UP 32P 1606. The Tribunal further held that Manish Dubey P.W.2 was not eye witness of the accident as the claimant in her statement had stated that she was going alone at the time of accident. The Tribunal held that F.I.R. with regard to the alleged accident was lodged against the vehicle No. UP 32J/7796 after one week from the date of accident but the claimant did not lead any evidence nor give any explanation as to why the F.I.R. was lodged against the vehicle No. UP 32J/7796 whereas per claimant the accident had taken place by vehicle No. UP 32P 1606.
7. The Tribunal further considered the charge-sheet filed by the Police against the vehicle No. UP 32P 1606 and on appreciation of evidence on record it has held that the statement under Section 161 Cr.P.C. cannot be relied upon to prove the involvement of vehicle. In this background, considering the contradictory statement of the witnesses of the claimant as referred above, the Tribunal held that the claimant did not prove the accident which had taken place by vehicle No. UP 32P 1606.
8. Learned counsel for the appellant has submitted the finding of the Tribunal with regard to the fact that the accident had not taken place by vehicle No. UP 32P 1606 is not correct and is against the record inasmuch as the charge-sheet was filed by the Police against vehicle No. UP 32P 1606.
9. Rebutting the submission of the learned counsel for the appellant, the learned counsel for the insurance company has submitted that the Tribunal has recorded a detailed finding after considering the oral testimony of the witnesses produced by the claimant in respect of her case. The Tribunal found the statement of witnesses of claimant are contradictory and non-reliable. Thus, his submission is that the finding of the Tribunal regarding the false implication of vehicle No. UP 32P 1606 is correct and based on proper appreciation of evidence on record.
10. The Tribunal while holding that vehicle No. UP 32P 1606 had been falsely implicated in the accident found contradiction in the testimony of claimant P.W.1, Manish Dubey P.W. 2 and Ashwani Kumar Tripathi P.W. 3. The Tribunal on the basis of the statement of claimant P.W. 1 held that Manish Dubey P.W. 2 was not present at the place of accident and further doubted the testimony of P.W. 2 who was relative of owner of vehicle No. UP 32P 1606 and also relative of claimant. The Tribunal further noticed that the alleged accident had taken place on 15.10.2002 whereas FIR had been lodged after a week from the date of accident but the claimant did not give any reason for delay in lodging the FIR which was lodged against some other vehicle registered as UP 32J/7796.
11. Learned counsel for the appellant could not point out any illegality or perversity in the finding of the Tribunal and, therefore, the finding of the Tribunal on the issue of false implication of vehicle U.P. 32P 1606 is a finding of fact based on proper appreciation of evidence of claimant appellant and as such do not call for any interference in appeal being finding of fact.
11. For the reasons given above, the appeal lacks merit and is accordingly dismissed. There shall be no order as to costs.