IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B. Civil Misc. Appeal No. 1433/1999 Shabbeer Ahamad & Anr. vs. Bundu Khan & ors. Dated : 22.10.2009 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Sandeep Mathur, for the appellants. Mr. Vizzy Agrawal, for the respondents.
Challenge in this appeal is to the judgment and award dated 17th June, 1999 rendered by the Motor Accident Claim Tribunal, Jaipur City, Jaipur, whereby, the learned Tribunal dismissed the claim petition of the claimants-appellants.
2. Background facts of this case in nutshell are thus-
That on 9th May, 1998 when the deceased Sohail was coming to his house, one Vikram loading tempo No. RJ-14 G 9987 driven by the driver rashly and negligently came at a fast speed and hit Sohail, who was moving in his right direction. This accident resulted into the grievous injuries to Sohail, who was immediately taken to the Hospital and during the treatment he succumbed to his injuries there.
3. Heard learned counsel for the appellants, learned counsel for the respondents and carefully perused the relevant material available on record.
4. Learned counsel for the appellants has canvassed that the deceased Sohail was five years old at the time of accident. It is the driver of loading tempo, who drove the vehicle rashly and negligently and caused the accident which resulted into the death of Sohail. Learned Tribunal jettisoned the statements of AW-1 Shabbeer Ahmad, AW-2 Phool Chand Saini, AW-3 Ayub Khan and AW-4 Yaseen Mohammad and arbitrarily clinched all the issues against the claimants holding that Sohail did not die on account of rash and negligent driving of the driver Abdul Majin, as he was not driving the vehicle RJ-14 G 9987 at all, but he died because of falling down from the Vikram tempo on a stake being used to tie the goat. He has further canvassed that AW-2 Phool Chand Saini and AW-4 Yaseen Mohammad are the eye witnesses of the accident, AW-1 Shabbeer Ahmad lodged the First Information Report with the police and AW-4 Yaseen Mohammad is his brother and there is no reason on record not to trust them. Their statements are reliable and must be acted upon. From the statements of these witnesses, the negligence of the driver of Vikram tempo is very well proved and thus, the non-claimants respondents are liable to pay the compensation. He has prayed to set aside the impugned judgment and pass an award in favour of appellants.
5. Per contra, learned counsel for the respondent non-claimant No. 3 has stated the impugned award to be just and proper. He has further contended that the accident is alleged to have taken place on 9th May, 1998 at 7:45 am. Ayub Khan son of Basheer Khan lodged the report with the police station Sodala at Jaipur to this effect that the Sohail was playing inside the loading tempo & he was sitting inside the house. Having heard the screams of Sohail, he and his wife came out and found that Sohail while playing fell on the stake which was being used to tie goat and having seen Sohail unconscious, they immediately took him to Hospital, where he succumbed to his injuries during the treatment. AW-1 Shabbeer Ahmad after eight days of the occurrence, i.e. on 16th May, 1998 lodged another report with the police station Sodala at 8:00 pm, stating that Ayub Khan did not have the complete information of the incident and he wrongly reported in his earlier report that Sohail while playing in tempo fell on stake and sustained injuries in his head and the fact is that the driver of loading tempo RJ-14 G 9987 caused an accident and hit Sohail as a result of which he sustained injuries and died in Hospital during the treatment. He has further contended that Ayub Khan who reported first on 9th May, 1998 happens to be the brother of AW-1 Shabbeer Ahmad. They have deposed before the Tribunal and their statements are contradictory to each other. Not only that, the two report Exb.9 and Exb. NA4 are also contradictory to each other. The learned Tribunal has correctly analyzed the ocular and documentary evidence and arrived at a just and cogent finding which does not warrant any interference and the appeal deserves to be dismissed.
6. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record including the impugned award, it is noticed that on 9th May, 1998 at 7:30 pm Ayub Khan son of Basheer Ahmad reported the incident with the police station Sodala and stated in the report that Sohail had fallen from autorikshaw while playing, on stake which was being used to tie goat and sustained injuries. Having heard his screams, he and his wife came out of the house and found sohail unconscious and immediately took him to Hospital where he succumbed to his injuries. After a considerable thought of eight days, the father of the deceased Shabeer Ahmad lodged another report on 16th May, 1998 at 8:00 pm and stated that the driver of offending vehicle drove the loading tempo rashly and negligently and hit Sohail resulting into his death. It is noticed from the perusal of the statements of witnesses led by appellants that AW-1 Shabbeer Ahmad in his cross-examination stated that Ayub Khan did not lodge any report with the police station Sodala where the fact is that Ayub Khan gave the report in police station Sodala whereupon, proceedings under Section 174 of Cr.P.C. were drawn. The statements of these witnesses on other counts also are contradictory and inconsistent. The evidence of these witnesses is shaky to such extent which leads the Court to infer that their evidence is not trustworthy. Learned Tribunal has discussed the evidence of these witnesses at length and rightly observed that the statements of the witnesses are self-contradictory and contradictory to each other and do not inspire any confidence. He has also rightly held that so called eye witnesses AW-2 Phool Chand Saini and AW-3 Ayub Khan are the creation of the claimants and their testimony was not credible. The impugned judgment is perfectly just and proper and does not suffer from any infirmity. The arguments advanced by the learned counsel for the appellants do not seem to be tenable. The evidence emerging on record does not motivate me to interfere in the impugned award. Having deeply peeped into the statements of all the witnesses and relevant documents, I find myself in consonance with the cogent finding arrived at by the learned Tribunal and I am also of the view that the impugned judgment is flawless and does not warrant any intervention.
7. For the reasons, the appeal being bereft of merits stands dismissed. No order as to costs.
(MAHESH BHAGWATI),J.
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