Madhya Pradesh High Court
Kantabai vs Liyakat Ali on 12 December, 2017
12 Kantabai & 3 ors. vs.Liyakat Ali & 1 ano.
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: HON'BLE SHRI VIVEK RUSIA, J.
Miscellaneous Appeal No.2991/2006
Kantabai & 3 ors.
Vs.
Liyakat Ali and 1 ano.
Shri Gopal Hardia, learned Counsel for the appellants.
None for respondent No.1.
Shri Anil Kumar Goyal, learned Counsel for the respondent
No.2.
JUDGMENT
(Delivered on this day 12th day of December, 2017) Appellant has filed the present appeal being aggrieved by award dt.17.5.2006 passed in Claim Case No. 155/2005 by MACT Dhar M.P. by which the claim has been dismissed.
Facts of the case in short are as under:-
02. That on 21.7.2005 about 9 PM in the night deceased Gulab, was standing near Lunhera Petrol Pump Nalchha, Road then a truck bearing registration No. M.P.09-K/5491 coming from Dhar, has dashed him because of which he fell down and later on died. Due to the dark in the night, the local persons could not notice the vehicle number but they could recognize the driver. One Chanderlal, has noted the number 12 Kantabai & 3 ors. vs.Liyakat Ali & 1 ano.
of the vehicle. The driver i.e. respondent No.1 ran away from the spot. A criminal case was also registered against him.
03. At the time of death, the deceased Gulab, was earning Rs. 12,000/- per month. He was working as a mechanic and he was the sole earning member of the family. At the time of death, his age was 30 years therefore, the appellants filed a claim before the MACT Dhar, claiming compensation of Rs. 25 lacs under different heads.
04. The respondent No.1 has remained exparte and the respondent No.2 filed the written statement denying the involvement of the vehicle in the accident, as vehicle was seized on 21.9.2005 i.e. after two months from the accident.
05. On the basis of pleadings, the MACT Dhar, has framed seven issues for adjudication:-
okniz'u fu"d"kZ 1& D;k vukosnd dz- 1 us fnukad 21&07&05 dks jkf= 10-00 cts yqUgsjk isVªksy iEi ds ikl] ukyNk ek.Mo jksM+] Fkkuk ukyNk ftyk /kkj ij Lo;a ds LokfeRo ds Vªd dzekad ,e-ih-09&ds@5491 dks rsth vFkok mis{kkiwoZd pykdj xqykc dks Vddj ekjh] ftlds QyLo:i mldh e`R;w dkfjr gqbZ \ iSjk 12 vuqlkj 2& D;k nq?kZVuk ds le; e`rd dh vk;q 30 o"kZ gksdj mldh ekfld vk; 12]000@& :i;s izfrekg Fkh \ iSjk 14 vuqlkj 3& D;k nq?kZVuk fnukad dks fookfnr Vªd vukosnd dz- 2 ds ikl chfer Fkk\ gkW 4& D;k nq?kZVuk fnukad dks vukosnd dz- 1 ds ikl oS/k ,oa izHkkoh Mªk;foax 12 Kantabai & 3 ors. vs.Liyakat Ali & 1 ano.
yk;lsala ugha Fkk \ izekf.kr ughaA
5& D;k nq?kZVuk fnukad dks fookfnr Vªd dk lapkyu cxSj ijfeV ds ikfylh
dh 'krksZ ds mYy?ku esa fd;k tk jgk Fkk \ izekf.kr ughaA
6& D;k vkosndx.k vukosndx.k ls dqy :i;s 25]00]000@& {kfriwfrZ jkf'k
izkIr djus ds ik= gS\ iSjk 18 vuqlkj
7& lgk;rk ,oa O;; \ vkosnd dk vkosnu
i= fujLr fd;k x;kA
06. The claimant examined Kantabai as (PW-1), Chanderlal as (PW-2). The claimant got exhibited the challan of FIR as Ex.P/1, arrest memo Ex.P/2, seizure memo Ex.P/3, Spot map Ex.P/4 and post mortem report as Ex.P/5.
07. On the basis of the evidence on record and after appreciating the same, the learned MACT Dhar, vide award dt. 17.5.2006 has dismissed the claim. While dismissing the claim, the learned MACT Dhar, has held that the claimants have failed to prove that deceased Gulab, died due to the accident by Vehicle No. M.P.09-K/5491. The witness Chanderlal (PW-2) who said to have been present on the spot is not a credible witness looking to his conduct hence, the present appeal before this Court.
08. I have heard Shri Gopal Hardia, learned Counsel for the appellants and Shri Anil Kumar Goyal, learned Counsel for the respondents.
09. Shri Hardia, learned Counsel for the appellants has drawn 12 Kantabai & 3 ors. vs.Liyakat Ali & 1 ano.
attention of this Court to (PW-1) and (PW-2). According to him (PW-2) has specifically stated that he was present on the spot at the time of accident. The respondent No.1 was driving the vehicle No. M.P.09-K/5491. After the accident, he asked his name and he disclosed his name as Liyakat, and later on he ran away from the spot. Shri Hardia, further submitted that driver has been prosecuted in a criminal case and has been convicted therefore, the learned MACT Dhar, has wrongly dismissed the case. The deceased was aged about 30 years and aged father, mother and wife and minor sons were dependent upon him and if compensation is not paid, they would suffer a lot.
10. Shri Anil Kumar Goyal, learned Counsel appearing for the respondent submitted that in cross-examination the conduct of PW-2 Chanderlal, has been exposed. There was much delay in disclosing the name of driver by him. He has not lodged the report to the Police despite his presence shown on the spot therefore, the learned MACT Dhar, has rightly discarded his evidence.
11. The claimant has examined (PW-1) Kantabai, who is the wife of the deceased. She stated that she was not present on the 12 Kantabai & 3 ors. vs.Liyakat Ali & 1 ano.
spot but (PW-2) Chanderlal, has informed her about the name of driver that too after two months. (PW-2) Chanderlal, who has stated that he knows Gulab, i.e. deceased who was having the shop on Mandav, Road. In cross-examination he has stated that he had noted down the name of the driver and the vehicle number over the slip which he kept in the house. He was not having the slip at the time of evidence. He has further stated that after the accident he went to Vaishnodevi, and returned after two months and then disclosed the name of driver and the truck.
12. The FIR was recorded in the name of unknown person. The name of the vehicle and the name of respondent No.1 driver was added after two months. The learned Tribunal has observed that (PW-2) Chanderlal,was known to the deceased then he ought not to have left the spot after the accident. It was his duty to lodge the report and take the injured to the Hospital because the deceased had not died immediately on the spot and as he became unconscious therefore, his presence on the spot is doubtful. There is contradiction in his statement therefore, the learned MACT Dhar, has rightly disbelieved his statement. There is no other material on record hence, the claim case filed under Section 166 12 Kantabai & 3 ors. vs.Liyakat Ali & 1 ano.
and 140 of the Motor Vehicles Act, 1988 has rightly been dismissed However, the death of the deceased due to road accident is not in dispute therefore, the claimant can claim the compensation under the provisions under Section 161 of Motor Vehicles Act, 1988. The claimants are directed to file application under the said provision.
Section 161 of the Motor Vehicles Act, 1988 is reproduced below:-
Special provisions as to compensation in case of hit and run mother accident.- (1) For the purposes of this section, section 162 and section 163-
(a) "grievous hurt" shall have the same meaning as in the Indian penal Code, 1860 (45 of 1860);
(b) "hit and run motor accident" means an accident arising out of the use of a motor vehicle or mother vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the purpose;
(c) "scheme" means the scheme framed under section 163. (2) Notwithstanding anything contained n the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972) or any other law for the time being in force or any instrument having the force of law, the General Insurance Corporation of India formed under section 9 of the 12 Kantabai & 3 ors. vs.Liyakat Ali & 1 ano.
said Act and the insurance companies for the time being carrying on general insurance business in India shall provide for paying in accordance with the provisions of this Act and the scheme, compensation in respect of the death of, or grievous hurt to, persons resulting from hit and run motor accidents.
(3) Subject to the provisions of this Act and the scheme, there shall be paid as compensation-
(a) in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of twenty five thousand rupees;
(b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed sum of twelve thousand and five hundred rupees.
(4) Then provisions of sub-section (1) of section 166 shall apply for the purpose of making applications for compensation under this section as they apply for the purpose of making applications for compensation referred to in that sub-section.
13. The appeal is, hereby, dismissed with aforesaid liberty.
Decree be drawn accordingly.
(VIVEK RUSIA)
M.Jilla. Judge
Maharukh jilla
2017.12.14 14:28:26 +05'30'
12 Kantabai & 3 ors. vs.Liyakat Ali & 1 ano.