Phulkaria Minz v. Bina Kambo

1. Instant appeal has been preferred against the judgment of the ld. Tribunal dated 19.07.2010 whereby, the claim petition filed by the appellant was dismissed.

2. In the instant case accident in question took place on 02.05.1999 and the claim petition under Section 166/140 of Motor Vehicles Act, 1988 was filed on 31.08.2001.

3. It is pertinent to mention here that the said claim petition was dismissed in default on 22.11.2003 and was restored thereafter.

4. I note, ld. Tribunal framed issues as under: “1. Whether injured Smt. Irmina had received injuries in motor vehicle accident due to rash and negligent 2013:DHC:2204 driving of vehicle no. DDC-7600 by R[1], owned by R[2] and insured with R[3] on 02.05.1999? OPP

2. If issue no. 1 is proved in affirmative, whether petitioner is entitled for any compensation, if yes from whom and to what amount?

3. Relief.”

5. Since issue nos. 2 & 3 are not necessary to be discussed, however, on issue no.1, which is relevant for adjudicating the instant appeal, ld. Tribunal has recorded that at the time of filing of the affidavit the appellant / claimant could neither speak anything nor respond to court question when she had put her appearance. Resultantly, it was observed by the ld. Tribunal that the witness was not in a position to make any statement and was discharged unexamined.

6. During pendency of the claim petition, appellant / claimant expired and thereafter her legal heirs were brought on record. PW[1] Phulkaria Minz, daughter of deceased / appellant admittedly was not an eye witness. The copy of the FIR filed along with the claim petition was not legible. Copy of DD No. 8 dated 02.05.1999, Police Post-R.K. Puram was also filed. As per the said DD, it was informed over telephone by Constable Sunil from Safdarjung Hospital to Police Post-R.K.Puram that an unknown lady aged 60 years, wife of Francis Urain, resident of Gumla, Jharkhand was admitted in accidental condition by one Bina. In Tehrir there is no mention of any offending vehicle. In the MLC dated 02.05.1999 also there is no mention of any offending vehicle.

7. It is pertinent to mention here that the offending vehicle was seized on 09.09.2005 which had registration no. DDC-7600. Same was produced by Smt. Bina Kambo, W/o Sh.Kulbir Singh. Whereas, accident took place on 02.05.1999.

8. Since name of Bina was mentioned as a person, who got the victim admitted in the hospital, ld. Tribunal has observed that only one presumption could be drawn that either Beena who subsequently produced the offending vehicle in a Criminal Case being FIR NO. 359/1999 was the accused / driver or she removed the injured to the hospital.

9. The appellants / claimants have not examined even the IO of the aforementioned case to prove that the said Beena was accused or driver of the offending vehicle. Since the appellant did not produce any document of the criminal record, therefore, ld. Tribunal suo moto called the criminal case file from the record room.

10. The bad luck of the appellants / claimants was that the said file was destroyed on 18.06.2005 as per the Rules. Since there was no evidence on record to prove that the accident was caused due to the rash and negligent driving of respondent no.1, therefore, in the absence of any evidence, ld. Tribunal did not grant any amount of compensation.

11. Moreover, even at this stage, appellants are showing their helplessness to lead additional evidence or to produce any document in support of the case. In the absence of the same, present appeal is devoid of merit.

12. In view of above, the instant appeal is dismissed with no order as to costs.

SURESH KAIT, J. MAY 01, 2013 Jg/ sb