Pradeep Kant, Mukteshwar Prasad, J. - (1.) THIS appeal was dismissed in default by a learned Single Judge (N.K. Mehrotra, J.) on 6.3.2003. The record reveals that, an order restoring the appeal was passed by him on 24.8.2004 but the order was not signed. Since the question as to whether the appeal was cognizable by a Single Judge or by a Division Bench was referred to the stamp reporter, who submitted his report that the same is cognizable by a Division Bench, the matter, therefore, has been listed before us viz., the Division Bench. We have considered the application for restoration and find that the reasons given therein are sufficient for restoring the appeal. We accordingly recall the order dated 6.3.2003 and restore the appeal to its original number. After restoring the appeal we proceed to hear the same on merits.
(2.) HEARD Sri R.C. Sharma, learned Counsel for the appellant and Sri Rajendra Jaiswal, learned Counsel for the claimant respondent and perused the record. Since permission under section 170 of the Motor Vehicle Act, 1988 was not obtained by the Insurance Company it has not raised the challenge regarding the negligence and quantum of punishment. But, Sri R.C. Sharma learned Counsel for the appellant submitted that in view of the fact that the number of the offending vehicle (Scooter) was not mentioned in the F.I.R. and that only the sole witness Ganga Prasad, who is said to be the claimant, himself appeared, therefore, the finding on the question that the accident having been done by Scooter cannot be said to be based on any evidence and that in the postmortem report, the date of death is shown as 12.10.1995 itself, whereas as per the evidence death has taken place on 13.10.1995 which goes to show that it is a clear case of manipulation and fraud.
(3.) SRI Rajendra Jaiswal, on the other hand, submitted that the appellant firstly cannot be allowed to raise this question in absence of permission under section 170 of the Motor Vehicle Act and secondly; the aforesaid argument of learned Counsel for the appellant is complete misreading of the evidence on record. He, however, further submitted that the postmortem report clearly reveals and establishes that the death of Smt. Bitti Devi has taken place on 13.10.1995.;