BECHU KHAN Vs. SARASWATI

JUDGEMENT

(1.) Present First Appeal From Order is moved under Section 173 of the Motor Vehicles Act, 1988 by Bechu Khan, the owner of offending motor vehicle, against the claimant-respondents and the Insurance Company. The appeal has arisen from the judgment and award dated 31.08.2009 passed by learned Motor Accident Claims Tribunal, Barabanki in MACP no. 339 of 2007 (Smt. Saraswati and Others v. United India Insurance Company Ltd. and Another) awarding the compensation of Rs. 1,17,000/- alongwith interest @ 6% per annum from the date of filing of the claim petition against respondent no. 6-United India Insurance Company Ltd. by giving it a right to recover the said amount from the appellant.

(2.) The appellant has challenged the impugned judgment and award of the Motor Accident Claims Tribunal (hereinafter referred to 'MACT' in short for the purpose of convenience) on the ground that while deciding the claim petition, the learned Tribunal has committed error of law in relying upon the statement of one Umashanker alleged to be eye witness of the accident ignoring the fact that the witness was brother of the deceased and as such, being an interested witness, his testimony ought to have been disbelieved. Consequently, the grounds assailing the judgment, taken in the memo of appeal are, firstly alleged accident was caused due to rash and negligent driving on the part of the driver of the appellant's vehicle. Secondly, learned MACT wrongly reached at the conclusion that driver of the vehicle of the appellant was driving the vehicle rashly and negligently merely on the basis of statement of the aforesaid eye witness produced by the claimant-respondents. Thirdly, at the relevant date of accident, the vehicle was being driven by the appellant's son who was having a valid and effective driving licence for the vehicle of without gears and the motorcycle, involved in the accident, too was a Hero Honda motorcycle of the model without gears but the learned Tribunal without properly appreciating the said evidence on record took into consideration the customer booklet filed by respondent no. 6 issued in respect of Hero Honda CD Dawn model and held that motorcycle of the appellant was also a motorcycle with gears and, therefore, his son was not duly authorized to drive the said motorcycle. Fourthly, no evidence was adduced by respondent no. 6-United India Insurance Company Ltd. to prove that the appellant's motorcycle was a motorcycle with gears and, as such, the impugned judgment and award is liable to be set aside. Fifthly, since the motorcycle of the appellant was duly insured and the son of the appellant was driving the said motorcycle with a valid and effective driving licence to drive the said vehicle, therefore, the liability to reimburse under the contract of insurance lies upon the respondent no. 6-United India Insurance Company Ltd. only and right to recover could not have been given by the MACT. Therefore, the judgment and award of the learned MACT is erroneous in law.

(3.) Heard learned counsel for the appellant Sri Deepak Kumar Agarwal, learned counsel for claimant-respondent nos. 1 to 5 Sri Ravindra Pratap Singh, learned counsel Sri Jitendra Narain Mishra for respondent no. 6-United India Insurance Company Ltd. and perused the material available on record.