Court No. - 4 Case :- FIRST APPEAL FROM ORDER No. - 264 of 2024 Appellant :- National Insurance Company Ltd. Thru. Asstt. Manager,Regional Office,Lucknow Respondent :- Smt. Maikin And Others Counsel for Appellant :- Balak Ram Rawat Hon'ble Rajnish Kumar,J. 1. Heard Shri Balak Ram Rawat, learned counsel for the appellant. 2. Learned counsel for the appellant submits that the offending vehicle i.e. Motor Cycle No. U.P. 31 AH 7448 was under repair at Shri Ram Gomti Automobiles, Jhandi Road, Near Court, Nighasan, District-Kheri w.e.f. from 16.01.2016 to 01.03.2016, therefore, no accident could have occurred from the said vehicle on 30.01.2016. He further submits that the surveyor had submitted the report dated 02.02.2016 after survey on 20.01.2016 for the estimated loss and after repair, the vehicle was received by the owner on 01.03.2016, therefore, the vehicle was in service centre on the date of accident. But learned tribunal failed to consider it. He further submits that there is contradiction in the site plan and evidence of eyewitness i.e. P.W. 2 because the site plan indicates that the offending vehicle was coming from the side of Singahi, whereas as per the evidence of P.W. 2, the offending vehicle had come from the side of Nighasan, therefore, the accident is also not proved. Thus, the submission is that the impugned judgment and award is not sustainable in the eyes of law. 3. I have considered the submissions of learned counsel for the appellant and perused the records. 4. The claim petition was filed alleging therein that the deceased had died in an accident on 30.01.2016 in Police Station Singahi, District Lakhimpur Kheri. The claim petition was contested by the appellant as well as the respondent-owner by filing written statement. After considering the pleadings of the parties, four issues were framed. Thereafter, oral as well as the documentary evidence was adduced by the parties. After considering the pleadings of the parties, evidence and material on record, learned tribunal recorded the finding and passed the impugned judgment and award. 5. The learned tribunal, after considering the evidence of the owner of the vehicle and owner of Shri Ram Gomti Automobiles, Jhandi Road, Near Court, Nighasan i.e. D.W. 1 and D.W. 2 recorded the finding that the D.W. 2 i.e. owner of the workshop has admitted that the vehicle had come in the workshop on 15.02.2016 and it was in the workshop till 01.03.2016. He also stated that it is wrong to say that the said vehicle was standing in his workshop on 30.01.2016. Thus, the plea of the owner of the offending vehicle that the vehicle was in the workshop on the date of accident i.e. 30.01.2016 is not tenable. Perusal of the evidence of the D.W. 2 indicates that the vehicle was in the workshop from 15.02.2016 to 01.03.2016 and nothing can be extracted from him, which may indicate that the vehicle was in the workshop on 30.01.2016. So far as the surveyor report dated 02.02.2016 after alleged survey on 20.01.2016 is concerned, it is for him to explain. Even otherwise he has not been produced before the tribunal. Thus, the plea of the appellant that the vehicle was in the workshop on 30.01.2016 is not tenable and learned tribunal has rightly recorded the finding in this regard after considering the pleadings, evidence and material on record. 6. The other plea taken by the appellant in regard to accident on the ground that the site plan indicates that the vehicle came from the opposite direction and P.W. 1, who is the wife of the deceased, has stated that the motorcycle had hit the deceased from the backside in Singahi but she is not an eyewitness, whereas P.W. 2, who is an eyewitness has stated that the deceased was standing in front of the petrol pump, when the offending vehicle came from the side of Nighasan and hit the deceased. The driver of the offending vehicle was driving the vehicle rashly and negligently. Perusal of the evidence indicates that the evidence given by the eyewitness P.W. 2 has proved the accident and rash and negligent driving by the driver of offending vehicle. No contrary evidence could be adduced by the appellant or the owner of the offending vehicle. So far as the site plan and the F.I.R. is concerned, the F.I.R. has been lodged by the wife of the deceased, who is not an eyewitness and she has lodged the F.I.R. on the basis of information given to her. The site plan has also not been proved by producing investigating officer. Even otherwise it is contrary to evidence of P.W. 2, who is an eyewitness, therefore, it cannot be a ground to doubt the accident and rash and negligent driving of the owner of the offending vehicle. 7. In view of above, the appeal has been filed on misconceived and baseless grounds and it lacks merit. 8. The appeal is, accordingly, dismissed. No order as to costs. 9. Statutory deposit made before this Court shall be remitted to the concerned tribunal forthwith and, in any case, within a period of two weeks from today for adjustment in payments to be made to claimant-respondents under the impugned judgment and award dated 20.05.2024 passed in Motor Accident Claim Petition No. 88 of 2017; Smt. Maikin and others vs. Satish Chandra and another by the Motor Accident Claims Tribunal, Lakhimpur-Kheri. Order Date :- 18.2.2025/Raj Digitally signed by :- RAJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench