Sant Kumar Mishra Vs Ram Kunwar and 4 Ors.

Court No. - 4

Case :- FIRST APPEAL FROM ORDER No. - 459 of 2017

Appellant :- Sant Kumar Mishra Respondent :- Ram Kunwar And 4 Ors. Counsel for Appellant :- M.K. Dixit Counsel for Respondent :- Anoop Kumar Srivastava,C S C,Nisha Srivastava

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Hon'ble Rajnish Kumar,J.

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Heard Sri M.K.Dixit, learned counsel for the appellant, Sri Anoop Kumar Srivastava, learned counsel for the claimantrespondent no.1, Ms. Nisha Srivastava, learned counsel for the respondent no.2 and Sri Arun Kumar Singh, learned Standing Counsel for the respondent nos.3 to 5.

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Learned counsel for the appellant submits that the claim petition was filed claiming compensation alleging therein that some patch work was going on, on Banda-Bahraich road, when the accident in question had occurred. However, the respondents no.3 to 5 have taken specific plea that no patch work was being done on the date of accident i.e. 06.02.2009 but without considering it and recording any finding in this regard, the claim petition has been decided by the learned tribunal holding that the accident had occurred on the date and time as alleged by the claimant-respondent no.1, which could not have been done. Therefore the impugned judgment and award is not sustainable in the eyes of law and liable to be set aside. He relies on Hemraj Chandrakar and another versus State of Chhatisgarh and others; 2018(36) LCD 1149.

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Per contra, learned counsel for the claimant-respondent no.1 submits that though it was denied by the respondent nos.3 to 5 that no patch work was being done on the date of accident but no evidence has been adduced to prove that no patch work was going on on the date and time of accident on the road in

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question. Accordingly, learned tribunal recording a finding to the effect that the respondents have not produced any documentary evidence in support of their contentions allowed the claim petition on the basis of pleadings, evidence and material on record, which does not suffer from any illegality or error.

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Learned counsel for the respondent no.2 submits that he was not the driver of the alleged Road Roller and a plea to this effect was taken in the written statement filed by him. However, she fairly submits that no evidence was adduced by him.

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Learned Standing Counsel submits that no patch work was going on, on Banda-Bahraich road, on the date of accident and learned tribunal has also not recorded any finding against the respondent nos.3 to 5.

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Having considered the submissions of learned counsel for the parties, I have perused the records.

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The claim petition was filed by the claimant-respondent no.1 alleging therein that on 06.02.2009 at 2:00 p.m when he was on duty as Mate on NH 28 in Village Nayagaon, Police Station Masauli, District Barabanki , the driver of the Road Roller Mohd. Shami driving rashly and negligently caused the accident, in which he got serious injuries and his left leg was completely damaged, on account of which he is not able to discharge his daily routine works. He had to remain on medical leave for about six months. The F.I.R. bearing Case Crime No.180/2009, under Section 279, 337, 338, 506 IPC was lodged at Police Station Masauli,District Barabanki. The applicant had to remain admitted from 06.02.2009 to 14.02.2009 in District Hospital Barabanki and even after discharge from there, he had to get the medical treatment.Thus he is entitled for compensation.

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The claim petition was contested by the respondent no.1 i.e. the driver Mohd. Shami denying the accident. It has also been stated that he was not driving the Road Roller. However, he pleaded that in case any compensation is to be awarded then the liability would be on the respondent no.2 i.e. owner of the Road Roller. The respondent no.2 filed written statement denying the averments made in the claim petition. He further stated that he is not the owner of the Road Roller and he has falsely been implicated as owner of the Road Roller. The respondent nos.3 and 4 i.e. State of U.P. and Executive Engineer filed written statement denying the averments made in the claim petition and stating that no patch work was going on, on the road in question near Nayagaon,therefore the question of any accident from the Road Roller does not arise. The respondent no.5 also filed a separate written statement denying the averments made in the claim petition. It has also been stated in his written statement that road in question was under the jurisdiction of Lok Nirman Vibhag,Nirman Khand on 06.02.2009 and since no patch work was sanctioned and going on, the question of any accident does not arise.

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On the basis of pleadings of the parties, three issues were framed by the learned tribunal. The second issue in regard to the ownership of Road Roller of the respondent no.2-appellant has been decided holding that the respondent no.2-appellant was the owner of the Road Roller as he has admitted that he was the contractor and the respondent no.1 has also stated that in case any compensation is awarded,the liability of paying the same is on the respondent no.2, who is the owner of the Road Roller.

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While deciding the issue no.1, the learned tribunal, considered the evidence of D.W.1 Avinash Yadav, Assistant Engineer, Nirman Khand-I,Lok Nirman Vibhag Barabanki,who

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stated in his evidence that Banda-Bahraich road was earlier under the Rashtriya Marg Khand, Lok Nirman Vibhag Lucknow, which was transferred to the Nirman Khand-I Lok Nirman Vibhag, Barabanki on 28.03.2009. The State or the Rastriya Rajmarg Khand,Lucknow is not the owner of the Road Roller. No patch work was going on at 06.02.2009 on the road in question. Shami Ahmad has also no concern with this department. Thereafter the learned tribunal recorded that the respondents have not adduced any documentary evidence in support of the aforesaid averments. D.W.1 stated in his evidence that he was not in Barabanki in 2009 and he knows about the case only on the basis of office paper book since 2012. Therefore admittedly the witness who was produced by the respondent department was not posted at the time of the alleged accident. He has also not deposed and produced any documentary evidence to show that no patch work was going on, on the date of accident. Admittedly, the road in question was under the jurisdiction of Rastriya Rajmarg Khand,Lucknow at the time of accident on 06.02.2009 and no evidence has been adduced to show that no patch work was being undertaken by the said Wing of the respondent, therefore averments made in the written statement could not be proved by any cogent evidence. The respondent no.1 also though denied that he was not the driver of the Road Roller at the time of accident but he has not appeared in the witness box to prove that he was not the driver of Road Roller. There is no cogent evidence to show that no patch work was going on, on the date of accident.

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Learned tribunal, after considering the pleadings, evidence and material on record and the outcome of the investigation in the criminal proceedings of the accident and the medical evidence, recorded a finding that the driver of the Road Roller driving rashly and negligently dashed the claimant-respondent

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no.1-Ram Kunwar on 06.02.2009 at 2.:00 p.m. at Village Nayagaon, Police Station Masauli, District Barabanki, in which he suffered serious injuries on account of which his left leg has become 40% disabled. Nothing contrary to it could be argued or shown by learned counsel for the appellant. This Court does not find any illegality or error in the findings recorded by the tribunal. In the facts and circumstances of the case, the judgment relied by learned counsel for the appellant is of no assistance to him.

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In view of above, the appeal has been filed on misconceived and baseless grounds, which is liable to be dismissed.

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The First Appeal From Order is, accordingly, dismissed . No order as to costs.

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The statutory amount and any other amount deposited under any order passed in this case before this court shall be remitted to the concerned Tribunal alongwith the records forthwith and in any case within a period of three weeks from today, to be adjusted towards the payments to be made to the claimantrespondents under the impugned judgment and award.

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Order Date :- 12.2.2025 Akanksha Sri/-

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Digitally signed by :- AKANKSHA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

Sant Kumar Mishra v. Ram Kunwar and 4 Ors.

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Sant Kumar Mishra v. Ram Kunwar and 4 Ors.

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