HAYATH BI Vs. NISSAR AHMED

JUDGEMENT

(1.) This appeal under S. 110D of MV Act 1939, is by the original claimants in MVC No. 4 of 1972 on the file of the Claims Tribunal, Chitradurga, and is directed against the judgment and award dated 27-6-1975 passed by the Tribunal.

(2.) The appeal arises this way: One Abdul Jaleel was going with three others in the lorry belonging to respondent No. 2 from Chitradurga to Basapur. The lorry Was driven by respondent-1 Nisar Ahamed. It was insured by the third respondent the New India Assurance Co., Ltd. It is the case of the claimants that Abdul Jaleel along with PW.1 was going in the lorry as 'Hamal' for loading onions of PW.5 being employed by the owner of the lorry. When the lorry went for some distance on the road, the driver saw another bus was going ahead. It is the case of the appellanls that the driver increased the speed of the lorry and overtook the bus that was going ahead and when he was proceeding further, there was a bend in the road near Anjaneya Temple and the driver could not negotiate it and the lorry Went straight in the field and hit two 'trees which were on the right side of the road and thus the accident happened which reculted in the death of Abdul Jaleel, in addition to injuries to othetrs. The wife and three children and mother of Abdul Jaleel instituted before the Tribunal MVC NO. 4 of 1972, claiming compensation of Rs. 50,000. They have averred that the accident was the result f rash and negligent driving by Nisiar Ahmed the driver of the lorry. The claim is resisted by the respondents. Respondent No. 2 the owner of the lorry has contested that the accident wias not the result of rash and negligent driving of the lorry but that it was due to mechanical defect. He has denied his liability. Similarly, respondent No. 1 the driver has denied that the accident was the result of rash and negligent driving of the lorry. He has denied his liability for compensation. Similarly, the third respondent the Insurance Company denied its liability, on the ground that the accident was not the result of rash and negligent driving of the lorry. The Insurance Company also contended that it was not liable under the policy. On these pleadings, the Tribunal raised the following issues;

(3.) During the hearing, the claimants examined 5 witnesses in support of their case and respondents, in rebuttal, examined 3 witnesses. The Tribunal, appreciating the evidence on record, held that the accident was not the result of rash and negligent driving of the lorry but that it was due to mechanical defect viz., sudden disconnection of the drag and drop links system and as such it held that there was no cause of action for the claimants for compensation. In that view by its judgment and award referred to above, the Tribunel dismissed the claim of the petitioners. Aggrieved by the said judgment, the claimants have come up in appeal before this Court,