SHIV KUMAR Vs. PRITHVIPAL SINGH

JUDGEMENT

(1.) IN this appeal by the claimants who are the wife and relatives of the deceased-Kejuram, the following points arise of consideration:

(2.) BRIEF facts as alleged by the claimants in their application before the learned M.A.C.T. is that on 21st June 1994, the deceased-Kejuram, a grain merchant, had gone to village Hardi on his motor cycle which got punctured. He was standing by the side of the road and waved for lift to the on-coming offending truck to come to a standstill. In that process the driver of the truck applied the brakes, due to which, the side the of the truck bursted. The driver of the truck lost balance of the truck and dashed against a tree after crushing Kejuram underneath killing him instantaneously. It also resulted in death of the driver and one Rinku Agrawal who was also travelling in the said truck:

(3.) WE have perused the records and find that Shiv Kumar Kaushik A.W.3 has categorically stated that at the time of the accident, Kejuram was not travelling in the offending truck and was standing at the road waving to the truck to come to standstill. Nothing has emerged in his cross-examination to rebut the aforesaid testimony. WE also find that Pundasia A.W.2 has also corroborated the testimony of Shiv Kumar by saying that Kejuram was standing by the side of the road and when the truck got unbalanced, he shouted and asked Kejuram to run for his life but the offending truck engulfed Kejuram and after crushing him underneath dashed against a tree. The owner of the truck neither contested the claim nor entered the witness box. In that view of the matter, we find that the learned M.A.C.T. wholly erred in coming to the conclusion that actionable negligence of the driver of the truck was not proved and the deceased-Kejuram was travelling in the ill-fated truck at the time of the accident.