R MURGADAS Vs. VIRENDER YADAV

JUDGEMENT

(1.) BY way of the present appeal the appellants seek to challenge the impugned Award dated 6. 9. 2007 whereby the claim petition filed by the appellants was dismissed by the learned MACT on the ground that the appellants/claimants failed to prove negligence on the part of the driver of the offending vehicle. The brief conspectus of the facts is as follows:-On 19. 9. 2002 at about 5. 30 a. m. when Smt. Rangamma (now deceased) was going on foot, on the extreme edge of the road by the side of C-Block, Mother diary, J. J. Colony, Inderpuri then at that very time a tempo bearing registration No. DL-ILA-5423, driven by its driver Shri Virender Yadav, rashly and negligently, came from the direction of Todarpur-Lohamandi road and after going on wrong side of the road hit against the deceased with great force, without giving any horn or signal of warning, causing fatal injuries to the deceased. Respondent No. 1 was driving the vehicle in violation of traffic rules without caring for the other users of the road and hit the pedestrian who was walking on the extreme right side of the road.

(2.) MR. O. P. Mannie, counsel appearing for the appellants contended that the tribunal failed to appreciate the facts of the case and the evidence led in support thereof by the appellants. The contention of the counsel for the appellants is that the appellants had duly proved on record the arrest of the driver, seizure of the offending vehicle besides proving the site plan. All these documents of criminal case including certified copy of the challan and postmortem report were duly proved through the testimonies of PW-2 and PW-3. Counsel for the appellants further contended that even in the absence of an eye witness, all the said documents of criminal case are sufficient enough to establish negligence on the part of the driver of the offending vehicle. Inviting attention of this Court to the site plan, counsel for the appellants sought to urge that a cursory glance at the site plan would show that principle of res ipsa loquitur squarely applies in the facts of the present case. Elaborating his submission further counsel for the appellants pointed out that the offending tempo was coming from the side of the Todapur-Lohamandi road and then took left turn towards Budh Nagar Road, Inderpuri and instead of keeping the vehicle on its left side came to hit the deceased on the extreme right side of the road and in front of Mother Diary Depot. Counsel for the appellant, thus contended that the said site plan itself explains story of the accident and therefore, no further evidence was required to be produced so as to establish negligence on the part of the driver of the offending vehicle. Counsel thus contended that the Tribunal has wrongly observed that the appellants failed to bring on record any material so as to prove negligence on the part of the driver of the offending vehicle. Counsel for the appellant further contended that the tribunal wrongly placed reliance on the judgment of the Apex Court reported in oriental Insurance Company Ltd. vs Meena Variyal and Ors. 2007 (2) JCC 1280, which judgment as per the counsel was not applicable to the facts of the present case. The fact of the present case are totally dissimilar as the appellants had placed enough material before the Tribunal to write the finding on the issue of the negligence in favour of the appellants unlike in the case before the Supreme court in Meena Variyal (supra ). In support of his submission counsel for the appellants placed reliance on the following judgments:-Basthi Kasim Saheb (Dead) by LRs vs The Mysore State Road Transport corporation and Ors. AIR 1991 SC 487; National Insurance Company Ltd. vs Smt. Pushpa Rana and Ors. 2008 II AD (Delhi) 269; and Girdharilal vs Radhey Shyam and Ors. I (1994) ACC 504.

(3.) PER contra Mr. Kanwal Chaudhary submitted that the appellants have miserably failed to prove and establish on record the factum of negligence on the part of the driver of the offending vehicle and therefore, the Tribunal rightly dismissed the claim petition of the appellants. Counsel further contended that for claiming compensation under Section 166 of the Motor Vehicles act proof of negligence is sine qua non and therefore, by merely placing on record the documents of the criminal case the appellants/claimants cannot be granted any compensation without proving on record negligence on the part of the driver of the offending vehicle with the help of reliable and cogent evidence. Counsel for the respondent thus contended that the principle of res ipsa loquitur will not become applicable automatically unless the entire circumstances of the case as existing at the site of the accident are explained on record.