MOHINDER KUMAR Vs. DEVI

JUDGEMENT

(1.) (oral).-The appellant is aggrieved of an awarddated 26th of July, 1980 passed by the Motor Accident ClaimsTribunal allowing a sum of Rs. 36,000 as compensation infavour of respondents No. 1, 2 and 3 in the appeal. This followeda claim petition, under section 110-A of the Motor Vehicles Acton the ground that one Tilak Raj husband of respondent No. 2herein died in a motor accident which took place on the lightintervening 6th February and 7th February 1971 at about 1.30A.M. at G.T. Road, near Seelampur.

(2.) The facts as disclosed in the claim petition are that onthe aforesaid date and time the deceased along with five moreoccupants was travelling in car No. DRP 34 from Delhi Shahdarato Delhi. At the relevant time Shri Mahinder Kumar Jain the appellant is stated to have been driving the car rashly and negligently and when it reached near Seelampur police post the appellant suddenly swerved to the right and hit violently against atree on the extreme right tide of the road as a result of whichout of the six occupants of the car two died on the spot whileothers received injuries. The car was also alleged to have beenbadly smashed in the accident. The deceased Tilak Raj was oneof the dead passengers. Respondent No. 2 in the claim petitionwas the owner of the ear which was insured with respondentNo. 3 in the claim petition. The driver and the owner of thecar had denied that the accident took place as a result of rashand negligent driving by the appellant. The plea of the insurancecompany was that it cannot be held liable as the deceased wasadmittedly a passenger and under the provisions of section 95of the Motor Vehicles Act of 1939 a passenger in the car isneither required to be covered nor was he entitled to recoverunder the policy referred to.

(3.) Mr. Kaul urged that the Tribunal was in error in holdingthat the accident took place as a result of rash and negligentdriving of the offending car by the appellant. The fact that theaccident took place is not in dispute. The fact that the deceasedTilak Raj died as a result of this accident is not in dispute. Themanner in which the accident took place is also not in dispute.In the claim petition the appellant had taken two specific pleas;firstly that due to sudden appearance of a stray animal on lheroad he had to swerve the car to a side and eventually struckagainst a tree resulting in the accident and death and secondlythat there was a mechanical failure of brakes. These two specificpleas have not been proved by him so much so that he hasfailed to appear even as a witness for himself. The Tribunalwas, therefore, justified in discarding this plea as an afterthought.