SHAMBHOO LAL Vs. TASLEEM BEG

JUDGEMENT

(1.) This is an appeal filed under section 110-D of the Motor Vehicles Act, 1939 against the judgment and order dated 11.5.1990 passed by First Additional District Judge/Motor Accidents Claims Tribunal, Nainital in Motor Accident Claim Case No. 54 of 1989 under section 110-A of the Motor Vehicles Act, 1939 and Motor Accident Claim Case No. 55 of 1989 under section 92-A of the aforesaid Act for interim compensation, whereby both the claim petitions have been dismissed by the Tribunal.

(2.) Brief facts of the case are that the accident took place on 19.1.1989 when the deceased Dinesh s/o Shambhoo Lal was coming on cycle with Rajendra s/o Ram Kumar for harvesting fodder for the animals. When they reached at Budha Bridge at about 4.30 p.m., they were hit by truck No. URW 144 on account of rash and negligent driving of driver Abdul Rahf which was coming from Tanakpur. At the time of accident the deceased was on cycle on the left side of the road. After being hit by the truck the deceased fell down and was crushed by the wheels of the truck and he died on the spot. The father, brother and sisters of the deceased filed Motor Accident Claim Case Nos. 54 and No. 55 of 1989 for compensation. Claimants claimed Rs. 2,50,000 as compensation on the basis that claimants suffered loss of Rs. 1,500 per month and also the mental agony due to the death of deceased Dinesh. The truck was insured with New India Genl. Ins. Co. Ltd., opposite party No. 3. The insurance has not been denied by the insurance company before the Motor Accidents Claims Tribunal. The insurer and the insured both filed their objections before the Tribunal. The defence was set up that accident did not take place by the truck as at the time of accident the truck in question was in Banbasa at the border of Nepal. The Motor Accidents Claims Tribunal framed the following issues:

(3.) The Tribunal decided issue Nos. 1, 2 and 3 together and held that Rajendra Singh, who was an eyewitness of the accident, was not examined by the claimants in support of his case. The Tribunal also ignored the statement of Om Prakash who was also eyewitness on the ground that his name did not find place in the F.I.R. who stated in his statement that he had seen the accident and had noted the truck number. The Tribunal disbelieved the statement of Om Prakash only on the ground that he had stated in his statement that the number was written on the black plate with white letters, while the truck was a public carrier, therefore, the number plate of the truck was white with the black letters. Learned Tribunal doubted the statement of Om Prakash and ignored it. Though the Tribunal noticed that in his statement, Om Prakash had stated that he was at a distance of 150-200 steps and the statement was being recorded after a long time. There could be a slip regarding colour of the number plate and numbers written on it. Merely on this ground the statement of Om Prakash could not have been ignored. The truck was taken into custody by the police authorities after the F.I.R. was lodged regarding the said accident and death. The Tribunal did not deal with those papers. Tribunal also did not deal with the statement of Shambhoo Lal who is the father of the deceased and is one of the claimants to whom the entire story was narrated by Om Prakash who was the eyewitness. Paper No. 42-C is the F.I.R. on record, which clearly establishes the occurrence of accident and death of the deceased by the truck No. URW 144. The statement of Jaggu Lal was also examined who has also stated that Rajendra told him about the said occurrence and he proved the accident. Therefore, on appreciation of all this evidence, we hold that the finding recorded by the Tribunal that the alleged accident had occurred by truck No. URW 144 was not proved, is contrary to the evidence on record. Therefore, we set aside the said finding and we hold that on the basis of this evidence, which is on record, the accident took place due to rash and negligent driving of the driver of truck No. URW 144. Therefore, the claimants were entitled to compensation from the insurance company as the truck in question was insured at the time of accident.