VIJAY PAL Vs. MOHSIN

JUDGEMENT

(1.) WE have heard Shri R.R. Khan, learned counsel appearing for the claimant -appellant. The injured claimant Shri Vijay Pal was travelling alongwith his goods (vegetables) and was going to Sahibabad in D.C.M. No. U.P. 23D -9613. He was sitting in cabin alongwith driver. It is alleged that the vehicle was being driven rashly and negligently for which he warned the driver of the vehicle many times. When the vehicle reached near Tomar Hotel National Highway, a tanker hit the vehicle on the driver's side on which the vehicle (D.C.M.) turned turtle causing severe injuries to the claimant. The claimant was dragged out of the vehicle by one Shri Brij Mohan and one other person. The claimant was admitted in the hospital at Sahibabad, where he remained unconscious for some time and suffered serious injuries in legs on which he has become partially disabled. The appellant sought compensation against the owner of the vehicle (D.C.M.) and Bajaj Allianz General Insurance Co. Ltd., which had insured the vehicle. Since the driver and owner of the tanker could not be traced out, they were not impleaded nor the insurance company, which may have insured the tanker was impleaded.

(2.) THE Tribunal has dismissed the claim petition under Section 166 on the findings that since the appellant injured could not make out as to which of the vehicle was negligent in causing the accident, though he had stated that D.C.M. was being driven at high speed. He did not state in examination -in -chief as to who was at fault. The Tribunal did not believe the statement of Shri Brij Mohan -P.W. 2, who is alleged to have seen the accident on the ground that he just pulled out the injured and did not evacuate them to the hospital. His presence on the spot is doubtful. No site plan, charge -sheet, police investigation report or any other documentary report was filed. The only document filed was a F.I.R., which shows that it was fault of driver of the unknown tanker in causing accident.

(3.) LEARNED counsel appearing for the appellant has relied upon State of Tamil Nadu v. P.K. Anandan, AIR 1982 Mad 136, in which reliance was placed on Southern Roadways Ltd., Madurai v. P.O., Poulose, C.M.A. 173 of 1979 in which it was pointed out as follows: