VINOD KUMAR Vs. URMILA DEVI

JUDGEMENT

(1.) SINGH, J. This appeal under Section 110d of the Motor Vehicles Act, 1939 is directed against the award of the Motor Accident Claims Tribunal, Etawah, dated 2-6-1976.

(2.) MANGAL Singh hired a taxi on 5-11-1973 at Tundla for going to Lucknow. Besides MANGAL Singh, Vinod Kumar, owner of the taxi and one Jagdish Singh was also travelling in the taxi. At about 10 PM. , the taxi dashed against a Shisham tree causing serious injuries to the driver and MANGAL Singh. Both of them died on the spot. Smt. Urmila Devi, widow of MANGAL Singh, Km Poonam, Km. Panki daughters and Dinesh Pal Singh, son all jointly filed a claim petition under S. 110a of the Act claiming compensation from Vinod Kumar, the owner of the taxi and the National Insurance Company, the insurer of the vehicle.

(3.) LEARNED counsel for the owner of the taxi urged that the driver of the taxi was not guilty of any rash and negligent driving, as such the owner could not be liable for any damages. He further urged that Jagdish Singh, the only independent witness who was present at the time of the accident was not produced by the claimants and as such the claimants failed to discharge the initial burden to prove that the accident occurred on account of the rash and negligent driving of the vehicle by the driver. There is no dispute that none of the claimants was present at the scene of occurrence. The claimants tried their best to produce Jagdish Singh as they summoned him through Court at the address given by him for his evidence, but Jagdish Singh could not be traced out, as a result of which he could not be examined. The claimants had thus made efforts to produce Jagdish Singh, but they did not succeed in their efforts and for which they could not be blamed. Mohan Singh (P. W. 7 ). a resident of a nearby village where the accident took place was examined. He had witnessed the accident and he lodged the First Information Report with the police. S. I. Alauddin (P. W. 6), posted at police Station Jaswant Nagar, was also examined on behalf of the claimants. The Sub-Inspector prepared a site-plan of the accident showing the width of the road and the patri and the position of the taxi. According to the testimony of this witness the metal portion of the road was 24 feet wide and the Kachcha Patri was 10 feet wide. The taxi left the pucca road after covering 10 feet Kachcha patri and dashed against the shisham tree which was at the edge of the road. There was no skidding mark available on the spot and the road was clear and in good condition. There was no curve or culvert and or impediment on the road at the time of the accident. None of these witnesses could depose correctly as to how this accident occurred but the facts established by these witnesses prove the fact that the road was wide, clear and there was no traffic yet the accident occurred. In view of these circumstances an irresistible inference arises that the driver must have been going at a high speed and he lost control of the vehicle, as a result of which the vehicle left the road and dashed against the tree causing instantaneous death of Mangal Singh.