SARASWATI DEVI Vs. JAISAWAL OIL TRADERS

JUDGEMENT

(1.) The present appeal under Section HOD of the Motor Vehicles Act has been filed against the order dated 10.2.1982 passed by IInd Additional District and Sessions Judge/Motor Accident Claims Tribunal in Claim Petition No. 10 of 1981 between Smt. Saraswati Devi and Jaisawal Oil Traders, Ghazipur by which the claim petition was dismissed.

(2.) Brief facts of the case are that a claim petition was filed under the Act claiming a sum of Rs. one lac towards compensation on the ground that on 12.1.1981 her son Vinod Kumar who was aged about 18 years and was student of Class XII was crushed to death due to rash and negligent driving by the driver of Tanker No. U.T.H. 2372 belonging to M/s. Jaisawal Oil Traders which was insured by the National Insurance Company. It was alleged that Vinod Kumar was returning towards village on cycle from Chaubepur and the tanker came behind and crushed him causing death. The death had occurred due to only rash and negligent driving of the driver of the aforesaid tanker. The claim was contested by the owner of the tanker M/s. Jaisawal Oil Traders and also National Insurance Company. The respondent opposite party pleaded that the accident had occurred not due to the negligence of the driver of Tanker but due to the negligence of Vinod Kumar himself. Three issues were framed. Out of which Issue No. 1 is relevant for the purposes of present appeal which was as follows : "Issue No. 1. Whether the accident took place due to the negligence of driver or due to the negligence of the deceased?"

(3.) The Tribunal held that the accident was not occurred due to the negligence of driver of Tanker but on account of negligence of the deceased Vinod Kumar and accordingly dismissed the claim petition. Feeling aggrieved by the order, the present appeal has been filed.