BINDHESHWARI DEVI SRIVASTAVA Vs. RAMESH CHANDRA MAURYA

JUDGEMENT

(1.) Heard, Shri Somesh Tripathi, learned counsel for the appellant-claimants and Shri O.P.Srivastava, learned counsel for the respondent no.3. None appeared on behalf of respondents no.1 and 2 despite the notice has been served upon them personally.

(2.) This First Appeal From Order has been filed under Sec. 173 of the Motor Vehicles Act, 1988 against the judgment and order dtd. 7/1/2012 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Raebareli in M.A.C. No.270 of 2010; Bindheshwari Devi Srivastava and others Versus Ramesh Chandra Maurya and others, by means of which the Claim Petition filed by the appellant-claimants has been dismissed.

(3.) Learned counsel for the appellant submitted that on 7/8/2010 at about 4.00 in the evening when the deceased Ashok Kumar Srivastava was waiting for some person on the side of Lucknow-Allahabad Highway near the gate of Pragatipuram Colony near his motorcycle, the Truck, which was being driven rashly and negligently by its Driver dashed to the deceased and his Motorcycle from the back side and crushed the Motorcycle as well as the deceased, who succumbed to the injuries suffered in the accident. The accident was an outcome of the rash and negligent driving of the driver of the Truck, but learned Tribunal without considering it and applying the principle of 'res ipsa loquitur' wrongly and illegally held that the accident was on account of the negligence of the deceased, therefore, the appellant-claimants are not entitled for any compensation. He further submitted that the accident on 7/8/2010 at 4.00 in the evening at Lucknow-Allahabad Highway is neither disputed nor the death of the deceased on account of the said accident, but learned Tribunal while applying the principle of 'res ipsa loquitur' and merely on the basis of technical report of the vehicles held that the accident has occurred due to negligence of the deceased, but failed to consider that when the accident was on the Highway and the accident had occurred by the Truck which was coming from the opposite direction, it cannot be said that there was no negligence on the part of the Driver of the offending Truck, even if there may be some negligence on the part of the deceased, whereas there was no negligence on his part.