BALDEO RAJ Vs. DEOWATI

JUDGEMENT

(1.) This is a first appeal against the judgment and decree dated December 5, 1978, of the learned IInd Additional District Judge, Bulandshahr, arising from an accident claim petition filed by the kith and kin of the deceased before the Motor Accidents Claims Tribunal (for short " the Tribunal "). The facts are that on June 28, 1977, at about 7.30 a.m. the deceased, namely, Kishanpal, was travelling in a rickshaw along with Natthu Singh, who deposed as P.W. 4 before the Tribunal. The rickshaw was proceeding from the railway station towards Sabzi Mandi. Truck No. UPP 4395, which was coming from the city side, i.e., from the opposite direction, dashed into the rickshaw causing injuries to Kishanpal who succumbed to them in the hospital. His co-passenger, Natthu Singh, was also injured. The claimants claimed compensation of Rs. 60,000, but the Tribunal decreed the claim for Rs. 24,000 only. The Tribunal found that at the time of the accident, the truck was being driven by one Dal Chand, son of Umrao. Dal Chand was the conductor of the aforesaid truck at the relevant time and one Veerpal was the driver of the truck. The case of the claimants was that at the time of the accident, the truck was being driven by Dal Chand and Veerpal was sitting by the side of Dal Chand in the truck. The Tribunal accepted the case of the claimants that the vehicle was being driven by Dal Chand at the time of the accident; that the accident was caused by the rash and negligent driving of Dal Chand and not due to any mechanical defect beyond the control of the driver. Since Dal Chand was not a licensed driver, the Tribunal held that the insurer was not liable and the truck owner alone was liable to pay the compensation.

(2.) Aggrieved by the said order, this appeal has been filed by the truck owner. The points for determination in this appeal are :

(3.) First, I take up the question whether the Tribunal was right in holding that the truck was being driven at the relevant time by Dal Chand and not by Umrao. Umrao examined himself as D. W. 2 and he stated that the rickshaw was coming from behind the truck and that the truck was proceeding towards the railway station from the city side. P. W. 4, Natthu Singh, who was a co-passenger with the deceased in the rickshaw and who was himself injured, deposed that the truck was coming from roadways side to the railway station and that the rickshaw was proceeding from the railway station to Sabzi Mandi. Whereas, according to D. W. 2, Umrao, the truck and the rickshaw both were coming from the same direction; according to P. W. 4, Natthu Singh, the rickshaw and the truck both came from opposite direction and dashed into each other. The testimony of P,W. 4, Natthu Singh, who himself was injured at the time of the accident and who travelled in the same rickshaw in which the deceased was travelling cannot be disbelieved. It shows that Umrao, D.W. 2, does not have any idea of the direction in which the rickshaw and the truck were proceeding and, therefore, the Tribunal was right in holding that he was not the driver of the truck that caused the accident, but he was misrepresented to be the driver of the truck by the truck owner. The Tribunal is also right that he is an interested witness being the father of Dal Chand and, therefore, his testimony has to be seen with great caution. Umrao, D.W. 2, having given contradictory statement as to the direction of the rickshaw and the truck, his testimony is not at all creditworthy. The Tribunal rightly held that the truck was being driven by Dal Chand at the time of the accident. Admittedly, Dal Chand did not possess any licence. Therefore, the Tribunal held that the insurer was not liable for the act of the person who did not possess even the licence to drive the truck. Therefore, the finding of the Tribunal in this regard cannot be assailed.