BASHIR DADA DESAI Vs. PANDURANG ATMARAM PATIL

JUDGEMENT

(1.) Heard the learned advocates for the parties. Perused the records. This appeal arises out of the judgment and order dated 16.9.1998 passed by the Motor Accidents Claims Tribunal, kolhapur, in M. A. C. Petition No. 156 of 1996. The claim petition filed by the appellants was dismissed on the sole ground that the appellants have failed to establish that the accident in question had occurred on account of rash and negligent driving of the tractor by the respondent No. 3.

(2.) The facts in brief are that the appellants are the parents of deceased Niyajahamad Bashir Desai. On 26.5.1986 around 8 a. m. , while said Niyaj was riding on the bicycle on Alabad-Kapashi Road he met with accident with the tractor bearing No. MZG 8594 which was driven by the respondent No. 3 herein on the same road in opposite direction. The tractor had two trolleys attached to it bearing registration No. MXL 4649 and MXL 4650. On account of said accident said Niyaj sustained grievous injuries and he succumbed to his injuries within a short span of time after sustaining the injuries. It is the case of the appellants that Niyaj was 7th standard student and he was their eldest son. The compensation of rs. 70,000 was claimed by the appellants. The Tribunal found that the appellants had established the claim to the extent of rs. 42,000, however, holding that the evidence on record is not sufficient to establish that the tractor was being driven in rash and negligent manner by the respondent no. 3 in driving the tractor at the relevant time, dismissed the claim petition. Though the respondent No. 2 had sought to contend that the tractor was not insured with the said insurance company, considering the cover note No. 784035 produced by the respondent Nos. 1 and 3 on record the Tribunal held that the vehicle in question was duly insured with the said company at the relevant time.

(3.) While assailing the impugned judgment and order, the learned advocate for the appellants submitted that the Tribunal has not assessed the evidence properly and has thereby committed error in the matter of assessment of the evidence which warrants interference by this court in this appeal. Referring to the testimonies of the witnesses, it was submitted that, the same clearly establish the negligence and rashness on the part of the respondent No. 3 in driving the tractor at the relevant time. It was also sought to be argued that in any case once the accident having been established and the appellants having also stated to have proved the claim to the extent of rs. 42,000, considering the decision of the supreme Court in Kaushnuma Begum v. New India Assurance Co. Ltd. , 2001 ACJ 428 (SC) , the appellants would be entitled to have compensation of Rs. 42,000 and hence the impugned judgment is liable to be set aside and the compensation be ordered to be paid to the appellants.