BINABAI Vs. K M WARE

JUDGEMENT

(1.) The unfortunate death of deceased, aged 35 years, while travelling in a trolley, attached with a Tractor, subjected to compensation by his legal heirs and dismissal thereof is subject of challenge in the First appeal. The accident, death and Insurance is not in controversy.

(2.) The Counsel representing the appellant would canvass, it was the sheer negligent act driving on the part of the respondent/driver of the tractor which occasioned the accident causing loss of life of deceased Madhavrao and, hence he and the owner of the tractor is responsible to meet the claim of compensation to the tune of rs. 1,00,000/ -. The deceased was agricultural labourer drawing monthly salary of Rs. 400/-and, considering dependency and his age, the claim should have been entertained for the said amount of Rs. 1,00,000/ -. The appreciation of evidence by the learned Judge, is more leaning to surmises than to the factual situation and, therefore, it needs interference.

(3.) The fact remains, it was not the deceased alone who was travelling in the vehicle but he was accompanied with Shamrao, pw. No. 2 and 4/5 other persons. However, shamrao, PW No. 2, who had come to support the claim of the claimants, about the so called rash and negligence on the part of the driver if is to be believed, it was incumbent upon him or, for that purpose, incumbent upon by other person, travelling in the trolley, to have produced medical certificate of the injuries suffered by him during the said accident. It is unfortunate, no such medical certificate is surfacing. The evidence of PW No. 2 Shamrao and DW No. 1 Baburao, both eye-witnesses, virtually runs against each other. There being divergent oral evidence of these two witnesses, the medical evidence of Dr. Rajendra will naturally prevail and the learned Judge has given his conscious finding as to how accident has taken place.