NIRMALA Vs. KULDEEP SINGH

JUDGEMENT

(1.) THIS judgment shall dispose of first Appeal Nos. 103/1979, 104/1979, 105/1979, 106/1979 and 107/1979 under the Motor Vehicles Act against the Award passed by the Motor Accidents claims Tribunal, Amravati dismissing the claims for compensation arising out of an accident as a result of beadon collision between Ambassador Car No. MHX 5765 and the Motor Truck No. UTW-4241 at 11 am. on 161-1977 on Amravati-Morshi Road.

(2.) ALL the 6 occupants of the Car namely (1) Dinkar Bhaurao Hingmire (2) Laxman s/o Annaji Tamboli (3) Ku. Shanta d/o Annaji Tamboli (4) Smt. Sunandabai w/o Annaji Tamboli (5) Smt, Sulbha w/o Namdeo Tamboli and (6) Ramkrishna Sukdoji Khetal, the driver died. The males who were occupying the front side died instantaneously and the females afterwards, but all in an unconscious condition. The truck was owned by Kuldeepsingh Sardar singh Punjabi, (respondent No. 1) and driven in the regular course of employment either by Rajbahadur Singh Punjabi or Gurudayal Singh Punjabi (respondents 2 and 3 respectively). It was insured for a third party risk upto a limit of Rs. 50,000/- with M/s. New India Assurance Co. Ltd. (respondent No. 4). The Ambassador Car belonged to a partnership firm M/s. Atmaram Nagorao Tamboli and Sons (not impleaded as a party and was insured with M/s. Oriental Fire and General Insurance Co. Ltd. (respondent No. 5).

(3.) THE first and the foremost question is whether in the whole background the finding of absence of negligence can be sustained. We do not think so. Since it is a case of a headon collision between the two vehicles, principle of Res ipsa loquitor will be attracted. But it is difficult to draw any inference merely on the basis of spot inspection note and photographs. It is pertinent to notice that no explanation is forthcoming as to why the respondents 2 and 3 who have first hand knowledge of the accident have not been examined. It is a clear cut case for drawing adverse inference against the respondents keeping in view Section 106 and 114(g) of the Indian Evidence Act. No occupant in the Car survived hence the claimants cannot be held to be guilty of suppression of evidence. The Tribunal has completely missed this most important aspect of the case. The inference gets strengthened by an undisputed position that there are no skid marks of the truck which means the brakes were not applied even though the truck left the road upto a distance of 57 ft. It is not the case of respondents in the pleadings that the Car-driver attempted overtaking and came to the wrong side in that attempt. PW 5 Subhash Deshmukh is shown in the charge sheet against the respondent No. 2 driver as one of the witnesses. Neither his presence on the scene has been doubted nor his independence. He seems to be in no way interested in the claimants. The Tribunal has proceeded in a cautious manner in appreciating his evidence since in his view, in cases of accidents, evidence by the eye-witnesses is given on the basis of their own imagination of what might have happened. While there is nothing wrong in being cautious in appreciating evidence there is no justification to proceed on the assumption that no eye-witness gives a correct picture of what he saw.