MOINUDDIN Vs. MD KAREEMUDDIN

JUDGEMENT

(1.) This Civil Miscellaneous Appeal is filed by the claimants against the award and decree dated 24-08-2001 passed by the Motor Accident Claims Tribunal (Additional District Judge), Medak at Sangareddy, in OP.No. 388 of 1999. Heard Sri K. Raji Reddy, the learned counsel appearing for the appellants-claimants and Sri E. Venugopal Reddy, the learned standing counsel for the second respondent-United India Insurance Company Limited. No representation on behalf of Respondent No. 1.

(2.) The first appellant is the father, second appellant is the mother and the appellants 3 and 4 are the brothers of the deceased, Mr. Mohammed Zakir. The deceased was a cleaner on the lorry bearing No. ABT-3899. The deceased, while he was under the employment of the respondent No. 1 owner of the lorry bearing No. ABT-3899, as a cleaner, died in a motor vehicle accident on 07-07-1999 allegedly on account of the rash and negligent driving of the driver of the tipper lorry bearing No. AET-7777. According to the claimants, the lorry bearing No. ABT-3899 stopped on the way due to some mechanical failure, the deceased and others were pushing the vehicle, by which time, the lorry bearing No. AET-7777 driven in a rash and negligent manner at high speed came from behind and dashed the deceased. Due to which the deceased received severe head injury and died on the spot. At the time of his death, the deceased was 18 years. The claimants filed a claim petition under section 166 of the Motor Vehicles Act, seeking compensation of Rs. 2,00,000=00 under various heads. They stated before the Claims Tribunal that the deceased by working as a cleaner was getting a salary of Rs. 2000=00 per month and a further sum of Rs. 40/- per day as batta. However, on behalf of the claimants, PW-1 who is no other than the father of the deceased was examined. He was not an eyewitness to the accident. The claimants did not examine any eyewitness to the accident. They only marked Ex. A-1 FIR and Ex. A-2 inquest report. The learned Claims Tribunal took the view that since the claimants did not examine any eyewitness to the accident, they failed to substantiate their version that the accident was the result of rash and negligent driving of the driver of the tipper bearing No. AET-7777 and arrived at a decision that the appellants 1 and 2, who are the parents of the deceased are entitled for compensation of Rs. 50,000=00 under no fault liability as envisaged under section 140 of the Motor Vehicles Act and accordingly granted compensation of Rs. 50,000=00 to both of them and dismissed the rest of the claim.

(3.) Feeling aggrieved, the claimants preferred the present civil miscellaneous appeal contending that since there is no dispute about the fact that the deceased died while he was in between the lorry bearing No. ABT-3899 and the tipper bearing No. AET-7777 and in view of the fact that the claimants specifically attributed the rash and negligent driving to the driver of the tipper AET-7777, the burden is on the owner and Insurer of the said tipper AET-7777 to establish that the accident was not due to rash and negligent driving of the driver of the said tipper, on failure by them to discharge the said burden, the learned Claims Tribunal ought to have drawn inference against them and should have held that the owner of the said vehicle, who is respondent No. 1 herein and the insurer of the said vehicle, the second respondent are jointly and severally liable to pay the compensation. They further contended that the learned Claims Tribunal went wrong in awarding compensation under section 140 of the Motor Vehicles Act and should have granted compensation on fault liability under section 166 of the Motor Vehicles Act. Thus, they seek to set aside the award passed by the learned Claims Tribunal.