MD RASHEED Vs. SUSHEELA AGARWAL

JUDGEMENT

(1.) Appellant filed a claim petition alleging that on 19.10.1995 when his auto bearing No.AP-10T-934, being driven by Mohd. Iqbal, reached near Bidar crossroads, vehicle bearing No.AP1 IT -8499 belonging to first respondent and insured with the second respondent, came in the opposite direction in a rash and negligent manner and dashed against his auto resulting in extensive damage thereto. He spent Rs.35,000/- to get his auto repaired, after spending Rs.8,500/- towards towing charges. Since his auto was in the garage for repairs for six months, he lost an income of Rs.15,000/-. So, he is entitled to Rs.58,500/- as damages from the respondents. First respondent choose to remain ex parte, both before the Tribunal and this Court. Second respondent filed a counter contesting the claim of the appellant. In support of his case appellant examined himself as P.W.1 and marked Exs.A.l to A.5. Second respondent did not adduce any oral evidence but marked Ex.B.1 by consent. The Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the vehicle belonging to first respondent but dismissed the claim of the appellant on the ground that there is no evidence to support his contention regarding the amount spent for repairs etc. Hence, this appeal.

(2.) The contention of the learned Counsel for appellant is that the evidence of P.W.1 read with Ex.A.5 photographs establishes the extensive damage to the auto of the petitioner and so the Tribunal was in error in dismissing the claim of the appellant. The contention of the learned Counsel for second respondent is that since the Tribunal gave cogent reasons for its conclusion that the appellant is not entitled to compensation, there are no grounds to interfere with the finding of the Tribunal. He also questioned the finding of the Tribunal on Issue No.1 that the accident occurred due to the negligence of the driver of the first respondent.

(3.) Since second respondent did not obtain permission under Section 170 of the Motor Vehicles Act, 1988 (the Act), it cannot take the pleas open to the owner and should confine itself to the defences open to it as per Section 149(2) of the Act, and so normally I would not have reconsidered the finding of the Tribunal on Issue No.1 relating to the negligence of the driver of the vehicle of the first respondent at the time of accident. After perusing the evidence on record, I am satisfied that the Tribunal gave the finding on Issue No.1 without any supporting evidence on record. So, I wish to interfere with the said finding by invoking the power vested in this Court by Rule 33 of Order XVI C.P.C.