MANNE BALA SARASWATHI Vs. P SUBBARAO

JUDGEMENT

(1.) It is rather unfortunate that the scooterist along with whom the deceased Prasada Rao was travelling as pillion rider brought about this situation which caused the death of Prasada Rao. The deceased Prasada Rao the husband of the first appellant, father of appellants 2 and 3 who are minors, and son of the fourth appellant, died in an accident on Aug. 5, 1983 at about 8 a.m. He was a pillion rider in the sctoor and the deceased were coming opposite to the Corporation Bus AAZ 7148 driven by R. W. 1, the first Respondent. They were coming to Rushikonda. The accident took place when the bus travelled for 20 yards after passing Rushikonda on Bheemunipatnam Visakhapatnam beach road.

(2.) It is the case of the appellants that the first respondent was coming rashly and negligently down gradient at that place. The deceased and the scooterist were coming upgradient very cautiously and due to rash and negligent driving of the first respondent, the accident occurred. The deceased was working as supervisor in A.P. State Construction Corporation Ltd., Visakhapatnam drawing a sum of Rs. 1600/- per mensem. Therefore, they laid a claim in a sum of Rs. 15,000/- on the theory of 'no fault liability' and dismissed the claim of the appellants for the compensation alleged to be paid on account of the rash and negligent driving of the 1st respondent. Assailing the legality thereof, the appeal has been filed.

(3.) Sri Krishna Murthy, the learned counsel for the appellants has contended that P.W. 4 is the eye-witness. Though he was not examined in the criminal court in a complaint filed for an offence under S.304-A, I.P.C., he is a natural witness. He is the driver of autorickshaw. Therefore his evidence is amply corroborated by the circumstantial evidence. Therefore, the Tribunal below is unjustified in holding that P. W. 4 is not an eye-witness. It is also further contended that the first respondent would have taken all necessary precautions when he is coming down gradient slowly. He had not taken any precautions. As a result, he also contributed for the accident by his rash and negligent driving. Thereby the Tribunal ought to have held that the corporation is liable to pay the compensation for the death of the deceased. Non-impleading of the scooterist or the Insurance Company is not fatal. It is open to the corporation to proceed against the scooterist and insurance company after making payment to the appellants of the compensation towards the death of the deceased Prasad Rao. The Tribunal, therefore, has committed grievous error of fact and law in dismissing the claim of the appellants.