SHABBIR HUSSAIN Vs. MPSRTC

JUDGEMENT

(1.) CLAIMANT who was victim of an accident that occurred on 10.10.1993 with the offending vehicle belonging to respondent No. 1 (MPSRTC) and who claimed to have suffered injury in the said accident files this appeal against the impugned award which rejected the claim petition of claimant. The impugned award dated 10.3.1997, passed in claim case No. 63/94 by learned MACT, Kukshi.

(2.) ON 10.10.1983, the driver of offending vehicle (passenger bus), dashed to one hill in hilly track on road while moving. The claimant was one of the occupant in the offending vehicle when he suffered fracture in his left hand. A claim was filed by the claimant for compensation for the injuries and loss sustained against the owner of vehicle - MPSRTC and also the driver (but without namina). The non -applicant (owner of vehicle) remained ex -parte even after service since inception. The claimant then led unrebutted evidence and proved his case. The learned member of Tribunal on appreciation of the evidence of claimant came to a conclusion that since driver was not made party and since there was a mechanical failure in the vehicle and hence no case of negligence is made out. Accordingly, the claim was rejected. And hence, this appeal by claimant for claiming compensation.

(3.) HAVING heard the submission of learned counsel for the appellant and having analysed the evidence on record, I am inclined to set aside the impugned award and allow the appeal. In my opinion, the finding recorded by the learned Member of Tribunal for rejection of claim petition are not well founded and have to be set aside. So far as the finding regarding non -joinder of driver in claim petition is concerned, the same has to be set aside in view of law laid down in 1995 ACJ 965 wherein it is held that it is not necessary that driver should be made party in claim petition. In this case, I find that driver was shown to be made a party and owner when noticed did not even contest the claim petition and remained ex -parte. Secondly, the finding regarding mechanical fault in the vehicle is also not sustainable. There was nothing in rebuttal to prove this fact. Neither there was a written statement filed by the owner of offending vehicle nor anybody entered in witness box. The burden was on them to prove that there was some mechanical fault in the vehicle that led to an accident. There was, therefore, nothing to disbelieve the statement of claimant when he stated that the accident was due to rash and negligent driving of driver of vehicle. It was not for the claimant to cite driver as his witness but it was for the owner to examine the driver, if they wished to prove that the accident was due to mechanical failure and beyond the control of driver. He was the best witness to prove this fact.