JAMNIBAI Vs. CHHOTE KHAN AZIZIKHAN

JUDGEMENT

(1.) THIS appeal under section 110 -D of the Motor Vehicles Act is directed against the award dated 17 -1 -1974 passed by the Motor Accidents Claims Tribunal, Mandsaur in Motor Accident Claims Case No. 14 of 1972.

(2.) THE facts giving rise to this appeal may briefly be stated as follows : 'On 16 -6 -1972 at about 1.00 p.m. the respondent No. 1 who was employed as driver by the respondent No. 2, was driving a passenger Bus bearing No. R.J.Y. 1613 on the Neemuch -Mandsaur road. The deceased Vishandas was going on a Vickey -moped. He was coming from a side road and after he entered the major -road he was dashed against by the passenger -Bus which was being driven rashly and negligently by the respondent No. 1. As a result of the accident Vishandas died. The appellants submitted an application under section 110 -A of the Motor Vehicles Act claiming compensation from the respondents. The passenger -Bus was insured with the respondent No. 3. The respondents contested the claim. The respondent No. 2 denied that the accident was caused on account of the rash and negligent driving of the respondent No. 1. He pleaded that the accident was caused on account of the negligence of the deceased because he was not careful in entering the major road from a by -road. The Tribunal after appreciating the evidence held that the accident was not caused on account of the negligence or rashness of the respondent No. 1 in driving the passenger -Bus but it was caused on account of the negligence of the deceased himself. The application filed by the appellants was, therefore, dismissed. The appellants have challenged the award of the Tribunal in this appeal.

(3.) THE Tribunal did not consider the statement of the driver Chhote Khan (NAW. 1) and Takhatsingh (A. W. 1). Chhotekhan (NAW. 1) admitted in cross examination that the Vickey -moped driver was seen by him when he came on the middle of the road and the road was 30' -35' wide at that place. When he saw the deceased he had come on the patari and when he heard the sound of accident then he applied the brakes. From his statement it is clear that when he saw the deceased on the middle of the road he did not slow -down the Bus or applied its brakes. He also admitted that when he saw the deceased he did not blow horn. He also admitted that the deceased was a fat man and he had to be dragged from under -(sic) the passenger -Bus. The Tribunal was, therefore, not justified in holding that the deceased was not over -run by the Bus and the right side of the deceased only came into contact with the Bus.