DHURPATIBAI Vs. RAJENDRA KUMAR

JUDGEMENT

(1.) THIS is an appeal filed by the claimants against the award dated 2.8.1986 passed by the IIIrd Additional Motor Accident Claims Tribunal in Claim Case No. 55/83 whereby the appellants claimants have been held not entitled to any compensation in respect of the death of the deceased Baburao who died as a result of the Motor Accident which occured on 8.5.1983 on Subhash Marg. Indore, having been hit by the tempo bearing registration No. CPF. 7760 which was being driven by Santosh, respondent No. 2.

(2.) THE learned Tribunal had passed an interim award dated 1.8.1986 awarding Rs. 15,000/- on the principle of no fault liability under Section 92-A of the Motor Vehicles Act But, on the appreciation of evidence adduce

(3.) THE learned Counsel for the appellant-claimant has contended that the learned Tribunal has wrongly come to the conclusion that the rash and negligent driving of the tempo in question by its driver has not been established in the case. Learned counsel has submitted that even though the learned Tribunal refused to give further opportunity to the claimants to adduce evidence on the question of rash and negligent driving of the tempo vide its order dated 2.7.85. The circumstances of the case warrant an inference of rash and negligent driving. The driver of the tempo, Santosh has been examined by the defendant as NAW-1. He stated that the deceased was coming from the front side on a cycle whereas in the written-statement filed on behalf of the driver and the owner it has been stated that the deceased Baburao came running towards the tempo. In cross-examination this witness has staled that he did not notice the deceased from any distance while he was driving the tempo and that it was not correct to say that he was running towards the tempo he has further stated that he did not know whether the deceased came on cycle or running. From this kind of evidence of the driver Santosh, NAW-1, it is clear that his attention was not at all directed towards the road while he was driving the tempo otherwise, he could not have missed noticing the deceased before he was dashed by the tempo. In such circumstances, the learned Tribunal should have held the driver Santosh guilty of rash and negligent driving, applying the principle of resipsa loquitur. Consequently, reversing the finding of the learned Tribunal on the issue of rash and negligent driving of the tempo. I hold that the driver Santosh was rash and negligent in driving the tempo at the lime the accident occured which resulted in the death of deceased Baburao.