UNION OF INDIA Vs. VIJAY SUNDARI

JUDGEMENT

(1.) The appeal and the cross-appeal are referred u/S, 110-D, Motor Vehicles Act, 1939, for short, the Act. In their appeal (M.A. No.48 of 1986), the claimants have prayed for enhancement of the compensation, while in the other appeal (M.A. No. 29 of 1986), the prayer is for setting aside the award in toto.

(2.) Deceased Rameshwardayal Bajpai, a Daftary in the Office of the Accountant General, Madhya Pradesh, at Gwalior, was, admittedly, hit by jeep No. CPH 13, belonging to the Border Security Force, Tekanpur. The accident took place on 3-10-1983 at around 1-30 p.m. and in an unconscious stage, the deceased was removed from place of occurrence to the hospital where, on the same date, in the night, he breathed his last. He was carried to hospital in the same vehicle which had caused the accident and the defence is that the vehicle was not driven rashly and negligently.

(3.) Two questions mainly, evidently, arise for decision in these two appeals. We would examine first, therefore, the defence and evidence that has come on record in that regard. It appears that on three main props, the defence was erected, but in our view, claimants' case is proved allunde to sustain the finding and conclusion of the Tribunal that the vehicle was driven rashly and negligently at the time of the accident. False defence results evidently in dilution of the onus of the claimants. Indeed, when the case pleaded is that the Driver was not guilty of rash and negligent driving and interposition of human agency resulted in the inevitable accident, onus would lie on the driver to establish the stand taken. Because, when due to an act of God, any inevitable happens, the position is different. When it is not possible for a driver to prevent the accident by the exercise of ordinary care, caution and skill, it may be a case of an inevitable accident and it shall be open to him to plead that the cause of the accident was not absence of those, but of external human factor, such as the negligence of the victim.