RAJKUMARI ARORA Vs. RAJA RAM

JUDGEMENT

(1.) THIS appeal is filed by the claimants challenging award dated 19th March, 1997 passed by Fifth Member Judge, Motor Accident Claims 6 Tribunal, Gwalior in Claim Case No. 39/88, whereby the Claims Tribunal has dismissed the claim petition filed by the present appellants.

(2.) THE brief facts of the case are that appellant No. 1 are widow of deceased Ram Prakash Arora while appellant Nos. 2 to 5 are his sons and daughter. The claim petition was filed alleging that on 19thMay, 1986 the deceased Ram Prakash Arora f at about 1 O'clock in the noon was driving scooter, when he reached near President Hotel one tempo bearing No. CPH-5132, which was driven by respondent No. 1 Rajaram owned by respondent No. 2 and insured with respondent No. 3 dashed against the deceased Ram Prakash Arora. Deceased Ram Prakash Arora due to hand injury became unconscious on the spot and when he was took to the hospital, he died there.

(3.) THE claimants to prove their case have examined AW 1 Raj Kumari Arora, who is wife of the deceased. AW 2 Bhagwandas, an eye-witness to the accident. AW 3 Dr. V.K. Diwan, who had performed the post-mortem. Thus, the only eyewitness examined by the claimant is AW 2 Bhagwandas. He has stated that he was going on his scooter at the time of accident and when he reached near President Hotel, he saw one tempo coming in very high speed. The said tempo overtook him at that time. This witness failed to say that the tempo will hit him, but any how he has come and tempo dashed against another scooter, which was coming from opposite side. He has stated that number of tempo was CPH-5132 and said tempo ran away from the spot. In cross-examination this witness has failed to give number of the scooter driven by the deceased and considering this fact Claims Tribunal has disbelieved this witness and held that claimants have failed to prove that the accident has not occurred due to rash and negligent driving of the tempo No. CPH 5132. This approach of the Claims Tribunal in the present case does not appear to be correct. The eye-witness Bhagwandas has given number of the tempo, which dashed against the scooter of the deceased. This witness could not have been disbelieved by the Claims Tribunal only because he did not remember the number of the scooter, which was driven by the deceased. Moreover, the driver respondent No. 1 has not step into witness-box to deny the accident. The Insurance Company has filed its written statement and in para 7 of its special pleadings has alleged that the accident has occurred due to rash and negligent driving of the deceased. Respondent No. 1 who was driving the vehicle has not filed his written statement and remained ex parte. Thus, the evidence of Bhagwandas (AW 2) is wrongly disbelieved by the Claims Tribunal and therefore the finding arrived by the Claims Tribunal on issue No. 1 deserves to be set aside and is hereby set aside and it is held that accident has occurred due to rash and negligent driving of respondent No. 1 by which deceased Ram Prakash Arora died.