BHURIBAI Vs. SHYAM SUNDER

JUDGEMENT

(1.) This appeal has been filed by parents of the deceased under section 173 of the Motor Vehicles Act, 1988 (for short 'the Act, 1988') against the award dated 12.2.2002 passed by the Additional Motor Accidents Claims Tribunal, Lahar, District Bhind in Claim Case No. 8 of 1998, whereby Tribunal dismissed the claim petition.

(2.) The brief facts of the case are that on 28.6.1998 at about 9.30 in the morning deceased Pappu along with other villagers was travelling from village Mahua to Lahar in a bus bearing registration No. MP 07-F 0113. He was sitting on the rooftop of the bus. The respondent No. 1 was driving the bus. It is submitted that he was driving rashly and negligently. Near village Chiruali when the bus was passing under the tree of acacia (babool) one of the branches of the tree hit the deceased Pappu, as a result of which he received head injury. The bus was not stopped by the driver even after the call made by other passengers and it was stopped at Lahar Bus Stand. A report of the incident was lodged at 5.30 p.m. on the same day. The matter was investigated and charge-sheet was filed. Thereafter, the widow, child and parents of the deceased have filed the claim petition. The learned Claims Tribunal dismissed the claim petition on the ground that the claimants have failed to prove that the accident took place due to the rash and negligent driving of the vehicle by the driver. Claims Tribunal has also found that the claimants have also failed to prove that permission was given by the driver and conductor/cleaner to the deceased to travel on the rooftop of the bus. Claims Tribunal has found that the deceased was sitting on the rooftop of the bus himself and for his own negligence he himself is liable. Against the dismissal of claim petition, the parents of the deceased have filed this appeal. The widow and the daughter have not filed any appeal.

(3.) Mr. R.P. Gupta, learned counsel for the appellants argued and submitted that accident took place arising out of use of motor vehicle. There is no rebuttal of this evidence that permission was not granted to the deceased to travel on the rooftop by the driver or owner of the bus. He placed reliance on various decisions of the High Courts. On the contrary, Mr. S. Gajendragadkar, learned counsel for the insurance company, respondent No. 3, supported the award and submitted that there is no scope for any interference in the findings recorded by the learned Claims Tribunal. There is also no evidence on record about rash and negligent driving by the driver of the vehicle and that any permission was granted by them to sit on the rooftop of the bus.