SAMOTIYA Vs. HARBANSH

JUDGEMENT

(1.) THIS is an appeal under Section 173 of the Motor Vehicles Act, 1988, against the award dated 13. 3. 1995, in MACC No. 4 of 1992, passed by III Additional Motor Accidents Claims Tribunal, Betul.

(2.) THE facts not in dispute are that on 28. 2. 1992 at about 12. 00 noon, deceased Hanuman was sitting on the logs loaded in truck No. CPB 8455 and as a result of the accident to the vehicle fell down and lost his life. Bhajal, PW 1, was the other labourer sitting with him on the logs in the truck who has been examined on the question of negligence of the driver. The claim petition filed by the dependants of the deceased was opposed by the owner and driver of the vehicle as also by the insurance company. The driver of the truck involved in the accident did not enter the witness-box. The insurance company took a plea that the proposal for insurance of the vehicle was made on the same day after the accident. The proposal was made on 28. 2. 1992 at 1. 30 p. m. and thereafter a cover note for the insurance policy was issued on the same day. The insurance company denied its liability on the ground that by suppressing the fact of occurrence of accident the owner of the vehicle, by practising concealment and fraud, obtained a cover note. It is contended on behalf of the insurance company that since at the hour of accident there was no insurance cover the insurance company cannot be made liable.

(3.) THE learned Member of the Claims Tribunal accepted the case of the insurance company and totally absolved it of its liability. So far as the liability of the owner and driver of the vehicle involved is concerned, the Claims Tribunal held that there is variance in the version of the accident as pleaded in the claim petition and given in the evidence by the witnesses examined by the claimants. The Tribunal held that the claimants came up with a case in the petition that the accident took place because of the alleged rash and negligent driving of respondent No. 2, the driver of the vehicle. The witness Bhajal, PW 1, examined by the claimants in the witness-box stated that the accident took place because the driver on a hilly road had stopped the vehicle and when it was stationary, did not take precaution to put some stopper under its wheel so that it did not slip down. Because of that the vehicle slipped down and turned turtle. Deceased Hanuman fell down and died under the weight of logs and the truck. The Claims Tribunal held that where the claimants set up a specific case principle of res ipsa loquitur is not attracted. The Tribunal concluded that no case of negligence as laid in the claim petition is made out against the owner and driver of the vehicle. The Tribunal, therefore, awarded a sum of Rs. 25,000 which was the minimum sum awardable under no fault liability.