GHANSHYAM Vs. LAXMANSWAROOP

JUDGEMENT

(1.) THIS appeal has been filed by the Appellant whose petition for claim under Section 110 -A (1) of the Motor Vehicles Act, 1939, was dismissed by the Motor Accidents Claims Tribunal, Ujjain by order dated 19 -9 -1972.

(2.) IT was alleged that the Petitioner who was a civil servant, was posted at Ujjain. On 6 -11 -1969 at 10 -00 a.m he boarded a 'tempo' (a three -wheeled motor vehicle) in Freeganj locality of the town as a passenger. The tempo was plying on hire and was driven by Respondent No. 2, a servant of the owner Respondent No. 1. It was insured with Respondent No. 3. It is alleged that at about 10 -15 a.m. on Kamla Nehru Road the tempo met with an accident and turned turtle on its left side. It also caught fire. In this the Appellant received injury on his hand for which, after notice he filed the claim petition. It was alleged by the Petitioner -Appellant that the accident arose on account of rash and negligent driving of the tempo by Respondent No. 2. He therefore claimed Rs. 1 500/ - as special damages, and Rs. 30,000/ - as general damages. The learned Member of the Claims Tribunal held that the accident did not arise on account of any rash or negligent act on the part of the driver of the tempo. Consequently he dismissed the petition.

(3.) LEARNED Counsel for the Appellant took us through the evidence and the reading of the evidence indicates that the above facts could not be disputed. When the tempo was proceeding on the road, all of a sudden a boy ran from one side of the road to the other and the tempo -driver, in order to avert the accident had the only option of applying brakes; he therefore applied the brakes which resulted in the accident in which the Appellant received injuries. But on these facts it was contended by learned Counsel for the Appellant that as it was a wide road the driver could have averted the accident with the boy by taking the tempo on either side of the road instead of applying the brakes. This contention cannot be accepted as when the boy suddenly appeared in front of the vehicle the driver had to exercise discretion on the spur of the moment and if the driver chose to stop the vehicle as according to his discretion that was the only way to avert accident it could not be said that he was negligent. Apart from it, when the boy was in front of the vehicle, application of brakes is the normal way of stopping the vehicle to avert the accident. Unfortunately, it being a three -wheeled vehicle it turned towards one side which ultimately resulted in injury to the Appellant. But from these circumstance no inference could be drawn that the driver of the vehicle was in any manner negligent. This was a petition for claim under Section 110 -A(1) of the Motor Vehicles Act; but it is not contested that in order to get a claim it is essential to establish negligence or rashness on the part of the driver as the law stood and in absence of negligence or rashness the claim could not be accepted.