BHANWARLAL NAHARJI Vs. SARDAR KABULSINGH

JUDGEMENT

(1.) A poor, illiterate and rustic villager has filed this appeal under Section 110-D of the Motor Vehicles Act, 1939 (for short "the Act"), against the award dated 4th November, 1981, passed in Claim Case No. 33/79, by shri L. J. Mandlik, Member, Motor Accidents Claims Tribunal, Ujjain, whereby the claim for compensation for the injuries arising out of the motor accident occurred on 25-1-1979, by the truck No. M. P. M. 3369, owned by the respondent no. 1, driven by respondent No. 2 and insured by respondent No. 3, has been dismissed.

(2.) BRIEF facts leading to this appeal are : When the claimant-appellant was going on his bicycle the respondent No. 2 came from behind in a high speed and dashed the cyclist, as a result of which the cyclist fell down and the cycle was crushed. The claimant-appellant received multiple severe injuries i. e. fracture in his right leg. He remained under plaster for a period of about 6 months. After the removal of the plaster, he became lame and there is shortening of leg by 3. " thus, there was permanent disablement in the right leg. It is also alleged that the claimant lodged the report at 4. 30 a. m. . in the morning in the concerning police station. The claimant submitted an application on 23-7-1979 before the Motor accidents Claims Tribunal, Ujjain, whereby he claimed compensation of Rs. 53,000/- for the injuries received by the use of the motor vehicle. After the notice, the owner, driver and insurer of the vehicle filed their written statements separately. The main contest of the non-applicants before the Tribunal was that their truck was not involved in the accident nor it went towards the site or place of the accident but went through some other site. During the trial, the claimant examined himself as PW-1 and one eye witness PW-2 Balwant. PW-1 in para 1 specifically stated on oath that the truck, which caused accident and injuries to him was of Sardar Kabulsingh, i. e. the owner of the vehicle, the respondent No. 1. In paras 10, 15 and 18 also the claimant affirmed on oath that it was the truck no. MPM 3369. During the cross-examination, the respondents confused him in para 18, by asking questions in respect of his illiteracy and difference in letters and numbers in English and Hindi. The respondents did not put their case in cross-examination that it was not their truck, which caused injuries to him nor the other witnesses were also examined on the point, that the truck did not go towards the place of the accident, but went towards some other place. PW-2 balwant, who is an eye witness also affirmed on oath that it was the same truck mpm 3369, caused accident, as a result of which the claimant-appellant received injuries. To this witness also, the respondents did not put their case in the cross-examination, as aforesaid. The claimant-appellant also examined one Head constable, who proved the First Information Report (Ex. P-8 ). To this witness also, there is no cross-examination at all. The respondents have examined the owner Kabulsingh as DW-1 and Bhagirath DW-2, though this witness in examination-in-chief has denied that no accident was caused by him on 25-1-1979 on Sanwer-Indore Road but this witness has not proved by any other evidence that his truck though went on trip on 25-1-1979 went to some other place and not to the site or place of the accident. Except these two witnesses on behalf of the respondents, there is no other evidence to support the case of the defence.

(3.) ON the basis of the total evidence, the learned Tribunal held that the claimant has failed to prove the identity of the truck and as such it cannot be said that the accident occurred with the truck No. MPM 3369, owned by respondent no. 1, driven by respondent No. 2 at the relevant time and insured by respondent no. 3. The Tribunal determined compensation of Rs. 15,245. 85 only for the injuries in the leg. As the respondent was not held to be liable to make any payment, hence interest was not awarded.