COMMANDANT OF 74 BN BSF Vs. PANKAJINI KUNDU

JUDGEMENT

(1.) This appeal under Section 110D of the Motor Vehicles Act, 1939 is directed against an award passed by the Claims Tribunal in Motor Accidents Claims Case No. 2 of 1973, Shri P. Datta, District Judge, Malda as the Claims Tribunal, by his judgment dated the 6th May, 1978 passed an award for a sum of Rs. 40,000/- against the Union of India and Driver No. 67744116 Gorak Nath Saha of 74 BN. of Border Security Force. The claimant was one Smt. Pankajini Kundu, mother of the victim of the accident Asok Kumar Kundu, a young man of 21 studying in B.Sc., 2nd Year who was run over at Alampur, P.S. Gazol on the 21st July, 1972 at about 10 a.m. by a vehicle belonging to the 74 Battalion of the Border Security Force and driven by the said driver Gorok Nath Saha.

(2.) On 23rd July, 1972 at about 2 a.m. the victim died in Malda Sadar Hospital. The entire claim of Rs. 40,000/- stood allowed against the respondents Nos. 3 and 4 who are appellants Nos. 3 and 4 herein though it stood dismissed against the appellants Nos. 1 and 2.

(3.) The case of the claimant inter alia was that her son had a Driving Licence. He used to drive his father's Taxi cab No. WGR 900 on such days when his college was closed. Otherwise he was a regular B.Sc. 2nd Year student. They had a regular driver who normaly used to ply the taxi, but even on such days when the driver drove the taxi, her son used to accompany the driver. On the relevant day i.e. July 22, 1972 the regular driver Manjur Ali was absent and her son was alone driving the taxi. There was also a cleaner, Gopal Dey, P.W. 2, who accompanied him in the said taxi. On 22nd July, 1972 at about 10 a.m. the deceased while driving the taxi stopped his vehicle on the left flank (Kancha portion) on the National High Way No. 34 near Alampore halt to allow some passengers to get down. He was standing close to the door of the vehicle on the right hand side to assist Gopal who had been directed to bring a bucket of water to clean the rear seat of the vehicle where a woman passenger vomited. The appellant No. 3 Gorokh Nath Shah, a B.S.F. Driver attached to 74 Battalion driving his Hindustan Bedford Truck in a speed of 40 Km. per hour knocked him down from behind. The said B.S.F. vehicle was coming from Gazol side. It did not blow any horn. It dashed against the deceased and he fell down on the left flank of the Highway senseless. The driver drove away the vehicle thus running away from the site. Asoke was taken to the Sadar Hospital in their own taxi bearing No. WGR 900 which was driven by a passenger, P.W. 1 Birendranath Moitra.