BILASA NAIK Vs. RADHASHYAM MOHANTY

JUDGEMENT

(1.) This appeal is directed against the order passed by Hon'ble Dr. Justice B. N. Misra who at the admission stage dismissed an appeal filed under Section 110-D of the Motor Vehicles Act. The claimants are the appellants and the learned Second Motor Accidents Claims Tribunal having dismissed their claim and on appeal, the learned single Judge having dismissed the same, they have approached this Court invoking the jurisdiction under letters patent.

(2.) Appellant No. 1 is the daughter-in-law and appellant No. 2 is the son of deceased Radhu Bewa who died in a motor accident. It was claimed in the petition for compensation that the deceased was the widow of late Madhu Naik. She was aged 40 years. She was carrying on a small business in purchase and sale of rice and having a monthly income of Rs. 300/-. The accident took place on 17-9-1976 at about 10 a.m. on the National High Way near Barabati Post Office under Dharmsala Police Station. It is claimed that at the time of occurrence the old lady was proceeding towards the Barabati Post Office on the extreme left flank of the road. At that time the truck bearing registration No. ORU 668 of respondent Radhashyam Mohanty came from Cuttack side being driven at a high speed and in a rash and negligent manner without blowing horn and dashed against the deceased. As a result, the latter was thrown on the ground with multiple injuries on her person including fracture of the head and died at the spot. A report was lodged with the Dharmasala Police Station and P.S. Case No. 120/76 (subsequently numbered as G.R. Case No. 756/76) was registered. The appellants claimed Rs. 25,000/- as compensation. Since the vehicle was found to have been insured with the Oriental Fire and General Insurance Company Limited, the said company was also made party along with the owner of the truck.

(3.) Both the respondents, the owner and the insurer, filed separate written statements. The owner while claimed the ownership of the vehicle in question denied the allegation of any accident whatsoever on 17-9-1976. He also denied the death of said Radhu Bewa on account of the accident and other material facts pleaded in the petition and the relationship of the appellants with deceased Radhu. He claimed that at the relevant time the driver who had a valid driving licence was driving the vehicle at a normal speed and with due care and caution. But the lady, who was aged about 60 years, suddenly tried to cross the road and dashed against the rear wheels of the truck and thus contributed to the accident. Therefore, the driver was not driving either rashly or negligently. The respondent-owner threw the entire liability on the insurance company since, according to him the vehicle was insured at the time of accident with the company. The insurance company, on the other hand, denied all the allegations of the appellants including the income of the lady, the manner in which the accident took place and all other material facts pleaded in the petition. In para 8 of the written statement the company took the plea that it was unable to trace out from its office the particulars with regard to the policy in respect of the vehicle and, therefore, called upon the owner to produce all particulars relating to the policy and claimed that unless the owner produced the particulars, adverse inference should be drawn against him.