KANHEI RANA Vs. GANGADHAR SWAIN

JUDGEMENT

(1.) In this appeal by the unfortunate parents of one Laxmidhax Rana who lost his life on 30-1-1983, a very interesting point of seminal importance is involved. According to them, the deceased and some other labourers went in a truck bearing Registration No. OSC 4871 belonging to Gangadhar Swain and Jagannath Swain (respondents 1 and 2 in this appeal) to load wooden logs at Nrutang. After loading the truck with logs, the deceased was standing on the left side of the road and at that time the driver of the truck suddenly started the vehicle without using its horn and/or without focussing the light, and dashed against the deceased. As a result of the impact, the deceased fell down on the road and left wheel of the truck ran over him. In a serious condition he was removed to Mahanga P.H.C. for treatment but succumbed to the injuries on the way to the hospital. The accident, according to the claimants, was caused due to rash and negligent driving of the vehicle. The owners of the truck appeared and filed written statement denying the allegation of rash and negligent driving of the truck by its driver. The United India Insurance Company Ltd., (hereinafter referred to as the 'insurer') also appeared and filed written statement. Three issues were framed by the Second Motor Accidents Claims Tribunal, Cuttack (in short, the 'Tribunal'). The relevant issues are as follows :

(2.) Three witnesses including the appellant No. 1 Kanhei Rana were examined in support of the claim. The Tribunal discarded the evidence of the claimants' witnesses characterising it as untrue, and a nil award was passed. The conclusion of the Tribunal was that the claimants signally failed to prove that there was any use, and/or rash and negligent driving, of the vehicle in question. However, it quantified the compensation at Rs. 15,000/- primarily being of the view that there was no loss of dependency. Being of the view that the accident did not arise out of use of the vehicle it concluded that S. 110-A of the Motor Vehicles Act, 1939 (in short, the 'old Act') had no application. According to the claimants, the Tribunal was not justified in its conclusion that the accident did not arise out of use of the vehicle. The conclusion of the Tribunal that there was no loss of dependency was also characterised as perverse.

(3.) The learned counsel for the insurer, however, submitted that Tribunal's conclusions were justified and therefore, no interference is called for. It is urged with some amount of vehemence that the claimants did not come before the Tribunal with clean hands and therefore, their conduct disentitled them from any compensation. It is also submitted that the Tribunal has categorically found that the death was on account of fall of a log when the truck was being loaded with logs. That being the factual finding recorded by the Tribunal on evaluation of evidence, the irresistible conclusion is that the vehicle was not in use when the accident occurred and therefore, the claimants were not entitled to any compensation.