BASANTA KUMAR SAHU Vs. SHYAMSUNDER AGARWALLA AND ORS.

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against the decision of a learned Single Judge of this Court rendered in an appeal under Section 110D of the Motor Vehicles Act of 1939 (hereinafter referred to as the 'Act') wherein the learned Judge reversed the finding of the Claims Tribunal that the accident in question was not the outcome of negligence on the part of the truck driver and directed remand of the dispute to the Tribunal for assessment of compensation after allowing parties to lead evidence.

(2.) THE claim arose in the following circumstances: On 16th of March, 1967 at about of 5 o' clock in the afternoon the claimants' son, a young boy of 5, was riding a tri -cycle on the embankment of river Kathjori. Another young boy by name Santosii was on the same tri -cycle on the pillion. The river embankment at the material place is close to a major town road but i at a height of about 3 to 4 feet. These two young boys riding the tri -cycle glided down the gradient of the embankment to the road at a time when a truck bearing registration number ORG 2875 was running on the road itself. The right side rear wheel of the truck ran over the young boy on the tri -cycle and caused his instantaneous death. Santosh was also injured but he scrambled upto the embankment road for safety shortly after the accident. The police arrived at the spot on being informed of the unhappy incident, the damaged tri -cycle was seized and the truck was found to be standing at a short distance from the spot of accident.

(3.) SEVERAL grounds had been raised and the memorandum of appeal challenging the correctness of the finding regarding negligence. At the hearing, however, counsel found it difficult to support the grounds raised and ultimately agreed that the facts of the case were such that the doctrine of res ipsa loquitur did apply. In view of a series of decisions indicating circumstances where the rule has been applied, learned Counsel ultimately did not think it worthwhile to challenge the finding regarding negligence of the driver.