GAJJAN SINGH Vs. JUJHAR TOUR AND TRAVELS

JUDGEMENT

(1.) THE appeal is against the dismissal of the petition for compensation for death of the one Jagir Singh on 14.05.1997. The claimants were parents and the sister of the deceased. As per the averments in the petition, the accident had taken place at 2 a.m., when the deceased was taking refreshments at the Dhaba about two feet from the beam of the road when a bus belonging to the respondents coming from the Ambala side moving towards Haridwar hit against the deceased as a result of which he fell down on the road and succumbed to injuries on the spot. The third petitioner, who was the sister of the deceased and a young lady, was supposed to have accompanied his brother and she had left for the village to inform her parents leaving one Harjinder Singh to stay at the dead body. By the time when she returned, the police had already taken the dead body to the civil hospital at Saharanpur where a postmortem had been done and the body was handed over to the parents. The contention of the petitioners was that the police did not register a complaint and at the trial, although the respondents driver and owner were served, they did not come to defend themselves. The Tribunal was not convinced on the truth of the contentions in the petition and proceeded to dismiss the petition.

(2.) IT is now contended by the counsel for the appellant that in a case where the driver and owner, who had been impleaded as parties had not come to defend themselves, a claim of the insurer that the accident had not taken place involving the insured's vehicle ought not to have been accepted. It is the further contention that reasoning of the Tribunal that sister of the deceased could not have accompanied the deceased at the thick of the night when the accident had taken place in a tractor was not justified, for the reasons had been given by the petitioners themselves that the deceased had reason go to Delhi to see off the husband of the sister to foreign country and they were returning from Delhi when the accident had taken place. Learned counsel for the appellants also refers to some decisions of the Hon'ble Supreme Court on the effect of a party not appearing in Court to defend himself. The counsel relies on a judgment in Vidhyadhar v. Mankikrao and another 1995 (2) CCC 91 (SC) and said that party not entering in witness box to state his own case on oath and not offering himself to be examined by the other side, a presumption was bound to arise that a case set up by him was not correct. In Madhya Pradesh State Road Transport Corporation v. Vaijanti and others 1995 ACJ 560 a Division Bench of Madhya Pradesh High court has held that non -examination of a driver of the offending vehicle drew adverse inference against him. In Smt. Kundan Bala Vora and another v. State of U.P. AIR 1983 All 409 a widow of the deceased, who was traveling along with him at the time of accident gave details of the accident and although she would not recall the manufacturing details of the car of either as a Ambassador or Fiat, the Court held that the evidence of an eyewitness could not be brushed aside.

(3.) THE award is confirmed and the appeal is dismissed.