MADHU SEHGAL Vs. H.R.T.C.

JUDGEMENT

(1.) This appeal is directed against the award passed by Shri R.L Sharma, Motor Accident Claims Tribunal (II), Solan and Sirmaur Districts at Solan By means of impugned award in case No 8 -S/2 of 1985, dated 30 -6 -1986, claim petition under section 110 A of the Motor Vehicles Act, 1939 for grant of compensation has been rejected. In order to properly appreciate the respective contentions raised on behalf of the parties before us, it is necessary to refer to a few facts material for determination of the present appeal. Appellant No.1 Smt, Madhu Sehgal is the widow and appellants No 2 and 3 Master Sunny and Master Nany are the minor sons and appellant No 4 Smt Avinash Devi is the mother, respectively of late Shri Narinder Pal Seghal, who according to the appellants had died in a motor vehicle accident on 1 -1 -1985 at a place near Deli within jurisdiction of police station Parwanoo at about 6.00 pan Acceding to the appellants, deceased was going on a motor cycle bearing registration No PBP -1819 while he was on his way to Shimla, whereas bus bearing registration No. HIU 165 was being driven in a rash and negligent manner by respondent No. 2, resulting in the accident which led to the death of Shri Narinder Pal Seghal Further case of the appellants was that Narinder Pal Seghal died on way to hospital Age of the deceased was pleaded to be 3o years and his income was stated to be Rs 1200 per mensem from the shop that was being run by him. In reply, stand of the respondent No.1 was that the motor cycle was being driven by the deceased under the influence of liquor in a rash and negligent manner which resulted in the accident in question and a report vide F.I.R. No. 3/85 dated 1 -1 -l983 was lodged against him at police station Parwanoo under sections 279/337 I.P.C. Further case pleaded by the driver was that the bus was being driven in a manner whereby it was under his complete control. Identical stand was taken up by respondent No. 2 driver in his separately filed written statement. It was further pleaded by the driver that it was not the bus that had struck the motor cycle but it was other way round. Petition was also had for non joinder and mis -joinder of parties, On the aforesaid pleadings, parties went to trial on the following issues : -

(2.) In respect of their case, Mrs. Madhu Seghal, appellant No. 1 appeared as her own witness and gave the age of the deceased to be 30 years as well as his income at Rs. 40 50 per day She also stated that her husband was in good health. Deceased was stated to be giving Rs. 400 to Rs 500 per month to his mother after one month or so. Because of the death of her husband, it had become difficult for appellant No.1 to give good education to her children. All the appellants were stated to be dependent upon the deceased. In cross -examination, conducted on behalf of the respondents, she denied the suggestion that his daily income was Rs. 5 to 10 per day or it was not Rs. 40 to 50 per day, PW -2 Kamaljeet Singh and another person who was driving on a separate motor cycle alongwith one Amritpaul, has categorically stated that the accident was the result of rash and negligent driving on the part of the bus driver of bus No. HIU -165 According to the PW, the bus was on the descent, whereas the deceased as well as the other witness alongwith a pillion rider were on the ascent. Bus came from the wrong side at a high speed and hit the Motor cycle of Narinder Paul Seghal, resulting in his falling down on the road and he sustained injuries No cross examination was directed on this aspect of the case by the appellant No. 1, whereas he denied the suggestion regarding the bus coming on its extreme left or that the deceased having taken his motor cycle on the wrong side, resulting in the accident in question.

(3.) Against the aforesaid evidence of the appellants Dharam Singh, respondent No. 2 appeared as a driver of the bus in question, who supported his case as pleaded by him in the written statement and attributed the accident due to zigzag driving on the part of the deceased. RW -2 Ram Krishan, was a passenger who was stated to be travelling in the bus in question. According to him, the vehicle which struck into the bus was a scooter. Though in one breath he has said that it was motor cycle, but in the next breath when specifically asked by the learned Counsel, he described it to be scooter According to him, the bus had been brought to a halt when the accident took place and after the accident, the bus was stopped With the help of other persons injured person was put in a car and sent to hospital. At such time, the injured was unconscious and was smelling foul of alcohol and according to him, the accident had occurred due to negligence of the driver of the scooter, PW -3 Slier Singh was a passenger in the bus travelling at that time who also stated that the accident had occurred due to the negligent driving on the part of the deceased. RW -4 is A.S.I. Jaishi Ram, police station Parwanoo, who has been examined to prove the record of F.I.R. No. 3/85 of police station, Parwanoo which was registered at the instance of the bus driver. He has placed on record copy of FIR exhibit RW 4 -A and site plan prepared on the file of F.I.R. No 3/85 during the course of investigation According to this witness, it had come in evidence during the course of investigation of the case that the deceased was driving his motor cycle in a zigzag manner as a drunken person. He has further stated that as per the report of Chemical Examiner in the viscera of the deceased, alcohal was found to the extent of 34.5 ML. In his cross examination, he has categorically stated that he did have a report of Chemical Examiner on that day.