UNITED INDIA INSURANCE CO LTD Vs. SAROJ DEVI

JUDGEMENT

(1.) HEARD learned counsel for the appellant and perused the record.

(2.) THESE appeal are against the award dated 17. 4. 2003 of the Motor Accidents Claims Tribunal, Bikaner passed in Claim Cases filed under Section 166 of the Motor Vehicles act, 1988.

(3.) I considered the submissions of learned counsel for the appellant and perused the record. Thee is no dispute with respect to the proposition of law laid down in the judgments of this Court delivered in the cases of Nand Kishore and Hamu Ram (supra ). In these claim cases, ten witnesses were produced by the claimants. The most important witness is the witness AW 9 Madan Lal who was the person remained alive in the accident wherein six others died. He stated on oath that the truck No. RSF 3949 came rattling with high speed and hit the three wheeler and three wheeler went down the truck. In the accident he suffered serious injuries. He produced his injury report, X-ray report, hospital discharge card, treatment prescription, his own driving licence, his medial report and medical bills (Ex. 29 to 55 ). In cross- examination, he denied the suggestion of learned advocate of appellant-Company that truck was going on left side of the road. he also denied the suggestion that driver of the auto-rickshaw lost his control after seeing the truck and this was the cause of accident. The claimants placed on record certified copies obtained from the criminal proceedings initiated due to this accident. It appears that FIR was lodged on the basis of the `parcha' drawn on the statement of the one Manoj. In this FIR itself, it is clearly mentioned that the driver of the truck driving truck rashly and negligent, hit the three wheeler. The statements of various witnesses were recorded by the police under Section 161 Cr. P. C. and site was inspected. The copy of the site map is Ex. 3 and site was inspected. The copy of the site map is Ex. 3 and site report is Ex. 4. A bare perusal of site report reveals that the three wheeler was dragged far away from the road and the three wheeler was found under the fuel tank of the truck. The front body of the truck was found lifted from the road and hanging because of three wheeler went down the truck. The oral evidence of the witness Madan lal finds full support from the site inspection map Ex. 3 and site inspection report Ex. 4. It is worthwhile to mention here that permission was granted to the appellant-Company to contest the claim on merits but the eye- witness was not confronted with the Ex. 3 and Ex. 4 nor any suggestion was given from the side of the appellant-Company that the site inspection report and the site map are not in consonance with the statement of the said witness Madan lal. The site inspection map only shows that truck was coming from the west side and was going to the east side, it also shows that truck is lying over the three wheeler. The distance between the road form where the truck went to the `kutcha' side of the road itself is sufficient proof of the speed with which the truck was moving. The road where accident occurred is a National Highway No. 15. Assuming for the sake of argument that the three wheeler was on the wrong side but it is nobody's case that three wheeler was not in the control of the driver or it was running fact as there is no evidence even for name sake is available on entire record. Not only this but even no question in the from of suggestion was put to the eye-witness Madan Lal by the side of the appellant Company that the auto-rickshaw was running fact and was not in the control of the driver of the auto-rickshaw. The appellant Insurance Company was granted permission to contest the claim on merit, still the appellant Company did not produce any evidence and, therefore, the appellant-Company has no right to say that it was the fault of the driver of the three wheeler in the accident. The contention of the learned counsel for the appellant that the oral evidence of witness Madan Lal is contrary to the admissible and admitted documentary evidence is absolutely wrong. It will be further worthwhile to mention here that the Ex. 3 and Ex. 4 disclose only the facts which were found after the accident and they are not the documents relating to the actual even of accident. The document Ex. 3 map is not the map made to scale. In the map only direction from which the truck was coming, has been recorded. The appellant had full opportunity to produce the witness to these documents, Dau Lal and Madan Singh and the Police Officer who investigated the criminal case but the appellant-Company did not produce those witnesses. Not only this but there is no survey conducted by the appellant-Company to submit that they found any fault of the driver of the three wheeler. In view on the above reasons, I do not find any illegality in the reasons given by the tribunal for holding the driver of the truck responsible for such a serious accident. I do not find any iota of evidence on record on the basis of which it can be held that there was any contribution of the driver of the three wheeler to the accident.