MAUSMI AND ORS. Vs. RAM DAYAL AND ORS.

JUDGEMENT

(1.) THIS appeal Under Section 173 of the Motor Vehicles Act, 1988 against the judgment/award dated 23.10.2010 passed by District Judge, Sawai Madhopur in Claim Case No. 171/2008 has been filed for enhancement of compensation.

(2.) THE short facts of the case are that Shri Kedar Mal Meena died in the accident occurred on 24.1.2008 when he was travelling in Jeep No. RJ -25/T -0216 driving rashly and negligently by respondent No. 2 and at the same time, another Jeep bearing No. RJ -25/P -0561 came from opposite side and hit Jeep No. 0216 in which deceased was travelling. The contention of the claimants was that both the jeep drivers were negligent and case of composite negligence has been presented. The court below has allowed the claim petition only against owner of Jeep No. 0561 and exonerated the owner and insurance company of Jeep No. 0216. The other contention of the appellants is that a meager amount has been awarded. The income of the deceased has not been calculated rightly, no future prospects have been calculated and in spite of four dependents, 1/3 deductions have been made as regards personal expenses.

(3.) IN claim petition it has been stated that both the drivers were negligent and due to negligence of both the drivers, Jeep No. 0216 has overturned. Eye -witness AW/2 Murari has been produced to show the manner of the accident who has stated that he was also travelling in Jeep No. 0216 and the driver was driving the vehicle at a very excessive speed and in negligent manner and passengers have also forbidden him to do so and his categorical statement is that due to negligence of both drivers, the accident has occurred but the court below has rightly considered the fact that in FIR which has been lodged just after the occurrence by a co -passenger, there is no reference that driver of Jeep No. 0216 was negligent and any passenger has cautioned him to drive safely. AW/2 Murari has also stated in his previous statements before the Investigation Officer that driver of Jeep No. 0216 was not negligent and site memo also shows implicitly that Jeep No. 0216 was standing on footpath and Jeep No. 0561 has hit him on its back which ipso facto speaks that the driver of Jeep No. 0561 was only negligent. Notice under Section 133, Ex.5 has also been considered by the court below hence the court below has rightly held that only driver of Jeep No. 0561 was negligent and after investigation, charge -sheet has also been filed only against him and he hit the standing Jeep No. 0216 and that too on rear side, hence no fault can be found with the findings and conclusions arrived at by the court below as regards issue No. 1.