MANGAL DEO Vs. BHERU SINGH

JUDGEMENT

(1.) THIS appeal is directed against the judgment and award dated March 11, 1982, passed by the Accident Claims Tribunal, Jodhpur, in Claim case No. 129/78, by which the claim petition of the petitioner -appellant was dismissed.

(2.) BRIEFLY stated, the facts of the case are that deceased Arun Deo was coming from Luni to Jodhpur in a three wheeler No. RRQ 489, which was being driven by the driver Daulat Singh. Deceased was with Jagdish and Omnath in the three -wheeler. This three -wheeler was crushed in an accident by the truck No. RJQ 1051, which was loaded with stone patties and was proceeding from Jodhpur towards Pali on the Pali road. The accident had taken place at 6 km. towards Pali side from Jodhpur, It is alleged in the petition that the truck was going with a very high speed and was being driven by driver rashly and negligently. It has also been alleged that the truck was on wrong side, while the three -wheeler was runtng on the left side, i.e., on the correct side. Deceased, Arun D30, was sitting on the back seat of right side of three -wheeler. On account of the collusion between the truck and the three -wheeler, Arun Deo died on the spot. The truck ran away speedily. It is alleged in the petition that the owner of the truck was Abdul Aziz, who was the registered owner also. It has also been contended that this truck was sold to one Shri Achluratn Mali. The driver, the registered owner and the purchaser of the truck were impleaded as parties to the claims petition. For claiming damages, the petitioners, i.e., the parents of the deceased stated that the income of deceased was Rs. 400/ - per month. It was also contended that he was a young man and on the date of accident, i.e., March 22, 1978, he was of 21 years. The petitioners have claimed a sum of Rs. 2,50,000/ -. non -petitioners No. 2 and 3, i.e., Abdul Aziz and Achlu Ram filed common written -statements. They denied that any accident was caused by truck No. RJQ 1051 on March 22, 1978 at about 9.30 p.m., as alleged by the petitioners. The case against the driver proceeded ex -parte. Insurer of the truck was the New India Insurance Company Limited. The insurer also contested the case and denied its liability, The learned Claims Tribunal framed the various issues and after considering the evidence of all parties in the case, dismissed the petition. The petitioner has examided himself as PW 1 and has also examined Daulat Singh PW 2, Omnath PW3, Jagdish PW 4, Gulab Khan PW 5, Sushant Kumar PW 6, Dr. B.K., Chaudhary PW 7, Ramchandra PW 8 and Santok PW 9. In rebuttal, the opposite party has examined S.C. Bhandari OPW 1 and Abdul Aziz OPW 2. Some documentary evidence has also been filed. The relevant documents in this appeal are Ex. 20 and Ex. B -2. Other documents are with respect to the qualifications of the deceased. There are certain photographs of the damaged scooter. Learned counsel for the petitioner -appellant has assailed the finding of the learned Claims Tribunal on issue No. 1 and has submitted that the finding is not based on correct appreciation of evidence on record. He has submitted that the finding of the Claims Tribunal that truck No. RJQ 1051 was not involved in the accident is not correct. In order to substantiate his contentions, he has pointed out the following circumstances to prove that in fact truck No. RJQ 1051 was responsible for causing accident.

(3.) DRIVER , Bheru Singh, is absconding and his whereabouts are not known.