FAZAL HUSSAIN Vs. KALU KHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment and award dated 5.12.1984 passed by the Motor Accidents Claims Tribunal, Jodhpur.

(2.) THE brief facts giving rise to this appeal are that an accident took place on 17.7.1980 between a scooter RSQ 4062 and truck bearing No. RSN 3690 near Isaiyon Ka Kabristan. As a result of this accident deceased Akhtar Hussain died. Therefore, a claim petition was filed by father, mother, wife and two minor children of the deceased. The claim was contested by the non -claimants. It is alleged that the truck belonged to Sawal Dan son of Vijay Dan and it was driven by one Kalu Khan, driver. The vehicle was insured with United India Fire and General Insurance Co. Ltd. (hereinafter referred to as 'the insurance company').

(3.) MR . Bhandari, learned counsel for the appellants, has invited my attention to the testimony of PW 1 Fazal Hussain and PW 2 Mahendra Giri. He has also invited my attention to police papers and Fard Naksha Mauka, Exh. 3. Learned counsel submitted that as a matter of fact, the testimony of PW2 Mahendra Giri has not been properly appreciated. After seeing the statement of Mahendra Giri and Fard Naksha Mauka, it clearly transpired that the accident has taken place near Isaiyon Ka Kabristan. As a matter of fact, Mahendra Giri PW2 has deposed that the accident has taken place near Rotary Club, but in fact near the Isaiyon Ka Kabristan there is a Rotary Square and not the Rotary Club. Here, the learned Judge has been completely misled by Rotary Club and Rotary Chauraha (Square). As a matter of fact, the Isaiyon Ka Kabristan is near Rotary Chauraha (Square) and not the Rotary Club. This minor slip on the part of Mahendra Giri has been fatal and the learned Judge has disbelieved Mahendra Giri without looking to the Fard Naksha Mauka which was prepared by the police just after the accident and the truck as well as the scooter was seized from the spot. Thus, in this view of the matter, it was not proper for the learned Judge to have dismissed the whole claim of the claimants. According to the statement of Mahendra Giri, PW 2, the truck was driven in a rash and negligent manner by the driver of the truck.