Murlimanohar and Others vs Rodibai and Others

Prakash Gupta, J.—The instant appeal is directed against the award of Motor Accident Claims Tribunal, Jhalawar dated 18/11/2006 in claim case No. 280/2005 whereby the claims Tribunal has partly allowed the claim and passed an award of Rs. 1,90,000/- in favour of the respondents against the appellants.

In brief, the facts giving rise to this appeal are that on 27/06/2005 at about 07:15 PM a tractor bearing No. RJ-17-R-4775, was allegedly, rashly and negligently being driven by the driver (appellant No. 1) of the said vehicle. An accident took place on 27/06/2005 at about 7:15 PM wherein one Balaram, the predecessor in interest of the respondents died.

A reply to claim petition was jointly filed by the appellants wherein the manner in which the accident was stated to have occurred was denied. It was also stated that at the relevant time the tractor got punctured and was standing in front of the shop of a mechanic for repairing of the tyre and the deceased himself was negligent and he collided with the said tractor.

The Insurance Company has filed a separate reply, wherein, the Insurance Company denied its liability.

On the basis of the pleadings of the parties, following issues were framed by the Tribunal.

To prove the above mentioned issues, respondent No. 1 got herself examined as AW-1 and also examined Dilip Desh Pandey as AW-2. In rebuttal, the appellant No. 1 got himself examined as NAW-1 and also examined Chunni Lal as NAW-2, Raju as NAW-3 and Gopal Lal as NAW-4.

The only contention of the learned counsel for the appellants is that while deciding issue No. 1, the learned Claims Tribunal has given a finding that there was no head-on collision between the tractor and the motorcycle. The tractor was standing still while the motorcycle bumped into it from the back. Thus, the deceased was the one who was actually at fault and he alone was responsible for the accident. In this regard, the learned Claims Tribunal has failed to consider Ex.-P3 the site plan which clearly reveals that the tractor was standing at the side of the road and the accident occurred on account of the negligence of the deceased. It is also contended that the accident occurred at about 07:15 PM and at this hour, it was not dark and hence, there was no question of the tractor not being visible. This further proves that in fact, it was the deceased who himself was at fault and not the driver of the tractor.

On the other hand, learned counsel for the respondents has submitted that it is undoubtedly, proved from the evidence that the accident and consequential death of the deceased took place owing to the negligence of the tractor driver and not due to the fault of the deceased.

I have Heard learned counsel for both the parties and perused the material on record.

After perusal of the evidence, I found that AW-1 was not an eye witness to the incident. AW-2 Dilip Desh Pandey has stated in his evidence that while he and the deceased, Balaram, were going on the motorcycle, at about 07:15 PM, a tractor bearing No. RJ-17-R-4775 was being driven by the tractor driver rashly and negligently, collided with the motorcycle. He stated the same version in his cross-examination also. But from the perusal of the site plan Ex.-P-3 and other evidence on record, the evidence of AW-2 does not appears to be reliable to the effect that the accident occurred in the manner as stated by AW-2.

NAW-1 Murlimanohar, who was the driver of the tractor stated that at the relevant time the tractor got punctured and was standing still in front of a repair shop for repairing of the tyre and the deceased himself collided with the tractor. Sh. Chunnilal NAW-2, Raju NAW-3 and Gopal Lal NAW-4 reiterated the same in their respective examination in chief.

From the evidence and Ex. P-3 it is proved that the tractor, in fact, got punctured and was standing but was improperly parked. It is not proved that at the time of the accident the parking light of the tractor was on. Although, Murlimanohar NAW-1 and Raju NAW-3 have stated in their statements that parking light of the tractor was on at the time of the accident, but this evidence is not appears to be reliable because whereas Raju NAW-3 has stated that the parking light was on in his examination, he has not stated the same in his examination under Section 161 Cr.P.C., Ex.-P-17. In fact, he has stated that the tractor was improperly parked. Gopal Lal NAW-4 in view of his cross-examination is not appears to be an eye witness of the incident. Murlimanohar NAW-1 is the driver of the tractor is hence, interested witness as also, the said fact is not corroborated by any other evidence on record. Additionally, a challan has been submitted in the competent Court against the tractor driver Murlimanohar for the offences provided under Section 283, 337, 338 and 304-A IPC. Chunnilal NAW-2 who appears to be the eye witness to the accident has not stated that at the time of the accident the parking lights of the tractor was on. It is proved from Ex.-P-4 that the tractor trolley was not even having any number.

As discussed above, it is proved that the accident occurred due to the negligence of the driver of the tractor and the deceased was not at fault. Accordingly, the finding of the learned Trial Court regarding issue No. 1 is legally, as well as, factually correct. The Tribunal painstakingly appreciated the evidence on record and recorded the reasons in detail, and I find no discrepancy or infirmities in the same.

The judgment, hence, calls for no interference and the appeal being devoid of merits, the same is hereby dismissed. There shall be no Order as to costs.