DALVIRSINH BALAMSINGH TOMAR Vs. KAUSALIYABEN PRATAPSINH THAKORE

JUDGEMENT

(1.) This appeal is filed by the driver, owner and insurer of a tanker which was involved in a fatal accident which took -place on 23.02.1990 on Halol -Vadodara highway causing death of a scooterist, Pratapsinh Thakore. His widow, minor children and aged mother filed claim petition seeking compensation of Rs. 10 lacs from driver, owner and insurer of the said vehicle. Claims Tribunal, by the impugned award dated 12.01.1996, partially allowed the claim petition and awarded compensation of Rs. 7,47,000/ - to the claimants. This award, the original opponents have challenged in this appeal on the grounds of negligence as well as quantum of compensation.

(2.) With respect to the manner, in which, the accident took place, there was no eyewitness account before the Tribunal. The Tribunal, however, relied on the FIR dated 23.02.1990 lodged by the Head Constable of the nearby police station, in which, he stated that, at about 7 O'clock in the evening, he came to know from a driver of a passing truck that, a fresh accident has taken place near a railway crossing and, one person, in seriously injured condition is lying there. He, therefore, rushed to the spot alongwith other police officers, where he found that the tanker in question was lying on the left hand side of the road facing south and north south road. The driver of the tanker was not present. In front of the tanker, one Bajaj Scooter completely smashed was lying. One person was screaming for help. He had serious head injuries and injuries on other parts of the body. He was immediately rushed to the nearby hospital. From the documents found from the dicky of the scooter, he was identified as Pratapsinh Thakore. The Tribunal also took note of the panchnama of the scene of the incident which showed that the accident had taken -place near a railway crossing near Jarod village of Halol -Vadodara straight highway. The road was north to south with a width of 22 ft east to west. The tanker was lying facing southern direction on the eastern boundary of the road. There was a brake marks of 20 ft. From such evidence, the Tribunal believed that the tanker driver was solely negligent in causing accident.

(3.) This finding the counsel for the appellant has strongly disputed. He submitted that there was no evidence that there were no eyewitness accounts. The panchnama showed that the tanker was lying on his correct side of the road. It must, therefore, be presumed that the scooter driver must have come on the wrong side and, in the process, dashed against the tanker. However, there is no evidence on record to suggest that the scooter was coming from the opposite direction of the tanker and that therefore, there was a head on collusion. We may recall, the road was from north to south direction. The tanker was facing southern direction. Prima facie, it would therefore, be seen that the tanker was travelling from Vadodara to Halol. It has come on record through the evidence of the widow of the deceased who deposed at Exh. 27 that, the deceased was travelling from Vadodara to Halol. Thus, it would appear that the tanker as well as the scooter were both travelling in the same direction. If that be so, this was a clear case of the tanker having dashed against the scooter from behind. The position of the tanker being on his correct side of the road, therefore, would be of no significance. If there was any doubt about this situation, surely, it was open for the insurance company to examine the driver of the tanker, who was the best witness, who could have described before the Court, the manner, in which the accident took place. Having not made any such attempt, I find no error in the conclusion of the Tribunal on this count.