KULSUM Vs. ISMAILBHAI MOHMEDBHAI MALEK

JUDGEMENT

(1.) THIS appeal arises at the instance of the original applicants and out of an award dated 31st August 1976 passed by the Motor Accidents claims Tribunal, Nadiad in Motor Accidents claims Petition No. 12 of 1976.

(2.) AN accident had taken place on or about 21st December 1974 wherein the husband of claimsant No. 2 was injured and he expired as a result of the injuries received in the said accident on 23rd December 1974. The appellants are the widow of the deceased, his minor children and the mother of the deceased.

(3.) ON behalf of the appellants, it has been firstly urged that the Tribunal was in error in holding that the deceased was also negligent to the extent of 25 per cent. We find on a perusal of the records that there is no evidence worth the name on this aspect of the matter. The Tribunal in its award while dealing with this aspect has stated inter alia that when the truck had not capsized ordinarily the deceased was not expected to have been thrown overboard even on a rough road because the side planks and the year planks would be fairly high and that therefore he was tempted to believe that the deceased himself out of his over confidence Lad not taken sufficient precaution to safeguard his own personal safety. With respect to the tribunal, the aforesaid reasoning does not appeal to us. It has not been noticed by the Tribunal that the truck was carrying with cans at the time of the accident. Besides it is not in dispute that the road was rough and unless the truck was driven at a fairly high speed a person would not be thrown off the truck while sitting in the body of the truck. The learned advocate for the respondents has not even urged that the finding in this connection can be upheld for the very obvious reason that there is no evidence worth the name in this connection can be upheld fcr the very obvious reason that there is no evidence worth the name in this connection. The said finding of the Tribunal is therefore set aside.