ABDUL KARIM AND OTHERS Vs. RAKESH AND OTHERS

JUDGEMENT

(1.) Appellants by Mr. Iqbal Ahmed, advocate. Respondent No. 3 by Mr. CP Singh, advocate.

(2.) Learned counsel for the appellant submits that the accident took place on 14-8-2000 between truck bearing registration No. UP/78/ T/2436 and Tata-407 bearing registration No. MP/09/KA/1293. It is submitted that Tata-407 was being driven by the deceased Farhad while truck was being driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3. It is submitted that after taking into consideration all the facts, learned tribunal has awarded Rs. 3,48,000.00 but had deducted 50 % of the amount on account of that there was contributory negligence and the deceased was equally responsible for the accident.

(3.) Learned Counsel for the appellants submit that the responsibility of the deceased has wrongly been held. It is further submitted that the age of the deceased was between 23 and 24 years as assessed by the learned tribunal and wrongly applied the multiplier of 14. It is submitted that under Second Schedule of 163(A) of the Motor Vehicle Act, the multiplier of 17 ought to have been applied, looking to the age of the deceased. Learned counsel for the appellants submit that the appellants has adduced (AW-2) Mohd. Ishaq who was the eyewitness of the accident and no evidence has been adduced by the respondent No. 1 in rebutal. It is submitted that neither respondent No. 1 has contested the case nor respondent No. 1 was produced by the respondent No. 3 as a witness. Learned counsel placed reliance on a decision of the case of M.P.S.R.T.C Vs. Vaijanti reported in 1995(1) ACC CJ 560 : AIR 1995 MP 122. wherein the Division Bench of this court has held that "in the accident cases, it is absolutely necessary to have the first hand report from the driver. It may be that the driver does not always speak the truth, but the driver's version is the one which is to be given the most consideration, He is the person who knows about the occurrence. He also knows as to what actually happened. Therefore, the diver having not been examined, necessarily, an adverse inference arises against him.