- (1.) THIS appeal under S. 110-D Motor Vehicles Act is directed against the award of the Motor Accidents Claims Tribunal, Kanpur, dated 31-3-76, dismissing the claim petition filed under S. 110-A, Motor Vehicles Act.
(2.) SMT. Laxmi Goel a teacher in Junior High School boarded a Rickshaw along with her husband on 25th August 1969 at about 3. 40 P. M. in front of the State Bank of India, Phool Bagh, Kanpur. Both husband and wife proceeded on Birhana Road, a truck bearing registration No. USF 3275 was driven by Gyan Singh came from behind and dashed against the rickshaw as a result of which SMT. Laxmi Goel and her husband Mahabir Prasad fell down. SMT. Laxmi Goel received serious head injuries. She was rushed to the Hospital where she was declared dead. The truck and its driver both were detained on the spot by the police. Mahabir Prasad lodged the first information report at the police station. Mahabir Prasad and two daughters of SMT. Laxmi Goel joined together to file a claim petition under S. 110-A, Motor Vehicles Act, claiming Rs. 50,000/- as compensation from Guru Saran Singh, the owner of the truck, driver of the truck and also from the United India Fire and General Insurance Company, the insurer. The owner filed a written statement and pleaded that the driver was not guilty of rash and negligent driving of the truck instead the rickshaw puller was at fault who carelessly and negligently collided with the rear portion of the truck. He denied his liability to pay any damages to the claimants. The insurance company also filed a written statement denying any rash and negligent driving of the truck. The driver did not file any written statement to contest the claim petition. The claimants produced 7 witnesses in support of their claim in addition to the documentary evidence. On behalf of the respondents only one witness was produced. On appraisal of evidence, the Tribunal held that the claimants had failed to prove that the truck was being driven in a rash and negligent manner causing the accident and as such the claimants were not entitled to any compensation. On this finding the Tribunal dismissed the claim petition in its entirety, hence, this appeal by the claimants Learned counsel for the appellant urged that the Tribunal committed serious error in holding that the truck was not being driven in a rash and negligent manner or that it was not responsible for the accident. He took us through the statements of eye-witnesses which included P. W. 4 Mahendra Kumar Srivastava, P. W. 5 Mahabir Prasad, P. W. 6 Raja Ram, P. W. 7 Hira Lal the rickshaw puller. In their testimony they have supported the case set up by the claimants that the rickshaw was hit by the truck from behind on Birhana Road which is a very crowded road. As a result of dashing of the truck with the rickshaw the right and front wheels of the rickshaw were badly damaged. The rickshaw had tilted as a result of which both the occupants Smt. Laxmi Goel and her husband Mahabir Prasad had fallen down. The rickshaw puller P. W. 7 and Raja Ram P. W. 6 eye-witnesses both categorically stated that the truck driver had not hooted his horn before the accident occurred. Mahendra Kumar Srivastava is a salesman of Uphar Brothers a shop at Birhana Road had seen the accident. He supported the statement of Mahabir Prasad. He was not cross-examined by the respondents. On a close scrutiny of the statement of eye-witnesses we find that all of them have given a cogent and reliable account of the accident. According to them, the truck was coming with high speed on crowded Birhana Road and it hit the rickshaw from behind and before that the driver of the truck had not hooted its horn. These facts are amply proved which leave no room for any doubt that the truck was being driven in a rash and negligent manner which caused accident. The driver of the truck who had special knowledge of the manner in which the accident took place was not examined as he was reported to be dead. D. W. 1 R. N. Misra was produced to prove that the driver was dead. No other witness was examined on behalf of the respondents although it has come in the testimony of the witnesses examined on behalf of the claimants that a large crowd had collected on Birhana Road immediately after the accident. Ext. 9 is a recovery memo prepared by the Police on the spot soon after the accident. This document also states that the right and front wheels of the rickshaw were badly damaged. In our opinion this could not be possible unless the truck dashed against the rickshaw. The evidence of the eye-witnesses produced by the claimants coupled with the recovery memo Ext. 9 positively demonstrate that the accident occurred on account of rash and negligent driving of the vehicle.
(3.) THE learned Judge has discarded the testimony of the eye-witnesses on imaginary grounds. His appreciation of evidence is perverse. We are constrained to say that the learned judge took pains to paint an imaginary picture to discard the testimony of eye-witnesses. THE learned Judge observed that the truck could not be driven in a rash and negligent manner as Birhana Road is a crowded locality. This presumption is wholly misconceived. All the eye-witnesses said that the truck was being driven in a rash and negligent manner and that it had not hooted its horn yet the learned Judge held that the truck was not being driven in a rash and negligent manner without there being any good ground for the same. When a fast vehicle specially a truck hits a rickshaw or other vehicle from behind as a result of which injuries are caused to the occupants of the rickshaw, a presumption would arise that the truck was being driven in a rash and negligent manner, although it is open to the driver of the truck to rebut the presumption by giving plausible explanation for the accident. As already noted, the driver was not produced as he was dead. THE best evidence which could be produced to explain the manner of accident was of the driver but the same was not available. THE respondents did not produce any other witnesses to support their contention. In the absence of any evidence produced on behalf of the respondents it was not open to the Tribunal to rely on the pleas raised in the written statement of the owner or in holding that the rickshaw must have dashed against the truck from its rear portion. The Tribunal held that since Birhana Road was a busy road, it was not possible for me driver of the truck to drive the vehicle at high speed. On this finding he discarded the testimony of eye-witnesses and recorded a finding that the driver of the truck was not guilty of rash and negligent driving. The Tribunal in our opinion, adopted an incorrect approach. The question whether the driver was guilty of rash and negligent driving depends upon the facts and circumstances of each case. A vehicle being driven at the speed of 50 to 60 kilometres on a highway where there is no traffic cannot be said to be driven in rash and negligent manner whereas a vehicle being driven at the speed of 10 to 15 kilometres in a crowded locality may amount to rash and negligent driving. In the instant case there is positive evidence of eyewitnesses that Birhana Road is crowded road full of pedestrians and vehicular traffic. The driver of the truck while driving at high speed without hooting its horn dashed against the rickshaw. The statements of eye-witnesses as discussed earlier leave no room for any doubt that the driver was driving the vehicle in a rash and negligent manner. Moreover, in the absence of testimony of the driver who was the best person to depose about the reason for the accident, the Tribunal was not justified in recording a finding on presumptions which are unwarranted by the evidence on record. We, therefore, hold that the driver was guilty of rash and negligent driving.;