A. Banerji, J. - (1.) THE claimants, widow, sens and a minor daughter, have filed this appeal against the dismissal of their claim petition made under Section 110-A of the Motor Vehicles Act, by the Motor Vehicles Claims Tribunal, Dehradun. THE claimants had prayed for an award in the sum of Rs. 1,50,000/- as compensation, on account of the death of Shri Narain Das Arora, against the owner, driver and the Insurer M/s. New India Assurance Co. Ltd.
(2.) THE claimants alleged in the claims petition that Shri Narain Das Arora, husband of appellant no. 1, Smt. Chandra Kala Devi and the father of the other appellants, was going on a scooter on the Chakrata Road, Dehradun, a busy locality, at about 11 in the morning of 4th October, 1976. THE motor vehicle No. USM 846, which was proceeding ahead of the scooter driven by Shri Narain Das Arora, was being driven rashly and was suddenly stopped and the driver flung open his door, with the result that the scooter collided with the car and the scooterist fell down on the road and received injury on the head. THE driver of the car, moved away the scooter from the middle of the road and made his exit from the spot. THE injured person was removed to a Clinic nearby and was later taken to a Nursing Home, where he succumbed to his injuries three days later. The defence of the driver and the owner of the motor car USM 846, was more or less similar. They denied that the accident was caused in the manner alleged. The driver's stand was that he was driving the vehicle at a very moderate speed on this extremely busy road in the city of Dehradun. He parked the car to the extreme left of the road and went to the Clinic of Dr. Mrs. Sushila Gupta, to consult her for his wife. His wife remained sitting in the car during his absence, which was for a very short duration. According to his case, some person, who was driving a scooter came from behind the car, struck against the right side mud-guard of the car and fell down. Some passers by helped him in getting up. When he came back from the Clinic he did not find the scooter or its driver. His car was completely static and immobile when the scooter struck against it. Consequently, he was not at all liable for the accident. There was neither any rash or negligent act on his part. The claim petition was liable to be dismissed. It was further pleaded that the First Information Report lodged with the police made no mention of the car No. USM 846. It was further stated that that the claimants had tried to implicate the respondents 1 and 2 in a criminal case but did not succeed and the First Information Report was followed by another police report in which an attempt was made to Improve the earlier version given in the first information report. They prayed for the dismissal of the claim petition with special costs. New India Assurance Company Ltd., 25-Rajpur Road, Dehradun was impleaded as respondent no. 4 and its Head Office situated at 87-Mahatma Gandhi Road, Fort, Bombay was impleaded as respondent no. 3. In their written statements they denied the case of the claimants except that Car No. USM 846 was insured with the answering respondents. No notice was served on the answering respondents and it was further pleaded that the petitioners were not dependent upon the deceased and the amount claimed was arbitrary, excessive and without any basis It was further stated that the accident was not reported immediately to the answering respondents and as such they are not liable to pay any compensation.
(3.) THE Claims Tribunal framed five issues. After considering the evidence the Tribunal held that the collision took place with the standing car, when the driver was in the Clinic and not with the door of the said Car and that there was no rashness or negligence on the part of the driver and the claimants are not entitled to be awarded any compensation. In answering issue no. 3, the Tribunal held that the scooter collided with the Car and Shri Narain Das Arora fell down. THEre was a fracture in the temporal and perietal bones with internal haemorrhage, which was the cause at the death. Consequently, the death of Narain Das Arora was caused by the accident. In regard to the question of damage caused to the claimants, the Tribunal held that even if the version to the claimants was accepted, it would bo a case of contributory negligence and as such the total amount which could be awarded as damages was Rs. 36,500/-, but in view of the findings on issues 1 to 3, no amount was liable to be awarded to the claimants. Aggrieved the claimants have come up to this Court. Mr. L. P. Naithani, learned counsel for the appellants urged that the Tribunal had not considered the evidence in the case properly ; its assessment of the evidence was faulty and the findings arrived at by the Tribunal were arbitrary and incorrect. He further contended that the Tribunal had not considered that the driver of the vehicle had knowledge as to how the accident took place and the burden lay on him to explain the same and the Tribunal had not considered this aspect of the matter at all. The principles of res ipsa loquitur was thus attracted. The wife of respondent no. 2 who was sitting in the Car was not examined as a witness in this case. She would have been the best person to do so. He therefore urged that it was a fit case in which the order of the Tribunal should be set aside and the case remanded to the Tribunal for a fresh decision in accordance with law.;