- (1.) J. C. S. Rawat, J. 1. This Appeal has been preferred against the judgment and order dated 05-05-1980 passed by Sri Naseem Uddin, the then III. Additional District Judge, Nainital in Motor Accident Claim No. 79 of 1979 between Smt. Kanti Devi & others Vs. Moolchand & others by which the learned III Additional District Judge, Nainital has rejected the claim. Feeling aggrieved by the said judgment and order, the present appeal has been preferred.
(2.) BRIEF facts for the disposal of this appeal are that on 25-05-1979 at about 5:30 am. , Tula Ram- deceased was car rying milk on his bicycle from his village Rangora Parao, Ramnagar and he was not driving the bicycle. When he reached near the shop of Durga Dutta and was just to enter the road Ramnagar-Garjia, the offending truck No. USR 6811 was driven by the driver Sri Rewat rashly and negligently hit the deceased- Tula Ram in the kuchha strip by the side of the main road 2 feet away from the hut of Durga Dutt and caused the death of Sri Tula Ram. It was further alleged in the claim petition that the deceased was earning Rs. 600/- p. m. by selling milk as hawker. The age of the deceased- Tula Ram had been stated to be 40 years at the time of accident. The claim petition had been contested by the owner, driver and the insurer of the offending truck and they had alleged that there was no negli gence on the part of the offending truck and the accident was the result of the own negligence of the deceased. It was further alleged that the truck was moving in a very low speed and the deceased was driving the cycle with the high speed sitting on the car rier and not on the actual seat. The deceased did not know how to drive the cycle properly. He was moving in a zigzag manner. When the deceased reached near the truck, the deceased got nervous and turned his bicycle wrongly towards the truck. The driver of the offending truck tried his best to save him and he had gone to his ex treme side on the kuchha portion of the road and put the breaks on the vehicle. The deceased could not con trol his cycle and it hit the truck from the front side. The deceased fell down immediately after dashing against the hind portion of the truck on the road and, as such, the respondents are not liable to pay the compensation. It was further alleged that the claim amount was excessive and the deceased was hardly earning an income of Rs. 50/-p. m. The claimant-appellants ad duced the evidence of Kanti Devi-PW1, Dinesh Chandra- PW2 and Damodar- PW3. Smt. Kanti Devi- PW1 is the wife of the deceased. She is not eyewitness of the said incident. Dinesh Chandra- PW2 had lodged the report at the Police Station and he had not seen the occurrence. Damodar- PW3 is claimed to be the eyewitness of the incident. The respondents had ad duced the evidence of Rewat Singh-DW1 who was the driver of the said offending truck. The learned trial court after appraisal of the evidence came to the conclusion that the accident was not caused due to the rash and negligent driving of the offending truck and dismissed the claim petition.
(3.) FEELING aggrieved by the said order, the present appeal has been pre ferred. Heard learned counsel for the parties and perused the record.;