HARINDER SINGH SIDHU,J - (1.) This appeal has been filed by the appellants against the award dated 18.10.2003 passed by the Motor Accident Claims Tribunal, Patiala (for short 'the Tribunal') whereby the claim petition of the appellants under Section 166 of the Motor Vehicles Act (for short 'the Act') was dismissed and instead they were awarded compensation under Section 140 of the Act.
(2.) FACTS as set out in the claim petition are that on 21.03.2003 Jatinder @ Dimple -deceased was going on his Bajaj Chetak Scooter No. PCP -550 carrying one drum of milk. His brother Amrinder Singh was following him on motorcycle No. PB -11B - 7580. It was early morning and when they reached near Military Office on Bupindra Road Patiala, a Military Vehicle No. 255 /95C 65751L driven by respondent No.2 came from the opposite side. It took a sharp turn towards its right hand side without giving any indicator and dashed against the scooter. Because of the impact Jatinder @ Dimple fell down and sustained multiple injuries. He was taken to Rajendra Hospital, Patiala where he died. An FIR was got registered regarding the accident against the driver of the offending truck. In support of their claim, the appellants had relied upon the statement of eye witness PW -5 Amrinder Singh, who is author of the FIR Ex. P -3. He corroborated the version in the claim petition. He stated that he was following on his motorcycle and deceased was driving the scooter at normal speed and was ahead of him. When he reached near the Military Quarter, Bhupindra Road, then Military Vehicle driven by respondent No.2 came from opposite side and suddenly turned towards the right side without caring for the traffic coming from the opposite side as a result of which left front tyre of the Military Vehicle hit front portion of the scooter. Resultantly his brother fell down and sustained head injuries and died on way to the Hospital. The respondents denied that the accident was caused due to rash and negligent driving of the offending vehicle by respondent No.2. Even before discussing the evidence, the Tribunal proceeded on the assumption that the Military vehicles travel at a slow speed and especially when, these are in the process of turning. It disbelieved the version of PW -5 Amrinder Singh eye witness regarding the accident being caused due to rash and negligent driving of the offending vehicle by respondent No.2 and held that at the time of accident, the offending vehicle was in the process of turning and it had partially turned into the Military Headquarter when accident was caused. The Tribunal was of the view that when the vehicle had partially turned, there was no question of any negligence on the part of the offending vehicle. The Tribunal held that negligence was further disproved by the fact that the scooter of the deceased dashed into rear side of the offending vehicle. Since the military vehicle had partially turned towards the main gate, it was for the deceased, who was driving the scooter to apply the brakes, when the vehicle came in front of him but he failed to do so. Hence it could not be said that fault lies with the offending vehicle. The Tribunal was further influenced by the fact that the scooter was carrying a can of milk as a result of which, it could be presumed that the driver of the scooter could not apply the brakes because the entire footboard of the scooter would be covered with the can. The Tribunal further held that mere fact that the FIR was registered against respondent No.2 or that he was facing trial in criminal case could not be determinative of the issue of negligence on the part of respondent No.2. Accordingly, the Tribunal concluded that the accident was not caused by rash and negligent driving of the Military vehicle by respondent No.2 and decided the issue against the appellants.
(3.) A perusal of the evidence reveals that the Tribunal had not appreciated the matter in the correct perspective. It was clearly stated by PW -5 eye witness that the scooter had struck against the front wheel of the truck and that the truck was in the process of turning when the accident had taken place. He further stated that the truck driver had not given any indicator or used his hand to indicate that he would be turning. He further stated that the military vehicle had wrongly turned towards the right hand side in spite of the fact that there is sign board to the effect "No right turn allowed". He categorically stated that the left front tyre of the Military vehicle hit against the front portion of the scooter. RW -1 Bhupinder Singh Sepoy, who was co -driver of the vehicle had also stated in his cross -examination that the front left portion of the truck struck against the scooter. Respondent No.2 driver of the truck appearing as RW -2 had also stated that the left hand portion of the truck had struck against the scooter. In the face of this, conclusion of the Tribunal that the driver of the scooter had dashed into the rear side of the offending vehicle does not appear to be factually correct and this makes a material difference to the conclusion drawn. Admittedly, the Scooter was being driven on the correct left side. It was the truck, which abruptly decided to take a right turn. The truck driver ought to have noticed the traffic coming from the opposite direction and given proper indication and warning or allowed the traffic to pass before taking the turn or should have given sufficient indicator and warning to the traffic coming from the opposite side that it was about to take a right turn.;