A.K.MATHUR, J. - (1.) THIS appeal is directed against the judgment and award dated 5.12.1984 passed by the Motor Accidents Claims Tribunal, Jodhpur.
(2.) THE brief facts giving rise to this appeal are that an accident took place on 17.7.1980 between a scooter RSQ 4062 and truck bearing No. RSN 3690 near Isaiyon Ka Kabristan. As a result of this accident deceased Akhtar Hussain died. Therefore, a claim petition was filed by father, mother, wife and two minor children of the deceased. The claim was contested by the non -claimants. It is alleged that the truck belonged to Sawal Dan son of Vijay Dan and it was driven by one Kalu Khan, driver. The vehicle was insured with United India Fire and General Insurance Co. Ltd. (hereinafter referred to as 'the insurance company'). In support of the claim, the claimants examined two witnesses, namely, PW1, Fazal Hussain, father of the deceased and PW 2, Mahendra Giri. PW 1, Fazal Hussain, father of the deceased has deposed that the deceased Akhtar Hussain was aged 29 years and he was earning Rs. 30/ - to Rs. 35/ - per day and he further deposed that he has wife and two children. PW 2 Mahendra Giri who was also on the scooter at the time of accident has deposed that this accident took place on the turn of Rotary Club by this truck which was driven in a rash and negligent manner. Soon after the accident, Akhtar Hussain was immediately taken to the hospital, but he ultimately succumbed to the injuries. He has further deposed that Akhtar Hussain was getting a sum of Rs. 20/ - per day from printing of sarees. The learned Judge, Tribunal after recording this evidence and hearing both the parties dismissed the claim on account of the fact that the statement of Mahendra Giri was not reliable as according to the learned Judge the accident as has been deposed by Mahendra Giri to have taken place near Rotary Club whereas the accident has taken place near Isaiyon Ka Kabristan. The learned Judge found the testimony of PW 2 Mahendra Giri unreliable and dismissed the claim of the claimants as a whole. Aggrieved against this the claimants have filed the present appeal.
(3.) MR . Bhandari, learned counsel for the appellants, has invited my attention to the testimony of PW 1 Fazal Hussain and PW 2 Mahendra Giri. He has also invited my attention to police papers and Fard Naksha Mauka, Exh. 3. Learned counsel submitted that as a matter of fact, the testimony of PW2 Mahendra Giri has not been properly appreciated. After seeing the statement of Mahendra Giri and Fard Naksha Mauka, it clearly transpired that the accident has taken place near Isaiyon Ka Kabristan. As a matter of fact, Mahendra Giri PW2 has deposed that the accident has taken place near Rotary Club, but in fact near the Isaiyon Ka Kabristan there is a Rotary Square and not the Rotary Club. Here, the learned Judge has been completely misled by Rotary Club and Rotary Chauraha (Square). As a matter of fact, the Isaiyon Ka Kabristan is near Rotary Chauraha (Square) and not the Rotary Club. This minor slip on the part of Mahendra Giri has been fatal and the learned Judge has disbelieved Mahendra Giri without looking to the Fard Naksha Mauka which was prepared by the police just after the accident and the truck as well as the scooter was seized from the spot. Thus, in this view of the matter, it was not proper for the learned Judge to have dismissed the whole claim of the claimants. According to the statement of Mahendra Giri, PW 2, the truck was driven in a rash and negligent manner by the driver of the truck.;