1. By way of these appeals, the appellants have challenged judgement and award dated 30.09.1992 passed by the Motor Accident Claims Tribunal (Main) at Ahmedabad in M.A.C.P. No. 190/1987 and 111/1986 respectively whereby the tribunal has dismissed the petitions of both the appellants.
2. Brief facts of the case are that:
2.1 On 26.12.1985 at about 9.15 p.m. one Maruti car bearing registration No. HRU 484 was proceeding from Madhupra to Sabarmati side on Subhash Bridge with moderate speed. At that time one scooterist came from the wrong side. To avoid accident, driver of maruti car tried to drove his car on the right side and he lost control over the car and dashed with wall of the bridge and turned turtle. Due to this accident, Laxmansinh, who was sitting near the driver of the maruti car sustained grievous injuries. Due to this accident, head of Laxmansinh had cut off from the body. One Virabhai Somabhai, a pedestrian, was coming from left side of the road with his child, minor Yogesh. Maruti car dashed with Virabhai Somabhai and the said child was thrown away in the river. This child had also sustained grievous injuries due to this accident.
2.2 Heirs and legal representative of deceased Laxmansinh have preferred M.A.C.P. No. 111 of 1986 before the Motor Accident Claims Tribunal (Main) at Ahmedabad for getting compensation of Rs. 3,16,000/-. Minor Yogesh, aged about 4 years, has preferred M.A.C.P. No. 190 of 1987 before the same tribunal for getting compensation of Rs. 45,000/-.
2.3 The tribunal vide judgement and award dated 30.09.1992 passed in M.A.C.P. No. 190/1987 and 111/1986 has dismissed the petitions of both the appellants.
2.4 Being aggrieved by the said judgement and award Heirs and legal representative of deceased Laxmansinh have preferred First Appeal No. 1691 of 1996 and Minor Yogesh has preferred First Appeal No. 2631 of 1996 for quashing and setting aside the aforesaid judgement and award.
3. Counsel for the appellants submitted that the tribunal has committed error in not appreciating the facts that the driver of the maruti car was driving under the influence of alcohol and was not in his sense. He further submitted that the driver was not holding valid license. According to him, the tribunal committed an error in holding that Virabhai Somabhai is an independent witness and that the panchwitness is not examined.
4. As far as M.A.C.P. No. 190 of 1987 is concerned, the findings of the Tribunal are as under:
“The burden of proof lies on the applicants to show the negligence of the opponent driver and the burden of proof also lies on the applicant to show that the victim died due to motor accident and that injured person sustained injuries due to the accident. The burden is not as heavy as in criminal trial where the negligence has to be strictly proved. But onus of proof in its primary sense means the duty of establishing a case. This means throughout the entire case exactly where the pleadings originally placed it. Only because the opponent-driver has not stapped into the witness box, it cannot be said that the evidence of the applicants are correct and believable. The accident took place at about 9 p.m. There may be heavy traffic on the road. Other persons might have witnessed the incident. Charge sheet of the criminal case shows that the statement of witnesses are recorded by investigating officer. Original charge sheet, panchnama and statements of witnesses are produced by the Clerk of criminal Court at Exh. 95 on 18.03.1992. There was sufficient time for the applicants to produce the real eye witness before this Tribunal but they have not done so. In these circumstances, I believe that the applicants have not come with clean hands before this Tribunal. To obtain any order or claim without producing any cogent evidence is a fraud and no compensation can be awarded in such cases. The evidence before the Tribunal is insufficient or inadequate to sustain the findings. In these circumstances, the evidence produced by the applicants is no evidence in the eye of law. Hence, I believe that the applicant failed to prove that the deceased died due to motor vehicle accident and applicant, Yogesh also sustained injuries due to said Maruti car. Hence, Issue No. 1 of both the petitions is answered in the negative.”
5. As far as M.A.C.P. No. 111 of 1986 is concerned, the Tribunal held as under:
“Exh. 30 certificate shows that Virabhai Somabhai was absent from service from 26.12.1985 to 16.02.1986 and was on leave without pay for the said period. Exh. 31 shows that Virabhai was serving in Asrwa Mill and his monthly pay was Rs. 1276-95 p.m. Hence, the applicant can claim Rs. 2,000/- for loss of income after about 50 days, Rs. 15000/- for pain, shock and suffering Rs. 2000/- for medical treatment Rs. 2000/- for transportation and Rs. 1000/- for special diet and Rs. 24,000/- (100x12x20 multiplier) for future loss of income and Rs. 5,000/- for expenses for the treatment for about 50 days in which period Yogesh was admitted in the hospital. Thus application of petition No. 190 of 1987 can claim Rs. 51,000/- as compensation. But I again say that medical case papers Exh. 78 show that Yogesh Virabhai was admitted in the hospital on 26.12.1985 and history was given by the relative.
Hence, the accident had not occurred due to rash and negligent driving of offending Maruti car by its driver opponent No. 1. The applicant has not examined panch witness of scene of offence before this tribunal. No other eye witness is examined except applicant Virabhai before the tribunal. In these circumstances, applicants are not entitled to any compensation from the opponents. Ghijauji Vardhaji is a neighbour of opponent No. 1 Dilipbhai and the deposition of Ghijauji shows that he knows opponent No. 1 Dilipkumar since 8 to 10 years opponent Dilipkumar has not filed any written statement and she has not stepped into the witness box to give deposition. It shows that there is collusion between the parties and the applicants have not come before this Tribunal with clean hands. Hence, applicants are not entitled to any compensation from the opponents.”
6. In view of the above position, I am of the view that the appellants have failed to prove the case. Even before this Court, the appellants are not in a position to point out anything from the record to take a different view of the matter.
I am in complete agreement with the reasoning adopted and findings arrived at by the Tribunal. The appeals are therefore dismissed with no order as to costs.
JYOTI [K.S.JHAVERI, J.]