Nazirkhan Miyankhan Pathan vs Kulsumben Ajamkhan W /O Deceased & 4S

1.0 This appeal is directed against the judgement and award dated 21st June 1999 passed by learned Motor Accident Claims Tribunal (Auxi), Mehsana, in Motor Accident Claim Petition No.90 of 1990 whereby the said claim petition came to be dismissed.

2.0 On 23rd July 1989 the claimant was travelling in a truck bearing registration No.GRW 3355 from Bombay to village Lunava. When the said truck reached near Chhatral, another truck bearing registration No.RNN 2975 was going and when brake was applied there was a collision and the claimant sustained injuries. He therefore filed the aforesaid claim petition which came to be dismissed.

3.0 Learned Advocate for the appellant submitted that the Tribunal failed to appreciate that the other truck in question, the name of driver, owner and insurance company could not be known in spite of due diligence and therefore not mentioned in the petition, but that does not absolve the Tribunal to decide whether vehicle in which the claimant was traveling was rash or negligent in driving the vehicle.

4.0 As regards the negligence is concerned the Tribunal has considered the same in para 7 of the judgement. It reads as under:

“[7] The claimant has taken a categorical stand in exh.1 claim petition that the driver of truck bearing Registration No.RNN 2975 was driving the vehicle at a very high and excessive speed and the truck in which the claimant was travelling which was driving by opponent No.1 was following that truck. The driver of truck bearing registration No.RRN­ 2975 suddenly and abruptly stopped his vehicle without giving any signal as a result of which the truck in which the claimant was travelling rammed into it from behind and the accident took place. These facts are reiterated in complaint exh.35. Therefore, it is incumbent upon the claimant to prove in his this claim petition that the accident took place due to the sole negligence on the part of the driver of the truck bearing Registration No.RNN­2975, so as to succeed in this claim petition. The claimant has examined himself as P.W.No.1 vide ex.33, wherein he has stated that the accident had taken place near Chhatral G.I.D.C. On 23/7/89 at about 9.30 a.m.. He has further stated that he was coming from Bombay to his village Lunava in his truck bearing Registration No.GRW­3355 and he was sitting in the cabin of the truck. Another truck bearing Registration No.RNN­2975 was going ahead of truck. The truck in which he was travelling was going at a full speed and the truck bearing Registration No.RNN­2975 was also going at full speed and the driver of that truck suddenly applied brakes without giving any signal and, therefore, the driver of his truck had also applied brakes but the speed of his truck was more and, therefore, it rammed into the truck proceeding ahead. In this accident he sustained injuries on his ribs and spleen and his spleen was ruptured rendering his unconscious. He was shifted to the hospital of Dr. Majmudar at Mehsana, where primary treatment was given to him and thereafter he was shifted to V.S. Hospital, Ahmedabad for the treatment where he was kept as indoor patient for 15 days. During which period operation was performed and the spleen was removed. The important question which involved is whether the claimant is entitled to get compensation from the driver of the truck bearing Registration No.GRW­3355 and its Insurance Company? Looking to the specific averments made in claim petition exh.1 which facts are reiterated in complaint ex.35. The claimant was not joined the owner, driver and Insurance Company of the truck bearing Registration No.RNN­2975 though the number is stated in the claim petition ex.1 and the complaint exh.35. From the record of this petition, it transpires that no efforts are made by the claimant to implead them as party­opponent. The oral evidence of the claimant is contradictory to his own pleadings in exh.1­ petition and are also contradictory to the complaint Ex.35. The claimant has stated in his oral evidence that the truck in which he was travelling was also going at a high speed. Which averment is absent in his pleading and complaint exh.35. This is a very important improvement made by the claimant in his oral evidence. The reason for this improvement is obvious, which is there the claimant has taken specific stand as stated hereinabove in his claim petition that the accident took place due to the rash and negligent driving of the truck bearing Registration No.RNN 2975 and also negligent act of halting the said truck without giving any signal. Now owner, driver and Insurance Company of this truck are not impleaded and,therefore, if he does not make this improvement that his truck was also proceeding at a high speed he would not get a penny from Opponent Nos.1 & 2 i.e. the owner­cum­driver and Insurance company of the truck in which he was traveling.

Therefore, looking to this contradictory documentary and oral evidence regarding the negligence adduced by the claimant it is clear that the claimant has failed to prove that the accident has taken place due to the sole negligence on the part of the driver of the Opponent No.1 of that truck bearing Registration No.GRW­3355 and, therefore, the claimant is not entitled to claim any compensation from Opponent No.1 and Opponent No.2, which is the Insurance Company of the truck bearing Registration No.GRW­3355 is not liable to indemnify any compensation. So far as the negligence on the part of the truck bearing Registration No.RNN­2975 is concerned it appears from the con­joint appreciation of oral as well as documentary evidence adduced by the claimant that the accident took place due to the abrupt and sudden stoppage of the truck but the owner, driver and Insurance Company of the said truck is not impleaded as opponents and, therefore, no award for compensation can be passed against them and issue No.1 is answered accordingly.”

5.0 Thus the oral evidence of the claimant is contradictory to his own pleadings in Exh.1 petition and are also contradictory to the complaint at Exh.35. It was proved that the accident took place due to the abrupt and sudden stoppage of the truck, but the owner, driver and Insurance Company of the said truck were not impleaded as opponents. Therefore no award for compensation can be passed.

6.0 I am in complete agreement with the reasoning adopted and findings arrived at by the Tribunal. The appeal is therefore dismissed with no order as to costs. Record and Proceedings to be sent back to the concerned Tribunal.

(K.S.JHAVERI, J.) niru*