Dambaru Gurung vs Bipul Borah And Anr

Heard learned Counsel Mr. S.P. Choudhury for the appellant and Ms. S. Roy, learned counsel for the respondent No.2.

This appeal is directed against the judgment and award dated 09.05.2011 passed byMACT Biswanath Chariali in MAC Case No. 160/09.

Anjana Gurung died in motor vehicle accident on 23.03.2009 involving vehicle bearingregistration No. AS-07-B/4632 owned by respondent No. 1

and insured with the respondent No. 2. Husband and children of the deceased filed an application for compensation and the learned Tribunal by the

impugned award granted a compensation of Rs. 50,000/- purportedly U/s 140 of the MV Act.

Aggrieved by the above award, the claimant filed instant appeal.

Learned counsel for the appellant submits that in spite of evidence and materialsavailable on record, learned Tribunal erroneously came to the

finding that the claimant failed to proved rush and negligent driving by driver of the offending vehicle, and thereby denied the just and fair

compensation to the claimants.

From the impugned judgment it transpires that learned Tribunal basically relied on theoral testimony of CW-2, who deposed to have heard from the

driver, that the accident occurred due to failure of break and on the basis of the above evidence, learned Tribunal observed, that since the accident

occurred due to failure of break and the mechanical defects, the driver of the vehicle was not responsible for the accident.

As per allegation in the claim petition, while the deceased was driving in the offendingvehicle being a truck, the vehicle hit against the road side tree.

The claimant examining herself on oath, stated that the truck dashed against the road side tree due to excessive speed and rush and negligent driving

by the driver. The evidence of the claimant that the accident occurred due to the offending vehicle hitting against the road side tree remains

unimpeached.

CW-2 who was not an eye witness, stated that he heard from the driver, regardingfailure of ‘break’. The driver of the offending vehicle did

not come to witness box and in that view of the matter, the testimony of the CW-2 was inadmissible for being hearsay. It is the settled position that in

a proceeding under the MV Act, for compensation, the claimant need not prove the facts by the standard of proof beyond reasonable doubt. The

standard of proof in such proceeding can never be higher than that of the preponderance of probability. Considering beneficial object of the legislation

Tribunal should always take a holistic view and appreciate the evidence in a broader perspective.

In the instant case, the factum of the vehicle hitting against the road side tree was notdisputed. Therefore, even in absence of any other evidence,

the fact of the vehicle hitting against a roadside tree itself, was sufficient for attributing negligence to the driver by invoking the doctrine of res-ipsa

loquitor’. Even if it is assumed, that there was some mechanical defect in the break system, in absence of evidence to prove that the vehicle was

duly checked before plying on the public road, negligence shall be attributable to the owner or driver of the vehicle. If a person failed to do an act,

which in a particular circumstances is required to be done by a prudent person, that itself a constitute negligence. Since neither the driver nor the

owner came to the dock to say that there was no negligence on the part of the driver or owner of the offending vehicle and the evidence that the

vehicle hit against the tree remain unimpeached, raising a presumption of rash and negligent driving, learned Tribunal fell in error, by rejecting the

claim on a hearsay evidence, that the accident occurred due to mechanical defect, by ignoring the positive evidence of the claimant.Â

Since the evidence brought on record that the vehicle met with an accident afterhitting against a road side tree itself demonstrated the rush

negligent driving on the part of offending vehicle, the claim of the claimant could not have been rejected.

Accordingly, the impugned judgment refusing to grant compensation on the basis offault liability is set aside, since the tribunal failed to determine

the compensation, it will be in the fitness of the matter to remit case to the Tribunal for deciding the claim afresh.

The parties shall appear before the Tribunal on 16.07.2018 to receive furtherinstructions.

Send back the LCR.