Gumanbhai Tribhovandas Patel vs Mustak Aiyub Ahmed and Others

K.S. Jhaveri, J.—By way of filing this appeal the appellant has challenged the judgment and award dated 20th January 1997 passed by the

learned Motor Accident Claims tribunal (Aux.), Bharuch in MAC Petition No. 19 of 1992 by which the application preferred by the appellant -

original applicant was dismissed.

The short facts of the case are that while the applicant was driving his Luna and was going to Ankleshwar from Station at 10.00 AM on

10.2.1991, opponent No. 1 was driving the scooter bearing No. GRJ 3643 came from behind and ignoring the signal that is shown by the

applicant, hit the Luna because of which he fell down on the road and sustained fracture on the right leg. He therefore filed the MAC Petition No.

19 of 1992 against the rider of the offending scooter, its owner and insurance company. The Tribunal while awarding Rs. 44,650 to the applicant,

has held the applicant to be negligent to the extent of 30%. While deciding issue No. 1 the Tribunal has held in paragraph 7 as under:-

Now, admittedly, the applicant has no licence of driving the Luna in question. Now, I have held that the applicant has failed to prove the

accident in question as alleged by him, however, it being the view of the Tribunal I would like to state further that in the alternate I go to consider

the case of the applicant on merits presuming that the accident in question has occurred in case the Appellate Court sets aside my earlier finding

wherein I have held the accident has not occurred as alleged by the petitioner. Now, admittedly the applicant has not got driving licence of the

Luna in question. Mr. R.J. Mamlatdarna, the learned advocate for the petitioner has relied upon a decision of Honourbler Supreme Court in the

case of Suleman Rehiman Mulani and Another Vs. State of Maharashtra, and has argued that having no valid driving licence ipso facto does not

raise a presumption of rash and negligent driving on the part of the applicant and there must be nexus between the injury and the rash and negligent

act. I do agree with the citation and there cannot be any dispute with regar to this but in this case the citation says that a man could be proficient in

driving and yet through sheer indifference he might not have taken a licence and this is the principle on which the Honourable Supreme Court has

held as aforesaid. Now, in this case, coming to the cross-examination of the applicant, he has clearly admitted that at the relevant time, his right leg

was polio affected, he has clearly that because of this reason, he did not get the driving licence. Therefore, it is clear that there is nexus between the

injury and rash or negligent driving. Therefore, this aspect is to be kept in mind while appreciating the evidence of the applicant. Now, in evidence

he does not say that while he was going towards north and then intended to go to easter side, by which hand, he had shown the signal. It is to be

noted that the applicant himself has deleted the opponent No. 1. Therefore, opponent No. 1 is prevented by the applicant himself also. Moreover,

neither FIR nor the panchnama are supporting the case of the applicant inasmuch as to show how the opponent No. 1 was negligent. Therefore,

keeping in mind, all these facts, I consider at least 30% negligence on the part of the applicant, if no more.

In that view of the matter, the view taken by the Tribunal is just and proper. No case is made our interfering with the same. The appeal has no

force. The same is dismissed accordingly.