Jayamma vs M.H. Ganesh and National Insurance Company Limited

Ajit J. Gunjal, J.—The mother of the deceased is before this Court questioning the judgment and award passed by the tribunal dismissing the claim petition on the ground that the driver himself is responsible for the accident. Hence the question of granting compensation would not arise.

We have perused the papers. The facts necessary for disposal of the appeal are as follows:

On 20.2.2002 at about 2 p.m. one Bheemesh, son of the claimant Appellant was going on a motor bike from his native place to the garden of first Respondent. He was going on the left side of the road near Lakshmisagara on Channagiri Road. At that time a tractor came from the opposite direction, with high speed in a rash and negligent manner. The rider/deceased tried to avoid the accident, hence fell into a ditch, sustained severe injuries and was shifted to hospital, but however he succumbed to the injuries. The specific case made out by the claimant Appellant is that the death has occurred due to the rash and negligent driving of the driver of the tractor. Hence a claim petition is filed claiming compensation of Rs. 17.00,000./-

The first Respondent i.e., the owner of the motor bike v/as served, but however remained absent. The second Respondent insurer enters appearance and files statement of objection interalia contending that the deceased did not possess a valid driving license. It is further contended that no vehicle is involved inasmuch as it was the folly of the rider himself and he being a tort feaser the question of claiming compensation for his death would not arise. In support of their respective contentions the claimant examined herself as PW.1 and another eyewitness as PW.2 and Exs.P.1 to P.7 are marked. On behalf of the insurer the Senior Assistant was examined as RW. 1 and EX.R1 also was marked. We also notice that the second Respondent has also made an application u/s 170 of the Act and the said application was granted permitting the insurer to contest the claim both on the negligence as well as on the quantum.

The learned member of the tribunal having regard to the evidence let in both oral and documentary was of the view that the deceased himself was responsible for the accident. He has further recorded a finding that there is no second vehicle involved in the accident though a contention is raised in the claim petition as well as during the course of trial that a tractor was also involved in the accident and to avoid hitting the tractor the accident has occurred.

We have perused the papers. Apparently the finding recorded by the learned member of the tribunal on the question of accident cannot be found fault with. It is no doubt true that a specific contention is taken in the petition as well as during the course of trial that to avoid oncoming tractor which was driven in the rash and negligent manner the accident occurred. But however we notice that, a complaint is lodged with the jurisdictional police alleging that the Bheemesh, deceased himself was responsible for the accident. The chargesheet would also disclose that the said Bheemesh is the accused No. 1. The spot panchanama of the mahazar as well as the inquest report would clearly disclose that it was the deceased himself who was responsible for the accident and there is no second vehicle involved. It is no doubt true that PW.2 who claims to have witnessed the accident would depose that he saw a tractor and the deceased was trying to avoid the tractor, the resultant effect was that he fell down and sustained injuries, but however what is significant is that PW.2 is not in a position to give registration number of the tractor nor can he identify as to who was driving the tractor. In the circumstances, we are of the view that there is paucity of evidence to establish the actionable negligence. Indeed the consideration of compensation would arise only if a finding is recorded that the death is due to the actionable negligence of another vehicle. But however that is not the case here. We are of the view that the deceased himself was responsible for the accident. Thus a tort tort feaser cannot claim compensation for his own folly. Having said so, we are of the view that the finding recorded by the learned member of the tribunal on the question of actionable negligence cannot be faulted. Hence we hold that the tort feaser himself was responsible. It is not necessary for us to consider the compensation which is awardable to the claimant.

However, we notice that u/s 140 of the Motor Vehicles Act the claimant is entitle for a sum of Rs. 50.000/- under the no fault liability. Hence the following order.

ORDER

The appeal is dismissed. But however the claimant is entitled for a sum of Rs. 50,000/- u/s 140 of the Act.

Appeal stands disposed of accordingly.