Kesharbai and Another vs Sadashiv Dixit

R.D. Shukla, J.—This appeal is directed against the judgment and award dated 28.6.1983 of the IInd Addl. Motor Accidents Claims Tribunal, Indore, passed in Claim Case No. 44 of 1982 whereby the respondent has been awarded a compensation of Rs. 6,500/- for damage caused to the house because of the forceful impact of truck No. MPI 3219 owned by appellant No. 1 and driven by respondent No. 2.

The admitted facts of the case are that appellant No. 1 is the owner of truck No. MPI 3219. It was driven by appellant No. 2, a driver who was under the employment of appellant No. 1. Appellant No. 2 was carrying the wooden logs in the truck. While reversing the vehicle it dashed against the house of respondent who is an advocate practising at Indore.

The incident is said to have taken place on 9.11.1981 at about 11 a.m. The respondent-claimant reached on the spot. He protested against the omission and commission of driver. Thereafter a claim was filed. It was stated that there has been extensive damage to the main wall of the house and it required immediate repairs. As such, a claim for Rs. 30,000/- was filed.

Non-applicants-appellants here denied the claim and submitted that the damage has been exaggerated and further that during the reversing of the vehicle no damage was caused.

Learned Tribunal has found that the damage was caused to the house because of the rash and negligent driving of the vehicle by appellant No. 2 driver and as such, an award of Rs. 6,500/- has been granted in favour of the claimant and as against both the appellants. The appellant No. 1 has been made liable because of his vicarious liability as an owner of the truck. Hence, this appeal.

In the memo of appeal and during the course of arguments, learned counsel for the appellants submitted that the ownership has not been proved and that the damage to the house has also not been proved.

As against it learned counsel for the respondent has submitted that the claimant was in the immediate occupation of the house. He made protest immediately and the damage assessed is on the lower side.

The claimant has examined AW 1 Vishnu Verma, AW 2 Harishankar, AW 3 Sadashiv Dixit (claimant himself) and AW 4 Khushilal, the mason, employed for repairs of the house. Non-applicants have examined NAW 1 Durgaprasad Sharma and NAW 2 Kallu (appellant No. 2 here).

All the four witnesses of the claimant have stated that the claimant was residing in the house on the date of accident.

Kallu, himself appearing as NAW 2, has accepted that the claimant immediately came and protested saying that he has dashed the rear part of the vehicle against his house. This immediate conduct of the claimant goes to show that the claimant was occupant of the house.

In such cases the strict proof of title and ownership like suits based on title is not required. In the absence of better title, prima facie evidence of ownership coupled with immediate possession personally or through agent, servant, tenant or lessee would be sufficient for the purpose of claim for compensation under Motor Vehicles Act.

In this case, the claimant has produced . A-6, Demand Notice of Tax. That shows that he is the owner of the house. He has also made a statement by showing that the present number of the house is 48. Exh. P-I, panchanama, prepared by AW 2, Harishankar, a police officer, also goes to show that the claimant was in possession of the house. The site map, Exh. A-2, also goes to show that the claimant was the owner of the house. Thus, there appears to be sufficient proof of the ownership of the house. Nobody else has challenged the ownership of the claimant. It is also not the case of the non-applicants (appellants here) that any other claim has been filed by anybody else claiming himself to be the owner of the alleged damage to the house.

Now so far as the damage to the house is concerned, the claimant has produced photographs, Exhs. A-3 and A-4. That shows that there were extensive cracks in the wall. AW 4, Khushilal, a mason who was working for the repairs of the wall, has also stated that by the date of his examination before the Claims Tribunal Rs. 4,000/- to Rs. 5,000/- has been spent and further Rs. 5,000/- to Rs. 6,000/- would be required for the complete repairs. Thus, this fact has also rightly been found proved that there was extensive damage to the wall of the house of claimant.

As for the accident AW 1, Vishnu Verma, who claims to be an eye-witness, has stated that while reversing the truck the vehicle dashed against the wall of the house and caused damages. Nothing substantial has been brought out in the cross- examination which may render the evidence of this witness to be unreliable.

AW 2, Harishankar, has also supported the case of the claimant. He also claimed to be the eye-witness. He has also stated that the driver while reversing the vehicle dashed against the wall of the claimant. The claimant appearing as AW 3 has also made statement to that effect. Appellant No. 2, appearing as NAW 2, has also admitted that immediately after the alleged incident, the claimant came on the spot and protested. This also goes to show the fact of accident.

The very fact of reversing the heavy vehicle on a place which is not a cross-road, may amount to negligent driving unless it is demonstrated that the road was so wide so as to be sufficient for the reversal of such heavy vehicle and there was no traffic on the road at the relevant time and further while reversing such heavy vehicle no obstruction is caused to the other vehicle plying on the road.

Thus, the fact of negligent driving has also rightly been found proved.

In view of the discussion above, this appeal fails and is hereby dismissed with costs. Counsel''s fee Rs. 400/- (Rs. four hundred only) if certified.