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Ghanseley and anr. Vs. Babu Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAllahabad High Court
Decided On
Judge
Reported in1(1986)ACC54
AppellantGhanseley and anr.
RespondentBabu Khan and ors.
Excerpt:
- - the failure to blow horn was also apparently stated as a circumstance to prove negligence of the driver. pw 4 has further admitted in his cross-examination that the bus bad stopped at a distance of 13 or 15 steps after the accident. 6. the driver has produced himself as dw 1. he has given his age as 50 years and has stated that he bad been driving bus on the particular road on which the accident was caused for the last about 10-10 years. he further states that in order to save the boy he also turned his bus towards the right side and in spite of his best, efforts the cycle was hit by the back portion of the bus and thereafter the bus was stopped on the kachchi patri towards the right side of the road......bus driver on the other hand was that when the bus was at a distance of about 15-20 steps from the cycle nanak ram suddenly turned the cycle towards the right side in an attempt to cross the road and even though he made all efforts possible to save the boy; but the cycle was hit by the back portion of the bus at the time when the bus was being taken to the right side patri of the road in order to save the accident. his case further was that the boy who was sitting on the carrier of the cycle suddenly jumped down from the cycle and ran away as a consequence whereof the balance of the cycle was disturbed.5. four witnesses were produced on behalf of the claimant appellants. appellant no. 1 examined himself as pw 1. he does not claim himself to be an eye witness of the accident and has.....
Judgment:

N.D. Ojha, J.

1. This appeal has been preferred against the order dated 29-10-1977, passed by the Motor Accident Claims Tribunal, Jhansi, dismissing the petition made by the appellants for compensation under Section 110-A of the Motor Vehicles Act.

2. The appellants are the parents of one Nanak Ram, who met with an accident while going on a cycle on 20-9-1972 with a private bus. On account of the injuries sustained in the accident Nanak Ram died and consequent upon his death the claim petition mentioned above was filed by the appellants.

3. The petition was contested by the respondents and after taking into consideration the evidence produced by the parties the Claims Tribunal dismissed the petition on the finding that it has not been established that the bus was being driven rashly and negligently at the time of the accident.

4. It has been urged by the counsel for the appellants that the finding recorded by the Claims Tribunal is erroneous. Having heard the learned Counsel for the appellants at some length and scrutinised the evidence produced by the parties, we are of the opinion that even though the case is most unfortunate, it is not possible be interfere with the finding of the trial court. On the date and the time when the accident was caused Nanak Ram was going on a cycle with another boy Kripa Ram sitting on the carrier. The bus in question was also going in the same direction. According to the case of the claimants it was due to rash and negligent driving of the bus driver, Babu Khan that the accident was caused resulting in the death of Nanak Ram. The case of the bus driver on the other hand was that when the bus was at a distance of about 15-20 steps from the cycle Nanak Ram suddenly turned the cycle towards the right side in an attempt to cross the road and even though he made all efforts possible to save the boy; but the cycle was hit by the back portion of the bus at the time when the bus was being taken to the right side patri of the road in order to save the accident. His case further was that the boy who was sitting on the carrier of the cycle suddenly jumped down from the cycle and ran away as a consequence whereof the balance of the cycle was disturbed.

5. Four witnesses were produced on behalf of the claimant appellants. Appellant No. 1 examined himself as PW 1. He does not claim himself to be an eye witness of the accident and has proved the extent of loss, which he suffered on account of the death of Nanak Ram. PW 2 Nalkey Claims to be an eye witness. He has stated that after hitting the cycle the bus stopped at a distance of 80-100 steps. He has further stated that the bus driver did not blow the horn. This statement was apparently made to indicate that the bus was being driven at a high Speed so that it could not stop before going a distance of 80-100 steps even after causing the accident. The failure to blow horn was also apparently stated as a circumstance to prove negligence of the driver. He further stated that Pakka road was about 5 or 6 cubits wide and had 3 or 4 cubits of kacbhi patri on its either side. This witness has also stated that the boy was not crushed by the bus but was only hit by it. In his cross-examination, however, he admitted that the bus driver had blown the horn two or three times very loudly. On other points his statement stands contradicted by Prabal Pratap Singh, PW 4. He has stated that the Pakka road was about 10 or 12 feet vide and had 8 feet kachchi patri on its either side. He went to the length of saying that the right side of the body of the deceased boy Nanak Ram had been crushed by the bus. PW 4 has further admitted in his cross-examination that the bus bad stopped at a distance of 13 or 15 steps after the accident. In view of these contradictory statements made by PW 2 and PW 4 both of them claim to be eye witnesses, it becomes very difficult to take the view that the bus driver did not blow the horn or that the bus was being driven negligently. PW 3 is Kripa Ram the boy, who was sitting on the carrier of the cycle. He has admitted, as is the case of Babu Khan driver, that when the bus was at a short distance from the cycle he jumped from the carrier and the cycle was hit by the bus at a distance of about 10 or 12 steps from the place where he jumped from the earlier.

6. The driver has produced himself as DW 1. He has given his age as 50 years and has stated that he bad been driving bus on the particular road on which the accident was caused for the last about 10-10 years. He has categorically stated that Nanak Ram suddenly wanted to go from the left side to the right side of the road by crossing it, that seeing this he slowed down the bus and also blew the horn. He further states that in order to save the boy he also turned his bus towards the right side and in spite of his best, efforts the cycle was hit by the back portion of the bus and thereafter the bus was stopped on the kachchi patri towards the right side of the road.

7. No site plan was filed on behalf of the claimants. The injury report of the deceased however, has been 'filed, which nullifies the stand taken by PW 4, Prabal Pratap Singh that right side of the body of Nanak Ram was crushed by the bus. Keeping in view the inconsistent statement made by PW 2, Nalkey and PW 4 Prabal Pratap Singh and the admission of the boy, who was sitting on the carrier of the cycle namely, Kripa Ram that he was shortly before the accident jumped from the carrier of the cycle, it appears that the case set up by Babu Khan the driver is correct and on the evidence on record it is not possible to take the view that the bus was being driven either rashly or negligently. It is in this view of the matter that we are of the opinion that no case has been made out for interfering with the order passed by the Claims Tribunal.

8. In the result this appeal fails and is dismissed, but there shall be no orders as to costs.


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