The driver of a motor vehicle has a duty to take reasonable precautions to avoid accidents, and failure to do so may result in liability for damages.

S.B.Sinha, J.

1. This miscellaneous appeal arises out of a judgment and award dated 14th August, 1985 passed by Mr. B.B. Sharan, District Judge, Dhanbad, acting as Accidents Claims Tribunal, Dhanbad, in Title Suit No. 66 of 1982, whereby and whereunder the said learned court passed an award of Rs. 1,20,000.00 in favour of claimant-respondents. It was further directed by the learned court below that out of the aforementioned amount of compensation a sum of Rs. 50,000.00 is payable by respondent No. 3, Oriental Fire & Genl. Ins. Co. Ltd., Rathaur Mansion, Dhanbad.

2. The facts of the case lie in a very narrow compass.

3. On 18.3.1982 one Rajkumar Agarwal (Loyalka) was riding his motor cycle and near the village Ena Islampur he tried to save collision with some cows crossing the road but hit one of the cows and fell down from his motor cycle whence a truck bearing registration No. BHR 7792 belonging to the appellant ran over him resulting in his death.

4. According to the respondents who are heirs and legal representatives of the aforementioned deceased, the deceased was earning about Rs. 1,600.00 per month by carrying on business in coal. It was further stated that the deceased at the time of his death was aged about 25 years.

5. In the said claim application the claimant-respondents prayed for an award for a sum of Rs. 1,50,000.00 .

6. By reason of the impugned award the learned court below awarded a sum of Rs. 1,20,000.00 against the defendants.

7. Mr. P.S. Dayal, the learned counsel appearing on behalf of the appellant, raised three contentions in support of this appeal.

8. He, firstly, submitted that there is nothing on record to show that the truck in question was being driven rashly and negligently. According to the learned counsel the purported plea of rash and negligent driving on the part of the driver has been upheld by the learned Tribunal below by referring only to the first information report and the charge-sheet (Exh.3) which are inadmissible in evidence.

9. Secondly, the learned counsel contended that in any event as the deceased fell down from his motor cycle and the alleged rash and negligent driving on the part of the driver having no direct nexus with the accident in question, the principle of contributory negligence shall apply in the instant case and taking that view of the matter the award of Rs. 1,20,000.00 in favour of the respondents cannot be sustained.

10. It was next submitted that in view of the fact that the motor cycle on which the deceased was riding at the time when accident took place was also insured, it was obligatory on the part of the claimant-respondents to implead the insurance company which was insurer of the motor cycle in question as a party in the application for claim and in its absence the application for compensation was not maintainable. RE: CONTENTION NO. 1

11. In this case, admittedly a criminal case was instituted. The first information report was marked as Exh. 2 and the charge-sheet submitted in the said criminal case was marked as Exh. 3 before the learned court below.

12. PW 2 is an eye-witness to the occurrence. He stated that when the deceased was riding his motor cycle, a few cows were crossing the road, the deceased in order to save the cows, fell down from his motor cycle. According to the said witness, at that time the truck in question which was being driven in high speed came there and crushed the deceased. He further stated that the accident took place because of the rashness and negligence on the part of the driver of the truck. He also stated that if the driver of the truck had slowed down the speed after seeing the cows and the motor cycle, the accident could have been averted. The said witness further stated that he stopped the truck after going ahead of him.

13. PW 4 is another eye-witness of the occurrence, who also stated that the truck in question came there in high speed and crushed the deceased. He also opined that the truck was being driven rashly