The definition of 'public place' under the Motor Vehicle Act, 1939 is wide enough to include any place which members of the public use and to which they have a right of access.

This appeal has been filed by the owner of the truck bearing registration No. ASG 2137 which was involved in the accident. The appeal has been filed against the claimant (respondent No. l) and the Insurance Company (respondent No. 2).

2. The claim petition was filed by the mother of deceased Nani Gopal Ghosh who was aged 23 years on the date of accident i.e. 28.12.84 at Bilasipara. The deceased was a Handyman of the truck. The truck was return­ing with loaded jute to the house of the owner in the evening and while it was about to enter into the godown, the accident took place as a result of which the deceased died.

3. The learned Motor Accident Claims Tribunal, Dhubri in Case No. MAC 10 of 1985 by the impugned award dated 25.1.88 awarded a sum of Rs. 15,000/- to be paid by the owner of the vehicle namely the present appellant. The learned Tribunal also awarded interest @ 10%. The owner of vehicle has filed the present appeal as he was made liable and not the Insurance Company for the claim. The claimant has also filed a counter objection. The original claim before the learned Tribunal was Rs. 75.000/-. The present dispute is mainly between the Insurance Company and the claimant i.e. the respondent Nos. 1 and 2.

4. We have beard Mr. J. Singh, learned counsel for respondent No. 1 and Mr. Ahmed, learned counsel for respondent No.2.

5. The first point that needs our consideration is whether the accident took place in a private place or in public place. This point was raised by the respondent No.2 in view of the provisions of Motor Vehicle Act, 1939 for short the 'Act'. In view of section 95 of the Act, a Insurance Company is not liable of pay compensation if any accident takes place in a private place.

6. We have been taken through the records and also the award. We find from the evidence of P.W. 3 who was present at the time the accident took place that the truck stopped in front of the house of the owner of the vehicle and when it was about to enter into the godown of the owner he heard hullah as the handyman of the truck was run over by the truck. In cross-examination this witness has stated that the dead body of the deceased was found on the National Highway. P. W. 4 Giasuddin, an employee of the owner of the vehicle has also deposed that when the vehicle was about to enter into the godown there was failure of electricity which resulted in darkness and the truck proceeded and ran over the deceased who died on the spot. From the evidences of these two eye witnesses we are constrained to hold that the occurrence took place at a time when the truck was about to enter into the compound of the owner from the National Highway and in other words, the accident took place in a public place and not in a private place as urged by Mr. Ahmed, learned counsel for the respondent No.2.

7. Mr. Ahmed has taken us through the evidence of driver of the vehicle who was examined as D.W. But we are unable to accept his evidence as he has given a very peculiar story. He stated that he took the vehicle loaded with jute to the godown and at that time there was failure of electricity and he left the place to take his meal and after his return to the place of occurrence he came to know about the death. Such a story is extremely unbelieveable. Of course the claimant has stated that the accident took place in the godown, but her evidence has no value as she was not an eye witness to the occurrence. We are, therefore, satisfied that the occurrence took place, as stated above, on the National Highway, a public place.

8. Mr. Ahmed has urged that it was the duty of the owner to prove that the truck was driven by a person with valid licence and that if this is proved only then the onus would shift to the respondent No.2 to prove that it was not so driven. Such a plea was not taken at that time of trial. That apart, the driver was examined and this was not put to him that he had no valid licence. We are, therefore, unable to accept the contention of Mr