Judgment

Mrs. Alka Sarin, J.

The present appeal has been preferred by the claimant-appellants aggrieved by the award dated 28.07.1998 passed by the Motor Accident Claims Tribunal, Bhiwani (hereinafter referred to as ‘Tribunal’) dismissing the claim petition filed by them on the ground that the deceased himself was at fault.

2. The brief facts relevant to the present lis are that on 02.02.1996 Radhey Shyam-deceased was driving jeep bearing Registration No.DL-1CE-1521 from Rohtak to Pilani carrying newspapers. When the jeep reached near minor of village Biealwas at about 08.00 a.m., Haryana Roadways Bus bearing Registration No.HR-36-6540 came from the opposite side at a high speed being driven by its driver - Jai Ram (respondent No.1) rashly and negligently and struck against the jeep and as a result of which Radhey Shyam sustained grievous and fatal injuries. FIR No.33 dated 02.02.1996 was registered at Police Station Loharu under Sections 279 , 337, 304-A, 427 of the INDIAN PENAL CODE , 1860. A claim petition was filed by the mother and minor sister of the deceased alleging therein that Radhey Shyam was 23 years of age at the time of the accident and he was a licensed driver and was earning Rs.3,000/- per month besides daily allowance. The petition was contested by respondent No.1 by averring in the written statement that the accident had taken place on account of the negligence of the deceased Radhey Shyam. It was further alleged that the bus driven by respondent No.1 was parked on the correct left side of the road as it had stopped to pick up some school children. It was further alleged that it was a foggy morning and visibility was poor and that the deceased lost control of the jeep on account of fog and his fast driving. The owners of the bus i.e. respondent Nos.2 and 3 filed their separate written statement raising similar pleas. The written statement was also filed by the insurance company of the jeep (respondent No.6) in question.

3. On the basis of the pleadings, the following issues were framed:

1. Whether the accident in question had taken place on account of Haryana Roadways Bus No.HR- 36/6540 by its driver Jai Ram respondent ? OPP

2. Whether the accident in question had taken place on account of rash and negligent driving of jeep No.DL-ICE/1521 by its driver ? OPP

3. To what amount of compensation if any, the petitioners are entitled to and if so, from whom ? OPP

4. Whether the respondents are not liable to pay any compensation in view of the various preliminary objections raised by them, in their respective written statement ? OPR

5. Relief.

4. On issue Nos.1 and 2, the Tribunal came to a conclusion that the accident took place as the deceased who was carrying newspapers was getting late and was driving the jeep at a high speed in order to cover the delay and on account of a foggy day, struck against the bus standing on the left side of the road and hence held that the accident took place due to rash and negligent driving of the jeep by the deceased - Radhey Shyam. The claim petition was accordingly dismissed. Hence, the present appeal.

5. Learned counsel for the claimant-appellants would contend that admittedly it was a foggy morning. It has come in the statement of the driver of the bus, Jai Ram who appeared as RW-1, that he had stopped the bus in order to allow the passengers to board the bus. It has also come in the statement of RW2, Jai Narain who was the conductor of the bus, that the bus had stopped only because the stoppage was sanctioned on the request of the inhabitants of the area. Hence, it could not be held that the deceased was r