The main legal point established is the determination of compensation in a motor accident case based on the evidence of negligence and the application of relevant legal provisions.

JUDGMENT :

Kaushal Jayendra Thaker, J.

This appeal, at the behest of the claimants, has been preferred against the judgment and award dated 4.3.1994 passed by Motor Accident Claims Tribunal/IXth Additional District Judge, Bareilly (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 28 of 1992 rejecting the claim petition preferred by the claimants for the death of the sole bread winner.

2. Brief facts as culled out from the record are that on 15.12.1991, the deceased-Munna Lal was going to Bareilly from his village on his bullock cart to sell pual (plant of paddy crop). At 3.30 p.m. when he reached near village Maanpur in front of the wine shop, truck No.USS-7695 which was coming from Baheri side and was being driven rashly and negligently dashed the bullock cart from behind and as a result thereof, the deceased fell down on the ground, sustained multiple injuries and succumbed to the injuries on the spot. The deceased was 30 years of age and was earning Rs.1200/- per month as agricultural labourer and was survived by his widow and three children whose claim petition was rejected by the Tribunal.

3. It is submitted by the learned counsel for the appellant and as has been urged in the grounds of the appeal that the appellants have fully proved their case that the accident took due to rash and negligent driving of the driver of the truck No.USS7695 and, therefore, contrary findings of the Tribunal is perverse and requires to be upturned. It is submitted that the Tribunal has misinterpreted the evidence and the material on record and findings of the Tribunal is based on the surmises and conjectures. It is further submitted that compensation should be awarded to the claimants in view of the fact that issue No.6 has been decided against the New India Assurance Company.

4. In support of his submission, learned counsel for the appellant has placed reliance on the decisions in Sunita and others Vs. Rajasthan State Road Transport Corporation and another, AIR 2019 SC 994, Madhuri Devi vs. Mamta Gulati and Another, (2019) 3 ADJ 735 (LB), Kusum Lata and Other vs. Satbir and others, 2011 LawSuit(SC) 167 and New India Assurance Co. Ltd. vs. Sarojini Pelai and Another, 1992 LawSuit(Ori) 345.

5. Heard learned counsel for the appellant and learned counsel for the respondent-Insurance Company and perused the judgment and order impugned. None has appeared on behalf of respondent-owner.

6. The claimants produced the piece of evidence which was available with them. The eye-witness of the accident was examined before the Tribunal. Copy of the First Information Report along with general diary maintained at the police station was also produced. Nothing adverse was elucidated from the testimony that the vehicle of opponent was not involved. The general defense was taken by the owner but failed to contest the proceedings and by the evidence it was proved that the vehicle was involved and the driver was negligent. Therefore, dismissing the claim petition was absolutely arbitrary and unwarranted.

7. The accident having taken place was proved by way of filing of F.I.R. Filing of charge-sheet by non rebuttal evidence was a evidence proved/produced in favour of the appellant herein but holding that they did not prove the involvement of the vehicle is bad in the eye of law.

8. The Recent decision of the Apex Court reported in Sunita and others (Supra) and of this Court in Madhuri Gulati (Supra) will apply in full force and hence the finding of the Tribunal that the accident did not take place because of the rash and negligent driving of the driver of the truck No. USS 7695 is arbitrary, perverse and based on surmises and conjectures.

9. The next issue which arises is that the matter has remained pending here for 25 years, the record and proceedings are before this Court and the matter whether be remanded to the Tribunal or decided here? The answer is as per the judgments of the Apex Court in Bithika Mazumdar and another Vs. Sagar Pal and others, (2017) 2 SCC 748