Point of Law: Section 140 of Motor Vehicles Act, a victim in an accident which occurred while using motor vehicle is entitled to get compensation from the Tribunal, unless any exception applies.

JUDGMENT

Ajai Tyagi, J.

1. This appeal has been preferred by the claimants-appellants against the judgment & award dated 30.9.2013 passed by learned Motor Accident Claims Tribunal/District Judge, District Bijnor in Motor Accident Claim Petition No.43 of 2012 (Ompal Singh Sharma and others Vs National Insurance Company Ltd. and others), whereby the learned Tribunal has denied the compensation for the death of Prince Sharma in a road accident, holding the accident to be the result of ‘Act of God’, and awarded Rs.50,000/-under no fault liability under Section 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'Act, 1988').

2. The claimants-appellants have preferred this appeal for grant of quantum of compensation under Section 166 of Act, 1988.

3. The brief facts of the case are that claimants-appellants filed a Motor Accident Claim Petition before the Tribunal for seeking compensation under Motor Vehicles Act, 1988 for the death of Prince Sharma (deceased) who lost his life in a road accident. As per averments made in claim petition, on 30.7.2011, the deceased – Prince Sharma was traveling in a Wagon-R Car No. U.P.-21 S-1101 with Mohd. Arif Jameel, Assistant Excise Commissioner, Bijnor, after performing their duties from Bijnor to Moradabad. The car was driven by driver-Jameel Ahmad-respondent no. 3. At about 2:30 p.m., when the car reached a little ahead of Gol Bag Tiraha within the jurisdiction of Police Station, Haldaur, suddenly a wild animal Maha (Blue bull/Neelgay), came in front of car, the driver of Car had lost his control over the Car and dashed against the tree and fell down in a ditch. In this accident, Prince Sharma and Mohd. Jameel Ahmad sustained serious injuries and Prince Sharma (deceased) died on the spot.

4. It is also averred that the age of the deceased was 23 years and he was posted as constable in Excise Department, Bijnor was receiving salary of Rs.12,000/- per month.

5. Aggrieved mainly with the non grant of compensation under Section 166 of Motor Vehicles Act awarded, the appellants have preferred this appeal.

6. Heard learned counsel for the appellants-claimants and learned counsel for the respondents. Perused the record.

7. Learned counsel for the appellants-claimants has submitted that impugned judgment and award is against the law. Learned Tribunal has held that the driver of the car was not negligent but this finding is erroneous because if the vehicle would have been driven with proper care and caution, the accident could have been avoided. Learned Tribunal has adopted incorrect approach, because the vehicle was not being driven at a normal speed. In fact, the driver lost the control on staring and the vehicle dashed into the tree.

8. Per contra, learned counsel for the Insurance Company has vehemently objected the submissions of learned counsel for the appellants-claimants and submitted that it is established on record that a blue bull appeared in front of car, tired his best to save the accident but the car dashed into a tree. Hence, in this accident, the car driver was not negligent. It is next submitted by learned counsel that the father of the deceased is produced before the Tribunal as PW-1 and a so called eye witness Brijesh Sharma is produced as PW-2. Both these witnesses have deposed in their testimony that in the said accident, the car driver was not negligent and the accident had taken place due to sudden appears of blue bull. Hence, the appellants have failed to prove that the car driver was negligent under Section 166 of Motor Vehicle Act, 1988, the claim petition can succeeds if the negligence of the driver is proved.

9. Learned counsel for the insurance company has submitted that the information of the accident was reported to police station of which entry is made in General Diary (GD). This GD entry also says that the accident took place due to sudden appears of blue bull. Hence