IMPORTANT POINT
The court established that the principle of ‘res ipsa loquitur’ can shift the burden of proof in negligence cases, particularly when a charge-sheet is filed against the driver, indicating prima facie evidence of negligence.

JUDGMENT :

Rajnish Kumar, J.

1. Heard, Shri Somesh Tripathi, learned counsel for the appellant-claimants and Shri O.P.Srivastava, learned counsel for the respondent no.3. None appeared on behalf of respondents no.1 and 2 despite the notice has been served upon them personally.

2. This First Appeal From Order has been filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and order dated 07.01.2012 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Raebareli in M.A.C. No.270 of 2010; Bindheshwari Devi Srivastava and others Versus Ramesh Chandra Maurya and others, by means of which the Claim Petition filed by the appellant-claimants has been dismissed.

3. Learned counsel for the appellant submitted that on 07.08.2010 at about 4.00 in the evening when the deceased Ashok Kumar Srivastava was waiting for some person on the side of Lucknow-Allahabad Highway near the gate of Pragatipuram Colony near his motorcycle, the Truck, which was being driven rashly and negligently by its Driver dashed to the deceased and his Motorcycle from the back side and crushed the Motorcycle as well as the deceased, who succumbed to the injuries suffered in the accident. The accident was an outcome of the rash and negligent driving of the driver of the Truck, but learned Tribunal without considering it and applying the principle of ‘res ipsa loquitur’ wrongly and illegally held that the accident was on account of the negligence of the deceased, therefore, the appellant-claimants are not entitled for any compensation. He further submitted that the accident on 07.08.2010 at 4.00 in the evening at Lucknow-Allahabad Highway is neither disputed nor the death of the deceased on account of the said accident, but learned Tribunal while applying the principle of ‘res ipsa loquitur’ and merely on the basis of technical report of the vehicles held that the accident has occurred due to negligence of the deceased, but failed to consider that when the accident was on the Highway and the accident had occurred by the Truck which was coming from the opposite direction, it cannot be said that there was no negligence on the part of the Driver of the offending Truck, even if there may be some negligence on the part of the deceased, whereas there was no negligence on his part.

4. Learned counsel for the appellant-claimants further submitted that the learned Tribunal failed to consider that the First Information Report was lodged in regard to the accident against the Truck Driver and the charge-sheet has been filed against him, therefore, prima facie, rash and negligent driving of the Driver of the Truck is proved, which is sufficient to award the compensation.

5. On the basis of above, submission of learned counsel for the appellant-claimants is that the impugned judgment and order passed by the Motor Accident Claims Tribunal is not sustainable and liable to be set aside and the application for compensation filed by the appellant-claimants is liable to be allowed and the widow, daughters and minor sons and the mother of the deceased, who was an employee of I.T.I. Limited, Raebareli and working on the post of Senior Technical Assistant are entitled for the compensation.. Learned counsel for the appellant-claimants relied on Mallamma Versus Balaji and others; 2003 (2) T.A.C. 482 (Kant.), S.Kaushnuma Begum and others Versus The New India Assurance Co.Ltd. and others; AIR 2001 Supreme Court 485 and The New India Assurance Co. Ltd. Versus Pazhaniammal and others; (2011) 4 TAC 481.

6. Per contra, learned counsel for the respondent no.3; the National Insurance Company Limited vehemently opposed the submissions of learned counsel for the appellant-claimants. He submitted that the deceased had suffered the injuries in the accident on account of his own negligence and succumbed to the same. As per own case of the appellant-claimants the deceased was standing on the side of the road facing towards Lucknow when the Truck came from the oppo