The judgment establishes the principle that in a claim under Section 163-A of the Motor Vehicles Act, claimants are not required to plead or establish wrongful act or neglect of the vehicle owner, and the absence of a negative bar allows the defense to defeat a claim for compensation by pleading and establishing wrongful act, neglect, or default.

JUDGMENT

Ravindra Maithani, J. - The present appeal is directed against the judgment and order dated 06.04.2012 passed in Motor Accident Claim Petition No. 35 of 2008 "Smt. Bhoori and another vs. Dori Singh & others" (for short "the claim petition"), by the Motor Accident Claims Tribunal/Additional District Judge/3rd Fast Track Court, Udham Singh Nagar at Rudrapur (for short "the Tribunal"). By the impugned judgment and order the claim petition of respondent nos. 1 and 2 filed under Section 163-A of the Motor Vehicles Act, 1988 (for short "the Act") has been allowed and they have been awarded a total compensation of Rs.3,90,000/- (Rupees Three Lakh Ninety Thousand only).

2. According to the claim petition, on 29.12.2007 when the deceased Zubeda Khatoon was going on a motorcycle along with her brother-in-law Ishrar, at about 08:30 in the morning, the motorcycle was hit by a tractor bearing registration no. U.P.-21K/6097 (for short "the offending vehicle"). Deceased was crushed beneath the offending vehicle.

3. The appellants who are the owners of the offending vehicle filed their objections. According to it, the accident occurred due to the rash and negligent driving of the motorcycle; on the date of the incident, the motorcycle was carrying three persons on it and in order to overtake the offending vehicle, the motorcycle hit the offending vehicle from behind. Parties adduced evidence and after hearing the parties, the claim petition was allowed and the compensation awarded by the Tribunal, as stated hereinbefore. Aggrieved by it, the appellants are in appeal.

4. Heard learned counsel for the parties and perused the record.

5. Learned counsel for the appellants would submit that the accident occurred due to rash and negligent driving of the motorcycle, which hit the offending vehicle from behind; the motorcycle was carrying three persons; the technical inspection reports of the motorcycle and the offending vehicle reveal that, in fact, it is the motorcycle which hit the offending vehicle because the motorcycle was found damaged from its front also.

6. On the other hand, learned counsel for the respondents, would submit that no such plea of contributory negligence or negligence of the motorcycle has ever been taken by the appellants in their objections. It is submitted that it is not a case of negligence of the motorcycle driver, instead, it is the offending vehicle which hit the motorcycle from behind. The witnesses have stated it. There is a criminal case pending against the driver of the offending vehicle and the Tribunal rightly assessed the evidence and allowed the claim petition. Therefore, it is submitted that the appeal deserves to be dismissed.

7. The only point which has been raised during the course of argument on behalf of the appellants is with regard to the manner of the accident, especially, who was negligent which caused the accident.

8. Issues were framed in the claim petition. Issue no. 1 relates to the negligence of the offending vehicle. The Tribunal evaluated the evidence and concluded that the accident occurred due to the rash and negligent driving of the offending vehicle.

9. Pw-1 Smt. Bhoori has been examined in the claim petition. She is not an eyewitness to the accident. PW-2 Babu has witnessed the incident and he has categorically stated that on the date of the accident, the deceased was going on a motorcycle which was driven by Ishrar and it was hit from behind by the offending vehicle, due to which, the deceased crushed beneath the offending vehicle. This witness has been cross-examined and in his cross-examination, he admitted that at the time of the accident, the motorcycle was carrying three persons.

10. The question would be whether merely because the motorcycle was carrying three persons, it may be inferred that the motorcycle was being driven in a rash and negligent manner. This Court will advert to this issue in a little later.

11. The driver of the offending vehicle Jaipal Singh has also been examined