Rajat Kumari vs State of M. P. - 1980 Supreme(MP) 644

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : Ravindra Kumar Verma
For the Respondent: J.M. Sood

Headnote:(1) Evidence Act, 1872 – S. 114 – material witness in the employment of the defendant State – could have more conveniently been examined by the State rather than by the claimants – non – examination of both the witnesses being the best witnesses – adverse inference drawn against the State.
       (2) Legal Maxims – res ipsa loquitor – failure of the respondents to produce the truck driver to explain the facts and circumstances within his special knowledge – maxim of res ipsa loquitor attracted.
       (3) Tort – negligence – death due to negligent driving – proof of.
        Short Note
       1. In a claim under section 110 – D of the Motor Vehicles Act, learned Tribunal, in the light of evidence as adduced, held that the factum of the truck – accident and the death of Digamber Mishra resulting in the said accident were not proved and as such, there was no question of payment of any compensation, Even otherwise also, considering the circumstances that respondent No, 1 State had paid Rs. 2,706/ – to the family of the deceased and was paying Rs. 60/ – per month as the family pension to the deceased's widow and that the widow as well as the father are presently having certain regular monthly income from their respective vocations, there was no case for payment of any compensation to the claimants. Accordingly, the claim petition was dismissed. Hence, now, the claimants present appeal.
       Held; The learned counsel for the appellants – claimants has urged before us that despite the fact that there were no eye witnesses to prove the circumstances of the accident, the documents on record, viz., Dehati Nalisi (Ex. A – 4), general diary report (Ex. P – 3), first information report (Ex. P – 1) and the postmortem report (Ex. P – 2) when read and appreciated together are sufficient, in themselves to prove the death of Digamber Mishra resulting from the accident from the truck, driven rashly and negligently by the truck driver Location and situation of the truck immediately after the incident, are stated to be Cleary suggestive of the truck driver’s negligence, on the maxim of res ipsa loquitar. It is hence, urged, that the claimants could not be denied the compensation, as claimed.
       2. We have gone through the Tribunal’s order, dismissing the claim of the appellants. The learned Tribunal, after discussing the evidence adduced, is found to have come to the conclusion that it was not proved that the deceased Digamber Mishra was the occupant of the truck and further that he had met his death in the accident caused by the truck and more so, due to its being driven rashly and negligently.
       3. On scrutiny of the record, it is found that the truck driver, who was one of the non petitioners in the Court below had been proceeded ex parte and the respondent No. 1 State alone had filed its reply refusing all the material allegations in the claim petition. The non – petitioners adduced no evidence before the Tribunal and the only evidence produced, was the one, adduced on the part of the petitioners – claimants. No doubt, no eye – witnesses of the accident have been examined by the claimants in the case. The accident had occurred in the early hours of the morning and naturally, hence, no eye – witnesses except the occupants of the truck could normally be available to throw light on the circumstances of the accident. The truck driver would have been the best witneS. Then again overseer Ghanshyam Saha who was the other occupant of the truck sitting in between the truck driver and the deceased at the relevant time, could have been Mother good witness on the point. Ghanshyam Saha, being a overseer arid in the employ of the respondent No. 1 State, could have more conveniently been examined by the respondents rather than by the claimants His non examination in the case may, well lead to adverse inference against the respondents. Non – examination of the truck driver Shivnarain too by the respondents equally raises an adverse inference against them.
       4. Any way, material on record is more than sufficient to establish that Digamber Mishra had died as a result of the accident caused by the said truck owned by the respondent No. 1 State. The deceased's brother Bhuvneshwar Mishra (A.W. 6), who had reached the place of accident just sometime after, had seen the truck standing in the tilted position against the embankment of an agricultural field across the nali. The left front door of the truck was open at the relevant time. This fact is substantially corroborated in a large measure by the copies of the FIR (Ex. A – 1), Roznamcha Sanha (Ex. A – III) and Dehati Nalisi (Ex. A – IV). The post – mortem report (Ex. II) also show multiple ante – mortem injuries on the person of the deceased. As per the autopsy surgeon, the cause of the death was shock and hemorrhage to these multiple injuries. All these circumstances speak for themselves and indicate that the truck had left the road and the side path altogether and after crossing a side nali beyond the road had come to rest in a tilting position against the embankment of a field. The left front door of the truck must have jerked open under the impact; and the deceased must have fallen out from his front seat and must have thereafter sustained injuries either due to fall or due to his being crushed against some part of the truck. Pursottom Udeshi v. Banjit Ginning and Pressing Co. (AIR 1977 SC 1735=1977 ACJ 343); and Ramesh Kumar v. Gayassi and others, AIR 1979 M.P. 34 relied on. Appeal allowed. Compensation for Rs. 34,500/ – and interest 6% awarded.