-1-

233

!"!#$%$&'(

)*$+*",-

..!//&

+!-%,%

*$-% &" *!-%

!%.&"!& %

'01)2

!

2

This appeal has been filed by the appellant-claimant

against the award passed by the Motor Accident Claims Tribunal-cum-

Additional District Judge, Panchkula, dated 16.03.2015, whereby the

claim petition under Section 166 of the Motor Vehicles Act, 1988,

filed against the respondents, claiming compensation on account of

injuries suffered by him in a motor vehicle accident on 20.07.2013,

has been dismissed.

2.

The Tribunal framed issued No.1 as under:

1.

Whether Shiv Bahadur sustained injuries in accident dated

20.07.2013 which had taken place due to rash and

negligent driving of truck bearing No.UP-22(T)-2365

driven by the respondent No.1? OPP

RITTU

2022.09.26 16:13

I attest to the accuracy and

integrity of this document

-2-

3.

While returning finding on issue No.1, the Tribunal

recorded that as per Medico Legal Report (Exhibit P-3), at the time of

accident the appellant-claimant was shown to be under the influence of

liquor and also that he was not wearing helmet. This remark has been

recorded in the MLR (Exhibit P-3) at point-A. By referring to the

MLR and remark of the Doctor at point-A, the Tribunal held that the

accident in question was caused due to appellant-claimant9s own

negligence at the time of accident, as he was under the influence of

liquor and was not wearing helmet.

4.

It has been argued by learned counsel for the appellant by

placing reliance upon the law laid down by the Supreme Court in Jiju

Kuruvila and others vs. Kunjujamma Mohan and others, 2013(3)

SCC(Crl) 849, contended that Tribunal9s finding holding the claimant

negligent cannot be sustained.

5.

In the instant case, the only evidence before the Tribunal

on the basis of which finding of negligence of the appellant-claimant

in driving the motor-cycle has been returned, is, a remark in the MLR

(Exhibit P-3) at point-A of the Doctor concerned, which reads as

under:

A/H/O RSA on 20/07/13 at 8.50 pm, he was hit by a

heavy motor vehicle, while he was travelling on his two

wheeler abhyapur phase 1, he was not wearing helmet and

was under the influence of alcohol, he was taken to sec 6,

govt. hospital and ref to PGI (NO REFERRAL SLIP)

H/O LOC+, Vomiting+, nasal bleed+.

6.

This writing in itself does not show any negligence on the

part of the appellant-claimant. Merely because he was stated to be

RITTU

2022.09.26 16:13

I attest to the accuracy and

integrity of this document

-3-

under the influence of liquor, as recorded in the MLR, was not

sufficient to arrive at the conclusion that the appellant-claimant was

negligent in driving the vehicle/motor-cycle in question. No other

evidence to establish the negligence has come on record. In the

absence whereof, the finding of negligence recorded by the Tribunal is

not sustainable; as it is merely an assumption. It is settled law that an

assumption cannot replace evidence.

7.

It has been held by the Supreme Court in Jiju Kuruvila9s

case (supra) that no definite finding of negligence of deceased can be

recorded merely on the basis that he had taken liquor. Para Nos.25

and 26 of the judgment read as under:

25. Post Mortem report, Ext.-A5 shows the condition of the

deceased at the time of death. The said report reflects that

the deceased had already taken meal as his stomach was

half full and contained rice, vegetables and meat pieces in a

fluid with strong smell of spirit.

26. The aforesaid evide