Madhya Pradesh High Court
Bhagwati Prasad And Anr. vs Teermal Borla on 9 September, 1993
Equivalent citations: I(1994)ACC295, 1994ACJ700
JUDGMENT R.D. Shukla, J.
1. The appeal is directed against the judgment and award dated 4.4.1984 of the Motor Accidents Claims Tribunal, West Nimar, Mandleshwar, passed in Claim Case No. 23 of 1983 whereby the respondent has been awarded a compensation of Rs. 12,000/- with interest at the rate of 12 per cent per annum for the death of his son, Dongarsingh, who died in an accident by tractor on 27.8.1982.
2. The brief history of the case is that respondent filed a petition before the Tribunal with the assertions that on 27.8.1982 his son, Dongarsingh, aged about 7 to 8 years was playing in front of his house, a tractor driven by non-applicant No. 2, i.e., Shantilal came on the spot. It was being driven at a high speed and without blowing any horn it ran over Dongarsingh who sustained injuries and died on the spot. He demanded Rs. 1,00,000/- as compensation for the same.
3. The non-applicants-appellants here are father and son. They denied the claim and pleaded that the accident never occurred from their tractor.
4. Learned Tribunal after trial has awarded a compensation of Rs. 12,000/-. Hence this appeal by the non-applicants who are father and son and are respectively the owner and driver of the tractor.
5. The contention of the learned counsel for the appellants is that the fact of accident having taken place from the tractor MPN 6172 has not been proved and the finding is perverse to that extent.
6. The second contention of the learned counsel is that there is no negligence in driving and there is a variance in pleading and proof. It has also been submitted that if the boy was playing on the road he would be deemed to be responsible for the accident. Since nobody appeared on behalf of the respondent this court was taken to the evidence adduced by the parties.
7. PW 1, Parsingh, claims to be the eyewitness of the accident. He has stated that the tractor was driven by Shantilal (appellant No. 2 here), had dashed against Dongarsingh and thereafter Shantilal ran away from the place of accident along with the tractor. He thereafter informed the father of deceased Dongarsingh.
8. PW 3, Teermal, who had lodged the F.I.R. in Police Chowki, Palsoor, P.S. Rajpur, has stated that on receiving the information from Parsingh that accident has occurred from the tractor of Shantilal and his son Dongarsingh has died due to the accident, he went to the Police Chowki and reported the matter. The tractor belonging to Shantilal was there in front of the police station. It had blood marks. The Head Constable thereafter noted the number of the tractor and saw the blood marks on the tyres of tractor. He has further stated that he has reported the matter, Exh. P-1, to the police. He has also stated that Shantilal admitted before the Police Officer about the accident and further admitted that the boy has died due to the accident. There is absolutely no cross-examination on this point. So far as this witness, Teermal, is concerned, no suggestions denying these facts have been given to the witnesses during their cross-examination. This fact has also not been denied by Shantilal in his examination-in-chief. This goes to show that this fact was admitted and it has rightly been adjudged by the Tribunal that the accident occurred due to rash and negligent driving of the tractor belonging to Bhagwati Prasad and driven by Shantilal. Even otherwise, the tractors are not very much in number in the villages of this area. The person belonging to the same village or nearby villages can recognize the tractor even without looking to the number of the tractor. However, the number was noted by the Head Constable. The driver of the tractor was present in Police Chowki along with the tractor. Thus a connection between the accident and the tractor has been fully established.
9. Now so far as the fact of negligence is concerned, every driver of the motor vehicle or any fast vehicle is required to take care of children found on the road.
10. If a child is playing on the road the driver of tractor can very well see the presence of the child. Tractor is not a vehicle which cannot be stopped immediately and it is not the case of the appellants-non-applicants that the boy came on the road all of a sudden. Thus, the principle of res ipsa loquitur applies in this case and it has rightly been held that Shantilal was negligent in driving the vehicle and that resulted in the death of Dongarsingh.
11. Learned counsel thereafter submitted that in the claim petition it has been stated that the boy was playing on the road while in the statement of PW 1, Parsingh has stated that the boy was standing by his side.
12. This is not the case of the non-applicants-appellants that the boy was standing on the side of the road and came in the middle of the road all of a sudden and, therefore, even if the first version given in the petition is accepted that the boy was playing on the road, it was incumbent upon the driver of the tractor to have avoided him. It appears that he did not have eye over the road or was so rash in driving that he could not stop the vehicle.
13. So far as the quantum of compensation is concerned, that has not been seriously challenged. Even otherwise, an amount of Rs. 12,000/- cannot be said to be in any way more than what the claimant deserves.
14. This appeal does not appear to have any substance. It is accordingly dismissed. In the facts and circumstances of the case the parties shall bear their own costs.