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1987 DIGILAW 372 (PAT)

SAGAR PRASAD v. SHYAM SUNDAR PRASAD

1987-12-22

UDAY SINHA

body1987
JUDGMENT : Uday Sinha, J.—These two appeals have been heard together, as they arise out of a common judgment. Both the appeals will be disposed of by this common judgment. These appeals arise out of a judgment and decree of Mr. S.N. Sinha, District Judge and Motor Accidents Claims Tribunal, Palamau in a claim proceeding u/s 110-A of the Motor Vehicles Act. The claimants are the parents of the deceased Binay Kumar Verma and his brothers and sisters (all minors). 2. The facts, in brief, are that on 19.5.1977, at about 7.30 p.m. the deceased came to board 'Haldhar' bus bearing registration No. BRO 1965. The bus was standing on the left kacha flank of the road known as 'Cutcherry Road'. The deceased was about to board the. bus for going to Lesliganj to meet his relations there. Just as he was about to board the bus, a truck bearing registration No. BRP 8445 loaded with stones coming from the opposite direction suddenly went berserk and crashed against the bus. The truck crushed the boy and struck against a shop premises 'Basundhara'. As a result of the crash the deceased was struck causing serious injuries to him. He was immediately rushed to Sadar Hospital, Daltonganj where he died after some time. The claimants (Appellants in M.A. No. 75 of 1980) lodged claim against Sagar Prasad, the owner of the nick as well as National Insurance Company, the insurer of the truck bearing registration No. BRP 8445. The claimants claimed compensation of rupees two lakhs. 3. The owner of the truck, Sagar Prasad, disclaimed liability and asserted that since the truck was insured, the owner's liability to pay the damages/compensation was upon the insurance company. The learned Judge held that since the insurance policy had not been filed in court, it was not possible to ascertain the liability of the insurance company. The learned Judge in the result awarded a lump sum compensation of Rs. 10,000/- only. Miscellaneous Appeal No. 75 of 1980 has been filed by the claimants and Miscellaneous Appeal No. 61 of 1980 by the owner of the truck, Defendant No. 1. 4. The claimants have contended before this Court that they are entitled to higher compensation be it be from owner of the truck or insurance company. The stand of the owner of the truck is that the insurance company alone is liable to pay the damage. 4. The claimants have contended before this Court that they are entitled to higher compensation be it be from owner of the truck or insurance company. The stand of the owner of the truck is that the insurance company alone is liable to pay the damage. Needless to say, the Respondent insurance company has contested the claim of the Appellants in the two appeals and has denied its liability. 5. The Appellant of Miscellaneous Appeal No. 61 of 1980 (R) has filed an application under Order 41, Rule 27 of the CPC and has prayed that a photocopy of the insurance policy annexed with the application be admitted in evidence. It has been averred that the insurance company had not issued the policy of insurance. Learned Counsel for the insurer was directed to produce the insurance policy, but he failed to do so despite adjournment for that purpose. A photocopy is not an authentic document. In that view of the matter, I am reluctant to admit the photocopy of the so-called insurance policy into evidence. The application for admitting the photocopy in evidence is, therefore, rejected. 6. The first question which falls for consideration is whether there was any negligence on the part of the driver driving the truck which caused the crash to bus bearing registration No. BRO 1965 resulting in death of Binay Kumar Verma. The stand of the owner of the truck was that the boy was frolicking to and fro going outside the bus and coming inside and thus he suffered casualty. In my view, the facts speak for themselves. The very fact that the bus was static and the fact that the truck struck against a static bus standing on kacha flank itself shows that the truck driver was rash and negligent. The truck was coming from the opposite direction and had to go by the left flank of the road, but came to right side and struck the bus. That being the situation, no more evidence is required to establish that the truck was being driven rashly and negligently. No contributory negligence can be attributed to the deceased or to the bus. On the doctrine of res ipsa loquitur negligence of the truck driver is writ large. There can, therefore, be no doubt that the parents of the deceased would be entitled to compensation. The place of accident was main bazaar of Daltonganj town. No contributory negligence can be attributed to the deceased or to the bus. On the doctrine of res ipsa loquitur negligence of the truck driver is writ large. There can, therefore, be no doubt that the parents of the deceased would be entitled to compensation. The place of accident was main bazaar of Daltonganj town. It was expected of the driver of the truck to have driven slowly and cautiously. The learned Judge has found that the deceased died as a result of the accident by the truck BRP 8445. He has also found that the truck was being driven rashly and negligently. His further finding is that the driver was driving in course of employment and, therefore, the owner of the truck was liable for the act of his servant. I categorically affirm all his findings. 7. The next question is who is liable to pay compensation. The learned Judge has held that as the insurance policy had not been (sic).