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2005 DIGILAW 1509 (RAJ)

Kamla v. The New India Assurance Co. Ltd.

2005-05-19

J.R.GOYAL

body2005
Judgment J.R. Goyal, J.-Instant appeal has been preferred by the claimant-appellants against the award passed by the Motor Accident Claims Tribunal (No.1), Jaipur City, Jaipur dated 212.1993 in MAC, No.324/1986. 2. Brief facts of the case are that dependents of the deceased Kanhaiyalyal filed claim petition before the Motor Accident Claims Tribunal, Jaipur City, Jaipur with the averments that on 03.02.1986 at about 7:30 p.m. near railway crossing No.216, JLN Marg, a Truck bearing registration No. RNB-9844 which was being driven by respondent No.2 Bheru Ram rashly and negligently, hit the deceased Kanhaiyalal, resultantly Kanhaiyalal died at the spot. 3. Since, claimant-appellants did not produce the evidence, the learned Tribunal only awarded a sum of Rs. 25,000/-as compensation. 4. Aggrieved by the award, this appeal has been preferred. 5. Learned Counsel for the appellants submitted that claimant-appellants were not given sufficient opportunity to produce the evidence. It was further contended that from the documents it is amply proved that on account of accident Kanhaiyalal died at the spot, thus on the principle of res ipsa loquitur the respondents are liable to make the payment of compensation. Reliance has been placed on the Judgment in Pushpabai Parshottam Udeshi & Ors. vs. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd & Anr., reported in AIR 1977 Supreme Court 1735, wherein it has been held that normally it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. Similar view was taken by this Court in Mst. Rajanti & Ors. vs. Nihal Singh & Anr., reported in 2001 (1) TAC page 708 (Raj.). 6. Learned Counsel for the respondent-Insurance Company contended that claimant appellants failed to adduce he evidence in-spite of many opportunities given by the Tribunal, thus, it is a case of no evidence and in these circumstances, the principle of res ipsa loquitur does not apply. 7. I have considered the rival submissions. 6. Learned Counsel for the respondent-Insurance Company contended that claimant appellants failed to adduce he evidence in-spite of many opportunities given by the Tribunal, thus, it is a case of no evidence and in these circumstances, the principle of res ipsa loquitur does not apply. 7. I have considered the rival submissions. From the perusal of the order-sheets, it transpires that issues were framed on 17.09.1988 and thereafter, many opportunities were given to the claimant-appellants to produce the evidence but on failure to adduce evidence learned Tribunal closed the evidence of claimants on 18.05.1990. Thereafter, matter was listed for final arguments on 21.03.1991, on that day the claim petition was dismissed in default due to non-appearance of the claimants. But on the application of the claimants, claim petition was restored on 111.1993 but again on 212.1993 none was present for the claimant-appellants and thus on the basis of material available on record, the impugned order was passed. I do not see any illegality or impropriety in the impugned Judgment as despite of many opportunities given by the Tribunal, appellant-claimants failed to adduce the evidence and also did not submit any application before the Tribunal for further opportunity for their evidence. In my considered view, this is a case of no evidence, thus maxim of res ipsa loquitur does not apply under the facts and circumstances of the instant case. 8. As a result of above discussion, the appeal fails and is hereby dismissed.