Judgment:
S.C. Pandey, J.
1. This is an appeal against the award dated 6.3.1990 passed by Motor Accident Claims Tribunal, Rewa, in claim Case No. 34/88.
2. The facts of this case are as follows:
The appellant No. 1 is the owner of the tractor to which a trolley is attached. It is registered as MPA 7901. The respondents filed an application before the Motor Accident Claims Tribunal claiming that their son Banaspati died as a result of accident caused by rash and negligent driving of tractor MPA 7901 by appellant No. 2 on 14.5.1988 at about 8.00 p.m. It was also stated in that Banaspati was studying in Vth Class and was earning Rs. 10/- per day as a casual labourer. It was alleged that tractor dashed against Banaspati when he was standing near the house of appellant. They claimed Rs. 65,000/- in all by way of damages.
3. The appellants denied that any such accident took place with their tractor.
4. The Claims Tribunal after full trial has held that appellants are liable for the death of Banaspati and it awarded Rs. 30,000/- by way of damages against the appellants and interest of Rs. 20% per annum from the date of the application i.e. 16.6.1988.
5. In appeal Mr. Sanjay Agrawal Counsel for the appellants contended that the Motor Accident Claims Tribunal was wrong in awarding the damages against the appellants because it was not proved that accident was caused by the tractor of appellant No. 1. Further the learned Counsel urged that there is no issue as to casual employment of the deceased with the appellant No. 1 and for this reason the finding was bad. Mr. Umesh Shrivastava Counsel for the respondents equally vehmently contended that the order of the Tribunal is correct.
6. The crucial question for determination is whether there any evidence on record to hold that Banaspati died as a result of the accident caused by the tractor of the appellant No. 1 driven rashly and negligently by appellant No. 2. The Claims Tribunal has found in paragraph 5 that there was no eye witness of the evidence and therefore, it would rely on circumstantial evidence. It is, therefore, necessary to examine the claim of the appellants that they are not liable for damages. The evidence of PW. 1 Indrapal specifically says that Banaspati was employed with the appellant No. 1 and used to do the job for filling soil in the tractor. This statement of PW.l Indrapal is not rebutted by Triveni Prasad witness No. 1 for non-applicants remained significantly silent on this point. There being no specific denial by owner of tractor-trolley value of the driver N.A.W. 3 Shyamlal Kol is of no value. I am inclined to accept the version of respondent No. 1 that the boy Banaspati was employed with Triveni Prasad for removing soil by the tractor trolley. The statement of A.W. 1 Indrapal is that on fateful day i.e. 14th May, 1988, Banaspati went on his employment on the tractor trolley for filling earth in the trolley. Again Triveni Prasad does not say a word against this statement of respondent No. 1. Even Shyamlal does not specifically deny that the boy went in the tractor. I, therefore, believe the statement of Indrapal and hold that Banaspati was employed with Triveni Prasad Vishwakarma and on 14th May, 1988 went in tractor for performing his duties. It is not in dispute that the injured boy was brought in tractor to his father's house and then he died due to injuries received by him in the accident. Thus, these two events separated by a gap of time and fairly clear. What happened in between? How did boy receive the injuries? The answer to these questions must be given by the appellants. Because they have the special knowledge of the fact. Section 106 of the Evidence Act reads under:
Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
7. It would be readily seen that clear and cogent evidence should have been given by the appellants to show what happened in the gap of time already mentioned. The evidence of appellants is not clear how the boy met with an accident. Why was he lying in front of the house of appellant No. 1. In case they wanted to say that the boy met with an accident by means of truck then they had an ample opportunity to prove the same easily. The evidence led by the appellants is so weak that this Court cannot hold that they were able to discharge the burden of proof placed upon them. The evidence of N.A.W. 1 Triveni Prasad Vishwakarma, N.A.W. 2; Rajkumar Vishwakarma. N.A.W. Shyamlal Kol and N.A.W. 4 Narayan; Kol is unworthy of any credence. Shyamlal Kol N.A.W. 2 is servant of the respondent No. 1 and his testimony is highly interested. Therefore, I have no hesitation in rejecting the contention of Mr. Sanjay Agrawal and uphold the finding of the Tribunal though for altogether different reasons. Once it is held that the death of the boy was on account of injuries that could be caused by the tractor trolley of the appellant No. 1 and in veiw of any explanation about the injuries it has to be presumed that injuries were caused by tractor of the appellant No. 1 driven by appellant No. 2.
8. As to question of rash and negligent act on the part of driver of tractor, the accident speaks for itself Res ipsa loquitor. Dr. Y.S. Tiwari A.W. 4 has found eight injuries on the person of the boy and has opined that these injuries could be caused by tractor accident. Even the appellants do not deny accidental death. They say that the accident occurred with a truck the burden of proof was on them. They cannot rely on in hearsay evidence and get away without paying damages. Thus this Court finds that Banaspati died when he met with accident with tractor trolley of the appellant No. 1 on 14th May, 1988 and this accident occurred on account of rash and negligent driving of tractor by Shyamlal Kol.
9. The learned Counsel for the appellants did not assail the amount of damage granted by Tribunal. Even otherwise this Court does not see any reason to differ with Tribunal as to amount granted by it in its award.
10. The appeal, therefore, fails and is dismissed with costs.