Full Judgment
S.S. Jha, J.
1. This appeal is filed by claimants against dismissal of their claim petition.
2. Claimants namely mother of deceased and younger brother of the deceased Netram have filed an application claiming compensation on account of death of Netram.
3. On 18-4-82 at about 10.45 at night Netram was travelling in tractor being registration No. CPG 6643 from Morena towards the toll tax barrier. When the tractor reached the Roadways Bus Stand and was opposite veterinary hospital it collided with a truck being registration No. M.P.-06/5727, which resulted into death of Netram. After filing of claim petition evidence was led and on appreciation of evidence Claims Tribunal has dismissed the petition. Claims Tribunal has held that it is not proved that accident occurred on account of rash and negligent driving by the driver of truck No. M.P.-06/5727. Claims Tribunal also found that the driver and owner of the tractor, in which deceased was travelling has not been impleaded as a party and there is no evidence regarding negligence by the driver of the said offending truck and dismissed the claim.
4. Counsel for appellants submitted that the certified copy of documents filed by the claimants is sufficient to prove the negligence on the part of truck driver. Counsel for appellant strongly relied upon the FIR lodged before the police and the spot map. FIR was lodged by one Tulsiram, but said Tulsiram has not entered the witness box to demonstrate that truck was being driven in a rash and negligent manner. No witness has deposed that on account of rash and negligent driving Netram suffered injuries and died. None of the witnesses had deposed how the accident has occurred. Kashibai (P.W. 1) has deposed that her son Netram died in a truck accident before veterinary hospital Morena. Ramprasad (P.W. 2) and Ramgopal (P.W. 3) have not deposed a word about the nature of accident. Claims Tribunal held that in the absence of any averment or evidence by the claimants that accident has occurred on account of negligence on the part of driver of the truck and on failure to prove the negligence against the truck driver, owner and insurance company are not liable to pay compensation. Claim petition has been dismissed.
5. Counsel for appellant strenuously argued that Ex. P-3 filed on record is a spot map. He contended that it is apparent from the spot map that offending truck was at fault and accident has occurred on account of negligence of truck driver. Since position is clear in the spot map, therefore only owner, driver and insurer of the offending truck were impleaded as party. We have minutely examined the spot map (Ex. P-3). It may be mentioned that spot map is prepared at the instance of eye-witnesses and this document can only be proved by the person at whose instance the said map is prepared. Even otherwise if we look to the statement it is not clear from the statement regarding the direction towards which tractor and truck were proceeding. Though it is stated by witness that deceased was going towards the barrier on a tractor and truck was coming from the side of barrier towards the market. In the said map the barrier and market has not been specified. In the FIR it is mentioned that person, who has lodged the FIR (Ex. P-2) has mentioned that after having his meal at bus stand he was going towards the barrier on a tractor, where the accident occurred. If his statement is taken to be correct, then the place of incident is on the western side of the Roadways Bus Stand. Therefore, it can be safely presumed that the tractor was being driven towards the western side and truck was coming from the western side towards eastern side. Therefore, on the road map it appears that tractor was on the right side of the road. At this stage it will not be proper to give any opinion about the map and FIR, as they have not been proved and FIR alone or the road map are not cogent evidence.
6. Counsel for appellants submitted that the burden to prove negligence was on the truck driver. There is no quarrel to the principle that burden to prove negligence is upon the driver of the offending vehicle but when two vehicles are involved then unless both the vehicles are impleaded as party or driver of one of the vehicle enters the witness box, it can not be determined which vehicle was at fault or both the drivers of vehicle were at fault. It may be the case of negligence of one vehicle or negligence of both the vehicles. Further the fact remains that the tractor has sitting capacity of one person only. Allowing another person to travel in the tractor itself demonstrate negligence on the part of tractor driver and therefore without impleading owner and driver of the tractor as party it was not possible to determine the question of negligence on the part of driver of any of the vehicle. If we examine the evidence, there is no evidence on record to show that accident occurred on account of rash and negligent driving of the driver. Since there is no evidence on record regarding the nature of accident and how the accident happened is also not on record. Tulsiram, who has lodged FIR and is the eye-witness has not entered the witness box. Even otherwise there is no evidence on record to demonstrate that there was negligence on the part of truck driver. No witness has deposed that truck was not being driven at its side and was driven in a rash and negligent manner. There is no explanation of claimants why they have not impleaded owner and driver of the tractor as party to the petition, whereas in the statement of facts narrated by the claimants, negligence on the part of driver is apparent on record. He could not have permitted any other person to travel in the tractor as the sitting capacity of tractor is only one.
7. In the said facts of case we do not find any infirmity in the award of Claims Tribunal in dismissing the claim petition. No interference is warranted with the award of Claims Tribunal. Appeal fails and is dismissed without any orders as to costs.