1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR * * * J U D G M E N T Smt. Gouri and Anr. Vs. The Oriental Insurance Company & Ors. S.B.CIVIL MISC. APPEAL NO. 300/1997 AGAINST THE JUDGMENT AND AWARD DATED 24.9.1996 PASSED BY THE LEARNED JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL, DUNGARPUR IN MACT CASE No.204/1995 (SMT. GAURI & ANR. Vs. ARJUN LAL & ORS.) DATE OF JUDGMENT :: 24.4.2008 PRESENT HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Sanjay Punia, for the appellants. None present, for the respondents No.2 and 3. :::: BY THE COURT : The instant appeal has been preferred by the appellants against the judgment and award dated 24.9.1996 passed by Judge, Motor Accident Claims Tribunal, Dungarpur in MACT Case No.204/95 by which a claim petition was filed which arose out of an accident in which their son Kailash while sitting in tractor trolly fell down while it 2 was being driven by the respondent No.2 Arjun Lal and died. The Tribunal by the said judgment dismissed the claim petition filed by the appellants. Brief facts of the present case that on 6.7.1995, appellant's son Kailash was taken by the respondent No.2 Arjun Lal for giving him service, but in the way the said tractor was driven by him in rash and negligent manner which led Kailash to fell down out of the tractor trolly and was crushed by the tractor. Hence, the claim petition. The respondents No.1 and 2 remained ex- parte and respondent No.3 filed a reply and denied all the allegations levelled by the appellants. Two witnesses were produced on behalf of the appellants and no evidence was led by the respondents. The Tribunal after evaluating and analysing the entire evidence produced by the appellants, dismissed the claim petition, hence, they preferred an appeal. Heard learned counsel for the appellants and file was gone through. Learned counsel for the appellants 3 pleaded that a boy aged 10 years when taken by the tractor driver for giving service and the negligence of the tractor driver led the deceased to fell out of the tractor trolly, which resulted in his death. The Tribunal while relying on the testimony of eye-witness has examined the claim petition which is contrary to what the eye-witness has deposed before the Tribunal. The eye-witness has specifically stated that the respondent No.2 was driving the tractor in very rash and negligent manner and with high speed, because of that Kailash fell down from trolly and died. The Tribunal while relying on the exemption of the statement of eye-witness has wrongly dismissed the claim petition. The appeal against the respondent No.1 The Oriental Insurance Company was dismissed vide order dated 7.7.2003. No one appeared on behalf of the respondents No.2 and 3. The only eye-witness of occurrence is PW-2 Hanja whose cross- examination specifically reveals that it was Kailash, who swing and overhang from behind the tractor and the driver was not aware about that any one is overhang from behind the tractor. When the driver himself was not having knowledge about the person who was overhaning, he cannot be held 4 responsible. The deceased was sitting in the tractor trolly though he stated in chief that deceased was sitting in the tractor trolly, but in cross-examination he deviated from the statement what he stated in examination-in-chief, so it cannot be presumed or believed that deceased Kailash was taken away by the respondent Driver for giving him job and asked him to sit in the tractor. From the evidence tendered, on behalf of the driver no negligence is found and this is the case then no liability can be fixed against the owner and driver of the tractor. The Tribunal has rightly dismissed the claim petition on the basis of evidence tendered by the appellants. The appeal filed by the appellants is devoid any force and deserves to be dismissed. Accordingly, the appeal filed by the appellants is dismissed. (BHANWAROO KHAN) J. RM/