PELLANT ,g /warpat singh s/o Lala singh. ' easte-Rautiya. age 41 years. r/o Pandripani, Tehsil Kumri. Distt. Jashpur. ‘ C.G. vsasug ¥ ' , %@QNDENES ] ‘_ .4 Mnhammad Farukh s/o Abdul Rasid ;(N lg; K Caste-Musalmn, r/o Kharsiya Naka - M , , Ambikapur. Eistt. mrguja. C. G. Vmmm) \9? ‘ yqgqé‘ ' \x” (DRIVER). ckyg" I ' -_._ _ ..,--... AP z / 2. Lal r/a Ma. say s/o P sater s.sanna. Say. Caste-Karma. Distt. $ Jashpur. C.G. I 7 ‘ i ‘ n h ‘ The Griental Insurance Cmpany Ltd. ‘ ; Branch kice adar Rog ‘ 7 r ‘ Wg A“ nnr a Wi:n I— J WW wgg‘z‘lé 53A \7( HIGH‘COURT OF CHHATTISGARH AT BILASPUR ‘ K MA. No. 1Q23 of 2003 IAPPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT) _ ‘‘W i q» -- m— (SB: Hon'ble Mr. N.K. Aaarw'ai. J4 Present. : ShriShakti RajSinha,Advocate forthe appetlant . None Shri Neeraj for respondent Mehta, Advocate No. 2. for respondent No. 1. ShriiA.K. Athaiey, Advocate for respondent No. 3. r i ’ T (PassedW on 10.08.2011) y ’ 1. This is claimants’ appeal against the award dated 22.08.2003, passed by llnd Additional Motor Accident Claims Tribunal (FTC), Jashpur (for short ‘the Tribunal’) in claim case No. 01/03 whereby the claimants’ claim petition has been dismissed; 2. Brief facts of the case are that : on 22.05.2011 at about 07:30 AM, near Village Pandripani (Farsabahar), Distt. Jashpur, Ku. Alpana, aged about one year was dashed by the driver of Bus bearing registration No; CIL-5088 (New Shamim Bits Service). Pursuant to the injuries sustained in the said accident Ku. Alpana died on spot; The claimant i.e. father of deceased Alpana ciaimed Rs, ’ t2,20,000/e as compensation by filing application before the V ‘ Tribunal under section 166 ofthe Motor Vehicles Act, 1988 (for Q I short ‘the MV Act') for death of his daughter in the said accident. APPELLANT Claimant Dhanpat Singh VERSUS RESPONDENTS _ : Mohammad Respondent No. 1 & 2, by filing their written 5tatement, have admitted the factum of accident and death of KLL Alpana in the said accident, but denied negligence on the part 0f driver ef Bus. Respondent No. 3/Insurance Company also by filing written statement denied negligence on the part of driver of Bus and have sought exoneration on the ground of breach of poticy conditions. The Tribunal, having held accident had not oecurred due to rash and negligent driving of driver of Bus, dismissed the claim petition. Shri Sinha, learned counsel appearing for the appellant would submit : one year old child cannot be said to be negligent, lt was duty of the Bus driver to remain cautious and to explain in what circumstances the accident had occurred. Further, it was a case of clear cut negligence of Bus driver and the Tribunal has erred in not holding as such and in dismissing t.e claim petition. On the other hand, Shri Neeraj Mehta and Shri Athaley, learned counsel appearing for respondents supported the award impugned and would submit in the facts and circumstances of the case the Tribunal has rightly dismissed the claim petition preferred by the appellant and award does not call for interference. l have heard the counsel appearing for the parties and perused the award impugned as well as records of the Tribunal. “y“ 10. lt is not in dispute that Ku. Alpanaj aged about cme year, 0n. 22.05.2011 met with an accident with Bus in question reswting in her death; child of one year cannot be held, guilty 0f negligence. In such cases‘ principie of res ipse [aquifer appiiee and negligence 0f driver can be presumed uniees expieined by the driver and owner of the vehicie. in the instant case, the owner and driver of the vehicie have failed to eetablish the fact that the accident had not occurred due to raeh and negligent driving of the driver of Bus, and therefore; the Tribune! hae certainly fallen in error in not holding the driver cf Brie negligent for said accident and in dismissing the claim petition. 11. ln View of above, the award impugned being not Sustainahie in law deserves to be and is hereby set aside. 12. For the reasons mentioned hereinabove, the matter is remitted back to the concerned Tribunal for deciding claim petition afresh in the light of observations made hereinabove. Needless to mention, the Tribunal shall afford ember opportunity to the parties to lead evidence and to file additionai documents, if any. 13. Records of Tribunal be sent back forthwith. 14. Parties are directed to appear before the Tribunal on 10.10.201 1. No order asto costs. 1’l///// SM— Judge x/ Sahu N. K. Agatwa‘