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Madhya Pradesh High Court · body

2007 DIGILAW 1115 (MP)

GOURILAL s/o LAXMAN v. BANESINGH s/o DEVILAL

2007-10-15

N.K.MODY

body2007
Judgment ( 1. ) THIS order shall also govern the disposal of M. A. No. 1242/2000, as both the appeals are arising out of one award dated 3-7-2000 passed by MACT, Rajgarh Biaora in Claim Case No. 56/98, whereby the claim petition filed by the appellants was allowed in part and after assessing the compensation of Rs. 80,000/- a sum of Rs. 40,000/- was awarded against respondents. ( 2. ) M. A. No. 1174/2000 is filed by the appellants/claimants while M. A. No. 1242/2000 has been filed by the respondents No. 1 and 2. ( 3. ) SHORT facts of the case are that appellants filed a claim petition alleging that appellants are the parents of deceased Dhansingh. It was alleged that on 19-1-1996, deceased Dhansingh was travelling in a tractor bearing Registration No. MP 04-H-3056. Further case of the appellants was that the said tractor was going to village Naikheda, at that time the said tractor met with an accident with another tractor bearing Registration No. MP-4-F/7598, with the result Dhansingh, son of appellants died. It was alleged that the tractor bearing Registration No. MP-04-F/7598 was driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3. It was alleged that since the accident occurred because of rash and negligent driving of respondent No. 1, therefore, claim petition be allowed and respondents be directed to pay the compensation. ( 4. ) THE claim petition was contested by respondents No. 1 and 2 alleging that the accident occurred because of negligence on the part of the driver of the tractor bearing Registration No. MP-04-H/3056. It was alleged that when the tractor bearing Registration No. MP 04-F/7598 was going on the road at that time from the back side a jeep came and side was given by the respondent No. 1. At that time the tractor bearing Registration No. MP 04-H/3056 which was following the tractor of respondent No. 1. It was alleged that tractor bearing registration No. MP 04 F/3056 tried to overtake the tractor of respondent No. 1. At that time respondent No. 1 applied the brake with the result the tractor bearing registration No. MP 04-H/3056 dashed the tractor of respondent No. 1 from back side. It was alleged that since comfortable distance was not maintained, therefore, the accident occurred, for which respondent No. 1 is not responsible. At that time respondent No. 1 applied the brake with the result the tractor bearing registration No. MP 04-H/3056 dashed the tractor of respondent No. 1 from back side. It was alleged that since comfortable distance was not maintained, therefore, the accident occurred, for which respondent No. 1 is not responsible. It was prayed that claim petition be dismissed. ( 5. ) RESPONDENT No. 3 also contested the claim petition alleging that respondent No. 3 is not responsible for payment of compensation on various grounds including on the ground that the offending vehicle was driven by respondent No. 1, who was not having valid driving license and the offending tractor was insured for agricultural purpose, while it was being used for carrying marriage party. It was prayed that claim petition be dismissed. Vide interim order dated 24-7-1997 an application was filed by the appellant under section 140 of the Motor Vehicles Act was allowed and a sum of Rs. 50,000/-was awarded on account of no fault liability. Thereafter after framing of issues and recording of evidence, learned tribunal allowed the claim petition filed by appellants holding that since both the tractors were equally liable, therefore, appellants are entitled for 50% of the amount of compensation from respondents No. 1 and 2. It was also held that since the offending vehicle was being used for other than agricultural purpose and respondent No. 1 was not having valid driving license, therefore, respondent No. 3 is exonerated from payment of compensation. ( 6. ) LEARNED counsel for the appellants submit that amount awarded by the learned tribunal is on lower side. It is also submitted that the learned tribunal committed error in apportioning the liability between the drivers of both the tractor. ( 7. ) LEARNED counsel for respondents No. 1 and 2 who are appellants in M. A. No. 1242/2000, submits that learned tribunal committed error in holding the respondents No. 1 and 2 liable for payment of compensation. It is also submitted that respondent No. 1 was not at fault. It is submitted that the tractor bearing registration No. MP-04-F/7598 was going ahead which was followed by tractor bearing Registration No. MP 04-H/3056, in which Dhansingh was travelling. Learned counsel submits that reasonable distance was required to be maintained by the driver of tractor bearing Registration No. MP 04-H-3056. It is submitted that the tractor bearing registration No. MP-04-F/7598 was going ahead which was followed by tractor bearing Registration No. MP 04-H/3056, in which Dhansingh was travelling. Learned counsel submits that reasonable distance was required to be maintained by the driver of tractor bearing Registration No. MP 04-H-3056. It is further submitted that if there would have reasonable distance, then no accident could have occurred. It is further submitted that accident occurred when the driver was trying to overtake. It is submitted that brakes were applied by respondent No. 1, at that time tractor bearing Registration No. MP 04-H/3056 dashed the tractor from the back side. It is further submitted that the findings of the learned tribunal regarding the license is not correct. It is submitted that respondent No. 1 was possessing valid driving license, which was fssued on 27-12-1995 and was valid up to 26- 6-1996 as Ex. D/2. Learned counsel further submits that even if the learned tribunal was on the view that accident occurred because of rash and negligent driving of respondent No. 1 then too, since the offending tractor was duly insured, therefore, respondent No. 3 could not have been exonerated. ( 8. ) MR. S. V. Dandwate, learned counsel for respondent No. 3 submits that so far as the amount of compensation is concerned, learned tribunal has rightly assessed the compensation as Rs. 80,000/- as the deceased was aged 12 years. So far as the license is concerned, learned counsel submits that Ex. D/2 is learning license and the rules for driving of vehicle by learner were not followed. Apart from this it further submits that since offending vehicle was insured for agricultural purpose vide Ex. D/1, therefore, respondent No. 3 was rightly exonerated. ( 9. ) AFTER perusal of record it appears that to prove the accident, some documents has been filed, which are Ex. P/1 to P/3, which goes to show that FIR was lodged with Police Station Pachor, District Rajgarh, however it is not evident that on the basis of FIR respondent No. 1 was prosecuted or not. So far proving the fact that in what circumstances the accident occurred, appellant examined pw-1 Kumer Singh. All the witness has stated that it was the driver of offending tractor bearing Registration No. MP-04-F/7598, who is respondent No. 1 was at fault because of his rash and negligent driving the accident occurred. So far proving the fact that in what circumstances the accident occurred, appellant examined pw-1 Kumer Singh. All the witness has stated that it was the driver of offending tractor bearing Registration No. MP-04-F/7598, who is respondent No. 1 was at fault because of his rash and negligent driving the accident occurred. No evidence has been adduced by the respondents No. 1 and 2. Similarly the respondent No. 3 has also not adduced any evidence to prove that in what circumstances the accident occurred. The contention of learned counsel of respondents No. 1 and 2, that since the tractor bearing Registration No. MP 04-H/3056 was followed by the tractor of respondent No. 1 and the accident occurred from the back side, therefore, it cannot be said that respondent No. 1 was not responsible for the accident, because respondent No. 1 has not appeared in witness box to explain in what circumstances the accident occurred. Even if the brakes were applied by respondent No. 1, then what was the reason for applying emergency brake is not on record. Even assuming that accident occurred by the trolly not by the tractor then too, it is difficult to say that the respondent No. 1 and the driver of the tractor bearing Registration No. MP 04-H/3056 were liable for the accident equally. ( 10. ) IN the matter of Sushila Bhadoriya and ors. vs. M. P. State Road transport Corporation and another, reported in 2005 (1) MPLJ (FB) 372 = 2005 acj 831 , Full Bench of this Court has held that there cannot be apportionment of the liability of joint tortfeasors. In case both the joint tortfeasors are impleaded as party and if there is sufficient material on record then the question of apportionment can be considered by the claims tribunal. However on general principles of law, there is no necessity to apportion the inter se liability of joint tortfeasors. In the present case driver, owner and insurance company of tractor bearing registration No. MP 04-H/3056 was not a party, therefore, there was no occasion for the learned tribunal to apportion the liability between the respondent Nos. 1 and 2 and driver and owner of tractor bearing Registration NO. MP 04-H/3056. In the present case driver, owner and insurance company of tractor bearing registration No. MP 04-H/3056 was not a party, therefore, there was no occasion for the learned tribunal to apportion the liability between the respondent Nos. 1 and 2 and driver and owner of tractor bearing Registration NO. MP 04-H/3056. Since deceased was a third party, therefore, it was a case of composite negligence between respondent No. 1 and the driver of tractor bearing Registration No. MP 04-H/3056, therefore, the appellants are having right to recover the amount of compensation from any of the tortfeasors. ( 11. ) SO far as the amount of compensation is concerned it appears that in a death case in which appellants lost their young son aged 12 years, amount of Rs. 80,000/- is on lower side. The appellants are entitled for a sum of Rs. 1,00,000/ -. So far as exoneration of respondent No. 3 is concerned undoubtedly the accident occurred on 19-1-1996, while respondent No. 1 was possessing learning license, which is Ex. D/1, which was valid for the period between 27-12-1995 to 26-6-1996. A person who is having a learning license is required to follow the conditions as laid down in Rule 3 of the Central Motor Vehicles Rules, 1989 which reads as under :- "the provisions of sub-section (1) of section 3 shall not apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as- (a) Such person is the holder of an effective learners license issued to him in Form 3 to drive the vehicle. (b) Such person is accompanied by an instructor holding an effective driving license to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicles. (c) There is painted, in the front and the rear of the vehicle or on a plate or card affixed to the front and the rear, the letter "l" in red on a white background. Note :- The painting on the vehicle or on the plate or card shall not be less than 18 centimeters squares and the letter "l" shall not be less than 10 centimeters high, 2 centimeters thick and 9 centimeters wide at the bottom. Note :- The painting on the vehicle or on the plate or card shall not be less than 18 centimeters squares and the letter "l" shall not be less than 10 centimeters high, 2 centimeters thick and 9 centimeters wide at the bottom. Provided that a person, while receiving instructions or gaining experience in driving a motorcycle (with or without a side-car attached), shall not carry any other person on the motorcycle except for the purpose and in the manner referred to in clause (b ). ( 12. ) SINCE the offending vehicle which was driven by respondent No. 1 was not following the procedure by putting a painted plate as required under sub-rule (c) of Rule 3 and the driver was not accompanied by an instructor holding an effective driving license to drive the vehicle, therefore, it cannot be said that respondent No. 1 was having valid driving license. Apart from this the offending vehicle was insured for agricultural purposes as is evident from Ex. D/1. ( 13. ) IN the facts and circumstances learned tribunal committed no error in exonerating respondent No. 3, However since amount of Rs. 50,000/- has already been paid by respondent No. 3 to the appellants, therefore, balance amount shall also be paid by respondent No. 3 to the appellants, which shall be recoverable as directed by the learned tribunal. The enhanced amount shall carry interest @ 6% p. a. from the date of application. The amount so awarded shall be deposited in fdr in the name of appellant No. 2, in such a manner so that it can earn highest rate of interest, which shall be payable to appellant No. 2 on quarterly basis and the principal amount shall be released looking to the needs of appellant No. 2. ( 14. ) WITH the aforesaid observations appeal stands disposed of. No order as to cost. A copy of this order be placed in the record of M. A. No. 1242/2000. Order accordingly.