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2007 DIGILAW 199 (PAT)

New India Assurance v. Nand Kishore Singh

2007-01-29

SYED MD.MAHFOOZ ALAM

body2007
Judgment SYED MD.MAHFOOZ ALAM, J. 1. This Miscellaneous Appeal is directed against the judgment and award dated 21.7.99 passed by Sri Pankaj Srivastava, Additional Motor Vehicle Accident Claims Tribunal IV, Muzaffarpur, in Claim Case No. 219 of 1997 whereby he has been pleased to allow the above mentioned claim case and directed the appellant to pay 75% of the total compensation amounting to Rs. 73,000/- and the rest 25% was ordered to be paid by respondent no.4. 2. The claim application was filed for the injury caused to respondent no.1, who was driving the truck bearing registration No. BR-06G-0211 on 24.1.97 and the said truck collided with truck bearing registration No. WB-73 3609 at Hardia near Sec- tor-D of N.H. 21. In the said accident, the driver of truck bearing registration No.W.B- 73 3609 died and the claimant sustained grievous injuries. For the said accident, Rajauli (Nawada) P.S. case no. 10 of 1997 was instituted. Thereafter, the claimant injured filed Claim Case No. 219/97 which was disposed of on 21.7.99 by the Additional Motor Vechicle Accident Claims Tribunal IV, Muzaffarpur and a total compensation of Rs. 73,000/- was awarded to the Claimant. The Tribunal further directed the appellant to pay 75% of the total award on the basis of contributor/negligence and rest 25% was ordered to be paid by respondent no.4. 3. During the course of hearing of this appeal, the learned Advocate appearing on behalf of the appellant submitted that since it was a case of head on collision of two vehicles, as such, the tribunal has committed error by directing the appellant to pay 75% of the total award. The learned Advocate submitted that in such cases the settled principle of law is that the drivers of both the vehicles should be held responsible to have contributed equally in the accident and that is why he has challenged this part of the judgment only. In support of his submission, he has placed reliance upon the decision reported in (2006) 3 SCC 242 (Bijoy Kumar Dugar Vs. Bidya Dhar Dutta and Ors). 4. In support of his submission, he has placed reliance upon the decision reported in (2006) 3 SCC 242 (Bijoy Kumar Dugar Vs. Bidya Dhar Dutta and Ors). 4. On the otherhand, learned advocate of the claimant respondent no.1 submitted that the appellant Insurance Company is not entitled to raise the defence of contributory negligence as the same is not enumerated under Sec. 149(2) of the Motor Vehicles Act, 1988 as such, the appellant can not be permitted to assail the findings of the Tribunal on the point of apportionment of liability of contributory negligence. In support of his argument, he has placed reliance on the decision reported in 1994 ACJ page 619 (Oriental Fire and General Ins. Co. Ltd. Vs. Purushottam Goel and another). 5. I have gone through the decisions referred to above and have come to the conclusion that once the Tribunal has arrived at a finding that the accident was the result of contributory neglignece the appellant Insurance Company becomes entitled to raise the plea that the extent of negligence fixed by the Tribunal against the appellant-Insurance Company is not according to law. In such view of the matter, I am of the view that the appellant-Insurance Company is entitled to challenge the findings of the Tribunal with regard to the extent of liability fixed by the Tribunal against the appellant. 6. From the perusal of judgment as well as the record of Claim Case No. 219/ 97, it appears that the accident was the result of head on collision in which driver of truck bearing registration No. WB-73 3609 had lost his life and so, the nature of accident itself discloses that the claimant, who was driving truck bearing registration No. BR-06G-0211 at the time of accident was equally responsible for the accident. The record further shows that on the basis of the materials available on record it was not correct to say that, the negligence of the claimant was only 25%, whereas, the negligence of the driver of truck bearing registration No. WB-73/3609 was 75%. In cases where there is head on collision the Supreme Court has taken view that both the drivers are equally responsible for the rash and negligent driving. In support of my view, I place reliance upon the decision reported in (2006) 3 SCC 242 (Bijoy Kumar Dugar Vs. Bidya Dhar Dutta & Ors.). 7. In cases where there is head on collision the Supreme Court has taken view that both the drivers are equally responsible for the rash and negligent driving. In support of my view, I place reliance upon the decision reported in (2006) 3 SCC 242 (Bijoy Kumar Dugar Vs. Bidya Dhar Dutta & Ors.). 7. On the basis of the above discussions, I have come to the conclusion that the findings of the tribunal that the negligence of the driver of truck bearing registration No. BR-06G-0211 was only 25% and the negligence of driver of truck bearing registration No.WB-73/3609 was 75% is not correct. Accordingly, I hold that both the drivers were equally responsible for the said accident and their negligence was half and halt In such view of the matter, I find and hold that the liability of the New India Assurance Co. Ltd. (appellant), insurer of truck bearing registration No. WB-73/3609 to satisfy the award is to the extent of 50%, whereas, the liability of United India Insurance Co. Ltd., the insurer of truck bearing registration No. BR-06G-0211 to satisfy the award is to the extent of another 50%. 8. Accordingly, this appeal is allowed to the extent that the liability of the appellant to pay award will be 50% and the rest 50% of the award will be payable by the United India Insurance Co. Ltd. It is further ordered that both the Insurance Companies shall satisfy the Award within two months from the date of this judgment with interest as ordered by the Tribunal. 9. In the result, this appeal is allowed in part.