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2009 DIGILAW 252 (MP)

Sandhya v. Ghanshyam Singh

2009-02-19

S.K.GANGELE

body2009
JUDGMENT : S.K. Gangele, J. 1. This appeal has been filed by the appellants under Section 173 of the Motor Vehicles Act, 1988 against an award dated 15.7.2008, passed by the learned Fifth Additional Motor Accidents Claims Tribunal, Gwalior in Claim Case No. 73 of 2006. Because insurance company, respondent No. 3, insured the vehicle in which deceased was travelling in that circumstances with the consent of the parties case is disposed of finally. 2. On 20.1.2006 deceased Manoj Singh was coming from New Delhi to Gwalior on a truck bearing registration No. MP 07-G 5031, after loading goods for transport. He was working in the capacity of driver. As per complainant when the truck reached near Mathura it collided against a trailer bearing registration No. HR 38-C 7584 on the rear side. In the aforesaid accident deceased received severe injuries and died on the spot. Report of the accident was lodged at the Police Station, Chata. Subsequently claimants filed claim application before the Claims Tribunal claiming total compensation of Rs. 18,00,000. Claims Tribunal rejected the application on the ground that the claimants have failed to prove the fact that the accident occurred due to negligence of the driver of vehicle No. MP 07-G 5031, in which deceased had been travelling as second driver. Although the Tribunal has quantified entitlement of compensation on account of death of the deceased at Rs. 4,51,500. 3. Learned Counsel for the appellants has submitted that the Claims Tribunal has wrongly held that the driver of the truck was not negligent in the accident. There is ample evidence on record to prove negligence of the driver, hence findings recorded by the Tribunal are perverse. Learned Counsel for the appellants further stated that there was composite negligence, hence claimants can file claim application against any of the vehicle. In support of his contentions he relied on the judgment of this Court in the case of Kamlesh v. Shailendra 2006 (1) TAC 776 (MP) and the judgment of Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd. v. Premlata Shukla 2007 ACJ 1928 (SC). Contrary to this, learned Counsel for the insurance company has submitted that there was no composite negligence on the part of the driver of the troller bearing registration No. HR 38-C 7584, hence Claims Tribunal has rightly dismissed the claim application of the claimants. 4. Ltd. v. Premlata Shukla 2007 ACJ 1928 (SC). Contrary to this, learned Counsel for the insurance company has submitted that there was no composite negligence on the part of the driver of the troller bearing registration No. HR 38-C 7584, hence Claims Tribunal has rightly dismissed the claim application of the claimants. 4. Claimants in their claim application stated that the deceased had been working as driver on truck bearing registration No. MP 07-G 5031. He was earning Rs. 4,000 per month as salary and Rs. 50 per day as allowance. On 20.1.2006 he had been coming from New Delhi to Gwalior after loading goods for transport in mini truck bearing registration No. MP 07-G 5031. At the relevant time the truck had been driven by respondent No. 1. Due to rash and negligent driving of the driver of the truck it met with an accident and in the aforesaid accident deceased died on the spot. 5. Sandhya, wife of the deceased, in her evidence stated that on 20.1.2006 her husband was coming from Delhi to Gwalior. At the relevant time the vehicle was being driven by Ghanshyam Singh. When the vehicle reached near village Biloti under Police Station, Chata due to rash and negligent driving of the driver of the vehicle accident occurred and her husband died on the spot. He was earning total Rs. 6,000 per month. Another witness Hukum Singh stated that the deceased was working as driver and he was earning Rs. 4,500 per month as salary and Rs. 50 per day as allowance. Kamlesh Singh Rajput, witness No. 3, stated that he had been doing the business of property dealing. On 20.1.2006 he was coming in his Maruti 800 car to Gwalior. Truck bearing registration No. MP 07-G 5031, dashed the truck-trailer bearing registration No. HR 38-C 7584 from rear side. In the aforesaid accident deceased died. Nobody has been examined before the Claims Tribunal on behalf of the insurance company. Ghanshyam Singh had lodged F.I.R. at Police Station, Chata. In his evidence he stated that on 20.1.2006 he was coming from New Delhi to Gwalior after loading goods at village Biloti, a troller bearing registration No. HR 38-C 7584 was going ahead of his vehicle when suddenly the driver of the troller applied its brakes. Ghanshyam Singh had lodged F.I.R. at Police Station, Chata. In his evidence he stated that on 20.1.2006 he was coming from New Delhi to Gwalior after loading goods at village Biloti, a troller bearing registration No. HR 38-C 7584 was going ahead of his vehicle when suddenly the driver of the troller applied its brakes. Due to the sudden stoppage of the troller I could not stop my vehicle and my vehicle dashed the troller from rear side. In the aforesaid accident deceased died and troller turned down. Panchnama of the spot was also prepared by the police. Copy of the panchnama has been filed as Exh. P1. In the aforesaid panchnama it has been mentioned that Eicher Canter vehicle bearing registration No. MP 07-G 5031, had been stationed on the north side of the road. Rear side of the vehicle was damaged and troller bearing registration No. HR 38-C 7484 in which five HMT made tractors were loaded had fallen down and three tractors also fell down in a ditch. 6. From the report lodged by the driver of the vehicle bearing registration No. MP 07-G 5031 and from the panchnama, it is clear that the mini truck in which deceased had been travelling dashed the troller from rear side. It is also a fact that there was no injury to the driver of the mini truck. From the aforesaid facts it can be inferred that the driver of mini truck had escaped as he visualized the accident. Apart from this, the mini truck had dashed against the rear side of the troller and due to the aforesaid accident the troller had turned turtle. Three tractors loaded upon the troller also fell down. From the aforesaid nature of the accident it could not be inferred that there was 100 per cent negligence on the part of the driver of the troller. From the facts of the case and situation on record, it is clear that there was negligence of the driver Ghanshyam Singh of the mini truck bearing registration No. MP 07-G 5031. Hence, it was a case of contributory negligence or sole negligence on the part of the driver Ghanshyam Singh. Police report has been lodged by Ghanshyam Singh, Exh. P1 himself, hence, report cannot be relied on 100 per cent. Hence, it was a case of contributory negligence or sole negligence on the part of the driver Ghanshyam Singh. Police report has been lodged by Ghanshyam Singh, Exh. P1 himself, hence, report cannot be relied on 100 per cent. Learned Tribunal has committed an error in relying 100 per cent on the contents of F.I.R. In my opinion, there was contributory negligence in the accident of both the drivers of mini truck and troller. 7. A Full Bench of this Court in the case of Sushila Bhadoriya v. M.P. State Road Trans. Corporation 2005 ACJ 831 (MP), has held that it is the choice of the claimant to implead as respondents the owner, driver and insurance company of both the vehicles or any one vehicle in the case of joint tortfeasors and held as under: (i) Owner, driver and insurer of one of the vehicles can be sued and it is not necessary to sue owner, driver and insurer of both the vehicles. The claimant may implead the owner, driver and insurer of both the vehicles or anyone of them. (ii) 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. 8. With regard to quantum of compensation Tribunal has considered all the relevant facts and rightly applied multiplier and also dependency and fixed the income of the deceased on the basis of evidence. It has applied 2/3rd dependency which is as per law, hence, there is no illegality or irregularity committed by the Tribunal with regard to fixing the quantum of compensation. It is an admitted fact that the vehicle mini truck was insured by the respondent insurance company at the relevant time. Insurance policy has been filed as Exh. Dl. 9. Consequently, appeal filed by the claimants is hereby allowed. It is hereby held that the insurance company is liable for payment of compensation jointly and severally. It is further held that claimants will be entitled to interest on the amount of compensation awarded by the Tribunal at the rate of 8 per cent per annum from the date of filing of the claim application up to realization. It is hereby held that the insurance company is liable for payment of compensation jointly and severally. It is further held that claimants will be entitled to interest on the amount of compensation awarded by the Tribunal at the rate of 8 per cent per annum from the date of filing of the claim application up to realization. The impugned award is modified to the extent indicated above. Rest of the terms and conditions of the award will be same as per the award of the Tribunal. No order as to costs.