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Madhya Pradesh High Court · body

2009 DIGILAW 720 (MP)

MAHENDRA KUMAR v. AMAR SINGH

2009-06-23

R.K.GUPTA

body2009
Judgment ( 1. ) THE present appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 challenging the award passed by the Claims tribunal whereby the claim application of the appellant has been rejected. ( 2. ) THE facts leading to the present appeal are that the appellant was travelling in a jeep No. MP-15-A/0215 on 5. 1. 1998. The said jeep was driven by the respondent No. 2. It is stated in the claim application that jeep was stopped near kudari School and the present appellant while alighting from the jeep met with an accident by a tractor which was coming at a high speed, as a consequence of which the appellant sustained injuries on his right leg which resulted into fracture at two places. The appellant also sustained injuries on other parts of his body. ( 3. ) THE Claims tribunal arrived at a finding that it is case where the. accident occurred with the tractor No. 2124 which was driven rashly and negligently, therefore, the owner as well as the driver of the jeep are not responsible for the accident, hence, no liability of the jeep owner and its insurer can be fixed, therefore, the claim stands dismissed. It came to the conclusion that the jeep was standing and the tractor has dashed the jeep , therefore, in the facts and circumstances of the case it was the driver of the tractor who was negligent, therefore, no claim was maintainable against the owner, driver and insurer of the jeep and accordingly they were exonerated. ( 4. ) DURING the course of the proceedings an application was also moved on behalf the claimant under Order 1 Rule 10 read with Order 6 Rule 17 of the CPC for impleading the owner of the tractor as respondent" and accordingly the amendment was allowed. The claim against the tractor was rejected because the number of the tractor was not mentioned in the amendment application, therefore, the owner, driver and the insurer of the tractor were also exonerated. ( 5. The claim against the tractor was rejected because the number of the tractor was not mentioned in the amendment application, therefore, the owner, driver and the insurer of the tractor were also exonerated. ( 5. ) IT is contended on behalf of the applicant that in the present case the Claims tribunal has wrongly held that the driver of the jeep was not negligent but keeping in view the findings which have been recorded by the claims tribunal it is clear that the owner of the jeep was also negligent and responsible for the occurrence, therefore, in totality the owner of the jeep could not have been exonerated. ( 6. ) SUBMISSION so advanced on behalf of the applicant is considered. In the present case, the evidence of the claimant is relevant. He is witness No. 1. He has stated that the incident is dated 5. 1. 1998. According to him, when he alighted from the jeep at village Kudari in front of the school then tractor no. 2124 came which was rashly and negligently driven by the driver and dashed the jeep, as a consequence of which the appellant sustained grievous injuries. The driver of the jeep has not been examined in spite of the fact that he was impleaded as non-applicant No. 2. Similarly the owner of the jeep was also not examined. In this context, it would be apt to refer to a decision of the Allahabad High court rendered in Yogendra Pal Singh vs. Motor Accident Claims Tribunal and others, 1995 (2) TAC 153 (Allahabad High Court) wherein the driver of the vehicle was not examined and even though he was non-applicant before the Claims Tribunal then he would have certainly stated whether the vehicle was stopped by him at a safe place and the Court held that an adverse inference can be drawn about his negligence. The law laid down in the aforesaid case is fully applicable in the present case. Thus, by applying the doctrine of "care" and "caution" I have to conclude that it is a case where the driver was negligent in stopping the vehicle not at the safe place so that the incident could have been avoided. ( 7. The law laid down in the aforesaid case is fully applicable in the present case. Thus, by applying the doctrine of "care" and "caution" I have to conclude that it is a case where the driver was negligent in stopping the vehicle not at the safe place so that the incident could have been avoided. ( 7. ) IN Rashmi Chhabra and others vs. Vijay Kumar Ahuja, 1995 (2) TAC 556 (Punjab and Haryana) it is held that it is a case of contributory negligee and a duty is cast upon the driver to switch on the parking lights while parking the vehicle. In the same manner, had the driver of the motordor slowed down the vehicle the accident would have been averted. In the present case, the driver of the jeep has not taken sufficient precaution to park or stop the vehicle at a safe place. Thus, keeping in view the ratio laid down in Rashmi Chhabra (supra) the present is a case of contributory negligence. ( 8. ) IN the factual backdrop of the evidence, the question is whether the driver of the jeep in which the appellant was travelling is negligent. Though it is an admitted fact that the vehicle was stopped by the driver and while alighting from the jeep the tractor had dashed the appellant. It has also come on record that the appellant had hardly walked two steps after alighting from the jeep and at that moment the tractor dashed the jeep. ( 9. ) IN view of the aforesaid, it is to be seen whether the driver of the jeep was careful enough to stop the vehicle at such a safe place wherefrom, there was no possibility of the accident by another vehicle coming behind the jeep. It is a case where the appellant had only walked two steps which is clear from the evidence and the tractor trolley came, which dashed the applicant. On this basis it is clear enough to conclude that the jeep was not stopped by the driver at a safe place so that there would have been no possibility of coming in contact with any vehicle. . ( 10. On this basis it is clear enough to conclude that the jeep was not stopped by the driver at a safe place so that there would have been no possibility of coming in contact with any vehicle. . ( 10. ) IN view of the aforesaid, I am of the considered opinion that the driver of the jeep was negligent to the extent that he had not stopped his jeep at the safe place where there was no possibility of any accident while alighting the passenger from the jeep. The negligence has not only to be adjudged while driving the vehicle but also to be judged at the time of stopping or parking of the vehicle. It is the duty of the driver to see that the vehicle is stopped at a safe place wherefrom immediately after alighting there could be no possibility of any accident with any another vehicle. ( 11. ) IN view of the aforesaid, I am of the considered opinion that it is a case of contributory negligence of the driver of the jeep and accordingly the claims tribunal was not justified in wholly rejecting the case against the owner, driver and insurance company of the jeepno. M. P-15-A/0215. ( 12. ) AFTER deciding the aforesaid question, I am to consider the case on merits. It is amply from the documentary evidence that the appellant had sustained injuries as a consequence of the said accident and sustained two fractures in his right leg. He was hospitalized in the District Hospital from 5. 1. 1998 to 25. 1. 1998 and discharge certificate has been proved as Ex. P-1 and medical treatment papers and bills etc. have been proved from Ex. P-2 to P-35. On the basis of the same and keeping in view the injuries as such it would be appropriate to allow the total amount of compensation as Rs. 60,000/- and keeping in view the manner in which the accident has occurred due to the negligence of the driver of the jeep, the contributory negligence of the driver of the jeep has to be assessed to the extent of 50%. ( 13. ) IN view of the aforesaid, as I have held the contributory negligence of the driver of the jeep @50%, the appellant shall be jointly and severally entitled to a sum of Rs. ( 13. ) IN view of the aforesaid, as I have held the contributory negligence of the driver of the jeep @50%, the appellant shall be jointly and severally entitled to a sum of Rs. 30,000/- from the owner, driver and the insurance company of Jeep no. MP-15-A-0215, which shall carry interest @7% p. a. from the date of filing of the claim application till its realization. ( 14. ) THE appeal is, thus, allowed in part. There shall be no order as to costs. Appeal partly allowed.