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2011 DIGILAW 2536 (RAJ)

Arun Kumar Pareek v. Ramwati

2011-11-22

MOHAMMAD RAFIQ

body2011
RAFIQ, J.—These two appeals are preferred against the award of the Motor Accident Claims Tribunal dated 15.7.2004, by which the claim petition filed by the claimants for payment of compensation on account of accidental death of Gauri Shankar Sharma, has been allowed and compensation of Rs.3,75,750/- has been awarded. 2. The appeal No.2495/2004 has been preferred by owner of one of the vehicles whereas appeal No.2601/2004 has been preferred by the claimants. Claimants preferred the claim petition before the Tribunal contending therein that on 22.6.1999, Gauri Shankar Sharma was going by his auto rickshaw from Jaipur to Shivdaspura on Tonk Road at about 6.00 AM. When he reached Sitapura Railway Crossing in front of Indian Oil Corporation office, the fiat car No.RRJ 7120 came from behind and hit the auto rickshaw, because of which he lost control over the auto rickshaw and which went on the other side. Suddenly, a truck No. RJ14-G-8909 came from Chaksu side and hit the auto rickshaw and dragged it upto 20-25 feet. As a result of such accident, Gauri Shankar received serious injuries and died and auto rickshaw was also damaged. The learned Tribunal in the award held it to be a case of composite negligence and while negligence of the fiat car driver was taken to the extent of 75%, the truck driver was held responsible for 25% negligence and accordingly the liability to pay the compensation was apportioned between the two. 3. Shri Sandeep Mathur, learned counsel for the appellant- Arun Kumar Pareek-owner of the fiat car who himself was driving the fiat at the time of accident has argued that the evidence in the present case clearly proved that the accident took place due to the negligence of the auto rickshaw driver himself and that the appellant was not responsible for the accident. Learned counsel sought to bring home his point with the aid of site plan Ex.3. His contention is that in Ex.3 the route of the auto rickshaw has been indicated as 'A' and route of the fiat car has been indicated as `B'. Learned counsel sought to bring home his point with the aid of site plan Ex.3. His contention is that in Ex.3 the route of the auto rickshaw has been indicated as 'A' and route of the fiat car has been indicated as `B'. Mechanical inspection report of the fiat car Ex.5 shows that the front light of the car on the right side was found broken and that its body on the right side was having dents, which corroborates the statement of appellant who appeared as a witness in the claim petition as NAW-1 that while speed of the fiat car was only 25-30 kms/hour, auto rickshaw was running at a very high speed of 40 kms/hour. The auto rickshaw overtook the fiat car from the left side and then wanted to go to the other end of the road towards right side and in that process, it was hit by the fiat from right side, which received dent on the right side of the car and by the truck, which was coming from opposite side. It was argued that had the truck driver immediately controlled the truck by applying brake and stopping the truck soon after it hit the auto, rickshaw, possibly Gauri Shankar would not have died but the fact that the truck dragged the auto rickshaw upto 20-25 feet, which is evident from site plan Ex.3. It shows that the truck was also at high speed and the speed was so high that driver was not able to control the truck immediately. Challan has been filed against both the truck driver and the fiat driver. It is therefore prayed that the appellant-fiat owner was not at all negligent and it was the entire negligence of the truck driver and therefore the truck driver and for this matter, its insurance company would be held liable for compensation. It is also argued that income of the claimant was accepted at Rs.4,000 by the Tribunal, which is on higher side, whereas his actual income was Rs.2,500 as pleaded in the claim petition. 4. Learned counsel has argued that the Tribunal has rightly directed that the amount of compensation should be payable jointly and severally by the owner and the Oriental Insurance Company. In support of his argument, he cited the judgments of Supreme Court in A.P.S.R.T.C. & Anr. 4. Learned counsel has argued that the Tribunal has rightly directed that the amount of compensation should be payable jointly and severally by the owner and the Oriental Insurance Company. In support of his argument, he cited the judgments of Supreme Court in A.P.S.R.T.C. & Anr. vs. K. Hemalatha & Ors.-MACD 2008 (SC) 302 and T.O. Anthony vs. Karvarnan & Ors.-MACD 2008 (SC) 246 = 2009(1) CCR 29 (SC). 5. Shri Rishi Pal Agarwal and Smt. Archana Mantri, learned counsel for the Insurance company opposed the appeal and argued that the Tribunal in para 10-11 of the award has given the detailed reasoning why it has held that fiat driver was more negligent than the truck driver. Learned counsel argued that if the fiat car would not have hit the auto rickshaw from behind, possibly the auto rickshaw will not have come in front of the truck and this accident at least to the extent of involvement of truck would have been avoided. Learned counsel argued that truck was being driven by the driver in a very normal speed and if suddenly the auto came in front of the truck and he was being dragged with the truck and in the process of confusion may be truck was halted at some distance but then it cannot be said that truck driver was more negligent than the fiat driver. It was argued that appellant has also filed charge sheet against the fiat driver. Learned counsel also sought to support his arguments with the aid of site plan and the mechanical inspection report of the truck Ex.4. Learned counsel argued that the Insurance company should be held liable to pay only that much of the amount, to which the truck driver has been held negligent, particularly when the fiat car is not insured. 6. Shri Nikhil Simlote on behalf of Shri R.B. Mathur, learned counsel for the claimants in support of his appeal No.2601/04 has argued that the Tribunal was not justified in awarding interest @ 6% per annum whereas at the relevant time much more interest was awarded by the Tribunal in identical claim petitions. Learned counsel argued that some more amount should have been awarded for loss of consortium and loss of love and affection to the claimants than merely Rs.10,000/-. 7. Learned counsel argued that some more amount should have been awarded for loss of consortium and loss of love and affection to the claimants than merely Rs.10,000/-. 7. On hearing learned counsel for the parties and perusing the material on record, I find that the learned Tribunal has made elaborate discussion as to why it is a case of composite negligence. It has held the fiat driver more responsible for the accident because in its view, had the fiat not hit the auto rickshaw from behind, the auto rickshaw possibly would not have been pushed to the wrong side of the road so as to be hit by the truck and the accident could have been avoided. But at the same time, the learned Tribunal has in his discussion with the fact that the auto rickshaw after it was hit by the truck, was dragged upto distance of 20 feet, came to hold that truck driver was not having full control over the truck. The learned Tribunal has observed that in the normal speed of the truck, it is a basic presumption that before the accident or at the time of accident, the driver would immediately apply brake and try to stop the vehicle and in this case this presumption therefore has to be taken that the driver must have applied the brake and tried to stop the truck. But the very fact that auto rickshaw was still dragged upto the distance of 20 feet indicates that the truck was being plied at a very high speed and despite best efforts made by the driver, he could not stop it immediately. This implies that the momentum of the truck was so high that despite applying the brake, it could not be immediately stopped and the auto rickshaw was dragged upto 20 feet. The fact that auto rickshaw was dragged upto 20 feet is proved by the site plan Ex.3 wherein place 'X2' has been indicated as the place where auto was hit by the truck and `X3' has been indicated as the place upto which the auto was dragged by the truck. However, this Court is not persuaded to uphold the conclusion arrived at by the learned Tribunal as to the apportionment of the composite negligence. This is because the statement of only eye witness to the accident namely; Parvat Singh NAW-2, has not been properly appreciated by the Tribunal. However, this Court is not persuaded to uphold the conclusion arrived at by the learned Tribunal as to the apportionment of the composite negligence. This is because the statement of only eye witness to the accident namely; Parvat Singh NAW-2, has not been properly appreciated by the Tribunal. This witness has stated that while he was standing near Sitapura Railway crossing and waiting for the bus, he saw a loading auto rickshaw going from Jaipur towards Sitapura. When this loading auto rickshaw came in front of the Indian Oil Corporation office, the fiat jeep that was coming from Jaipur, hit it from behind at that time the truck was coming from the side of Chaksu in a very high speed and it also hit the auto rickshaw from the front and that truck dragged the auto rickshaw for 15-20 feet and it is because of this that the auto rickshaw driver became seriously injured and died on the way while being taken to the hospital. This witness stated that the accident had taken place due to the mistake of drivers of both the vehicles namely; truck and the fiat car. This witness has further stated that the auto rickshaw driver lost control over the auto rickshaw after it was hit by the fiat car but the truck driver was also negligent and it was wrong that it was the negligence of the auto rickshaw driver only. The truck was coming from Chaksu side in a very high speed. The width of the road was 80 feet. This witness has denied the suggestion that the auto rickshaw was trying to overtake. Even otherwise, such a plea has to be rejected outrightly because the speed of fiat car was more than that of the auto rickshaw and that it was auto rickshaw which was a heavy vehicle. This witness has further stated that the auto rickshaw after being hit by fiat car turned towards the reverse side and went to the other side of the road because there was no divider on the road. But at the same time, this witness has also stated that had the fiat car not hit the auto rickshaw the same would not have in turn hit by the truck. But at the same time, this witness has also stated that had the fiat car not hit the auto rickshaw the same would not have in turn hit by the truck. If this statement is analysed in view of the discussion made by learned Tribunal, it is evident that possibly the auto rickshaw driver would not have died, if it was merely hit by fiat car. His death has occasioned not only because it was hit by truck, but because the truck could not be immediately controlled and that after being hit by truck, the auto rickshaw was dragged/pushed by the truck from place X2 to place X3 for a distance of 20 feet. It is in that process according to eye witness NAW-2 Parvat Singh, that auto driver received fatal injuries leading to his death. Of course, there was a composite negligence of the two drivers, but then it is apportioned in the ratio of 75% on the side of the fiat driver and 25% on the side of the truck driver. 8. In view of the aforesaid discussion both the drivers are equally held responsible for the death of the auto driver. Having held so, I find that the compensation that has been awarded by the learned Tribunal cannot be interfered with, therefore, arguments on either side raised by the appellant fiat owner and the claimant-appellant are rejected. How-ever, rate of interest that has been awarded by the Tribunal to the clai-mant deserves to be marginally increased from 6% to 7.5% per annum. 9. Both the appeals are therefore partly succeed. It is directed that the amount of compensation of Rs.3,75,750 with interest @ 7.5% per annum from the date of filing of claim petition shall be payable jointly and severally by the owner as well as the insurance company.