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2012 DIGILAW 713 (PNJ)

Oriental Insurance Co. Ltd. v. Surinder Kaur

2012-05-14

K.C.PURI

body2012
JUDGMENT Mr. K.C. Puri, J.: - The Oriental Insurance Co. Ltd. has directed the present appeal against the Award dated 27.4.2001 passed by Shri Rajinder Parshad, Motor Accident Claims, Tribunal, Ambala vide which the claimants were granted compensation amounting to Rs.14,10,500/- along with interest @ 9% per annum from the date of petition till the date of realization of the amount. The compensation amount was ordered to be paid by the respondents jointly and severally but the first charge was upon respondent No.3-appellant. 2. The brief facts of the present case are that on 10.12.1998 Mohan Lal alias Mohan Singh deceased was going from village Gadauli to his house by scooter bearing registration No.HR01D-02266 whereas Mohinder Singh was also pillion rider on the said scooter. He was driving the scooter on correct left side at a moderate speed and at about 10/10- 30p.m. when they reached near Kanhaiya Milk Plant, Saha-Sahazadpur road on account of dazzling lights of the vehicles coming from the opposite side, he could not notice the truck bearing registration No.UHQ-866 wrongly parked on the mettled portion of the road without any precaution, indicator, placing of stones and branches of trees watch or light etc, which may indicate regarding parking of the truck on the mettled portion of the road. The scooter struck against the rear portion of the truck. As a result thereof both occupants of the scooter suffered injuries. The deceased suffered multiple and grievous injuries whereas Mohinder Singh suffered minor injuries. The injured were shifted to near by hospital known as Anuphav Hospital. From there he was referred to PGI on 11.12.1998 and where he succumbed to the injuries suffered by him in the accident. The claimants have preferred the present claim petition. 3. The claim petition was resisted by the respondents. 4. The respondent Nos.1 and 2 in their joint written statement resisted the petition and alleged that the deceased died due to his own negligence. 5. Respondent No.3 in its separate written statement resisted the petition with the preliminary objections that the present claim petition is not maintainable as no accident took place as alleged in the claim petition. 4. The respondent Nos.1 and 2 in their joint written statement resisted the petition and alleged that the deceased died due to his own negligence. 5. Respondent No.3 in its separate written statement resisted the petition with the preliminary objections that the present claim petition is not maintainable as no accident took place as alleged in the claim petition. If at all the cause of accident proved on record then the same took place due to rash and negligent driving of scooter driven by the deceased himself, who was at fault, rash and negligent having no sense of traffic rules nor he was possessing a valid driving licence for driving the scooter; the claim petition is bad for nonjoinder and misjoinder of necessary parties; the present claim petition has been filed by the claimant in collusion with the respondents No.1 and 2; the driver respondent No.1 of truck No.UHQ- 866 was not holding any valid effective driving licence at the time of accident and the same was driven in contravention of the terms and conditions of the insurance policy. From the pleadings of parties, the following issues were framed:- 1. Whether Mohan Lal (now deceased) died in a road side accident alleged caused due to rash and negligent driving of truck No. UHQ-866 by respondent No.1 ?OPP 2. If issue No.1 is proved in affirmative then to what amount of compensation the claimants are entitled to and from whom ? OPP 3. Whether the respondent No.1, was not holding valid and effective driving licence at the time of alleged accident? OPP 4. Whether the present claim petition has been filed in collusion with the claimants and the respondents No.1 and 2 ?OPP 5. Whether the truck No.U.H.Q. 866 driven by respondent No.1 at the time of accident in contravention of the terms and conditions of the insurance policy ? OPR 6. Relief. 6. The parties have led their respective evidence on the aforesaid issues. In the light of the same, the learned Motor Accident Claims, Tribunal, Ambala vide award dated 27.4.2001 accepted the claim petition and awarded compensation as aforesaid. 7. Feeling dissatisfied with the aforesaid Award dated 27.4.2001, the Oriental Insurance Co. Ltd. has directed the present appeal against the said Award. 8. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 9. 7. Feeling dissatisfied with the aforesaid Award dated 27.4.2001, the Oriental Insurance Co. Ltd. has directed the present appeal against the said Award. 8. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 9. Learned counsel for the appellant has submitted that it is a clear case of contributory negligence. Deceased was driving the scooter bearing registration No.HR01D-2266 rashly and negligently and struck against the rear portion of the truck. The only conclusion which can be drawn in such circumstances is that deceased was negligent and at the most he is contributory negligent in the accident. The Hon’ble Apex Court in authority Raj Rani and others vs. Oriental Insurance Co. Ltd. and others reported as 2009 ACJ 2003 held that even if the truck parked in the middle of road without parking lights and the car driver hit from the back side, in that case, it is a case of contributory negligence and as such the amount of compensation has to be confined to the extent of 50% from the assessed compensation amount. Similarly, this Court in authority Arjun Singh and another vs. Rajbir Singh and another (2010-1) PLR page 646 held that where the vehicle hit the parked vehicle from back, it is a case of contributory negligence. The Tribunal has not taken into account this aspect of the case. It is further contended that the Division Bench of Rajasthan High Court in authority Onkari & Ors vs. Akbar Husain & Ors reported as 2011 AAC page 1368 held that it is a case of contributory negligence although in that case, the ratio regarding contributory negligence was to 75 : 25%. 10. In reply to the above noted submissions learned counsel for the respondents has supported the Award of the Tribunal. It is submitted that each case has to be decided on the facts of its case. The authorities relied upon by the learned counsel for the appellant are not applicable to the facts of the present case. 10. In reply to the above noted submissions learned counsel for the respondents has supported the Award of the Tribunal. It is submitted that each case has to be decided on the facts of its case. The authorities relied upon by the learned counsel for the appellant are not applicable to the facts of the present case. In authorities Saudagarsing Chhajusing and others Versus Jashodoben and another 1986 A.C.J. 1070 and New India Insurance Company Versus Maya wati and others 1992 A.C.J. 620 relied upon by the Tribunal, it has been held that where the truck is parked in the middle of the road during the night time and that the vehicle coming from back side had a dazzling lights, in that case, owner and driver of the vehicle which has been parked in the middle has been held liable. 11. I have considered the submissions made by both the learned counsel for the parties and have gone through the records of the case with their able assistance. 12. It is settled law that in cases of accident each case has to be decided on its own peculiar circumstances. The facts of two cases may not be co-related. No hard and fast rule can be laid down that if a vehicle struck on the back side of stationary vehicle whether it is a case of contributory negligence or not ? It depends upon the facts and circumstances of each case and the evidence produced in that case. In the present case, the claimants had set up a plea that Mohan Lal deceased was driving the scooter at a slow speed. The offending truck was parked in the middle of the road. There was dazzling lights from the opposite side and Mohan Lal deceased could not visualize that truck had been parked in the middle of the road and his scooter struck against the back side of the offending truck. In the FIR, the same version has been mentioned. Before the Tribunal, the claimants examined Mohinder Singh, the pillion rider of the motor cycle, who received injuries in the occurrence. He was a stamped witness and his presence at the spot cannot be doubted. Mohinder Singh while appearing as witness has supported the version of the claimants in all material particulars. 13. In rebuttal, the driver of the offending vehicle has not come into the witness box. He was a stamped witness and his presence at the spot cannot be doubted. Mohinder Singh while appearing as witness has supported the version of the claimants in all material particulars. 13. In rebuttal, the driver of the offending vehicle has not come into the witness box. He was the best witness to state that Mohan Lal deceased has contributed in the negligence. So, adverse inference should be drawn against him for not appearing in the witness box. 14. The Insurance Company has examined M.K.Gupta, who has stated that he was appointed as Investigator and he visited the spot in the month of September 2000 and he is of the opinion that accident has taken place due to negligence of deceased. It is not out of place to mention here that accident has taken place on 13.12.1998 and this witness has stated that he visited the spot in the month of September 2000 i.e. after 1¾ years of the occurrence. No much credit could be given to the bald testimony of RW-1 M.K.Gupta. 15. This is a civil case and has to be decided on the preponderance of evidence. 16. So far as the reliance of learned counsel for the appellant on authority Raj Rani and others’ case (supra) is concerned the facts of that case are distinguishable. In that case, driver of the car who hit on the stationary truck was proved to be contributed negligence in the accident. 17. The Division Bench of Gujrat High Court in Saudagarsingh Chhajusing and other’s case (supra) held that where the truck driver was negligent in parking the vehicle without any signal or indicator and the motor cyclist dazzled by the lights of another truck coming from opposite direction and collided with the stationary truck and the driver of stationary truck is negligent and not the driver of the motor cycle. The facts of that case are almost similar to the facts of the present case. In that case the driver of the stationary truck along with the owner were held liable. 18. So far as the reliance of authority Onkari & Ors’ case (supra) is concerned in that case, the driver of stationary truck was held liable to the extent of 75% whereas the driver of the vehicle which struck on the stationary truck has been held liable to the extent of 25% on the facts of that case. 18. So far as the reliance of authority Onkari & Ors’ case (supra) is concerned in that case, the driver of stationary truck was held liable to the extent of 75% whereas the driver of the vehicle which struck on the stationary truck has been held liable to the extent of 25% on the facts of that case. So, that authority is also not helpful to the appellants. 19. In authority New India Insurance Company versus Maya Wati and others’ case (supra), it has been held that if the truck is parked without any light and three wheeler dashed against the stationary bus, in that case the driver was negligent in leaving the bus without any indicator and it was further held that it is not a case of contributory negligence of the deceased. 20. So, I have no hesitation in holding that the Tribunal has rightly held that it was the driver of stationary vehicle who is solely negligent and the deceased has not been contributed to the negligence on the facts of the present case. 21. Consequently, the appeal is without any merit and the same stands dismissed. 22. The interim directions regarding recovery of 50% of the compensation amount granted at the initial stage, stands vacated. 23. A copy of this judgment be sent to the trial Court for strict compliance.