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2013 DIGILAW 2319 (RAJ)

Shri Hassan @ Murshied Hassan v. Shri Nanalal

2013-12-19

ARUN BHANSALI

body2013
JUDGMENT 1. - This appeal is directed against the judgment and award dated 8.1.2002 passed by the Motor Accident Claims Tribunal, Rajsamand (the Tribunal), whereby the application for compensation (the application) filed by the appellant has been rejected. 2. Brief facts of the case may be noticed thus : it was claimed by the appellant in the application that on 16.7.1999, when the appellant was riding motor-cycle RJ-30M-9843, the jeep RJ-30C-1882, which was being driven by respondent Nanalal, suddenly applied brakes and despite claimant's efforts to avoid collusion, the motor-cycle collided with the jeep, resulting in grievous injuries to the claimant. The claimant claimed a sum of Rs. 5,20,000/- as compensation. 3. A reply to the application was filed by the owner and driver denying the fact of accident on account of the negligence of the driver of the jeep. It was alleged that the motor-cycle was being driven in excessive speed, which resulted in the accident. 4. The Insurance Company also filed reply and submitted that FIR was lodged by the driver of the jeep and the accident occurred on account of rash and negligent driving by the claimant himself and therefore, the Insurance Company cannot be held liable. 5. The Tribunal framed five issues and the claimant examined himself and one Dr. Jeevan Lal in support of his claim and Exhibited 10 document including the police papers. No evidence was led by the owner, driver and insurer. 6. The Tribunal after hearing the parties came to the conclusion that the accident occurred on account of negligent driving by the claimant himself and in view of its. 7. It is submitted by learned counsel for the appellant that the entire basis of the finding recorded by the Tribunal is the site map prepared by the police and the oral evidence led by the claimant, which remained uncontroverted, has been discarded. 8. It was submitted that the said approach of the Tribunal is contrary to the law laid down by the Hon'ble Supreme Court in Jiju Kuruvila & Ors. v. Kunjujamma Mohan & Ors., (2013) 9 SCC 166 . 9. On the other hand, learned counsel for the respondent- Insurance Company submitted that the Tribunal was justified in coming to the conclusion that the claimant himself was negligent in driving the motor-cycle, which resulted in the accident and therefore, the award impugned does not call for any interference. 10. v. Kunjujamma Mohan & Ors., (2013) 9 SCC 166 . 9. On the other hand, learned counsel for the respondent- Insurance Company submitted that the Tribunal was justified in coming to the conclusion that the claimant himself was negligent in driving the motor-cycle, which resulted in the accident and therefore, the award impugned does not call for any interference. 10. I have considered the rival submissions. 11. The application was filed with the specific averment that the driver of the jeep was driving the jeep at excessive speed, rashly and negligently and the claimant was riding on his motorcycle behind the said jeep, when the driver of the jeep suddenly applied brakes, resulting in marks on the road, collusion with the said jeep and he suffered grievous injuries. 12. From the FIR (Ex.-1), it is apparent that the said FIR was lodged by driver of the jeep alleging that the motor-cycle driver struck the jeep from behind which resulted in the accident; the challan was filed by the police against both Nanalal, the driver of the jeep and the claimant himself; in the statement, the claimant exhibited the police documents including the FIR and the site map and when he was confronted with the site map, he only stated that same was not prepared in his presence. The Tribunal after evidence was led by the claimant, on finding that in the site map, there were no tyre/brake marks and as the same was contrary to the averments made in the application, found that the negligence of the jeep driver was not proved. The Tribunal after evidence was led by the claimant, on finding that in the site map, there were no tyre/brake marks and as the same was contrary to the averments made in the application, found that the negligence of the jeep driver was not proved. Further the Tribunal on finding that it was the responsibility of the claimant to drive his motor-cycle at safe distance, on account of his failure to do so recorded the finding regarding his own negligence.From the averments of the claimant in the application, as noticed above, it is apparent that it was a specific case of the claimant that the jeep was being driven at an excessive speed and the claimant was driving his motor-cycle behind the said jeep and on account of application of sudden brakes, the accident occurred, the said averment necessarily means that if the jeep was being driven at an excessive speed, the claimant was also driving his motor-cycle at an excessive speed, because if he was driving at normal speed, there would have been a wider gap between the two vehicles.Under the Rules of Road Regulations, 1989, the responsibility cast on a driver, driving a vehicle to keep safe instance has been indicated as under:- "23. Distance from vehicles in front.- The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop." In view of the above, it is apparent that the claimant was driving the motor-cycle at equally excessive speed and had not maintained safe distance, while driving the motor-cycle behind the jeep and therefore, it cannot be said that it was the jeep driver, who was negligence, inasmuch as, the fact of applying sudden brakes at an excessive speed also is not proved.So far as the judgment of Hon'ble Supreme Court in the case of Jiju Kuruvila (supra) is concerned, the Hon'ble Court in the said case was dealing with an issue relating to contributory negligence and as the sole reliance was placed on the position of vehicles indicated in the site map, the Hon'ble Court observed as under:- "20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual." 13. However, the said judgment does not lay down that the site map cannot be relied on for any purpose whatsoever. In the present case, the said document i.e. site map was produced and exhibited by the claimant himself and he cannot now possibly resile from the said document having himself produced the same. Consequently, the negligence of the claimant is writ large on the record and the finding recorded by the Tribunal cannot be faulted. 14. In view of the above discussion, there is no substance in the appeal and the same is, therefore, dismissed.No costs.Appeal dismissed. *******