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2016 DIGILAW 960 (KAR)

Uma v. Athayee

2016-12-14

R.S.CHAUHAN, SREENIVAS HARISH KUMAR

body2016
JUDGMENT : Raghvendra S. Chauhan, J. Having lost their claim before the Motor Vehicle Accidents Claims Tribunal No. X, Hunagund, the appellants have challenged the legality of the award dated 20-7-2011, whereby the learned Tribunal had dismissed the claim petition filed by the appellants. 2. Briefly the facts of the case are that the husband of the appellant 1, and father of appellants 2 and 3, namely Sangram S/o. Sushilkumar Waghmode was driving a car on 2-6-2007 near Dhannur Village, Bagalkot District. While he was driving Toyota Corolla Car allegedly a lorry, bearing Registration No. MP-09/KD-6656, came from the opposite direction, and since the lorry was being driven in a rash and negligent manner, it collided with the car. Resultantly, Mr. Sangram Waghmode died on the spot. Since the appellants lost the sole bread earner, they filed a claim petition before the learned Tribunal. In order to buttress their case the appellant 1 examined herself as P.W. 1 and submitted 51 documents. The Insurance Company also examined a single witness, and submitted four documents. Since others who were also injured in the same accident had filed other claim petitions, by common award dated 20-7-2011, the learned Tribunal dismissed the claim petition filed by the appellants. Hence, this appeal before this Court. 3. Mr. Shreevatsa Suresh Hegde, the learned Counsel for the appellants, has vehemently contended that due to the accident two different FIRs were lodged. One, from the side of the claimants-appellants, and the other from the side of cleaner of the lorry. Moreover, since the accident had occurred in the middle of the road, the negligence on the part of the lorry was writ large. Therefore, the learned Tribunal was not justified in concluding that the negligence was solely that of the driver of the car, namely of Mr. Sangram Waghmode. In fact, according to the learned Counsel, it is a case of the contributory negligence, the said fact has escaped the notice of the learned Tribunal. Therefore, the impugned award deserves to be interfered with, 4. On the other hand, Mr. S.S. Joshi, the learned Counsel for the Insurance Company, has pleaded that the appellants had submitted the police report and tire documents attached therewith. The sketch prepared by the police, immediately after the alleged accident, it clearly reveals that it is the car which had crossed the painted divider, had gone 40 ft. On the other hand, Mr. S.S. Joshi, the learned Counsel for the Insurance Company, has pleaded that the appellants had submitted the police report and tire documents attached therewith. The sketch prepared by the police, immediately after the alleged accident, it clearly reveals that it is the car which had crossed the painted divider, had gone 40 ft. deep into the opposite lane and had collided with the lorry which was travelling on the correct side of the road and that too in the middle of its side. Therefore, the learned Tribunal was justified in concluding that the sketch clearly revealed the negligence on the part of the driver of the car, namely, Mr. Sangram Waghmode. Hence, the conclusion drawn by the learned Tribunal is legally justified. Therefore, the learned Tribunal was also justified in dismissing the claim petition as the claimants had failed to prove any negligence, rashness or wrongful act on the part of the driver of the lorry. 5. Heard the learned Counsel, and perused the impugned award. 6. Undoubtedly, Exs. P. 2 and P. 3, the copy of complaint and the copy of the panchanama were produced by the appellants themselves. The contents of Exs. P. 2 and P. 3 and the hand sketch clearly reveal the position of the two vehicles involved in the alleged accident. The perusal of the hand sketch further reveals that while the lorry was travelling on the correct side of the road, while it was travelling in the middle of the road, the car being driven by Mr. Sangram Waghmode crossed the meridian, went 40 ft. deep into the opposite lane, and dashed against the lorry. Thus, clearly it is Mrs. Sangram Waghmode, the driver of the car, who had negligently crossed over the painted divider and gone into the opposite lane. According to P.W. 1, the appellant 1, her husband was trying to overtake a truck when the accident occurred. Even if the said statement were to be accepted, the fact remains that while overtaking a truck from the right hand side, the driver of the car is supposed to observe caution and care, and to ensure that no traffic is coming from the opposite direction. But instead of watching out for any traffic that may be coming from the opposite direction, Mr. Sangram Waghmode crossed into the opposite lane and collided with the lorry. 7. But instead of watching out for any traffic that may be coming from the opposite direction, Mr. Sangram Waghmode crossed into the opposite lane and collided with the lorry. 7. Furthermore, the fact that the opposite lane contains the tyre marks of the car clearly reveals the high speed at which the car was travelling. Even after hitting the brakes, even after tyre marks being left on the road, the driver could not bring the car to a grinding hault. Unfortunately the car dashed against the lorry coming from the opposite side. Therefore, the sketch clearly reveals the cause and the reason for the accident. 8. Although the learned Counsel for the appellants has pleaded that according to P.W. 1 the negligence was that of the lorry driver, but the testimony is belied by the documentary evidence. It is, indeed, trite to state that while man may lie, documents do not. Since) the sketch is a contemporaneous document, it is more creditworthy of acceptance than the oral testimony of P.W. 1. 9. Although the learned Counsel for the appellants has pleaded that in the FIR lodged by the cleaner of the lorry, he had claimed that he had cautioned the driver of the lorry to reduce the speed. Thus, according to the leaned Counsel the negligence of the lorry driver is apparent. However, the contention is untenable. Firstly, the cleaner of the lorry has never been produced as a witness by the appellants. Secondly, merely because the lorry driver may have been driving the lorry at a high speed, nonetheless he was driving the lorry on the correct side of the road. Thirdly, what is the final outcome of the criminal case is unknown. Therefore, merely a statement given by the cleaner of the lorry would not lead to a logical inference that there was any contributory negligence on the part of the lorry driver. 10. For the reasons stated above, this Court does not find any illegality or perversity in the assessment of the evidence made by the learned Tribunal. This appeal, being devoid of merit, is hereby dismissed.