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2019 DIGILAW 520 (MP)

Bhure Singh Shikari v. Mamta Sharma

2019-07-17

VIVEK AGARWAL

body2019
ORDER 1. This appeal has been filed by the appellants/owner and driver of the offending vehicle bearing registration number MP 08 M 0595 being aggrieved by award dated 20.10.2015 passed by the Motor Accident Claims Tribunal, Ashok Nagar in Claim Case No. 22/2014. 2. It is submitted by learned counsel for the appellants that learned Claims Tribunal has wrongly fastened liability to satisfy claim of the claimant on the owner and driver of the tractor and trolley overlooking the fact that it was a case of gross negligence on the part of driver of the motorcycle on which claimant - Smt. Mamta Sharma was traveling on the fateful day along with her husband. 3. In support of his contention, learned counsel for the appellants has read over evidence of Smt. Mamta (PW-1) to suggest that in fact in a standing tractor- trolley, motorcycle had collided from behind, as a result of which injury was caused to the eye of claimant as sariya (iron rod) protruding from trolley had pierced her eye. Reading such evidence of PW-1 and PW-2, it is submitted that it is a case of negligence on the part of driver of motorcycle, and therefore, the Claims Tribunal should have exonerated the owner and driver of the tractor trolley. 4. On the other hand, learned counsel for the respondent/Insurance Company submits that there was a clear violation of rule 29 of the Rules of Road Regulations, 1989, framed by the Central Government in exercise of the powers conferred by section118 of the Motor Vehicles Act, 1988. Rule 29 of the Rules of Road Regulations, 1989 deals with projections of loads, which provides as under:- “29. Projections of loads. -- No person shall drive in any public place any motor vehicle which is loaded in a manner likely to cause danger to any person in such a manner that the road or any part thereof or anything extends laterally beyond the side of the body or to the front or to rear in height beyond the permissible limit.” 5. Reading such provision, it is submitted that admittedly sariyas were protruding outside the trolley and there is admission of Bhure Singh (driver of the tractor-trolley) to the effect that he had kept two sariyas on the trolley which were protruding outside the trolley. Reading such provision, it is submitted that admittedly sariyas were protruding outside the trolley and there is admission of Bhure Singh (driver of the tractor-trolley) to the effect that he had kept two sariyas on the trolley which were protruding outside the trolley. It is also an admitted fact that in cross-examination, he has admitted that allegation against him is of plying a trolley filled with sariyas and when he had suddenly applied brakes, then sariya had pierced through eye of claimant and in that case tractor and trolley were seized. Reading such statement of Bhure Singh and also relying on evidence of of PW-1 and PW-2 to point out that motorcycle had not hit in a standing trolley but accident had taken place when driver of tractor had suddenly applied brakes and sariya protruding out from the trolley in violation of rule 29 had pierced eye, therefore, it cannot be said that Insurance Company has been wrongly exonerated or the claimant have been given undue benefit of settlement of claim for her own negligence. 6. At this stage, Shri Shukla submits that in criminal case, claimant Mamta has given different version and the Court has literally exonerated the owner-driver. Such documents have been filed by Shri Shukla vide document No. 1560/2018 dated 14.3.2018 but when Shri Shukla is asked that such evidence was led on 6.10.2015, whereas award is dated 20.10.2015 and what prevented him to confront claimant to move an application for recall of claimant witness before the Claims Tribunal, he is not in a position to explain such omission on the part of the counsel who contested the case before the Claims Tribunal. It is also a trite law as has been held in Mangla Ram v. Oriental Insurance Company Limited 2018 (5) SCC 656 , that evidence led in a criminal case cannot be read in a claim case and no advantage can be taken by owner-driver of the evidence exonerating the owner-driver in a criminal case. 7. In view of the above, the appeal being devoid of any merit, is hereby dismissed.