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2022 DIGILAW 795 (JHR)

Arjun Ram Mahli v. Shayam Devisut Chobey

2022-07-05

ANANDA SEN

body2022
JUDGMENT : Heard the learned counsel for the parties. 2. This appeal is at the instance of the claimant, whereby the claimant has challenged the award dated 18.05.2016 passed in M.A.C.T Case No. 14/2011 by which, the learned Principal District Judge-cum-MACT Gumla has dismissed the claim application of the appellant-claimant. 3. The injured-claimant was a driver of Bolero Pick UP Van bearing registration No. JH 07C 2486. After loading materials along with owner of goods and the owner of the vehicle, the driver was driving the said Pick Up Van. When the vehicle reached near Karonti Check-post, the driver saw a truck bearing registration No. CG 04 G 4759, coming from opposite direction. The appellant-claimant took his hand out from the window of the Pick up Van and tried to signal the vehicle, for slowing down the truck, but it dashed the Bolero Pick Up Van, as a result of which, hand of the claimant was severed from his body. An FIR being Gumla P.S. Case No. 321 of 2010 under Sections 279, 337 and 338 IPC was registered. The author of the FIR is the owner of the Pick Up Van, who is the eye witness of the occurrence, as he was travelling in the said vehicle along with the driver. Claim application was filed seeking compensation, which was registered as MACT Case No. 14/2011. The opposite parties appeared and contested the claim application. On the basis of the pleadings, the Tribunal has framed six issues, which are as follows: (i) Whether the present claim petition is maintainable? (ii) Whether the claimant Arjun Ram Mahli sustained injury on 1.12.2010 due to rash and negligent driving of Truck No. CG 04G 4759? (iii) Whether the offending vehicle was on the date of accident validly insured with O.P. No. 3 and whether there was any violation of policy terms on the part of the insured / owner O.P.No. 1? (iv) Whether there was any contributory negligence on the part of the claimant injured? (v) Whether and from which O.P. the claimant is entitled to receive compensation as sought and the quantum there of? (vi) Any other relief. 4. Some documentary evidence was also produced on behalf of the claimant, though the opposite parties did not examine any witnesses, but some documents were exhibited as Exts. (v) Whether and from which O.P. the claimant is entitled to receive compensation as sought and the quantum there of? (vi) Any other relief. 4. Some documentary evidence was also produced on behalf of the claimant, though the opposite parties did not examine any witnesses, but some documents were exhibited as Exts. A and B, which are the Insurance Policy Papers of both vehicles, which were involved in the accident. 5. The Tribunal on the basis of the evidence, decided issue No. 4 holding that there is contributory negligence on the part of the claimant thus the issue was decided in affirmative. Issue Nos. 2, 3, 5 and 6 were decided against the claimant considering the finding arrived at by the Tribunal in respect of Issue No. 4. The tribunal has held that since there was contributory negligence on the part of the claimant, the claimant is not entitled to receive any amount of compensation, thus, the entire claim application was dismissed. 6. Challenging the aforesaid award, learned counsel for the appellant submits that from the FIR, which was lodged by an eye witness, who was traveling with the driver-claimant of the vehicle, it is clear that the truck bearing registration No. CG 04G 4759 was coming from opposite direction in a very high speed and was being driven in rash and negligent manner and the claimant, who was driving the Pick Up Van, extended his hand from the window and tried to signal the driver of the truck to slow down the speed of the truck, but the truck dashed the pick-up Van, resulting in injury, sustained by the claimant. It is his further contention that as per the Rules and Regulation, the driver signalled the driver of the offending vehicle, thus there is no violation of any provisions of the Motor Vehicles Act and the Rules and Regulations framed thereunder. If there is contributory negligence, the extent of contributory negligence should have been adjudicated by the Tribunal and it cannot be said that there was contributory negligence, which can be extended to the tune of 100%, so far as this appellant is concerned. Without adjudicating the extent of contributory negligence, the Tribunal should not have dismissed the entire claim case filed by the claimant, claiming compensation. 7. Mr. Without adjudicating the extent of contributory negligence, the Tribunal should not have dismissed the entire claim case filed by the claimant, claiming compensation. 7. Mr. Alok Lal, counsel of the National Insurance Company Limited submits that the entire accident occurred just because of rash and negligent act of the claimant himself. He submits that there was no occasion before the claimant to extend his hand from the vehicle and if he would not have extended his hand, no injury would have been caused. He further submits that if any signal had to be given, there was mechanical and electrical signal, which could have been applied by the claimant. As per him, the Tribunal was correct in dismissing the claim application as there was contributory negligence on the part of the Claimant. 8. Mr. Manish Kumar, counsel for the New India Insurance Co. Ltd. Adopts the arguments of Mr. Alok Lal, learned counsel for the National Insurance Co. Ltd. 9. After hearing the parties and after going through the impugned award, I find that the Tribunal has held that there was contributory negligence on the part of the claimant, so the claim application was dismissed. The manner in which the accident had taken place, is mentioned above. What was the extent of the contributory negligence of the claimant has not been assessed by the Tribunal. If there was any contributory negligence, as per the tribunal, the extent of such negligence should have been decided by the Tribunal. Further whether there was at all any contributory negligence is to be considered, considering the Rules of the Road Regulations of 1989, which has also been relied upon by the appellant-claimant. As per Rule 13 of the said Regulation, the driver of the vehicle is authorized to give hand signals and specific type of hand signal has been provided for when the vehicles needs to be slowed down. As per the said Regulation to give hand signal, the driver has to extend his arm through the window, thus, it cannot be said that the injured -claimant acted beyond the Rules in this case. 10. Further, even if there is contributory negligence, it can not be said that there was 100% negligence on the part of the claimant. As per the said Regulation to give hand signal, the driver has to extend his arm through the window, thus, it cannot be said that the injured -claimant acted beyond the Rules in this case. 10. Further, even if there is contributory negligence, it can not be said that there was 100% negligence on the part of the claimant. Further, I find that Section 125 of the M.V. Rule has been applied in this case and the Tribunal has held that there was violation of Section 125 of the M.V. Act, 1988, but the evidence is not such to conclude that the driver lost control over the vehicle and he was obstructed by any passenger. 11. So far as Section 121 of the M.V. Act is concerned, I find that Section 121 of the Act provides for giving signals on some occasions. The proviso to Section 121 of the Act provides for giving signals if the intention is to turn right or left. But this signals cannot only be restricted when the driver intends to turn the vehicle to left or right. There are other mode of signals, which is prescribed in the aforesaid regulation. 12. Considering the aforesaid facts, I find that the Tribunal has wrongly dismissed the entire claim application. Accordingly, this appeal stands allowed. 13. M.A.C.T. Case No. 14 of 2011 is restored and the matter is remanded to the Tribunal i.e. the learned Principal District Judge-cum-MACT Gumla, for deciding the claim application afresh. It will be open to the parties to lead fresh evidences also. 14. It is expected that the parties will co-operate in early disposal of the claim application.