HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 27 Case :- FIRST APPEAL FROM ORDER No. - 588 of 2010 Petitioner :- National Insurance Comp. Ltd. Through Its R.M. Respondent :- Smt. Rama Devi And Ors. Petitioner Counsel :- Rajeev Misra Respondent Counsel :- Satya Narayan Yadav, Sataya Narayan Yadav ***** Hon'ble Devi Prasad Singh,J.
Hon'ble Dr. Satish Chandra,J.
Heard learned counsel for the appellant, learned counsel for the respondents and perused the record.
The present appeal under Section 173 of the Motor Vehicles Act has been preferred against the impugned award dated 30.01.2010 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 12, Lucknow in Motor Accident Claim Case No. 182 of 2008.
The controversy relates to an accident occurred on 21.03.2008 when deceased Ishwardeen was going to his sister's house on his motorcycle. When he reached Laxmi Narain Verma Balika Vidyalaya on Gosainganj-Mohanlal Ganj Road, a Truck bearing no. UP-30 A-7463, coming from reverse direction, hits the motorcycle and suffered serious injuries, in consequence thereof, he succumbed to injuries at Primary Health Centre, Gosainganj. The claimants have preferred a claim petition before the Tribunal, where on the issues with regard to factum of accident, insurance policy and driving license etc., the Tribunal reached to the conclusion that the accident was caused because of rash and negligence driving of Truck bearing no. UP-30 A-7463 and awarded compensation of Rs.3,80,700/- by applying roaster under second schedule of the Motor Vehicles Act.
Solitary argument advanced by the learned counsel for the appellant is that it is a case of contributory negligence, since accident occurred because of head-on collusion.
On the other hand, learned counsel for the respondents relied upon the site plan and other evidence on record. He submitted that the deceased was moving towards his left side of the road and Truck came from reverse direction keeping right side of the road resulting into accident in question. It is submitted by the respondents counsel that since Truck driver came towards right side of the road and caused accident. It was incumbent upon the driver of the truck to remain at his left side of the road. It is further submitted by the respondents counsel that since no permission under Section 170 of the Motor Vehicles Act was accorded by the Tribunal, the present appeal is not maintainable.
Learned counsel for the appellant relied upon a case reported in 2006 (3) SCC 424; Bijoy Kumar Dugar v. Bidya Dhar Dutta and another. In the case of Bijoy Kumar Dugar (supra), the learned counsel relied upon the paragraph no. 12 of the judgment, which is reproduced as under:
"Adverting to the next contention of the claimants, no doubt the High Court has not dealt with the point in issue. However, we have noticed the reasoning and finding of the MACT recorded under Issue No.2. It is the evidence of Rajesh Kumar Gupta-P.W.2 who was travelling in the Maruti car along with the deceased Raj Kumar Dugar on the day of the accident that he also suffered some injuries in the said accident. He stated that while coming from Digboi, the Maruti car being driven by the deceased met with an accident at a place near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruti car being driven by the deceased Raj Kumar Dugar and the offending bus had a head-on collision. The MACT has not accepted the evidence of P.W. 2 to prove that the driver of the offending bus was driving the vehicle in abnormal speed. If the bus was being driven by the driver abnormally in a zigzag manner, as P.W. 2 wanted to believe the Court, it was, but natural, as a prudent man for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus from a long distance coming from the opposite direction. It was head-on collision in which both the vehicles were damaged and unfortunately, Raj Kumar Dugar died on the spot. The MACT, in our view, has rightly observed that had it been the knocking on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincing reason to disagree with the well-reasoned order of the MACT on this point. The MACT has awarded interest at the rate of 10% per annum on the amount of compensation from the date of filing of the claim application till the date of payment. It is a discretionary relief granted by the MACT and, in our view, the discretion exercised by the MACT cannot be said to be inadequate and inappropriate."
A plain reading of the judgment of Bijoy Kumar Dugar (supra), reveals that vehicle in that case relates to a situation where a vehicle was driven in a zigzag manner and not in the manner like in the present case, where the Truck was driven rashly and negligently keeping the right side of the road. It is also evident from Bijoy Kumar Dugar (supra) that their lordship of Hon'ble Supreme Court held that the appeal was not maintainable, since no permission was accorded by the Tribunal under section 170 of the Motor Vehicles Act.
Keeping in view the overall aspects of the case, relied upon by the learned counsel for the appellant himself, the present appeal is not sustainable for two reasons. Firstly, no permission was accorded by the Tribunal under Section 170 of the Motor Vehicles Act and secondly, the vehicle was not driven in zigzag manner but rather it was driven intentionally and negligently on the right side of the road. Once the vehicle coming form reverse direction, deliberately and intentionally keeping the right side of the road, instead of keeping the vehicle on the left side of road, it may not be a case of contributory negligence.
In Bijoy Kumar Dugar (supra), the Hon'ble Supreme Court had also observed that in case no permission under Section 170 of the Motor Vehicles Act is obtained to contest the proceeding on merit, then the appeal shall not be maintainable. Relevant portion of the judgment is reproduced as under:
"Being aggrieved against the said order of the High Court, the claimants have filed this appeal contending that the writ petition of the Insurance Company against the award of interest on the amount of compensation by the MACT was not maintainable when it had not obtained the right to contest the proceedings on merit under Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act")."
In view of above, the appeal lacks merit and is dismissed accordingly. Let the amount, if any, deposited in this Court shall be remitted to the Tribunal forthwith and in case any amount due, that shall also be deposited by the appellant before the Tribunal within a period of two months in terms of the award and the Tribunal shall be released the entire amount in favour of the claimants-respondents within a month, after the deposition by the appellant.
No cost.
Order Date :- 26.8.2011 VNP/-