Allahabad High Court
The New India Assurance Co. Ltd. vs Smt. Monika Oberai And 4 Ors. on 16 April, 2013
Bench: Rakesh Tiwari, Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 35
First Appeal From Order No.977 of 2013
The New India Assurance Company Ltd... ........Appellant.
Vs.
Smt. Monika Oberai and others. .......Respondents. *******
Counsel for the appellant: Sri Arvind Kumar, Advocate.
Hon'ble Rakesh Tiwari, J.
Hon'ble Karuna Nand Bajpayee, J.
(By Justice Rakesh Tiwari)
We have heard Sri Arvind Kumar, counsel for the appellant, the New India Assurance Company Ltd. and perused the impugned award as also papers filed along with memo of appeal.
This First Appeal From Order arises from the judgment and order dated 29.1.2013 passed by the Additional District Judge, Court No.12, Bareilly/ Motor Accident Claims Tribunal, Bareilly in M.A.C.P. No. 829 of 2011. By the aforesaid Award, the Tribunal has awarded a compensation of Rs.10, 27, 405.00 along with 7% interest to the claimants, from the date of filing of the claim petition till final satisfaction of the award.
The back ground of the case, in which, the aforesaid order has been passed is that an accident occurred on 9.6.2011 between Car No.U.P.16S/9500 and Truck No.M.P. 6E/5721 which was insured by the appellant company. In the accident, Ajay Oberai travelling in the said car was taken for treatment after the said accident. He died in Hospital due to grievous injuries sustained by him in the accident.
Claim Petition was preferred before the Tribunal MACP No.829 of 2011, Smt. Monika Oberai Vs. The New India Assurance Company Ltd. for a sum of Rs.60,50,000/- The claimants were widow, minor daughter, and mother of the deceased Ajay Oberai. It was alleged in the application that on
.2.
9.6.2011, when the deceased was travelling in his Car aforesaid, he met with an accident with the offending truck as its driver had suddenly applied the brakes. The deceased was claimed to be in business of sale and purchase of vehicles and was earning a sum of Rs.15,000/- per month from it.
The claim was contested by the appellant company which had insured the truck. In the written statement, the appellant Insurance company denied liability of payment stating that first information report as well as site plan of the accident in question shows that the accident had not occurred due to rash and negligent driving by the driver of the truck but was attributable to negligence of Ajay Oberai who was driving the car and who had died in the accident and that this fact is also established from the fact that the car had collided at the rear of the truck.
The counsel has vehementally urged that it is clear from record that the driver of Car coming from behind the truck had not maintained safe distance. Hence the driver of the truck is not at all responsible for the alleged accident, as he had no control over another vehicle coming from behind and causing accident. Therefore if in any eventually, the truck which was infront had to apply brakes, it was the car coming from behind which was to avoid collusion, with the truck in front.
The award impugned is also assailed on the ground that the Tribunal has recorded a perverse finding holding the driver of the alleged truck to be 80% responsible. Though the accident had been caused due to sole negligence of the driver of the Car Sri Ajay Oberoi (since deceased), as such, the amount awarded is highly exorbitant. It is a bonanza for the claimants and the judgment impugned deserves to be quashed being bad in law.
After hearing Sri Arvind Kumar, counsel for the appellant for the New India Assurance Company Ltd. at length, we are not impressed by his arguments for the following reasons.
.3.
The accident took place between the offending truck and the Alto Car, in which, Ajay Oberai, Rajesh Bharti and Anand Kumar were travelling on 9.6.2011 in the night at about 10.00 P.M. This accident had been caused due to admitted fact that the truck moving in front of the car had suddenly applied full brakes, as a result of which, the Alto Car coming behind the truck collided with it as a result of which Ajay Oberai and Anand Kumar succumbed to grievous injuries received by them in the said accident.
From a perusal of the statement of PW-2 Rajesh Bharti, one of the passengers in the fateful Alto Car, it is apparent that distance between the two vehicles was about 15-20 paces. No reason has come out in evidence or could be elicited from cross examination as to why the driver of the aforesaid truck in front of the Car had suddenly applied full brake bringing the vehicle to a dead halt. In the middle of the road in the dead of night at about 10 P.M. particularly when there was no particular traffic in front of the offending truck. It also appears that driver of the car had tried to avoid the accident by applying full brakes but due to sudden application of brakes by the offending truck in front, he got less reaction time as such, the car collided at the rear of the said truck.
These facts have been noted by the Tribunal in its judgment as follows:-
" lk{kh mijksDr dh foi{kh chek da0 }kjk izfr ijh{kk dh x;h gS ftlesa lk{kh us dgk gS fd nq?kZVuk ds le; mlds vkxs flQZ ogh Vªd Fkk] og ml Vªd ds ihNs djhc 15&20 feuV igys ls py jgk FkkA Vªd dk uEcj mlus [kqn ns[kk FkkA mldh dkj dh gsM ykbV ty jgh Fkh] mlus Vªd dk uEcj i< fy;k Fkk] ftl le; Vªd us czsd fy;k ml le; mldh xkMh o Vªd dk Qklyk 15&20 dne dk FkkA mlus Vªd ds :dus ds ckn iwjh rjg ls viuh xkMh esa czsd yxk;k Fkk fQj Hkh dkj Vdjk x;hA lk{kh mijksDr ds c;ku ls fofnr gksrk gS fd bl lk{kh ds ikl nq?kZVuk dks cpkus dk vafre volj FkkA^^
.4.
Considering the question of contributory negligence in the circumstances of the case aforesaid, the Tribunal found that in the aforesaid circumstances, Shri Ajay Obarai since deceased was responsible to the extent of 20% negligence and the driver of the truck to the extent of 80% negligence.
At this stage, we may also note that it has nowhere been adduced by the appellant as to what was the speed of the truck and the car following it, and as to whether the truck was loaded or empty. These are relevant facts which have left out gaping holes in the story of the appellant; that truck driver had no role to play in the accident, as question of momentum on application of full brakes without any cause is of extreme relevance based on principles of physics. However, in the light of evidence that the alto car was about 15-20 paces or about 60 feets ( 1 pace= 3 feets) behind the said truck, it would not be proper to say that the car behind the offending truck was not maintaining safe distance when full brakes were suddenly applied by the driver of the truck in front. Regard may also be had of the fact that this accident took place in the night and full application of brakes without any reasons at all and of bringing the truck to a dead halt in the middle of the road is sheer act of negligence and rash driving by the driver of the truck.
In the circumstances, the Tribunal in our considered opinion has not committed any illegality. The appeal is sans merit and the award is not excessive as claimed by the learned counsel for the appellant.
For all the reasons stated above, we do not find any factual or legal error in the award. The appeal is accordingly dismissed.
Dated:16.4.2013
SFH
