Sudhir vs Smt. Pavitra And 12 Ors.
2017 Latest Caselaw 4684 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						A.F.R.
 
Court No. - 28
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1712 of 2014
 

 
Appellant :- Sudhir
 
Respondent :- Smt. Pavitra And 12 Ors.
 
Counsel for Appellant :- Arun K. Singh
 
Counsel for Respondent :- A.C. Nigam,Rang Nath Pandey
 

 
Hon'ble Saumitra Dayal Singh,J.

This appeal has been filed by the owner of the Santro Car bearing registration no. HR 03 S - 0644 against the award of the Motor Accident Claims Tribunal, Bijnor dated 15.04.2014 in Motor Accident Claim Petition No. 29 of 2013 by which the Tribunal has made an award of Rs. 3,69,500/- in favour of the claimants who are the dependents of the Ravindra, together with interest @ 6%. The Tribunal has further apportioned that liability between the driver of the tempo insured by the respondent-insurer and the present appellant-owner of the Hyundai Santro car, in the ratio of 50:50.

While the occurrence of the accident and the computation of the compensation awarded are not disputed, learned counsel for the appellant submits, the finding of the Tribunal as to contributory negligence to the extent of 50:50 as the cause of accident between driver of the Hyundai Santro car and the driver of the tempo is perverse. In this regard, the Tribunal found that the accident occurred on an open road at about 2:00 p.m. on 02.10.2012 between the Santro Car and the tempo coming from the opposite directions.

Learned counsel for the appellant has taken me through  evidence of the claim witness Chandu (PW-2) who is the father of the deceased. In his statement made in examination-in-chief that stated, the Santro Car was also being driven in a rash and negligent manner. The said witness was travelling in the three wheeler Tempo vehicle involved in the accident. He stated, he was seated on the back seat while the deceased was seated on the front seat, with the driver of the Tempo.

During his cross-examination said witness Chandu specifically stated, the Santro Car was being driven on its left side of the road and that the said witness had sighted from that car much before the accident. He also stated, the Tempo was being driven in a rash and negligent manner at a high speed. He further stated upon sighting the Santro Car coming from the opposite direction, he had asked the driver of the tempo to slow down and to drive the tempo carefully but that the tempo driver did not pay heed to such caution being sounded by the said witness.

Then, the other claim witness Brijesh (PW-3) who was also travelling in the Tempo involved in the accident was examined. In his statement made in examination-in-chief that stated, the Santro Car was also being driven in a rash and negligent manner. Upon cross-examination, he stated, the Santro Car was being driven on the its left side of the road and that the Tempo was being driven in a rash and negligent manner at a high speed. He also stated he had warned the tempo driver to drive the Tempo at a slow speed and carefully but that the said driver did not pay heed to such advise.

Then, learned counsel for the appellant has placed reliance on the site plan prepared by the police which has also been annexed with this appeal. In the site plan it has been depicted, the Santro Car was moving on its left side of the road while the Tempo was coming from the opposite direction, cutting diagonally across on the road such that at the time of the accident, it was completely on its wrong side of the road. It clearly appears to corroborate the description of the accident as given by the claim witnesses themselves.

Learned counsel for the respondent-insurer of the Tempo vehicle submits, it being a case of head-on-collision clearly it was a case of contributory negligence especially in light of the evidence of the two claim witnesses who stated that the Santro car was also being driven at high speed.

The entire evidence led before the Tribunal suggests the accident was caused because the Tempo was being driven at high speed in a dangerous manner as it cut diagonally across the road, that too at a high speed, and thus collided with the Santro car that was being driven its left side of the road. The Tempo vehicle having cut diagonally across the road at high speed it would have left the driver of the Santro car with no or little chance to avoid the collision, as he could not have assessed which direction to move to avoid the collision. In view of the fact, the claim witness themselves consistently described the cause of the accident having been caused due to negligent and rash conduct of the driver of the Tempo vehicle, the finding of the Tribunal attributing negligence of the driver of the Santro car, appears to be perverse.

Then learned counsel for the appellant relied on a judgment of the Division Bench of this Court in the case of National Insurance Co. Ltd. Vs. Smt. Rama Devi and Ors. reported in 2011 (9) ADJ 435 (DB). In that case it has been held as under:-

"8. 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 from 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."

(emphasis supplied)

While generally it may be true, to some extent, that in case of head-on-collision there may be some contributory negligence involved, however there can be no hard and fast principle of law to decide such cases. The facts and evidence of each case would have to be examined so as to reach a conclusion whether accident was caused due to contributory negligence of the driver of the two vehicles involved in the head-on-collision or the accident due to negligence of one of them.

In the present case the claim witnesses stated in the examination-in-chief that the Santro Car was also driven in a rash and negligent manner. However, during cross-examination they not only stated that the Tempo vehicle was being driven in a rash and negligent manner at a high speed but that it was being driven on the wrong side of the road while the Santro Car was coming from the opposite direction and was keeping to its left.

Also, crucially, both claim witnesses admitted they spotted the Santro car coming from the opposite direction and warned the Tempo driver to slow down but that he did not pay heed to their warning. This evidence clearly clinches the issue of contributory negligence inasmuch as in absence of any other evidence it stands clearly established that though the Santro car may have been driven at speed, it was keeping to its left, yet, the Tempo somehow went on a collision course with that car. This could be the case, only if the Tempo was on moving on (its) right side of the road or it was cutting diagonally across the road - from its left on the road to its right, as depicted in the site plan. It clearly points to the negligence of the driver of the Tempo vehicle.

In either case, the driver of the Tempo was not only driving the Tempo in a dangerous and rash manner such collision between the two vehicles appearing imminent to the claim witnesses. The fact, that they warned the driver of the Tempo to slow down and drive carefully to avoid the imminent collision coupled with the fact, that the latter did not pay heed to such warning or alarm, conclusively establishes, that he failed to act to avoid the collision.

Thus, it was the tempo driver who would have acted to avoid the accident by making the course correction or by slowing down the Tempo vehicle. Had it been the case, that he slowed down, yet the the Santro car collided, some argument could have been made as to contributory negligence of the driver of the Santro Car. The fact that the Santro car was moving at speed and it did not move further left i.e. on to the road side cannot be considered as an act of contributory negligence, especially, when from the site plan it is clear, the driver of the said car could not have made out which side to move to avoid the collision.

Therefore, in my view the finding of the Tribunal as to the contributory negligence is wholly perverse. Negligence being the cause of the accident is solely attributable to the driver of the Tempo vehicle insured by the present appellant.

The award of the Tribunal is modified to the extent 50% of the compensation fastened on the owner of the Santro car is set aside. The entire compensation awarded would be payable by the respondent insurer of the Tempo vehicle. In this regard the amount deposited by the present appellant under interim order passed by this Court may be released in favour of the appellant together with accrued interest.

The respondent-insurer shall now comply with the outstanding decretal amount together with interest awarded, within a period of two months from today. It shall be paid out to the claimant-respondents forthwith.

In view of the above, the instant appeal must succeed and is allowed. No order as to costs.

Order Date :- 20.9.2017

A. Singh