Pardeshi Ram And Anr vs Mohd. Moin Khan And Ors
2021 Latest Caselaw 3096 Chatt

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                                                                        NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                       MAC No. 1322 of 2014
                   Judgment Reserved on 08/11/2021
                   Judgment Delivered on 11/11/2021
1.   Pardeshi Ram S/o Ferharam Yadav, aged about 49 years,
2.   Smt. Hembati Yadav, W/o Pardeshi Ram Yadav, aged about 45 years,
     Both are resident of Village Hadgaon, Tehsil Berla, District Bemetara
     (C.G.).
                                                                ---- Appellants
                                   Versus

1.   Mohd. Moin Khan S/o Mohd. Maksood Ali Khan, aged about 35 years R/o
     Village Tilori, Post Aagra Sundar Nagar, Police Station Lalganj, District
     Pratapgarh (U.P.) at present resident of through M/s C.G. Cement career,
     Ring Road No. 2 Bhanpuri, Raipur, District Raipur (C.G.).
2.   M/s C.G. Cement Career, Ring Road No.2 Bhanpuri, Raipur, District
     Raipur (C.G.).
3.   National Insurance Company Limited, through Branch Manager, Second
     Floor Mobin Mahal, Opposite Sahid Ismarak Bhawan, G.E. Road, Raipur,
     District Raipur (C.G.)
                                                               ---- Respondent


For Appellants                     :       Mr. Rajkumar Pali, Adv.
For Respondent No. 3               :       Mr. Anil Gulati, Adv.
For Respondent Nos. 1 & 2          :       None though served


              Hon'ble Shri Justice Deepak Kumar Tiwari
                            CAV JUDGMENT

     Heard.

1.   This appeal has been preferred under Section 173 of the Motor Vehicles

     Act, 1988 (henceforth 'the Act') against the impugned award dated

     13/11/2014 passed by the Motor Accident Claims Tribunal, Bemetara, in

     Claim Case No. 01/2014 (Pardeshi Ram & Another v. Mohd. Moin Khan
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     & Others), whereby the claim petition filed by the father and mother of the

     Deceased Tilak Yadav (henceforth 'the Deceased') was dismissed by

     holding that the deceased was himself responsible for the said accident.

2.   Facts

of the case in brief are that on 05/09/2013 at about 8 pm, the deceased

who was aged about 20 years was traveling along with his two friends from

Bemetara to his village Hadgaon. When he reached near village

Sawantpur, at the turning, he met with an accident with a truck bearing

registration No. CG04 JC 2490 which was standing on the road without

lighting any indicator. The deceased sustained serious injuries. The

deceased died on the way when he was being taken to government hospital

Bemetara. The deceased was bachelor so claim petition was preferred by

his mother and father for claiming Rs. 9,20,000/- in total under all heads.

3. Respondent Nos. 1 & 2 who are respective driver and owner of the truck,

had submitted their replies and had denied the pleadings made by the

appellants/claimants. They stated that it was the negligence of the

deceased himself, therefore, the appellants/claimants are not entitled to get

any claim.

4. Respondent No.3, Insurance Company had supported the pleadings of

replies filed by respondent Nos. 1 & 2. It has also been stated that

respondent No. 1 was not having valid and effective license, therefore,

there is violation of the policy and the Insurance company is not liable to

pay compensation, if any.

5. The learned tribunal, after due appreciation of the evidence which was

brought on record, passed the impugned order by dismissing the claim

petition, particularly on issue no. 1 that the appellants/claimants have failed

to prove that the said accident was caused due to negligence of respondent

No.1, driver of the truck.

6. Counsel for the appellants submits that the learned claims tribunal had

dismissed the claim only on the basis of oral statement of respondent No.1.

the tribunal has failed to consider that respondent Nos. 1 & 2 have failed to

produce any evidence or material on record with regard to the break down

or mechanical failure of the truck at the time of incident. The tribunal has

not considered the evidence of appellants' witnesses, therefore, he prays to

set-aside the impugned order. Reliance has been placed in the matter of

Raj Rani and others v. Oriental Insurance Co. Ltd. And others, (2009)

ACJ 2003.

7. On the other hand, learned counsel appearing on behalf of Insurance

Company opposed the submissions made by the counsel for the appellants

and supported the impugned order. Reliance has been placed in the matter

of Nishan Singh v. Oriental Insurance Company Ltd, AIR 2018 SC 2118.

8. I have heard learned counsel for the parties and perused the records.

9. The question for determination before this Court is that whether the learned

Claims Tribunal committed error in dismissing the claim in its entirety and

the impugned order is perverse and liable to be interfered.

10. Pardeshi (AW1), father of the Deceased and Krishna Kumar Nishad (AW2),

Kotwar of the village Sawantpur have specifically deposed that the

deceased while riding the motorcycle along with his friends was going

from Bemetara to his village. At about 8 pm, he dashed a stationary truck

from its back side. Both the claimants' witnesses have admitted in their

cross-examination that the truck was in stationary position on the spot for

last 2-3 days. Pardeshi (AW1) has also admitted in para 6 that on the spot

of occurrence, there was sufficient space and the road was wide enough

having two lanes and two vehicles might easily pass from there. He further

admitted that while going to Bemetara, the deceased had seen the stationary

truck on the road. He further admitted in para 7 that his son was in

drunken condition, so he could not notice the stationary truck and dashed

the truck from behind.

11. Respondent No. 1, Mohd. Moin Khan driver of the truck has deposed that

due to break down of the truck, he had parked the truck at the side of the

road. He also stated that parking light and four signal lights of the truck

were on at the time of accident. He further stated that the road was

sufficiently wide and other vehicles were passing easily. At the time of

accident, he was in front of truck and cooking food. He also stated that he

put some branches of tree around the truck for showing sufficient signs. So

for the said accident, he is not negligent and liable and there was no fault of

him.

12. It is a settled principle that there cannot be a mathematics equation to say

that when the dash was given to the stationary truck, it was 100%

negligence of the driver of the stationary vehicle. Various factors are to be

looked into like, width of the road, size of the stationary vehicle, exact

place of road where the truck was standing, time of incident, flow of traffic

etc., and on these basis individual conclusion can be drawn.

13. In the present case, the spot map prepared during the investigation (Ex.P-3)

indicates that the truck was parked at the side of road. It has also come on

record that the accident occurred on Bemetara to Durg road which is

sufficiently wide having two lanes. At the time of incident, the deceased

who was driving the vehicle had consumed liquor along with his friend,

and in drunken condition, he dashed the stationary vehicle from behind.

Even on mechanical examination of the truck, it was not reported that there

was any fault in the reflectors light (parking light). So, the version of the

driver of the truck that at the time of incident parking light was on, can be

inferred much more reliable than claimants' witnesses. The deceased had

last opportunity to avoid the accident but he himself could not properly

take care of it while riding the two wheeler. There is sufficient evidence on

record which significantly shows that the deceased himself was in gross

negligence for such accident. Therefore, the finding arrived at by the

tribunal on this issue is based on proper appreciation of evidence and this

Court does not find any substantial ground to take a decision otherwise.

Accordingly, the finding on this issue is affirmed.

14. Counsel for the appellant has cited the decision of Raj Rani and others v.

Oriental Insurance Co. Ltd. And others, (2009) ACJ 2003. In the said

case, the vehicle was parked in middle of the road and the facts of the said

case are distinguished from the instant case, as in the present case the

deceased himself was riding the motorcycle at the night hours in drunken

condition and dashed the stationary vehicle which was parked on the road

side.

15. Learned counsel for Insurance Company cited the decision in the matter of

Nishan Singh v. Oriental Insurance Company Ltd, AIR 2018 SC 2118. In

the said case, the Maruti car collided with the truck from back side. It was

held by the Apex Court that the driver had failed to keep proper distance

between the two vehicles running in the same direction and if the proper

distance is not made then the whole negligence shall be determined on the

part of rear vehicle in regard to the occurrence of accident. It was also

observed that only by registering of FIR of the said accident and submitting

of charge-sheet against the driver of the truck in question, the driver of the

truck in question cannot be held guilty for the said accident whereas the

evidence came forward that the accident occurred as the driver of the car in

question was not driving the car in question in accordance with traffic rules

by maintaining proper distance from the truck.

16. In view of above, as the deceased himself was found liable for the accident

as rightly concluded by the learned tribunal so far as dismissing the claim

petition, the finding of the tribunal does not warrant any interference.

17. Accordingly, the appeal fails and the same is dismissed.

18. There shall be no order as to costs.

Sd/-

(Deepak Kumar Tiwari) Judge Rahul