Makhanlal vs Dr. J.Ravi Prasad
2022 Latest Caselaw 12067 MP

                                                                       1
                                           IN THE HIGH COURT OF MADHYA PRADESH
                                                        AT JABALPUR
                                                                 BEFORE
                                                   HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                      ON THE 12th OF SEPTEMBER, 2022

                                                     MISC. APPEAL No. 4197 of 2010

                                   BETWEEN:-
                                   MAKHANLAL S/O MOTILAL, AGED ABOUT 39 YEARS,
                                   KHARDA PS TEH SEONI MALWA DISTT HOSHANGABAD
                                   (MADHYA PRADESH)

                                                                                                .....PETITIONER
                                   (BY SHRI DHEERAJ TIWARI, ADVOCATE)

                                   AND
                                   DR. J.RAVI PRASAD S/O SOMALINGAN, AGED ABOUT 45
                                   YEARS, OCCUPATION: CULTIVATOR VILL NITAYA TEH
                                   AND DISTT HOSHANGABAD (MADHYA PRADESH)

                                                                                             .....RESPONDENTS
                                   (BY SHRI J.PRASAD, ADVOCATE)

                                This appeal coming on for hearing this day, the court passed the following:
                                                                     ORDER

This appeal is filed by the appellant (non-applicant before the Claims Tribunal) being aggrieved of award dated 30.7.2010 passed by learned Member, Motor Accident Claims Tribunal, Hoshangabad in Claim Case No.137/2008 awarding compensation in

favour of the claimant.

Learned counsel for the appellant submits that the impugned award passed by the Claims Tribunal is illegal and arbitrary.

The accident took place on 17.3.2007 in the night at about 10 O'clock when the claimant alongwith his one companion were travelling from Harda to Hoshangabad and Signature Not Verified SAN between Sailani Baba and Chandni River, one Tractor Trolley bearing registration No. MP-05-9537 was standing on the wrong side of the road without any signal as a result of Digitally signed by AMIT JAIN Date: 2022.09.12 19:51:06 IST

which the motorcycle dashed against the said Trolley causing grievous injuries to the claimant. He was treated at Narmada Hospital, Bhopal. He sustained permanent disability on account of the injuries sustained by him in the accident.

It is submitted by learned counsel for the appellant that it is a case of contributory negligence and this aspect has been overlooked by the Claims Tribunal. It has come on record that the claimant was riding at high speed and, therefore, there was no occasion for him to have avoid the accident.

The non-applicant examined Makhan Lal i.e. present appellant so also claimant Madan Lal (NAW.2). Makhan Lal deposes that there were signs available to show that the Trolley was standing and a boundary of stones was made and that was sufficient for

the claimant to be cautious and drive carefully and, therefore, the finding of contributory negligence should have been recorded by the Claims Tribunal.

On the other hand, learned counsel for the respondent/claimant in his turn submits that no evidence has been led to prove the aspect of contributory negligence. As per Spot Map (Exhibit P/2), the Trolley was parked on the wrong side of the road. In this document, it is clearly mentioned that the accident occurred because the Trolley was standing on the wrong side causing injuries to J.Ravi Prasad and Jagdish Sharma.

Perusal of Spot Map (Exhibit P/2) reveals that ''B'' is the place where the accident took place where the injured was travelling on his left hand side and had hit the Trolley standing on the wrong direction to save himself from the Truck, which was coming from the opposite direction. This aspect has not been controverted by any of the witnesses of the non-applicant.

Makhan Lal (NAW.1) in his cross-examination admits that as soon as he came on the main road, his Trolley was punctured. He had gone to get his puncture repaired. This Signature Not Verified SAN

witness also admits in Paragraph No.10 of his cross-examination that since his Trolley Digitally signed by AMIT JAIN Date: 2022.09.12 19:51:06 IST

was parked on the side of the road, therefore, he is saying that the accident took place

due to the negligence of J.Ravi Prasad. This witness in Paragraph No.8 deposes that Madanlal is not his relative but only belongs to his community.

Madanlal (NAW.2) in Paragraph No.5 of his cross-examination admits that he had not seen the incident. He had also contradicted Makhan Lal saying that there were no Barbed Plants etc lying to make a boundary around the Trolley. He also admits in Paragraph No.6 of his cross-examination that at the time of the accident, it was dark on the road. Thus, it is evident that the factum of contributory negligence could not be established by the non-applicant's witnesses.

The Hon'ble Supreme Court in K.Anusha & Others versus Regional Manager, Shriram General Insurance Company Limited 2021 SCC OnLine (SC) 3339 has set aside the finding of the Karnataka High Court in regard to the contributory negligence and held that to establish the contributory negligence, some act or commission which materially contributed to the accident or the damage should be attributed to the person against whom it is alleged. In Pramod Kumar RAsikbhai Jhaveri versus Karmasey Kunvargi Tak & Others (2002) 6 SCC 455, the Supreme court quoted the decision of the High Court of Australia in Astley versus Austrust Limited (1999) 73 ALJR 403 to hold that "....where, by his negligence, one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence, if that other acts in a way which, with the benefit of hindsight is shown not to have been the best way out of the difficulty". Infact, the

statement of law in Swadling versus Cooper [1931] A.C.1 IS that "..... the mere failure to avoid the collision by taking some extraordinary precaution, does not in its constitute the negligence.....".

Signature Not Verified SAN Thus, when evidence available on record is weighed in the light of the judgments of Hon'ble the Supreme Court in K.Anusha & Others versus Regional Manager, Digitally signed by AMIT JAIN Date: 2022.09.12 19:51:06 IST

Shriram General Insurance Company Limited (supra) a n d Pramod Kumar RAsikbhai Jhaveri versus Karmasey Kunvargi Tak & Others (supra) then it is evident hat the finding of contributory negligence could not be proved and, therefore, the Claims Tribunal was right in rejecting the plea of contributory negligence. There is no error/shortcoming in the impugned award dated 30.7.2010 passed by learned Member, Motor Accident Claims Tribunal, Hoshangabad in Claim Case No.137/2008 calling for interference in this miscellaneous appeal.

Accordingly, this Miscellaneous Appeal fails and is dismissed. LCR be sent back.

(VIVEK AGARWAL) JUDGE amit

Signature Not Verified SAN

Digitally signed by AMIT JAIN Date: 2022.09.12 19:51:06 IST