Dhanpati & Ors vs Jai Ram & Ors
2023 Latest Caselaw 5744 P&H

                                                                                                   2023:PHHC:061083

                                   FAO-2138-1998 (O&M)                                                             1

                                   R-560

                                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                                CHANDIGARH

                                                                             FAO-2138-1998 (O&M)
                                                                             Reserved on 19.04.2023
                                                                             Date of decision : 29.04.2023


                                   Dhanpati and Another                                               ... Appellant(s)

                                                                           Versus

                                   Jai Ram and Others                                               ... Respondent(s)



                                   CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                                   Present :        Mr. Chanderhas Yadav, Advocate for the appellants.

                                                    Ms. Harshita, Advocate for
                                                    Ms. Mehak Sawhney, Advocate for respondent No.1.

                                                    Mr. Shubham Buania, Advocate for
                                                    Mr. Bhuwan Vats, Advocate for respondent No.5.

                                                    Mr. Shubham Gupta, Advocate for
                                                    Mr. D.P. Gupta, Advocate for respondent No.6.


                                   ALKA SARIN, J.

1. The present appeal has been preferred by the claimant-

appellants aggrieved by the award dated 28.07.1998 passed by the Motor

Accident Claims Tribunal, Bhiwani (hereinafter referred to as 'Tribunal')

dismissing the claim petition filed by them on the ground that the deceased

himself was at fault.

2. The brief facts relevant to the present lis are that on 02.02.1996

Radhey Shyam-deceased was driving jeep bearing Registration No.DL-1CE-

1521 from Rohtak to Pilani carrying newspapers. When the jeep reached

YOGESH SHARMA near minor of village Biealwas at about 08.00 a.m., Haryana Roadways Bus 2023.04.29 11:49 I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061083

bearing Registration No.HR-36-6540 came from the opposite side at a high

speed being driven by its driver - Jai Ram (respondent No.1) rashly and

negligently and struck against the jeep and as a result of which Radhey

Shyam sustained grievous and fatal injuries. FIR No.33 dated 02.02.1996

was registered at Police Station Loharu under Sections 279, 337, 304-A, 427

of the Indian Penal Code, 1860. A claim petition was filed by the mother and

minor sister of the deceased alleging therein that Radhey Shyam was 23

years of age at the time of the accident and he was a licensed driver and was

earning Rs.3,000/- per month besides daily allowance. The petition was

contested by respondent No.1 by averring in the written statement that the

accident had taken place on account of the negligence of the deceased

Radhey Shyam. It was further alleged that the bus driven by respondent

No.1 was parked on the correct left side of the road as it had stopped to pick

up some school children. It was further alleged that it was a foggy morning

and visibility was poor and that the deceased lost control of the jeep on

account of fog and his fast driving. The owners of the bus i.e. respondent

Nos.2 and 3 filed their separate written statement raising similar pleas. The

written statement was also filed by the insurance company of the jeep

(respondent No.6) in question.

3. On the basis of the pleadings, the following issues were framed:

1. Whether the accident in question had taken place

on account of Haryana Roadways Bus No.HR-

36/6540 by its driver Jai Ram respondent ? OPP

2. Whether the accident in question had taken place

on account of rash and negligent driving of jeep

No.DL-ICE/1521 by its driver ? OPP YOGESH SHARMA 2023.04.29 11:49 I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061083

3. To what amount of compensation if any, the

petitioners are entitled to and if so, from whom ?

OPP

4. Whether the respondents are not liable to pay any

compensation in view of the various preliminary

objections raised by them, in their respective

written statement ? OPR

5. Relief.

4. On issue Nos.1 and 2, the Tribunal came to a conclusion that the

accident took place as the deceased who was carrying newspapers was

getting late and was driving the jeep at a high speed in order to cover the

delay and on account of a foggy day, struck against the bus standing on the

left side of the road and hence held that the accident took place due to rash

and negligent driving of the jeep by the deceased - Radhey Shyam. The

claim petition was accordingly dismissed. Hence, the present appeal.

5. Learned counsel for the claimant-appellants would contend that

admittedly it was a foggy morning. It has come in the statement of the driver

of the bus, Jai Ram who appeared as RW-1, that he had stopped the bus in

order to allow the passengers to board the bus. It has also come in the

statement of RW2, Jai Narain who was the conductor of the bus, that the bus

had stopped only because the stoppage was sanctioned on the request of the

inhabitants of the area. Hence, it could not be held that the deceased was

responsible for the accident.

6. Per contra, learned counsel for respondent Nos.1, 5 and 6 have

contended that it was the fault of the deceased as has rightly been held by the

Tribunal. It is further the contention that the stoppage where the bus had YOGESH SHARMA 2023.04.29 11:49

stopped to allow the passengers to board was a sanctioned stoppage. I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061083

7. I have heard learned counsel for the parties and with their able

assistance have gone through the record.

8. In the present case it is come in the evidence that on the day of

the accident it was a foggy morning and the bus had stopped on the left side

of the road to permit the boarding of the passengers. A pointed query was put

to learned counsel for the respondents as to whether the stoppage was a

sanctioned stoppage. In response, learned counsel for the respondents have

stated that the stoppage was sanctioned by the inhabitants of the area and

candidly admitted that there is no other document to show that there was any

sanctioned stoppage where the bus was parked.

9. Hon'ble Supreme Court in the case of Smt. K. Anusha & Ors.

Vs. Regional Manager, Shriram General Insurance Co. Ltd. [2021 (4)

RCR (Civil) 569] while dealing with the similar facts, has held as under :

"11. The first grievance of the appellants about the

finding of contributory negligence is liable to be

sustained for three reasons namely, (i) that even

according to the Tribunal and the High Court, the spot

where the lorry was parked, as indicated in Exhibits P-1

to P-6 (FIR, complaint, spot magazar etc.) and Exhibit

P-22 (spot sketch), was not a parking place; (ii) that

according to the High court, the driver of the lorry

ought to have parked the vehicle on the left side of the

road by giving proper indication/signal, but it was not

done; and (iii) that as per the finding of the High court,

the accident occurred at about 4.30 A.M. when the

lighting should have been poor.

YOGESH SHARMA 2023.04.29 11:49

12. The view expressed by the High Court to effect that I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061083

if the driver of the car had been vigilant and driving the

vehicle carefully following the traffic rules, the accident

would not have happened, is presumptuous and not

based on any evidence. There was nothing on record to

indicate that the driver of the car was not driving at

moderate speed nor that he did not follow traffic rules.

On the contrary, the High Court holds that if the lorry

had not been parked on the highway, the accident would

not have happened even if the car was driven at a high

speed.

13. Therefore, the entire reasoning of the High Court

on Issue No.1 is riddled with inherent contradictions. To

establish contributory negligence, some act or omission,

which materially contributed to the accident or the

damage, should be attributed to the person against

whom it is alleged. In Pramodkumar Rasikbhai Jhaveri

v. Karmasey Kunvargi Tak and Others, (2002) 6 SCC

455 this Court quoted a decision of the High Court of

Australia in Astley v. Austrust Ltd., (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". In fact, the statement of law in Swadling v. YOGESH SHARMA 2023.04.29 11:49

Cooper, 1931 AC 1, that "...the mere failure to avoid the I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061083

collision by taking some extraordinary precaution, does

not in itself constitute negligence...", was also quoted

with approval by this Court. Therefore, we are

compelled to reverse the finding of the Tribunal and the

High Court on the question of contributory negligence."

10. In the present case, admittedly it was a foggy morning. The bus

had stopped at an unsanctioned stoppage inasmuch as the only evidence on

the record is that it had been sanctioned by the inhabitants of the area. The

counsel for the respondents have not been able to point out to any evidence

to show that the bus had switched on any indicators to show it had stopped.

The photographs which had been relied upon by the Tribunal to hold the

deceased Radhey Shyam entirely responsible for the accident cannot be seen

in isolation. The photographs have to be seen in conjunction with the

evidence on the record. The evidence on the record reveals that it was a

foggy morning and visibility was affected. The bus was stationed at an

unsanctioned stoppage and hence it cannot be said that the entire fault for

causing the accident lay with the jeep. The photographs also appear to be

taken at a later point of time inasmuch as the photographs are clear

photographs showing both the vehicles involved in the accident.

Considering the fact that it was a foggy morning and the bus had stopped at

an unsanctioned stoppage, no fault can be found with the deceased driver,

Radhey Shyam.

11. In view of the above, the present appeal is allowed. The matter

is remanded to the Tribunal for assessment of compensation in accordance

with law. The Tribunal is requested to expedite the hearing as the accident in

the present case pertains to the year 1996. YOGESH SHARMA 2023.04.29 11:49 I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061083

12. Disposed off accordingly. Pending applications, if any, also

stand disposed off.

                                   29.04.2023                                      ( ALKA SARIN )
                                   Yogesh Sharma                                       JUDGE

NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

YOGESH SHARMA 2023.04.29 11:49 I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh