Archit Saini and Anr. v. the Oriental Insurance Company Ltd. and Ors.

A. M. KHANWILKAR, J. 1. These appeals take exception to the judgment and order dated 1 st February, 2016 passed by the High Court of Punjab and Haryana at Chandigarh in F.A.O. Nos.1179, 1180, 1181, 1182, 1183, 1318, 1452, 4596, 4597 & 4598 of 2013, whereby the High Court modified the award passed by the Motor Accident Cla ims Tribunal, Yamuna Nagar, Jagadhari, on the finding that it was a case of “contributory negligence” and resultantly held that the claimants – injured were entitled to only 50% of the total compensation awarded to them including the enhanced compensation. 2. The sole question raised in the present appeals is about the justness and tenability of the approach of the High Court in reversing the finding of fact recorded by the Tribunal on the factum that t he motor accident which occurred on 15 th December, 2011 at about 10.30 P.M. was due to parking of the offending vehicle bearing No.HR-0 2-AF- 8590 (Gas Tanker) in the middle of the road in a negligent manner. 3. In the petition for compensation filed before the Motor Accident Claims Tribunal (for short, “the Tribunal”), it was alleged that the accident was caused due to parking of the offending Gas Tanker in the middle of the road without any indicator or parking lights. The claimant examined the eye-witness Sohan Lal (PW-7) who, in his affidavit, gave an account of the cause of accident in the following words: “… That on 15.12.2011 at about 10.30 P.M. I along w ith P.H.G. Ajit Singh was present near Sanjha Chulha Dh aba, on the National Highway, (which leads to Jammu) in the area of Village Ajijpur, P.S. Sujanpur. At that time all the traffic was diverted on the Eastern side of the road, as the We stern side of road was closed due to construction work. I n meantime, a Maruti Car No.HR-02-K/0448 came from Jammu side (Madhopur side) and struck against the back of the Gas Tanker as the driver of car could not spot the parked tanker due to flash-lights of the oncoming traffic from fron t side. Then we rushed towards the spot of accident, and not iced that the said tanker was standing parked in middle o f the 629 road, without any indicators or parking lights . Due to the accident the car was damaged extensively. The driver of the Car and a lady sitting by his side, died at the spo t. Two children, who were on the rear seat of car were also injure d.” (emphasis supplied) 4. The said witness was cross-examined by the respondents. The relevant portion of his cross-examination reads thus: “…We were standing on Dhaba on duty with our motorcycle. The truck was standing just opposite the dhaba on the other side of the road. I was able to see the truck at that time. There was no fog at that time. There was lights on the dhaba and the truck was visible to me due to light of dhaba. I was standing at the distance about 70 ft. from the truck because there was road between me and the truck. I have heard the voice/sound caused by the accident only then I noticed at the car struck against the truck. I have not seen the car before the accident, and only seen after the accident. I reached the spo t after hearing the sound of accident. I cannot tell the speed of the car because I have not seen the car. The road is about 88 ft. wide i.e. 44 ft. on each side with a divider in betwe en. The left portion of the truck was just on the edge of t he road towards the kucha portion.” 5. The respondents had opposed the claim petition and denied their liability but did not lead any evidence on the relevant issue to dispel the relevant fact. The Tribunal after analysing the evidenc e, including the Site Map (Ext.P-45) produced on record along with charge- sheet filed against the driver of the Gas Tanker and the arguments of the respondents, answered issue No.1 against the respondents in the following words: “21. Our own Hon’ble High Court in a case captioned Lekhu Singh and other Vs. Udey Singh and others, (2007 4 PLR 507 held that while considering a claim petition, the Tribunal is required to hold an enquiry and act not as criminal co urt so as to find whether the claimants have establishe d the occurrence beyond shadow of any reasonable doubt. I n the enquiry, if there is prima facie evidence of the oc currence ARCHIT SAINI AND ANR. v. THE ORIENTAL INSURANCE COMPANY LTD. [A. M. KHANWILKAR, J.] there is no reason to disbelieve such evidence. The statemen ts coupled with the facts of registration of FIR and trial of the accused in a criminal court are sufficient to arriv e at a conclusion that the accident has taken place. Likew ise, in Kusum Lata Vs. Satbir, 2011 (2) RCR © 379 (SC) Hon’ ble Apex Court has held that in a case relating to motor accident claims, the claimants are not required to rove the case as i t is required to be done in a criminal trial. The Court must keep this distinction in mind. Strict proof of an accident caused b y a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were mere ly to establish their case on the touchstone of preponder ance of probability. The standard of proof beyond reasonable d oubt could not have been applied. 22. After considering the submissions made by both the parties, I find that PW7 Sohan Lal eye-witness to t he occurrence has specifically stated in his affidavit Ex. PW7/A tendered in his evidence that on 15.12.2011 at abou t 20.30 p.m. he alongwith PHG Ajit Singh was present near Sa njha Chulha Dhaba on the National High Way leads to Jummu. All the traffic of road was diverted on the eastern sid e of the road on account of closure of road on western side due to construction work. In the meantime a Maruti car bea ring No.HR-02-K-0448 came from Jammu side and struck against the back of Gas Tanker as the driver of the car cou ld not spot the parked tanker due to the flash lights of the oncoming traffic from front side. Then they rushed towards the spot of accident and noticed that the said tanker was standing parked in the middle of the road without any indicators or pa rking lights. 23. The statement of this witness clearly establishes t hat this was the sole negligence on the part of the driver of t he gas tanker especially when the accident was caused on 15.12.2011 that too at about 10.30 p.m. which is gener ally time of pitch darkness. In this way, the driver of the car cannot be held in any way negligent in this accident. Moreove r, as per Rules 15 of the Road Regulations, 1989 no vehicle is to be parked on busy road. 631 24. The arguments of learned counsel for responden t that PW7 Sohan Lal has stated in his cross-examination that there was no fog at that time and there were lights on the Dhaba and the truck was visible to him due to light of Dhaba and he was standing at the distance of 70 feet from the truck being road between him and the truck and he noticed at th e car when he heard voice/sound caused by the accident s o the respondent no.1 is not at all negligent in this acci dent but these submissions will not make the car driver to be in an y way negligent and cannot give clean chit to the driver of the gas tanker because there is a difference between the v isibility of a standing vehicle from a place where the person is standing and by a person who is coming driving the vehicle becau se due to flash lights of vehicles coming from front side the vehicle coming from opposite side cannot generally spot the s tanding vehicle in the road that too in nights time when there is neither any indicator or parking lights nor blinking lights nor any other indication given on the back of the stationed veh icle, therefore, the driver of the car cannot be held to be in any way negligent rather it is the sole negligence on the part of the driver of the offending Gas Tanker as held in Ginn i Devi and others’ case (2008 ACJ 1572), Mohan Lal’s case (2007 1 ACC 785 (Allahabad). It is not the case of the respond ent that the parking lights of the standing truck were on or there were any other indication n the back side of the ve hicle standing on the road to enable the coming vehicle to see th e standing truck. The other arguments of learned counsel for respondent no.3 that the road was sufficient wide road and that the car driver could have avoided the accident, s o the driver of the car was himself negligent in causing the accident cannot be accepted when it has already been held th at the accident has been caused due to sole negligence of the driver of the offending stationed truck in the busy road. The proposition of law laid down in Smt. Harbans Kaur & others’s case (2010 4 PLR 422 (P&H) and T.M. Chayapathi & another’s case (2005 IV ACC 61 (AP) is not disputed at all but these authorities are not helpful to the respondents being not applicable on the facts and circumstances of the pre sent case. Likewise, non-examination of minor children of the age ARCHIT SAINI AND ANR. v. THE ORIENTAL INSURANCE COMPANY LTD. [A. M. KHANWILKAR, J.] of 14 and 9 years who lost their father and mother in the accident cannot be held to be in any way detrimental to the case of the claimants when eye witness to the occurrence has proved the accident having been caused by the negligence of respondent no.1/driver of the offending vehicle. 25. Moreover, in Girdhari Lal Vs. Radhey Sham and others, 1993 (2) PLR 109, Sudama Devi and others Vs. Kewal Ram and others, 2008 (1) PLR 444 and Pazhaniammal and others’s case (2012 ACJ 1370) our own Hon’ble High Court has held that ‘it is, prima facie safe to conclude in claim cases t hat the accident has occurred on account of rash or negligent driving of the driver, if the driver is facing the criminal trial on account of rash or negligent driving.’ 26. Moreover, the respondent no.1/driver of the off ending vehicle has not appeared in the witness box to deny the accident having been caused by him, therefore, I am in clined to draw an adverse inference against the respondent no .1. In this context, I draw support from a judgment of the Hon’ ble Punjab & Haryana High Court reported as Bhagwanti Devi vs. Krishan Kumar Sani and others, 1986 ACJ 331. Moreover, the respondent no.1 has also not filed any complaint to higher authorities about his false implication in the criminal case so it cannot be accepted that the respondent no.1 has been falsely implicated in this case. 27. In view of above discussion, it is held that the claimants have proved that the accident has been caused by respondent no.1 by parking the offending vehicle bearing No. H R-02- AF-8590 on the middle of the road in a negligent ma nner wherein Vinod Saini and Smt. Mamta Saini have been d ied and claimants Archit Saini and Gauri Saini have rec eived injuries on their person. Sh. Vinod Saini deceased who was driving ill fated car on that day cannot be held to be negligent in any way. Accordingly, this issue is decided in f avour of claimants.” (emphasis supplied) 6. When the matter travelled to the High Court by way of appeal for enhancement of compensation, while accepting the claim of the 633 claimants-injured for giving additional compensation, the High Court overturned the finding of fact recorded by the Tribunal in r elation to issue No.1 and opined that it was a case of contributory neglige nce of the driver of the Maruti Car which met with the accident. The High Court answered the said issue in its judgment as can be discerned from paragraphs 14 & 15, which read thus: “14. So far as the issue of contributory negligence is concerned, it has come in the testimony of Sohan Lal, PW-7, that the tanker/offending vehicle was parked without indicator but the same was visible from a distance of 70 ft. Moreove r, a perusal of site plan Ex.P 45 reveals that the offending vehicle was not parked in the middle of the road. 15. In view of the statement of PW-7 and site plan Ex.P- 45, it is proved that the tanker/offending vehicle was visible f rom a distance of 70 ft. and not parked in the middle of the road. Therefore, in the concerned opinion of this Court, it is a c ase of contributory negligence.” 7. In the present appeals, the moot question is whether the High Court committed manifest error in reversing the well considered decision of the Tribunal on issue No.1 answered against the respondents, instead concluding that it was a case of 50% contributory negligence on the part of the deceased driver of the Maruti Car. 8. After having perused the evidence of PW-7, Site Map (Ext. P-45) and the detailed analysis undertaken by the Tribunal, we have no hesitation in taking the view that the approach of the High Court in reversing the conclusion arrived at by the Tribunal on issue No.1 h as been very casual, if not cryptic and perverse. Indeed, the appeal before the High Court is required to be decided on fact and law. That, however, would not permit the High Court to casually overturn the finding of fact recorded by the Tribunal. As is evident from the analysis done b y the Tribunal, it is a well considered opinion and a plausible view. The High Court has not adverted to any specific reason as to why the view taken by the Tribunal was incorrect or not supported by the evidence on record. It is well settled that the nature of proof required in cas es concerning accident claims is qualitatively different from the one in criminal cases, which must be beyond any reasonable doubts. The Tribunal applied the correct test in the analysis of the evidence before it. Notably, the High ARCHIT SAINI AND ANR. v. THE ORIENTAL INSURANCE COMPANY LTD. [A. M. KHANWILKAR, J.] Court has not doubted the evidence of PW-7 as being unreliable nor has it discarded his version that the driver of the Maruti Car could not spot the parked Gas Tanker due to the flash lights of the oncoming t raffic from the front side. Further, the Tribunal also adverted t o the legal presumption against the driver of the Gas Tanker of having parked his vehicle in a negligent manner in the middle of the road. The Si te Plan (Ext. P-45) reinforces the version of PW-7 that the Truck (Gas Tanker) was parked in the middle of the road but the High Court opined to the contrary without assigning any reason whatsoever. In our view, the Site Plan (Ext. P-45) filed along with the charge-sheet does not support the finding recorded by the High Court that the Gas Tanker was not parked in the middle of the road. Notably, the High Court has also not doubted the claimant’s plea that the Gas Tanker / offending vehicle was parked without any indicator or parking lights. The fact that PW-7 who was standing on the opposite side of the road at a distance of about 70 feet, could see the Gas Tanker parked on the other side of the road does not discredit his version that the Maruti Car coming from the opposite side could not spot the Gas Tanker due to flash lights of the oncoming traffic from the front side. It is not in dispute that the road is a busy road. In the cross-examination, neither has any attempt been made to discr edit the version of PW-7 nor has any suggestion been made that no vehicle with flash lights on was coming from the opposite direction of the parked Gas Tanker at the relevant time. 9. Suffice it to observe that the approach of the High Cour t in reversing the well considered finding recorded by the Tribunal on t he material fact, which was supported by the evidence on rec ord, cannot be countenanced. 10. Accordingly, we have no hesitation in setting aside the sa id finding of the High Court. As a result, the appellants would be entitled to the enhanced compensation as determined by the High Court in its entirety without any deduction towards contributory negligence. In other words, we restore the finding of the Tribunal rendered on issue No.1 against the respondents and hold that respondent no.1 negligently parked the Gas Tanker/offending vehicle in the middle of the road without any indicator or parking lights. 11. Accordingly, we affirm the enhanced compensation payable to the claimants as determined by the High Court in paragraph 13 of the impugned judgment, which reads thus: 635 “13. In view of the above, the claimants-injured a re held entitled to the enhanced compensation of RS.2,80,00 0/- [Rs.30,000/- (enhancement towards ‘pain and sufferi ng’) + Rs.20,000/- (enhancement towards loss of studies) + Rs.10,000/- (enhancement towards special diet) + RS.1,90,000/- (enhancement towards ‘loss of love an d affection’) + Rs.30,000/- (enhancement towards cremation and last rites)] as indicated above, which shall be payable within a period of 45 days from the date of receipt of a c ertified copy of this judgment, failing which, the claimants-appell ants shall also be entitled to interest @ 7.5% per annum, from the date of filing the present appeal till its realizati on.” We set aside the direction given by the High Court in paragraph 16 of the impugned judgment regarding deduction of 50% of the total compensation awarded to the claimants towards contributory negligence. 12. The appeals are allowed in the aforementioned terms with no order as to costs. Devika Gujral Appeals partly allowed. ARCHIT SAINI AND ANR. v. THE ORIENTAL INSURANCE COMPANY LTD. [A. M. KHANWILKAR, J.]