FAO No.1374 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1374 of 2010 (O&M) Date of Decision: 17.03.2010 Baldev Singh ..Appellant Vs. Smt.Binder & Ors. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.P.K.Garg, Advocate, for the appellant. --- Vinod K.Sharma,J. (Oral) CM No.6800-CII of 2010 Civil Misc. is allowed and the delay in making the court fee good, is condoned. FAO No.1374 of 2010 (O&M) This is owner's appeal against the award dated 21.04.2009, passed by the learned Motor Accident Claims Tribunal, Karnal on the claim petition filed under sections 166/140 of the Motor Vehicles Act (for short the Act). The claimant/respondents sought compensation on account of death of Satbir alias Satta in a motor vehicular accident on 15.4.2005. FAO No.1374 of 2010 2 Deceased along with Suresh Kumar, was travelling on motor-cycle No.HR- 0054-8919 make Hero Honda CD-100, which was being driven by deceased, at a moderate speed and Suresh was a pillion rider. When they reached near Pucca Khera Chowk in the area of village Peont on Karnal- Assandh road, where truck bearing registration No.HR-21-3089 was standing in the middle of the road, without any indication or indicator and due to glaring light of vehicles, coming from the opposite side, deceased could not see the standing truck and struck against it. As a result of injuries suffered, deceased died on way to Hospital. FIR No.104 dated 16.4.2005 under sections 279/304-A IPC, was registered against the driver of the truck. It was alleged that the accident had occurred due to negligence of respondent No.1, as he had parked his vehicle in the middle of the road without any indication, therefore, failed to observe the caution and rules of the road. It was pleaded, that the deceased was earning a sum of Rs.7000/- (Rupees seven thousand only) per month. However, learned Tribunal for want of any evidence took the income of the deceased to be only Rs.3000/- (Rupees three thousand only) and thereafter by imposing a cut of 1/3rd, assessed the dependency of claimant at Rs.2000/- Rupees two thousand only) per month. Keeping in view the age of the deceased multiplier of 12 was applied and compensation of Rs.3 lacs (Rupees three lacs only) was assessed. Learned Tribunal also held, that it was a case of contributory negligence, as the deceased was also guilty of negligence, as he had hit the standing truck. Consequently, compensation awarded was reduced by 50% FAO No.1374 of 2010 3 and claimants were held entitled to compensation of Rs.1.5 lacs (Rupees one lac fifty thousand only) along with interest at the rate of 7.5 per cent per annum from, the date of the institution of the petition till realization. Mr.Parveen Kumar Garg, learned counsel for the appellant, challenged the finding of the learned Tribunal on the question of negligence by contending that the allegations of the claimants that the truck was parked in the middle of the road, without any indicator stood belied from the evidence. It was stated in evidence that it was due to dust, on account of thrashing of wheat, which was the main cause of accident. Learned counsel for the appellant also pointed out some minor contradictions, in the evidence to contend that the negligence was not proved. It was also the contention of the learned counsel for the appellant, that there was no contributory negligence on the part of the driver of the truck, as it was not parked in the middle of the road but on one side of the road. The contention was that it was the deceased who was driving the motor-cycle rashly and negligently. On consideration of matter, I find no force in this contention of the learned counsel for the appellant. Once it is not disputed that the truck was parked on the road, without any indication which resulted in accident, the appellant cannot claim that he was not at all negligent. Mere fact that the rules were not followed, and there was no indicator showing the standing truck on the road in itself is an act of negligence. Learned Tribunal already held that the deceased was also negligent and accident was held to be a result of contributory negligence. FAO No.1374 of 2010 4 The compensation on account of contributory negligence was reduced by 50 per cent. The finding of the learned Tribunal, therefore, cannot be said to be bad, or not sustainable in law as contended by the learned counsel for the appellant. There is another angle to the case. This appeal is accompanied by an application for condonation of delay of 226 days in filing the appeal. The only ground taken in the petition is that the counsel for the appellant had not informed about the status of the case, and it was only on 11.2.2010, that the appellant came to know about the decision of the case. The application is not supported by affidavit of the counsel. It has become a practice to level allegations against the counsel, for their own negligence, so as to avail the benefit of condonation of delay, in view of the law, that the party should not suffer for the fault of the counsel. Delay is of 226 days. No explanation is forthcoming as to why particular date was selected after so many dyas to approach the counsel. The averments made in the application do not appeal to reason and it is held, that no ground for condonation of delay of 226 days is made out. Consequently the appeal is dismissed, being barred by limitation, as well as on merit. No costs. (Vinod K.Sharma) 17.03.2010 Judge rp