IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 94/2004 Jamil Ahamad .. Appellant. Versus Ratan Lal and 7 others … Respondents. Mr. Naresh Pant, Advocate for the appellant. Mr. K.K. Shah, Advocate for the respondent No.8, National Insurance Co. Mr. Manoj Tewari, learned counsel for respondent No.6. Dated: 26th August, 2008. Hon’ble B.C. Kandpal, J. This appeal, under section 173 of the Motor Vehicles Act, 1988 has been preferred by the owner of the truck bearing registration No. USI 9969, against the judgment and award dated 11-12-2003, passed by Motor Accident Claims Tribunal/ Addl. District Judge/ I F.T.C. Udham Singh Nagar, in MACT Case No. 90 of 1999 Ratan Lal and others Vs. Jamil Ahmad and others. 2- Brief facts of the case are that on 20-3-1999 at about 12.30 P.M. Smt. Gulabo Devi was waiting for the bus at Patharkhera Chauraha P.S. Bhot District Rampur, DCM Toyota HR 30/3786 was going towards Rampur and from Rampur side Truck No. USI 9969 was coming at a high speed and collided with DCM Toyota. Smt. Gulabo Devi and her son Banarasi Lal and son in law Smt. Shakuntala sustained injuries in the accident of these vehicles. Smt. Gulabo Devi was brought to Government Hospital Rampur where she was declared dead by the doctors. F.I.R. of the accident was lodged at P.S. Bhot. According to the claimants the accident was caused by the negligence of both the drivers. It is alleged that Smt. Gulabo Devi was running a shoe-shop at Gadarpur and her monthly income was Rs. 5,000/-. 2 Therefore, the claimants filed petition for a compensation of Rs. 7,00,000/-. 3- The opposite party No.1, Jamil Ahamad contested the claim petition and denied the allegations made in the petition. He alleged that his vehicle did not cause any accident. According to him his vehicle has wrongly been roped in the accident. 4- The opposite party Nos. 2 and 3 owner and driver of DCM Toyota HR 30/3786 did not contest the petition and the case proceeded exparte against them. 5- The opposite party No.4, National Insurance Company contested the case by filing its written statement and alleged that no information of the accident was given to it. The deceased had no income and exorbitant amount of compensation has been demanded. 6- The learned Tribunal, on the basis of pleadings of parties, framed the following issues in the petition:- 1- Whether on 20-3-99, at about 12.30 P.M., the accident has occurred at Patharkhera Chauraha within P.S. Bhot, District Rampur, due to the rash and negligence of the driver of Truck No. USI 9969 coming from Rampur side who collided with Truck DCM Toyota HR 30/3786, in which Smt. Gulabo Devi sustained grievous injuries and succumbed to the injuries?. 2- To what amount of compensation the claimants are entitled to get and from whom?. 7- Thereafter parties adduced evidence in support of their case. The learned Tribunal, after hearing learned 3 counsel for the parties and considering the entire material available on record, awarded a compensation of Rs. 74,000/- along with interest @ 5% per annum from 27.2.2003 till the date of actual payment. The liability of compensation was fixed upon opposite party No.1, Jamil Ahamad (owner of Truck No. USI 9969). 8- Feeling aggrieved by the aforesaid judgment and award the owner of the offending truck No. USI 9969 has preferred this appeal, which has been placed before me for disposal. 9- None has appeared on behalf of the claimants. Heard Sri Naresh Pant, learned counsel for the appellant/owner of the Truck No. USI 9969, Sri K.K. Sah, learned counsel for the National Insurance Company (insurer of DCM HR 30/3786) and Sri Manoj Tewari, learned counsel for respondent No.6, owner of DCM Toyota HR 30/3786 and perused the record. 10- As far as the factum of accident is concerned, the Tribunal has assessed the evidence in detail and has come to the conclusion that the DCM Toyota HR 30/3786 was going towards Rampur on the date and time of the accident, while the Truck No. USI 9969 was coming from the opposite direction dashed the DCM Toyota on account of which death of Smt. Gulabo Devi, who was pedestrian, took place. 11- Learned counsel for the appellant has submitted that the pleading adduced by the claimants in the claim petition as well as the evidence led by the parties before the tribunal concerned clearly indicates towards this situation that it is a case of contributory negligence, as both the trucks collided with each other in 4 a rash and negligent manner. It has further been submitted that it is a head on collision and the driver of both the vehicles were rash and negligent on account of which this accident took place, but this aspect has been ignored by the tribunal and the tribunal did not record any finding with regard to the contributory negligence and the impugned judgment and award suffers with material illegality. 12- Learned counsel for the national insurance company, who is the insurer of the vehicle DCM Toyota HR 30/3786, has submitted that it is evident from the material available on record that the truck was rash and negligent while there is no rash and negligence on the part of the driver of DCM Toyota HR 30/3786. He has supported the finding of the tribunal. 13- On the basis of the rival contentions raised by learned counsel for the parties, the only controversy in this case is, ‘as to whether it is a case of contributory negligence or the solitary negligence on the part of driver of truck No. USI 9969, as has been held by the Tribunal concerned?’. 14- Perusal of the claim petition shows that the claimants have clearly averred in the claim petition that it was a head-on collision and at the time of the accident both the drivers of the offending vehicles involved in the accident were rash and negligent. Further, the eye witness Banarasi Lal P.W.2 has been produced by the claimants. He has also stated in his cross-examination that drivers of both the vehicles were rash and negligent and on account of the same the accident took place, in which Smt. Gulabo Devi succumbed to injuries. This 5 witness in his affidavit at paragraph 6 has also stated the same thing. 15- The respondents have produced D.W.1, Jamil Ahamad, owner of the Truck No. USI 9969 involved in the accident, who has although denied this aspect by saying that the truck in question was not rash and negligent at the time of accident, but on the basis of assessment of the entire evidence available on record, it is a clear cut case in which this aspect cannot be ignored that it is a case of contributory negligence. It is a head-on collision between both the vehicles involved in the accident and at the time of accident both the vehicles were on the road. The DCM Toyota was going towards Rampur while the truck was coming from the opposite direction, therefore, the drivers of both the vehicles had sufficient opportunity to see each other vehicle from a reasonable distance. Had the drivers of both the vehicles been vigilant at the time of accident, they could have avoided the accident very well. There is no evidence available on record that the place of accident has a ‘U’ turn or any turn in the shape in which it was not possible for the driver of the vehicle to see another vehicle coming from opposite direction. Therefore, in view of the aforesaid circumstances it can be safely inferred that it is a case of contributory negligence and the drivers of both the vehicles were rash and negligent at the time of accident. 16- Now it is to be seen what is the ratio of rash and negligence between the vehicles involved in the accident. As I have already observed that there is no evidence on record that the place of accident has ‘U’ turn or any turn which might not have given an occasion to the drivers of the vehicle to see the another vehicle coming from another direction all of a sudden. It is quite 6 clear that the drivers of both the vehicles had sufficient time to see each other vehicle and thus they could very well avoid the accident. But the manner in which the accident took place clearly goes to show the circumstance that the drivers of both the vehicles were rash and negligent and on account of the same the accident took place in which Smt. Gulabo Devi sustained injuries and died. I, therefore, come to the conclusion that the drivers of both the vehicles are equally responsible for the rash and negligence in this case. Therefore, the amount of compensation awarded by the Tribunal is to be paid by the owner of the truck USI 9969, and the insurer of the vehicle DCM Toyota HR 30/3786, in equal share to the claimants along with interest @ 7.5% per annum instead of 5% as has been awarded by the Tribunal. The Tribunal has awarded a sum of Rs. 74,000/- as compensation. This amount should be paid along with interest @ 7.5% per annum from the date of filing the petition till the date of actual payment in equal part by the owner of Truck and the insurer of DCM Toyota HR 30/3786, i.e. Rs. 37,000/- each. 17- For the reasons recorded above, the appeal is liable to be allowed. 18- Accordingly the appeal is allowed. The impugned judgment and award dated 11-12-2003 is modified upto the extent that the amount of compensation of Rs. 74,000/- shall be paid to the claimant by the owner of Truck No. USI 9969 and the insurer of vehicle DCM Toyota HR 30/3786, in equal part, i.e. Rs. 37,000/- each, along with interest @ 7.5% per annum from the date of filing petition till the date of actual payment, instead of 5% per annum as has been awarded by the Tribunal. 7 19- In case if the appellant has deposited the excessive amount, he is permitted to withdraw the same from the tribunal concerned. 20- The statutory amount deposited by the appellant before this court shall be remitted to the tribunal concerned. (B.C. Kandpal, J.) ISB 8