^€l'ssaa%. .^ HIGH COURT OF CHHATTISGARH AT BILASPUR Appellant/ Non-applicant Respondents MA (QNo. 208 of 2010 Komal Prasad Sahu, S/o Ratiram Sahu, aged -about 36 years, R/o Village Teka, Police Station Pithora, Tahsil & District Mahasamund (CG). Versus 1. Smt. Kalpana Chandrakar @ Sohadra Bai, aged about 28 years, W/o Late Paras Ram Chandrakar. 2. Ku. Khushbu, aged about 15 years, D/o Late Paras Ram Chandrakar. 3. Govind Chandrakar, aged about 13 years, S/o Late Paras Ram Chandrakar. 4. Smt. Besan Bai, aged about 65 years, W/o Late Dindayal All above R/o Village Godpali, Police Station Pithora, District Mahasamund (CG) Minor-Khushbu and Govind, through their natural guardian (mother) Smt. Kalpana Chandrakar. Claimants. 5. Mahendra Patel S/o Saheb Ram Patel R/o Village Pithora, • Police Station Pithora, Tahsil & District Mahasamund (CG). Owner ofmotorcycle bearingNo. CG/04/CA/5630) Misc. Appeal under Section 173 ofthe Motor Vehicles Act SBL H^n'ble Shri Justice N. K. Aearwal. Present : Shri Manoj Paranjpe with Shri Vaibhav A Gowardhan, Advocates for the appellant. 1. ORAL ORDER (Passed on 13th day ofJuly, 2010) Heard on admission. rfsyai>° ''%. f'^.ojjSfc'l '% ^.. ~'sr^(i' 2. This is owner's appeal directed against the award dated 11.12.2009, passed by Chief Motor Accident Claims Tribunal, Mahasamund (for short 'the Tribunal') in clam case No. 119/2009, whereby and whereunder an amount ofRs. 1,63,108/- has been awarded in favour of claimants as against the appellant/owner along with interest @ 6 percent per annum from the date ofapplication till its payment. 3. Brief facts of the case are that, on 09.08.2006, Parasram Chandrakar (Since deceased) while retuming from Sukhridabri to his village Godpali along with his friend Sukhnandan by Hero Honda motorcycle, was dashed by the driver of offending vehicle Hero Honda motorcycle (Splendor) bearing registration CG-04- CA-5630 and succumbed to the injuries sustained in the said accident. 4. The claimants, i.e. unfortunate widow and minor children of the deceased, filed an applicatioa under Section 166 of the Motor Vehicles Act, 1988 (for short 'MV Act'), claiming Rs. 24,50,000/- as compensation for the death ofdeceased in the said accident against the appellant and respondent No. 5. 5. The only question raised by Shri Paranjpe is that the appellant was not guilty of contributory^ negligence; the appellant has been acquitted by the criminal court from the offence punishable under Sections 279, 337, 338 and 304-A ofIPC; despite pleading, the Tribunal has not framed specific issue regarding ownership ofthe vehicle; and the proceeding is vitiated by non framing ofmaterial ~J] *^«e!'^ issue. It was further contended that the evidence available on record is not sufficient to hold the appellant guilty ofcontributory negligence to the extent of 50 percent. In support of his coatention, reliance has been placed upon the judgment of Supreme Court in case of Andhra Pradesh State Road Transport Corporation and Another v. K. Hemlatha and Others . I have heard the counsel appearing for the appellant, pemsed the award impugned and records ofthe Tribunal. In reply to para 3.1 of claim petition, it was not specifically denied by the appellant that he was driving the offending motorcycle and the respondent No. 5 was its registered owner at the time of accident. As per appellant, FIR lodged against him was forged and therefore, he was acquitted from the charges leveled against him. The respondent No. 5 took a specific plea in his written statement that the offending motorcycle was sold by him to the appellant before the date of accident aad since then the appellant was using the offending motoreycle as its owner. The contention raised by Shri Paranjpe regarding ownership of the offending motorcycle is sans substance. The appellaat, in para 4 & 5 ofhis written statement, has specifically admitted that he had purchased the offending motorcycle for a consideration of Rs. 20,000/- from the respondent No. 5 before two months from the occurrence ofaccident. He also admitted that at the time of accident he was driving the offending vehicle. In the light of ' 2008 (6) SCC 767 .-•^ ^•'^:': above admission, the ownership of appellant over the offending vehicle stands established. It is also not correct to say that the Tribunal has not framed any issue. The Tribunal has framed the issue No. 3 which reads as under: W aii^c;*'!"! wRp{Rf irrer ^r?4 ^ gri^TEprft t ?TR; m fft fecFft '•tlRr. f^T 31-ll^t;* ^ I" So it cannot be said that no such issue has been framed in this regard. 9. In motor accident case, the primary responsibility to pay compensation is of the driver. The owner is vicariously for the acts of driver, therefore, issue No. 3 framed by the Tribunal covers the plea of ownership. Moreover, in the light of admission of the appellant regardiag ownership of the offending vehicle, it cannot be said that the appellant has been prejudiced due to non framing of specific issue in this regard. 10. So far as question ofnegligenee is concemed, it is not in dispute that FIR was lodged against the appellant. Gulshan Kumar Sahu (AW-2) has stated in para 1 of his statement that the offending vehicle was coming at a high speed andj^ dashed the vehicle of deceased which was on its correct side. He has further stated in para 6 of his statement that there was head-on-collision between both the motorcycle. As per appellant's own statement in para 1 the other vehicle came from opposite side and dashed his motorcycle. ^ ;!>/ @^- •S-' r -;.tr ^i; •>F: l;i- ] 11. Sukhnandan (NAW- 1) has deposed in para 2 of its statement that he cannot say who was guilty ofnegligence for the said accident. Although, he has stated in para 1 that Paras Ram (deceased) was driving his motorcycle with high speed but he was not in drunken position. 12. The Tribunal, afl.er considering the entire evidences led, material placed and submissions made by the parties, held that both the driver have contributed to the cause of accident and passed the award accordingly. 13. The Tribunal, after considering the entire evidences led and looking to the fact that there was head-on-collusion, although the Police has registered a crime case against the appellant, apportioned the liability between the deceased and appellant as 50-50. Even otherwise, ifthe entire material placed on record is re-appreciated, it carmot be said that proportion of negligent of appellant is less than 50 percent or the appellant was not negligent at all. 14. Division Bench of this Court in case of Smt. Pushpabai and others v. Padumnath Mali and others has observed in para 5 of its judgment that .................." But since, there appears to have been a head on collision between the motorcycle driven by Bhajanlal and the Scooter driven by Padumnath, the accident cannot be solely attributable to Padumnath, Bhajanlal, in the facts and circumstances, was partly responsible for the accident. Moreover, witness No. 2 Dhanuram examined on behalf of the appellants has not stated that Bhajanlal was on the left handside 2005 LT(CG) 92 ¥.. <4^- ^ir t- of the road •while driving the motorcycle and he has only stated that Bhajanlal was driving slowly. Any driver of a motorcycle while driving slowly is under duty to drive on the left hand side of the road. We, therefore, hold that Bhajanlal was guilty of contributory negligence and the quantum of compensation payable to the dependents ofBhajanlal was liable to be reduced 50% on account ofsuch contributory negligence." 15. The Supreme Court in case of Andhra Pradesh State Road Transport Corporation (Supra) has observed in. para 11 of its judgment as under: "11. To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who was more responsible for the accident and who ofthe two had the last opportunity to avoid the accident. In case the damages are to be apportioned, it must also befound that the plaintiffs fault was one ofthe causes ofthe damage and once that condition is fulfilled the damages have to be apportioned according to the apportioned share ofthe responsibility. Ifthe negligence on the plaintiffs part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence ifhe ought to haveforeseen that ifhe did not act as a reasonable, reasoned man, he might himself be hit and he must take into account the possibility ofothers being careless. 16. In the instant case, it was not a case of the appellant that at the time of accident he was on his left side. Evidence reveals head- on-collision between botk the motorcycle; FIR was lodged against the appellant, in such circumstances, by applying the ratio laid down by the Supreme Court and also by this Court in the above quoted cases, in the considered opinion of this court, the Tribunal has not committed any illegality in holding the gppellant ^:.:'^'''^i^^u^^%I;^i'^.^^g^B%^^^^:^^^Q^^i^^^^j negligent to the extent of 50 pereent. The view taken by the Tribunal is just and reasonable. 17. The appeal being devoid of substance is liable to be and is hereby dismissed. No order asto costs. Sd/- N.K. Agarwal Judge Sabu