1 S.B. Civil Misc. Appeal No.1744/2000 (Dr. Rajmohan Ayyar Versus Babu Lal Mali & Another) Date of Order :: 1st February, 2010 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. K.N. Tiwari, counsel for the appellant. Mr. Satish Khandal, counsel for the respondents Challenge in this appeal is to the judgment dated 4th July, 2000, whereby the Motor Accident Claims Tribunal, Jaipur dismissed the claim petition no. 427/1992 filed by the claimant-appellant. 2. Factual matrix disclosing the manner of accident is stated, in brief, thus: “That on 22nd November, 1991 at about 8.00 AM, the appellant Dr. Rajmohan Ayyar was going on his motor-cycle bearing registration no. RJ 14 A 2028 to Jamwa Ramgarh to attend his official duty. It is stated that at about 8.30 AM, when he was crossing the CID Police Station, another motor cycle bearing registration no. RND 975 suddenly emerged from opposite direction, which was being driven rashly and negligently 2 and dashed against the motor cycle resulting into grievous injuries over his body and damaged to his vehicle. 3. Heard learned counsel for the parties and carefully perused the relevant material on record. 4. Learned counsel for the appellant canvassed that the learned Tribunal dismissed his claim petition on the ground that the motor cycle was being driven rashly and negligently by the appellant and it is he, who caused the accident, as a result of which one pillion rider died on the spot and rider of another motor cycle sustained injuries. Learned Tribunal also concluded before parting with the judgment that the appellant utterly failed to prove that the accident occurred owing to the rash and negligent driving of respondent no.1. Learned counsel contended that the finding arrived at by the learned Tribunal is totally contrary to the provisions of law, based on whims and caprices. The appellant sustained the grievous injuries over his body and he remained continuously on leave with effect 3 from 22nd November, 1991 to 30th October, 1992 for medical treatment. He not only got the treatment at SMS Hospital, Jaipur, but visited the hospital situated in Madras also, where he incurred huge expenses. Hence, the impugned judgment needs to be set-aside and appeal deserves to be allowed. 5. Learned counsel for the respondents opposed the submissions made by the learned counsel for the appellant and stated the impugned judgment to be just and proper, which called for no intervention. 6. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that the learned Tribunal, in fact, dismissed the appellant's claim petition solely on the ground that the accident occurred on account of driving of motor cycle by the appellant. 7. Adverting to the facts of the case at hand, it is suffice to observe that the appellant petitioner had a right to file an application for compensation arising 4 out of the accident. From the evidence on record, it is emerged that the appellant was going from Jaipur towards Jamwa Ramgarh, whereas the respondent no.1 Babu Lal was coming from the direction of Jamwa Ramgarh to Jaipur. The accident occurred near CID Police Station, where there was a slope of the road. To put the facts more precisely, the appellant was riding the motor cycle on descending slope on the road, whereas the respondent no.1 Babu Lal was riding his motor cycle on ascending slope of the road. It is true that the speed of a motor vehicle on an ascending slope of the road is always less in comparison to the speed of a motor cycle while descending on the road. The learned Tribunal having discussed this aspect, un- disputably rightly observed that the speed of the rider of motor cycle on the ascending slope could never be 60 to 70 kms. per hour and concluded observing that it was the appellant, who while riding the motor cycle on descending slope drove the motor cycle rashly and negligently and dashed against the other motor cycle and 5 the accident took place on account of the appellant's rash and negligent driving. Hence, he was not entitled to claim compensation. This observation of the learned Tribunal in the light of the settled legal position seems to be totally erroneous. The Court is expected to see as to whether there was any use of a motor cycle being driven by the appellant which caused the accident. The Court does not settle the fault of any driver of two motor cycles. If any person sustains bodily injuries in an accident arising out of the use of a motor vehicle, he can file an application for compensation arising out of that accident under Section 166 of the Motor Vehicles Act 1988 (here-in-after be referred to for short as “the Act of 1988”). If the guilt is fastened upon the driver of a motor cycle and he sustained injuries in an accident, that does not debar the guilty driver to file an application for compensation under Section 166 of the Act of 1988. The insurance certificates of any of the motor vehicles have not envisaged that if the accident 6 takes place owing to the negligent driving of the owner of the vehicle, he will not be liable to claim compensation from the Insurance Company nor does the law presupposes such a situation. The learned Tribunal did not consider all these aspects while appreciating the factual and legal position of the instant case. Hence, to my mind, the case needs determination of all these aspects afresh. 8. In view of the aforesaid discussion, the appeal is allowed and the impugned judgment dated 4.7.2000 passed by the Motor Accident Claims Tribunal, Jaipur is set-aside. The case is remitted back to the learned Motor Accident Claims Tribunal, Jaipur for decision on the matter afresh. 9. The learned Tribunal is directed to decide the claim petition, after affording an opportunity of being heard to both the parties preferably within a period of one month. 10. Both the parties are directed to remain present before the learned Tribunal on 22nd February, 2010. 7 11. Record of the learned Tribunal be sent back forthwith. (MAHESH BHAGWATI),J. DK/-