HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT/: ^oiaiinaiiy Miscellaneous Appeal (Civill No.SS of 2008 Chandra Kumar S/o Brij Lal Jain, aged about 38 years, R/o Present Address: In front of Ganesh Mandir, Ward No.8, Balod, Tahsil Balod, Distt. Durg (C.G.) RESPONDENTS: Versus 1. Jitendra Kumar S/o Neelkanth Chandrakar, R/o Village Anda, Police Station Pulgaon, Distt. Durg (C.G.) 2. Unlted India Insurance Co. Ltd. Branch Office: Station Road Durg, Distt. Durg {Appeal under Section 173 of the Motor Vehicles Act, 1988} Present: Mr. Brijesh Singh, Advocate, appears on behalf of Mr. Pushpendra Kumar Patel, counsel for the appellant. Mr. Sanjay Shyam Agrawal, counsel for respondent No.2. Division Bench: - Hon'ble Mr. T.P. Sharma & Hon'ble Mr. R.N. Chandrakar. JJ ORAL ORDER (11-2-2010) 1. By this appeal under Section 173 of the Motor Vehictes Act, 1988, the appetlant has challenged the award dismissing the claim petition, dated 6-10-2007 passed by the Additional Motor Aceident Claims Tribunat, Balod (for short 'the Claims Tribunal') in Claim Case No.45/20 , whereby the Claims Tribunal has dismissed the claim petition on the ground thatthe appellant was negligent at the time of overtaking the tractor. 2. Award is impugned on the ground that the Claims Tribunal has not considered the fact that the appetlant was not negligent at the time of overtaking and thereby committed ill^atity. -X 3. Brief facts necessary for the disposal of this appeat are that on 25-5- 2005 the appellant wasdriving motorcycle andwhlle he was crossing (overtaking) a tractor, all of a sudden, respondent No.1 who was also driving motorcycte and coming from front side.d^hed andcaused accident, as a result ofaccident, Vhe appellantsusteinedgrievous injuries and was treatedby the doctor. On accountof motor accident, the appellant has filed claim petition for claim of Rs.4 lakhs on the owner of motorcycle,No.CG-07/K-3171 and his Insurance Company. 4. The respondents have denied the altegation and alleged thatthe appellant himself was negligentat the time of acctdent, therefore, he is not entitled for any compensation from the r^pondents. 5. After affording opportunity of hearing to the parties, the Claims Tribunal has dismissed the claim petition on the ground that at the time of crossing/overtaking the tractorthe appellant himself was n^ligent and was driving the vehicle on right slde ofthe tractor & road. 6. We have heard learned counsel for the parties, perused the award and record ofthe Claims Tribunal. 7. Evidence and award impugned clearly reveal that at ftie time of crossir^/ overtaking the tractor the appellant was driving Ns motorcycte on right side of tractor, certainly even on right side of road and respondent No.1 was driving the vehicle on left side of roadandthe accident took place during thecourse of crossing/overtaking. In <»seof overtakir^ a four wheeler, normatly the vehicle which overtakes will be on ri£^)tside of the four wheeler and even on right side of road, but that iteelf is not n^ligent act of the'parties. Respondent No.1 was also driving the motercycle and he was not driving the fourwheeler, if the mcrtorcycle is being driven by Y respondent No.1 cautiously, there was no occasion for the acddent. The ^^l^ea^, ^^ »'s: s •^Sgs&^ ^ '-USLS^I Y^i Soma maxim res ipsa loquitur will come into play wMch shows that both the drivers of the motorcycle were not cautlous during the course of driving. But the Courtbelow has not considered this aspect ofthe case and has dismissed the claim petition. 8. We are of the view thatthe appellant atone was not negligent, the appellant & respondent No.1 both were negligent and this is a case of contributory negligence. Consequently, the award impugned dismissng the claim petition is not sustainable under the law. The appeal is allowed and the award impugned is hereby set aside. The rase is remittedto the Claims Tribunal for providing opportunity of adducing evidence, if any, and after hearing the parties, decide the case afresh. Parties are directed to present before the Tribunat on 29-3-2010 for further progress of trial. No order as to costs. Sd/- R.N. Chandrakar Sd/- i Judge T.P. Sharma | Judge ^•y V \