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Judgment
S.B. Shukre, J.—Both these appeals are directed against the judgment and Award passed on 04.11.2011 in Claim Petition No. 139 of 2004 delivered by the Motor Accident Claims Tribunal, Amravati. While F.A. No. 932/12 challenges the said judgment and award mainly on the ground that the aspect of contributory negligence of deceased Arvind and the consequent necessity of deducting proportionately from the total amount of compensation payable to the petitioners, the amount equivalent to the contributory negligence not having been considered by the Tribunal; the other appeal being F.A. No. 1218/13 mainly challenges non-awarding of interest on the amount of compensation in the same judgment and award.
The claimants are the appellants in FA No. 1218/13 and are respondents 1 and 2 in F. No. 932/12. The appellant in F.A. No. 932/12 is the insurer of the truck bearing registration No. MTB 7954 and respondents 3 and 4 in this appeal are respectively the driver and owner of the said truck. These parties are made respondents 1 to 3 in F.A. No. 1218/13. Parties to both the appeals, for the sake of convenience, hereinafter shall be referred as the claimants, driver of the offending truck and the insurer of the offending truck.
The claimants Smt. Sandhya and Ravindra are respectively the widow and son of deceased Arvind. He was working as a driver in the office of Executive Engineer, Upper Wardha Sub Division-II, Morshi. On the fateful night of 2.7.1993 he was driving the office jeep bearing registration No. MTR-3216 from Amravati to Morshi. At about 8-30 p.m. when he reached the spot situated in between Amravati and Nandgaonpeth, deceased Arvind tried to overtake one truck bearing registration No. AP-10(T) 433, and it is submitted by the claimants, the driver of the said truck suddenly gave a dash to the jeep, in the sense that he suddenly turned the truck towards right side of the road and turned it back to the left side so as to obstruct overtaking of his vehicle by the jeep. As a result of such action on the part of the driver of the said truck, there was a collision between jeep driven by deceased Arvind and another truck bearing registration No. MTB-7954, which was approaching from the opposite direction. The claimants submitted that in this case Arvind sustained grievous injuries and on 4.7.1993 he succumbed to those injuries at the hospital. The claimants submitted that the accident occurred only due to rash and negligent driving of the offending truck. The claimants further submitted that they were dependent upon the income of deceased Arvind and, therefore, filed a petition u/s 166 of the Motor Vehicles Act against the driver, owner and insurer of the offending truck. It must be clarified here that the respondent no. 2 in Claim Petition No. 139/04 has been wrongly shown as driver of the offending truck, although there is no dispute about the fact that he was owner of the offending truck at the time of the accident.
While the petition proceeded ex parte against the driver and owner of the offending truck, it was resisted by the insurer. It was submitted by the insurer that the petition was bad for non-joinder of necessary parties and insurer was not liable to pay any compensation to the claimants.
After considering the evidence available on record and hearing rival parties, the Tribunal recorded a finding that the accident occurred only to due to rash and negligent driving of the truck bearing registration No. MTB-7954 and determined the compensation payable to the claimants at Rs. 4,72,000/-, and partly allowed the petition directing the owner and insurer to pay the said amount of compensation to the claimants jointly and severally, by the judgment and award dated 4.11.2011. The Tribunal refused to grant any interest on the amount of compensation so granted by it. Not satisfied with the same, the insurer as well as the claimants have filed the present appeals.
I have heard Shri Kukday, learned counsel for the appellant in F.A. No. 932 of 2012 and for respondent no. 3-Insurer in F.A. No. 1218 of 2013. I have also heard Shri Marathe, learned counsel for the claimants. None appeared for the driver and owner of the offending truck, though duly served. Now, the following points arise for my determination:
(i) Whether the Tribunal fell in serious error in recording a finding that the accident occurred on 2.7.1993 only due to rash and negligent driving of the offending truck bearing registration No. MTB-7954?
(ii) Whether the insurer had proved that in the occurrence of the accident there was also contributory negligence on the part of deceased Arvind in driving the jeep bearing registration No. MTR-3216; and if so, what was the percentage of negligence on his part?
(iii) Whether the Tribunal was right in refusing interest on the amount of compensation awarded?
(iv) What order?
Learned counsel for the insurer has submitted that in this case none of the eye witnesses, though available, has been examined by the claimants and, therefore, for addressing the issue of contributory negligence, the documentary evidence in the nature of first information report vide Ex. 45 and spot panchanama Ex. 46 would have to be looked into. He has further submitted that the contents of the first information report as well as spot panchanama sufficiently establish the fact that deceased Arvind was also at fault in driving the jeep when he without considering the fact that one truck was approaching from the opposite direction made an attempt, albeit unsuccessfully, to overtake the truck No. AP-10(T)433. He has taken me through the contents of the first information report as well as spot panchanama to substantiate the said point of argument. He, therefore, submits that contributory negligence on the part of deceased Arvind ought to have been considered by the Tribunal, and it could not have been less than 40% in the instant case.
Learned counsel for the claimants has submitted that the contents of the first information and spot panchanama themselves would show that the accident occurred only because truck No. AP-10(T)433 gave a push to the jeep being driven by deceased Arvind because of which the normal movement of the jeep was obstructed and the jeep driver could not see the offending truck approaching from the opposite direction. He submits that if at all negligence is to be held in this case, it would be on the part of the driver of another truck which was being overtaken by deceased Arvind, and in that event, this would be a case of composite negligence and not contributory negligence. He, therefore, submits that there is no need to make any interference with the findings recorded in this behalf by the Tribunal.
Upon careful perusal of the documentary evidence, and I must say this is necessarily a case based upon circumstantial evidence because no evidence of eye witnesses is available and we have to go by the circumstances which emerge from documents. These circumstances indicate that there is great force in the arguments canvassed on behalf of the insurer that deceased Arvind was negligent in the causing of the accident and he contributed to it to some extent. In the first information report, no doubt, it has been mentioned that the truck which was being overtaken by Arvind-driver of the jeep, had given a push to the jeep of deceased Arvind. What is meant by giving of "push" by one vehicle to another vehicle has to be understood first. It means sudden bringing of vehicle in front of the vehicle which is trying to overtake it and then immediately taking it back to its normal position. This is done sometimes by the drivers of some vehicles plying their vehicles on the road to prevent the vehicle on their rear from overtaking their vehicles. This was what the driver of the truck which was going ahead of deceased Arvind''s jeep had done in this case. Because of such action on the part of that vehicle, the speed of the jeep being driven by Arvind might have been reduced and resultantly he might have found himself in a situation where he could neither overtake nor bring his vehicle to left side of the road to pave the way for the oncoming vehicle to pass by. But, I do not think that because of the said act of "push" on the part of the vehicle, which was ahead of the jeep, the accident occurred in this case. Overtaking of one vehicle by the vehicle which is behind it, is something which involves inherent risk, for, the vehicle which is overtaking the front vehicle, has to take that vehicle towards its wrong side and, therefore, there is always a possibility of head on collision with oncoming vehicle, if there is miscalculation of time required for overtaking. To avoid such dangers, driver of the overtaking vehicle must ensure that for considerable distance, ahead of him, no other vehicle is approaching from the opposite direction He must not make any attempt to over take without getting a clear passage. The fact that there was head on collision between the jeep and the offending truck and it occurred at the time when the jeep was in the process of overtaking another truck bearing registration No. AP-10(T) 433 itself showed that the offending truck approaching from the opposite direction was most probably at a visible distance. There is no evidence in this case indicating that jeep driver with all diligence at his command could not have seen oncoming vehicle while overtaking and that road was clear and safe at the spot of accident. Therefore, the driver of the jeep, i.e. deceased Arvind, ought not to have taken risk of trying to get ahead of another truck. He should have waited for getting a clear passage so that he could have safely overtaken his vehicle ahead of another truck. But, he did not do so and rather chose to run the risk of overtaking the truck moving ahead of his vehicle, and this was a miscalculation on his part which resulted in the accident.
These conclusions can be easily drawn from the facts revealed by the first information report as well as spot panchanamas (Ex. 45 & 46) respectively. The spot panchanama vide Ex. 46 particularly shows that the jeep after the accident, was standing in the middle of the road and the offending truck was standing on the left side of the jeep and was much away from the road. The position of both these vehicles speaks volumes about the manner in which the accident must have occurred. This circumstance reasonably indicates that the drivers of both these vehicles failed to exercise as much care and caution as they should have in driving their vehicles. The driver of the offending truck also failed to apply brakes to avoid the accident. This seems to be the reason why the offences for rash and negligent driving have been registered not only against the driver of the offending truck, but also against deceased Arvind. It is thus obvious that the accident in this case has occurred due to rashness and negligence contributed by both the drivers of the vehicles. This evidence seems to have been not considered in its proper perspective by the Tribunal and, therefore, an erroneous finding that the accident occurred only due to rash and negligent driving of the offending truck has come to be recorded by the Tribunal. This finding being not completely based upon the evidence available on record, needs to be modified.
In view of the above discussion, I find that there has been rashness and negligence on the part of the drivers of jeep and the offending truck in causing of the accident. The offending truck being a bigger vehicle and the jeep being a smaller vehicle, the percentage of negligence on the part of the drivers of both the vehicles could reasonably be taken to be at 75% and 25%. There is no denying the fact that the driver of bigger and heavier vehicle is expected to show greater care and caution in driving the vehicle, as such vehicles take their own time for being brought under control. Therefore, the extent of contributory negligence on the part of deceased Arvind and driver of the offending truck could be reasonably fixed at 25% and 75% respectively. Therefore, points no. (i) and (ii) are answered in these terms.
Once it is held that deceased Arvind made a contribution by his negligence towards the occurrence of the accident and his contribution was to the extent of 25%, an amount which is equivalent to 25% of the compensation fixed by the Tribunal would have to be deducted therefrom and it would make the amount of compensation payable to the claimants to be at Rs. 3,54,000/- [Rs. 4,72,000-1,18,000]. This amount of compensation would be liable to be paid to the claimants jointly and severally by the owner and insurer of the offending truck.
Learned counsel for the claimants has submitted that the Tribunal has not at all considered the fact that there was no delay on the part of the claimants after the evidence was adduced by them and the time that was taken for disposal of the claim petition was on account of several factors attributable mainly to procedural requirements of the case and not the deliberate attempt to prolong the case on the part of the claimants. He submits that the Tribunal should have awarded interest if not from the date of petition, but at least from the date on which the evidence was adduced by Sandhya. This has been opposed by the learned counsel for the appellant/insurer. However, I find that there is considerable force in the argument so advanced on behalf of the claimants. The evidence of claimant no. 1 Sandhya was adduced on 30.1.2010, and for the sake of convenience this date can be taken to be from 01.01.2010. A perusal of the Roznama of petition before the Tribunal shows that the claim petition was thereafter fixed on different dates from time to time and ultimately the judgment and award were delivered on 04.11.2011. The intervening period between the date of evidence of the claimants and date of judgment and award witnessed adjourning of the case for different reasons and very few of them could be attributable to the claimants. Therefore, it has to be held that the period taken for disposal of the case after the claimants commenced their evidence was mainly on account of procedural requirements of the case. Therefore, for this period of time, interest on the compensation amount is due to the claimants and should have been granted by the Tribunal. The finding of the Tribunal in this regard, therefore, cannot be sustained in law.
In these circumstances, I find that the claimants are entitled to receive interest on the amount of compensation earlier determined by this Court at the rate of 7.5% from 01.01.2010 till the date on which the decretal amount has been deposited by the Insurance Company, which is 18.1.2013.
Thus, both the appeals are partly allowed with the direction that the impugned judgment and award dated 04.11.2011 stand modified and substituted by the direction that the owner and Insurance Company of the offending truck shall pay jointly and severally to the claimants an amount of Rs. 3,54,000/- as compensation, which is inclusive of the amount of Rs. 50,000/- on account of no-fault liability together with interest at the rate of 7.5% from 01.01.2010 till 18.1.2013. In the circumstances of the case, parties to bear their own costs. Decree be drawn up accordingly.
The Tribunal shall permit the claimants to withdraw the amount of compensation determined by this Court together with interest, as already granted by this Court from the amount deposited by the Insurance Company before the Tribunal at Amravati, and shall also permit the Insurance Company to withdraw the remaining amount. The Insurance Company is permitted to withdraw amount of statutory deposits made in this Court.
In the circumstances of the case, parties to bear their own costs.