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Judgment
Sunil Kumar Sinha, J.
Being aggrieved with the award dated 27.2.98 passed in claim Case No.13/93 by the Additional Motor Accident Claims Tribunal, Janjgir, the State has filed this appeal.
The facts, briefly stated, are as under:-
Respondents 1 to 4 herein/claimants filed a Claim Petition u/s 166 of the Motor Vehicles Act claiming compensation of Rs.7,50,000/- on account of death of deceased- Sitaram in the motor accident which took place on 8.5.93. They pleaded that on 8.5.93. at about 11.00 p.m. deceased-Sitaram was coming on his motor cycle form Champa to Village Thathari. A road-roller bearing registration No. PW.-9844 was parked in the middle of the road in village Kamrid. No parking indications were given. The roller was kept there because road construction works of contractor (respondent No.5) was going on. Since no indications were given and the roller was kept in the middle of the road, the deceased, who was driving his motorcycle, dashed his motor cycle against the roller and died on the spot. They contended that the appellant and respondents 5 & 6 were jointly and severally liable to pay compensation to the claimants as the accident occurred on account of negligent act of the driver of the roller who kept the roller on the road in the above condition.
The contractor/respondent No.5 filed his written statement denying the contentions of the claimants. He pleaded the roller was kept on the side of the road and red lights were on even coaltar drums were kept by the side of the roller in abundant caution. There was no negligence on the part of the driver or the roller. He further pleaded that the road-roller belongs to Public Works Department. The contractors use to take the roller for completion of their contract on rent on certain agreement. Therefore, the liability, if any would be on the Government being the owner of the road-roller.
Respondent No.6/driver also filed his written statement and denied the contentions of the claimants.
Appellants/State also filed its written statement and contended that the accident occurred on account of rash and negligent driving of the motorcycle by the deceased. The roller was kept in stationary condition with all possible indication. It was also plead that the roller was taken on agreement by the contractor, therefore, the liability, if any, would go on the contractor and not on the State being the owner of road-roller.
Claimants examined Rasika Devi (AW-1) Jeevan (AW-2) & Hemant Singh (AW-3) in support of their claim petition, whereas, the non-claimants examined Vishnu Sharma (NAW-1) & Dinesh Chandra Mahiwal (NAW-2) in rebuttal.
The Tribunal held that the accident occurred on account of negligence of the driver of the roller who parked it in such a manner that the deceased could not avoid the accident and his motorcycle dashed against the roller and the owner of the roller i.e. State of Madhya Pradesh (Now State of Chhattisgarh) was liable to pay compensation.
The Tribunal assessed that the deceased was earning Rs.3,000/- per month. By deducting 1/3rd towards the personal expenses of the deceased, the dependency was worked out to Rs.2,000/- per month and Rs.24,0007- per annum. The Tribunal applied multiplier of 15 and the compensation was worked out to Rs.3,60,000/- By awarding Rs.10,000/- under other heads, a total amount of compensation was worked out to Rs.3,70,0007- which the Tribunal awarded to respondents 1 to 4/claimants for the death of deceased-Sitaram in the motor accident which took place on 8.5.93. The Tribunal also awarded interest at the rate of 12% per annum from the date of filing of the claim petition till realization.
State has challenged the award on various grounds and has prayed for setting-aside the award, whereas, respondents 1 to 4/clamants have filed their cross-objection dated 22.9.98 and have prayed for enhancement of amount of compensation in terms of the prayer made their Claim Petition.
Mr. V.V.S. Murthy, learned Dy. Advocate General appearing on behalf of the appellant/State, has mainly argued that the accident occurred on account of rash and negligent driving of the motorcycle by the deceased, the road-roller was kept in stationary condition by the side of the road leaving sufficient space to pass any vehicle, therefore, respondents 1 to 4/claimants were not entitled to receiver any claim for the death of the deceased in the said accident. He also argued that the roller was in control and command of the contractor at the time of the accident under the agreement, therefore, the liability to pay compensation, if any was on the contractor and not on the State.
On the other hand, Mr. Dhiraj Wankhede, learned counsel appearing on behalf of respondents 1 to 4/claimants, opposed these arguments and supported the award passed by the Claims Tribunal. However, he argued that the amount of compensation should be suitably enhanced by allowing cross-objection of the claimants.
Mr. Sanjay K. Agrawal, learned counsel appearing on behalf of respondent no.5/contractor supported the arguments advanced by the counsel for the appellant that the deceased himself was rash and negligent in driving his motorcycle, therefore, respondents 1 to 4/claimants were not entitled for any compensation. However, he opposed the arguments of the appellant that the liability, if any, was on the contractor because the road-roller was in control and command of the contractor at the time of the accident.
We have heard the learned counsel for the parties at length and have also persused the records of the Claims Tribunal.
Admittedly, the Claim Petition was filed u/s 166 of the Motor Vehicles Act. Therefore, the proof of rashness and negligence on the part of the driver of the offending vehicle was sine qua none for maintaining the Claim Petition as well as for getting any claim under the said provisions as it was a negligence based claim. This is what the Supreme Court held in Oriental Insurance Co. Ltd. vs. Premlata Shukla & Ors, AIR 2007 SCW 3591.
The Tribunal has recorded the finding that the roller was kept in stationary condition on the road without observing the indications required to take precaution while parking a vehicle, therefore, the driver of the roller was negligent and the liability to pay compensation was on the owner of the roller. Claimants have examined Jeevan (AW-2) and Hemant Singh (AW-3) to prove the fact of negligence. Jeevan (AW-2) was a labour in the construction work. He deposed that on the date of accident, the roller was parked on the road and no indication lights were on. It was not surrounded by drums. There was no board to show that the construction work is going on. They used to leave the construction place at about 4.30-500 p.m. In the cross-examination, he admitted that he does not know that after leaving the construction place whether red light etc and drums were put or not. He admitted that it was a busy road and the vehicles use to cross that place frequently in 2-3 minutes. According to his information no other accident had taken place. Hemant Singh (AW-3) deposed that he reached to the place of occurrence at about 8.30 a.m. on the next day. He saws the deceased at the place of occurrence. Roller was on middle of the road. Photographs of the place of occurrence were taken at his instance. He exhibited the negatives & positives (Ex.A1 & A1-A) of the photographs. He deposed that he lodged the First Information Report (Ex-P/3).
Admittedly, the above 2 witnesses, examined by the claimants to prove the negligence, were not to the eye-witnesses. Jeevan (AW-2) was not able to say as to what happened after 5.00 p.m. when he left the place of occurrence. Hemant Singh (AW-3) also could not depose about the occurrence and he only stated that the roller was on the middle of the road. If we look into the photographs (Ex-A1 & A1-A), they clearly show that the deceased has dashed at the back portion of the roller and the roller was not parked on the road, but it was parked on the left side of the road occupying the marginal portion of the road and sufficient space was left for crossing other vehicles. In our considered view, if the deceased would have driven the motorcycle in diligent manner, there was sufficient space on the road to cross the roller and nothing appears to be there on which it can be said that in normal circumstances, the driver of the vehicle would dash his vehicle against the roller. This all shows that, in fact, the deceased himself was rashly and negligently driving his motorcycle, who could not control it while cross the place of occurrence and dashed his motorcycle against the back portion of the stationary vehicle (road-roller) in which there was no fault on the part of the driver of the roller.
We have also gone through the contents of the F.I.R. (Ex-P/3) lodged by Hemant Singh (AW-3). This document was filed by the claimants to prove the factum of accident. In the F.I.R. also it has been mentioned that the deceased was driving his motorcycle rashly and negligently and he dashed against the stationary roller of Public Works Department (PWD) which was kept on the side of the road.
The above evidence adduced by the claimants has been rebutted by the evidence of Vishnu Sharma (NAW-1 - Contactor). On due appreciation of the entire evidence available on record, we are of the view that the Tribunal erred in law in recording the finding that the accident occurred on account negligence on the part of the driver of the roller and the claimants have utterly failed to prove the above fact. In our view, the accident occurred due to rash and negligent driving of the motorcycle by the deceased who dashed his motorcycle against the stationary vehicle (road-roller) which was kept on the side of the road and huge passage was there to cross other vehicles. Therefore, we set-aside the above findings recorded by the Claims Tribunal.
Since we have held that the accident occurred on account of negligence on the part of the deceased himself, therefore, we do not feel it necessary to enter into inter-se controversy between the appellant and respondent No.5 regarding liability to pay compensation as the same would be a futile exercise.
For the forgoing reasons, the appeal is allowed. The impugned award is set-aside and the Claim Petition filed by the claimants, u/s 166 of the Motor Vehicles Act, is dismissed. Consequently, the cross-objection filed by the claimants for enhancement of compensation also stands dismissed.
The parties shall bear their own cost.