Sushila Soni vs Sudama Singh

Sanjay K. Agrawal, J

This appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the appellant/claimant calling in question the legality, validity and correctness of the impugned award dated 05.07.2022 passed by learned Motor Accident Claims Tribunal, Durg in Motor Accident Claim Case No.01/2020, whereby the claim application of the claimant has been partly allowed and claimant’s son deceased Rajesh Soni has also been held negligent to the extent of 50% and, therefore, while deducting 50% amount towards contributory negligence from the total compensation amount of Rs.13,55,200/-, the claimant has been awarded only Rs. 6,77,600/- for death of her son.

Ms. Pooja Sinha, learned counsel for the appellant/claimant, would submit that the eye-witness Vinash Kariyar (AW-3) has been examined who has clearly stated that the offending vehicle was parked in the middle of the road without being on the indicators & parking light and radium strip was also not affixed therein, therefore, the deceased could not see the offending Truck and he collided with the Truck and, as such, the deceased cannot be held responsible for contributory negligence. She relied upon the decision of the Supreme Court in the matter of Jumani Begam v. Ram Narayan & Others (2020) 5 SCC 807.

Mr. Sanjay Patel, learned counsel for the insurance company/ respondent No.3 would support the impugned judgment and submit that the finding recorded by the learned Claims Tribunal with regard to contributory negligence of the deceased is a correct finding of fact based on evidence available on record, which do not call for any interference and the appeal of the claimants deserves to be dismissed.

I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records minutely.

Eye-witness Vinash Kariyar (AW-3) has clearly stated that he had seen the offending Truck parked in the middle of the road on 31.08.2019 without being on the indicators & parking light and, therefore, the deceased could not see the offending Truck and he collided with the Truck and died. The Supreme Court in the matter of Jumani Begam (supra) has clearly held in para 7 as under :-

“7. MACT then discussed the evidence of the driver of the truck trailer, NAW 1. After analysing the evidence of the driver, MACT held that his evidence did not inspire confidence, when he stated that indicators on the truck trailer had been lit. On the contrary, the eye-witness, AW 2, in the course of his cross-examination, denied the existence of reflectors at the spot. MACT noted that it did not appear that the truck trailer had been parked outside the area of the pakka road. In spite of its analysis in the above terms, MACT surmised that if the lights of the motorcycle were lit, the deceased would have been able to avoid the accident. This part of the reasoning of MACT is purely a matter of surmise. Once the substantive evidence before MACT established that the truck trailer had been parked on the road at night without any reflectors, we are of the view that there was no reason or justification for MACT to proceed on the basis of conjecture in arriving at a finding of contributory negligence. We find from the judgment of the High Court that this aspect has not been discussed at all and the High Court simply proceeded to confirm the finding of contributory negligence. Consequently, on the first limb of the submission, learned counsel appearing on behalf of the appellant is correct and the submission requires to be accepted.”

As such, in view of the statement of eye-witness Vinash Kariyar and in light of the decision of the Supreme Court in Jumani Begum (supra), since the offending vehicle was parked in the middle of the road without the indicators & parking light being on, therefore, deceased Rajesh Soni cannot be held responsible for contributory negligence and, as such, the impugned award to the extent of holding the deceased responsible for contributory negligence is set aside. The claimant is entitled to get the full amount of compensation as quantified by the learned Claims Tribunal i.e. Rs. 13,55,200/-.

Accordingly, this appeal is allowed and the impugned award is modified to the extent as indicated herein-above. Rest of the conditions of the impugned award shall remain intact.