Aasharam Khandait And Ors vs Nand Kumar Singh And Ors

P. Sam Koshy, J

The present appeal under Section 173 of the Motor Vehicles Act has been filed by the claimants against the award dated 05.09.2012 passed by the

1st Additional Motor Accident Claims Tribunal, Raigarh (in short, the Tribunal) in Claim Case No.150/2011. Vide the impugned award, the Tribunal

has rejected the claim application of the claimants on the ground that the claimants have not been able to establish the aspect of negligence on the part

of the respondents. The Tribunal has exonerated the insurance company of its liability on the ground that the offending vehicle at the relevant point of

time did not have a permit or fitness certificate.

What is undisputed is the accident that took place on 23.01.2011 at around 7 PM in the evening. The place of accident was Laxman Paw crossing

at Village Gerwani, Distt .Raigarh. The said area is a remote area. Further, what is also reflected from the proceedings drawn is that the accident

took place when the deceased who was travelling on a motorcycle dashed the rear side of the stationery Dumper bearing registration No.CG-13-D-

0116 which was owned by the respondent No.2 and the driver of which was respondent No.1.

The Tribunal while considering the evidence of the claimants reached to the conclusion that since the offending vehicle was hit from the rear side

and that the offending vehicle was in a stationery position, therefore, the driver and the owner of the Dumper cannot be held negligible for the

accident.

This finding of the Tribunal does not seem to be a correct finding. The Tribunal should have look into the aspect of the time of accident, the

surroundings on the place of accident and that whether the driver of offending vehicle had taken sufficient care while parking the vehicle. The

Tribunal also should have seen the spot map to ascertain whether the vehicle was parked on the place where there was sufficient place for the

deceased to pass from the road or whether the accident took place in the middle of the road. The Tribunal also could have ascertained whether there

was an element of contributory negligence or not instead of outrightly rejecting the claim application holding it to be not sustainable.

Given the facts and circumstances of the case, this court is of the opinion that it is a fit case where the impugned award dated 05.09.2012 deserves

to be and is accordingly set aside and the matter is remitted back to the Tribunal for a fresh adjudication of the case.

Needless to mention that the parties including the claimants and the respondents would be at liberty to amend their pleadings and lead fresh

evidence, if so desired.

Since the parties are present before the court, they are directed to remain present before the concerned Tribunal on 20.03.2018.

Registry is directed to sent back the records of the case forthwith so that it may reach the concerned Tribunal by 20.03.2018 positively.

The appeal thus stands partly allowed and disposed of.