NISHAN SINGH vs ORIENTAL INSURANCE COMPANY LTD. REGIONAL MANAGER

A.M. Khanwilkar, J.

1.This appeal, by special leave, filed by the claimants assails the judgment and order of the High Court of Uttarakhand at Nainital in

Appeal From Order No.125 of 2015 dated 5th March, 2015, whereby the appeal was dismissed and the order passed by the

MACT/Additional District JudgeÂIII, Rudrapur, Udham Singh Nagar, dated 10th December, 2014 in Motor Accident Claim Petition

No.147 of 2012 dismissing the claim petition on the finding that the accident in question was not on account of rash and negligent driving of

Truck bearing No. U.P.Â32 ZÂ2397 but on account of rash and negligent driving of Maruti Car bearing No. U.P.Â02 DÂ5292 resulting

in death of Balvinder Kaur who was sitting in the car driven by Manjeet Singh, came to be upheld.

2..Briefly stated, appellant No.1 asserted that when he was returning home to village Bindukhera with his wife Balvinder Kaur, the mother

of appellant Nos.2 to 4, from his matrimonial home at village Kuankhera, District Bijnaur along with his cousin brothers Manjeet Singh and

Bittu and his son Karanjeet Singh on 28th November, 2010 in a Maruti Car bearing No. U.P.Â02 DÂ5292 which was being driven by

Manjeet Singh, son of Kashmir Singh, the said car met with an accident causing serious injuries to the persons travelling therein, including

the death of Balvinder Kaur. The maruti car had dashed against Truck bearing No. U.P.Â32 ZÂ2397 which was running ahead of it.

According to the appellants, the truck driver suddenly applied brake while the truck was in the centre of the road, bringing it to the right

side, as a result of which, the maruti car collided with the truck from the back. Balvinder Kaur eventually succumbed to her injuries on the

same day i.e. 28th November, 2010, while she was being treated at Govt. Hospital, Kashipur. After that, an F.I.R. was registered on 4th

December, 2010 at police station Kunda, District Udham Singh Nagar, bearing No.93/10 u/s 279 for offences punishable under Sections

304A, 337, 338 and 427 of IPC. The appellants asserted that Balvinder Kaur was gainfully employed and earned around Rs.10,000/Â‐

(Rupees Ten Thousand Only) per month from the dairy business.

3.On these assertions, a claim petition was filed before the Motor Accident Claims Tribunal/Additional District JudgeÂIII Rudrapur,

Udham Singh Nagar being M.A.C. CaseNo.147/2012. Appellant No.1 who was travelling in the car along with his wife deposed before

the Tribunal. Appellants also examined Manjeet Singh who was driving the Maruti Car bearing No. U.P.Â02 DÂ5292 at the relevant

time. The appellants also relied on the chargeÂ​sheet filed by the police against respondent No.3 (Parasnath) driver of the offending truck.

4.The respondents contested the claim petition. According to the respondents, the accident occurred due to the negligence of the driver of

the maruti car and there was no negligence on the part of the truck driver. It was asserted by the respondents that the truck driver had a

valid driving licence. Further, the appellants had failed to implead the owner and driver of the maruti car who was responsible for the

accident and as such, no relief could be granted to the appellants.

5.The Tribunal analysed the entire evidence on record and answered the issue as to whether the truck was being driven in rash and

negligent manner against the appellants. The Tribunal instead held that the accident occurred due to rash and negligent driving by the

driver of the maruti car. The Tribunal, therefore, concluded that the truck driver and the insurer of the truck were not liable to pay

compensation as claimed. The Tribunal noted the issue of contributory negligence but, having regard to the facts of the present case and

particularly because the owner and the driver of the maruti car were not made parties, it held that the appellants were not entitled to any

relief. The Tribunal also noted that the maruti car was purchased by Manjeet Singh about 1Â1½ years before the accident but the same

was not transferred in his name nor was it insured. Taking an overall view of the matter, the Tribunal dismissed the claim petition vide

judgment dated 10th December, 2014.

6.The appellants carried the matter in appeal before the High Court of Uttarakhand at Nainital. The High Court summarily dismissed the

appeal by reiterating the finding recorded by the Tribunal that the evidence clearly indicated that the driver of the maruti car himself was

negligent in driving his vehicle and had failed to keep sufficient distance between the two vehicles running in the same direction.

Furthermore, the maruti car driver, owner and concerned insurance company were not made parties to the claim petition. The High Court,

thus, declined to interfere in the first appeal.

7.The appellants have assailed the aforementioned decisions in this appeal. According to the appellants, the finding recorded by the

Tribunal and affirmed by the High Court, that the driver of the maruti car had not maintained safe distance from the truck running ahead

of the maruti car in the same direction, is untenable. The appellants have also assailed the finding of fact recorded by the Tribunal and

affirmed by the High Court that the maruti car was driven in a rash and negligent manner. It is urged that the fact that the maruti car was

not registered in the name of Manjeet Singh or that the documents pertaining to the maruti car and even the valid driving licence of the

driver of maruti car was not brought on record, cannot denude the appellants to receive compensation due to contributory negligence of

the truck driver. Further, the Tribunal committed manifest error in recording the finding on the issue of contributory negligence against the

appellants without framing any issue in that behalf. It is urged that the findings recorded by the Tribunal to absolve the truck driver, on the

ground that the truck was not driven rashly and negligently, is perverse and untenable in law. Moreover, the Tribunal has completely

glossed over the efficacy of the chargeÂsheet filed by the police against respondent No.3 truck driver after due investigation. The

appellants have also reiterated their claim regarding compensation, on the assertion that deceased Balvinder Kaur was earning around

Rs.10,000/Â (Rupees Ten Thousand Only) per month and after her death, her family was facing grave hardship. According to the

appellants, the Tribunal as well as the High Court had dealt with the matter in a hyperÂtechnical manner and did not appreciate the

evidence on the basis of preponderance of probabilities.

8.The respondents, on the other hand, have supported the finding of fact recorded by the Tribunal, that the accident occurred not because

of rash and negligent driving of the truck but was on account of rash and negligent driving by the driver of the maruti car. On that finding,

contends learned counsel for the respondents, no liability can be fastened on the respondents. He submitted that the analysis of the

evidence on record by the Tribunal and affirmed by the High Court does not warrant any interference. The respondents have supported

the conclusions recorded by the Tribunal and affirmed by the High Court for dismissing the claim petition.

9.We have heard Mr. Vijay Prakash, learned counsel appearing for the appellants and Mr. K.K. Bhat, learned counsel for the

respondents.

10.The moot question is whether the Tribunal committed any error in answering issue No.1 against the appellants and in favour of the

respondents. The Tribunal, while answering the said issue No.1, analysed the evidence, both oral and documentary, including the chargeÂ‐

sheet filed by the appellants and observed thus:

“20. In site plan paper No.6C/6 which is filed on record, the breadth of the road in question appears to be 14 feet and about 7 steps

Kachcha Lekh appears at the both sides of the road. This fact is remarkable that the said accident is not of front accident but the accident

occurred as a result of collision of the Maruti Car on the rear part of the truck in question by the driver of the car in question and the same

fact is also mentioned in the evidence of the petitioners. PWÂ2 Manjeet Singh driver of the car in question as stated in his cross

examination that he was driving the car behind the truck at the distance of about 10Â15 feet. Despite there being the breadth of the road

14 feet Pucca, the driver of the car in question kept the vehicle only at the distance of 10Â15 feet from the truck which doesn’t

appear in accordance with traffic rules. He should have driven the vehicle maintaining the proper distance in order to escape from each

circumstance but he has admitted in his cross examination as PWÂ2 that, “he knows that he should maintain proper distance from the

heavy vehicleâ€. Under such circumstance if the vehicle which is running behind the heavy vehicle, must maintain the proper distance if

the proper distance is not maintain then the whole negligence shall be determined on the part of rear vehicle in regard to the occurrence of

accident in question. In addition no evidence in regard to the seizing of truck in question on the place of occurrence and taking into police

custody the vehicles from the place of occurrence and getting done their technical survey is not available on place of occurrence.

21.By the facts mentioned in the petition and by the evidence of PWÂ1 and PWÂ2 it doesn’t appear reliable that rash and negligent

driving in the accident in question was on the part of the driver of the truck in question and for this purpose only by registering of F.I.R. of

said accident and submitting of chargeÂsheet against the driver of the truck in question, the driver of the truck in question cannot be held

guilty for the said accident, whereas by the evidence of the petitioner on record this fact comes forward that the accident occurred as the

driver of the car in question was not driving the car in question in accordance with traffic rules i.e. the accident occurred as the vehicle

was not being driven maintaining proper distance from the truck and it appears clearly that the speed of the car would have been fast

whereby the car in question collided with the rear part of the truck in question being uncontrolled and said accident took place. Under such

circumstance there was no rash and negligence on the part of the driver of truck bearing No.U.P.32 ZÂ2397 regarding the accident in

question but the same is determined on the part of Manjeet Singh driver of Maruti Car bearing No.U.P.Â​02 DÂ​5292.

22.On the basis of the aforesaid interpretation it appears that the said accident didn’t occur on 28.11.2010 at about 6:45 p.m. at village

Kunda KashipurÂJashpur Road under area of P.S. Kunda district Udham Singh Nagar by the driver of the truck bearing No. U.P.Â32

ZÂ2397 due to rash and negligent driving of the truck and by applying sudden break but it occurred as a result of rash and negligent

driving of Maruti Car bearing No. U.P.Â02 DÂ5292 in question by Manjeet Singh driver, wherein Balvinder Kaur who was sitting in the

car sustained serious injuries and expired during her treatment on account of serious injuries.â€​

The finding so recorded by the Tribunal has been affirmed by the High Court, by observing that the evidence was clearly indicative of the

fact that the maruti car was being driven in a rash and negligent manner, which was the cause for accident of this nature and resulting in

death of one of the passengers in the maruti car. The maruti car was driven by none other than PWÂ2 Manjeet Singh. In his evidence, he

has admitted that the subject truck was running ahead of the maruti car for quite some time about one kilometre and at the time of

accident, the distance between the truck and maruti car was only 10 Â15 feet. He has also admitted that the law mandates maintaining

sufficient distance between two vehicles running in the same direction. It is also not in dispute that the road on which the two vehicles

were moving was only about 14 feet wide. It is unfathomable that on such a narrow road, the subject truck would move at a high speed as

alleged. In any case, the maruti car which was following the truck was expected to maintain a safe distance, as envisaged in Regulation

23 of the Rules of the Road Regulations, 1989, which reads thus:

“23. Distance from vehicles in front. The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance

from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop.â€​ Â

The expression ‘sufficient distance’ has not been defined in the Regulations or elsewhere. The thumb rule of sufficient distance is

at least a safe distance of two to three seconds gap in ideal conditions to avert collision and to allow the following driver time to respond.

The distance of 10â€"15 feet between the truck and maruti car was certainly not a safe distance for which the driver of the maruti car

must take the blame. It must necessarily follow that the finding on the issue under consideration ought to be against the claimants.

11.The Tribunal also noted that there was no evidence on record to indicate that the driver of the truck suddenly applied his brake in the

middle of the road. Further, the finding on issue No.1 recorded by the Tribunal is that there was no evidence regarding exact place of

occurrence of accident and having taken survey. Therefore, the issue under consideration was answered against the appellants

(claimants), namely, that the subject truck was not driven rashly and negligently by the truck driver nor had he brought the truck in the

centre of the road at right side or applied sudden brake as being the cause of the accident. Being a concurrent finding of fact and a

possible view, needs no interference.

12.The next question is whether the Tribunal should have at least answered the issue of contributory negligence of the truck driver in

favour of the appellants (claimants). The question of contributory negligence would arise when both parties are involved in the accident

due to rash and negligent driving. In a case such as the present one, when the maruti car was following the truck and no fault can be

attributed to the truck driver, the blame must rest on the driver of the maruti car for having driven his vehicle rashly and negligently. The

High Court has justly taken note of the fact that the driver and owner of the maruti car, as well as insurer of that vehicle, had not been

impleaded as parties to the claim petition. The Tribunal has also taken note of the fact that in all probability, the driver and owner of the

maruti car were not made party being close relatives of the appellants. In such a situation, the issue of contributory negligence cannot be

taken forward.

13.However, even in such a case, the Tribunal could have been well advised to invoke Section 140 of the Motor Vehicles Act, 1988, (for

short “the Actâ€) providing for liability of the owner of the vehicle (subject truck) involved in the accident. It is a well settled position

that fastening liability under Section 140 of the Act on the owner of the vehicle is regardless of the fact that the subject vehicle was not

driven rashly and negligently. We may usefully refer to the decisions in Indra Devi and others Vs. Bagada Ram and another and

Eshwarappa alias Maheshwarappa and Another Vs. C.S.Gurushanthappa and Another , which are directly on the point.

14.Accordingly, even though the appeal fails insofar as claim petition under Section 166 of the Act, for the appellants having failed to

substantiate the factum of rash and negligent driving by the driver of the subject truck, the appellants must succeed in this appeal to the

limited extent of relief under Section 140 of the Act. We have no hesitation in moulding the relief on that basis.

15.For the reasons mentioned above, this appeal is partly allowed. The appellants are granted limited relief under Section 140 of the Act.

The respondent Nos.2 and 3 are made jointly and severally liable to pay a sum of Rs.50,000/(Rupees Fifty Thousand Only) to the

appellants towards compensation under Section 140 of the Act, on account of the death of Balvinder Kaur in the accident which occurred

on 28th November, 2010, along with interest at the rate of 9% from the date of filing of the claim petition till realization.

16.The appeal is partly allowed in the above terms with no order as to costs.  Â