AI Structured Summary
Not yet generated for this judgment
Judgment
Ram Mohan Reddy, J.—Claimants in MVC No. 347/2007 on the file of Presiding Officer, Fast Track Court-II, Bidar, aggrieved by the dismissal of the claim petition u/s 166 of the Motor Vehicles Act, 1988, by the judgment and award dated 26.02.2010, have presented this appeal. On the night of 29.06.2007 at about 21:00 hours one Panduranga Reddy while riding the motorcycle bearing certificate of registration No. KA-39/H-3670 on N.H. No. 9 from Aland to Basavakalyan, near Sastapur Bungalow, the driver of the motor vehicle being a tipper, bearing certification of registration No. MWE 1078 allegedly drove the vehicle in reverse direction without any indication and dashed against the motorcycle which Panduranga Reddy was riding resulting in grievous injuries the cause of his death.
The Traffic Police, Basavakalyan, registered a case against the deceased Panduranga Reddy in Crime No. 83/2007 alleging offences under Sections 279 and 304 of IPC.
On the assertion that the deceased was aged 37 years on 29.06.2007 the date of accident and death, an agriculturist owning 9 acres 36 guntas of land, having large agricultural establishment consisting 2 servants, 4 bullocks and tractor used for agriculture purpose as also owning a Dozer for levelling lands, on contract basis and paying salary to the tractor driver, claimed that he had net monthly income of Rs. 10,000/- from agriculture and Rs. 15,000/- from un-agricultural activity, in all, Rs. 25,000/-. Alleging rash and negligent driving of the Tipper owned by the first respondent and insured by the second respondent filed a claim petition u/s 166 of the Motor Vehicles Act 1988, registered as MVC No. 347/2007.
That petition was opposed by the second respondent-insurance company, while the first respondent-owner remained exparte. In the written statement, the second respondent denied the accident as also the liability to pay compensation and asserted that it was due to the rash and negligent driving of the motor cycle by the deceased that had resulted in the accident and death.
In the premise of the pleadings of the parties, MACT framed as many as 5 issues, the first of which related to actionable negligence on the part of the driver of the Tipper while the second over the monthly income of the deceased, third over the policy of insurance in respect of the Tipper and the fourth as to what compensation claimants were entitled to. The first claimant none other than the widow of the deceased was examined as P.W. 1, while another witness by name Anil Reddy was examined as P.W. 2 and marked Exs.P.1 to P.16, while for the second respondent, its Manager was examined as R.W. 1 who stated that Ex.P16 was not a policy, but an endorsement.
The MACT having regard to the material on record and the evidence both oral and documentary returned findings in the negative over all the issues (holding that the offending vehicle was covered by the policy of insurance) and dismissed the claim petition by the judgment and award impugned.
Having heard the learned counsel for the parties, perused the pleadings, the evidence both oral and documentary and examined the judgment and award impugned, the following questions arise for decision making:
1) Whether in the facts and circumstances of the case the MACT was justified in recording a finding in the negative over the first issue relating to actionable negligence by holding that the rider of the motorcycle i.e. the deceased was riding the motor cycle in a rash and negligent manner?
2) Whether the claimants are entitled to compensation and if so, what amount?
Regarding question No. 1:
P.W. 2-Anil Reddy deposed that on 29.06.2007 at about 21:00 hours near Sastapur Bungalow on N.H. No. 9, Basavakalyan, the deceased while riding his motorcycle from west to east, a Tipper i.e. offending vehicle driven in the reverse direction on the northern side of the road from east to west and dashed against the motorcycle whence Panduranga Reddy its rider sustained grievous injuries and died on the spot. The complainant none other than the brother of P.W. 2 in his statement before the police asserted that while he was coming in his car from the bungalow side he heard a sound and on proceeding towards west, noticed a motorcycle and the rider having fallen in between the two wheels of the Tipper on its hind side. The spot panchanama records that the width of the road was 30 feet with a kachcha portion of 3 feet, in other words, the tarred surface was about 30 feet i.e., 15 feet on either side from the center of the road and 3 feet of untarred surface and the offending vehicle being the Tipper was parked on the northern side partly on the kachcha road and tarred surface, facing east on the road running east to west.
The testimony of P.W. 2 indicates the undisputed fact of the offending lorry having been found on the northern side of the road running east to west with its front facing east. It is no doubt true that the complainant''s statement does not disclose that the offending vehicle was driven in the reverse direction while P.W. 2 asserts that the offending vehicle while moving in the reverse direction from east to west, dashed against the motor cycle moving from west to east. The fact that a collision took place in which two motor vehicles were involved is not in dispute. The question is whether the testimony of P.W. 2 is acceptable as credible evidence to establish actionable negligence on the part of the driver of the offending vehicle.
The complainant''s statement indicates that he was not an eyewitness but on hearing a sound on arriving at the spot noticed that the accident having occurred. That the vehicle was moving in the reverse direction is not stated by the complainant, perhaps unable to notice that the vehicle was in motion more so in the middle of the night at about 21.00 hours and in the absence of street lights on NH-9. Merely because, the complainant did not state that the vehicle was moving in a reverse direction, it cannot be said that there is inconsistency in the statement of the complainant and the testimony of P.W. 2 so as to discard the testimony of P.W. 2.
Be that as it may, the offending vehicle was parked facing east, on the northern side of the road, running east to west, which is not in dispute There is no evidence that there were signs or indications in regard to the parking of the offending vehicle on the road which ought to be normally found in such parked vehicles or some kind of warning for parking of the vehicle. In addition, the driver of the offending vehicle is not examined by the respondent - insurance company whose testimony would have been the best piece of evidence over actionable negligence alleged against the deceased rider of the motorcycle.
Even in the cross-examination of P.W. 2 nothing is elicited to show that the offending vehicle was parked with any sign or indicator. Neither the driver nor the cleaner of the offending Tipper was examined to show whether any sign or indication was provided regarding parking of the vehicle. It is needless to state that Section 122 of the Motor Vehicles Act, 1988 provides that:
No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers.
In similar circumstances, the High Court of Gujarat in Premlata Nilamchand Sharma and Others Vs. Hirabhai Ranchhodbhai Patel and Others, and the High Court of Punjab and Haryana in Nirmal Bhutani and Others Vs. Haryana State and Another, and Delhi High Court in Pushpa Rani Vs. Anokha Singh etc., held that where the place was dark and where the vehicle was parked without any sign or indication to warn other Road users, the negligence is on the driver of the parked vehicle and not the driver of any vehicle which dashes into such parked vehicle.
The aforesaid observations were followed by the Co-ordinate Bench of this Court in Kumari Jyothi and Others v. Mohd. Usman Ali and Others ILR 2002 KAR 893.
Being satisfied in the facts and circumstances that the driver of the parked lorry was alone to be blamed as he has parked the Tipper in the public road without any sign or indication for other road users, we are of the view that the MACT was not justified in placing the blame on the rider of the motorcycle i.e., the deceased Panduranga Reddy. The actionable negligence is palpable against the driver of the offending Tipper and we answer question No. 1 in the negative holding that the MACT was not justified in returning finding in the negative over issue No. 1.
Regarding question No. 2:
The MACT having noticed that the claimants asserted that the monthly income of the deceased was Rs. 25,000/-, nevertheless, did not assess or determine the quantum of compensation while answering issue No. 2 in the negative. In that view of the matter, we think it appropriate to remit the proceeding for determination of the compensation payable to the claimants....
The finding on issue No. 3 that the policy of insurance covered the offending vehicle at the relevant point of time remains undisturbed.
In the result, this appeal is allowed in part. The judgment and award dismissing the claim petition is set aside. The finding on actionable negligence is held against the driver of the offending vehicle. The judgment and award is set aside to the extent noticed supra. The proceeding is remitted for consideration on the question of quantum of compensation and to pass a judgment and award strictly in accordance with law after extending reasonable opportunity of hearing to the parties including recording of additional evidence both oral and documentary on the said issue. Since all the parties are represented by the learned counsel, they are directed to be present before the MACT on 20.12.2013 without further notice.
Registry to forward the records forthwith.