2004(4) ALL MR 216
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.T. KHARCHE, J.

M/S. New India Assurance Company Ltd.Vs.Dadarao Govindrao Yadgire & Ors.

First Appeal No.42 of 1996

1st April, 2004

Petitioner Counsel: Mr. A. J. POPHALY

Motor Vehicles Act (1988), S.168 - Fatal accident - Contributory negligence - Truck and motor cycle involved in accident - Truck in so much high speed that motor cycle was actually dragged upto distance of about 38.8 ft. and impact of accident was so grave that motor cycle and driver sustained grievous injuries and died on the spot instantaneously - Finding of Tribunal that this is a case of contributory negligence, cannot be sustained - Question whether claim petition is bad for non-joinder of necessary parties, does not survive.

Penal Code (1860), S.304A.

In the instant case, the Tribunal has recorded the finding that this is a case of contributory negligence and the negligence attributable to the driver of both the vehicles could be assessed at the ratio of 50% : 50%. It is difficult to sustain this finding in view of the evidence adduced on record. The driver of the truck could be held solely responsible for causing this accident in as much as he had seen the motorcycle before the accident and therefore he should have exercised due care and skill to avoid the accident. It is interesting to note that the motorcycle is a light vehicle whereas the truck is a heavy vehicle. What the truck driver did that on seeking incoming motorcycle, tried to take his truck by the side of the road, but he must have been in so much high speed that the motorcycle was actually dragged up to the distance of about 38.8 ft. and that the impact of the accident was so grave that motor cycle driver sustained grievous injuries and died on the spot instantaneously. Therefore, the Court is not inclined to accept the contentions of the counsel for the appellant-Insurance Company that the motorcycle driver was equally responsible for causing the accident. If this is so, then it is obvious that the finding of the Tribunal that this is a case of contributory negligence cannot be sustained in law. Once this conclusion is drawn, it would follow that question of apportionment of the compensation in proportion of the contributory negligence does not arise and so also the question whether the petition is bad for non joinder of necessary parties also does not survive. [Para 8]

JUDGMENT

JUDGMENT :- The New India Insurance Company has filed this appeal being aggrieved by the award dated 15th January, 1994 passed by the Member, Motor Accident Claims Tribunal in M.C.A. Case No.69 of 1990 whereby the Insurance Company as well as the owner and driver of the truck bearing No.MTV 1477 involved in the accident were held jointly and severally liable to pay compensation of Rs.90,000/- to the respondent Nos.1 and 2, the parents of the deceased Anil, with interest @ 12% per annum from the date of application till realisation.

Brief facts are required to be stated as under :

2. The accident occurred on 15-4-1990 at Talegaon-Ashti road. Deceased Anil was travelling as a pillion rider on the motorcycle bearing registration No.MHK 204 which was driven by one Suresh and when they came near Dharmashala on Talegaon-Ashti road at about 11.30 a.m., the truck bearing No.MTV 1477 had come from the opposite direction and gave violent dash to the motorcycle. The truck involved in the accident is owned by the respondent No.3. The truck was driven by respondent No.4 in a rash and negligent manner on the relevant date and time. Anil sustained grievous injuries in the accident and he died on the spot of accident. The F.I.R. was lodged on the basis of which offence punishable under Section 304-A of the Indian Penal Code bearing Crime No.104/1990 came to be registered against the driver of the truck. Police visited the spot of accident and drew spot panchanama. Postmortem was also effected on the dead body of Anil. It was contended that since the accident occurred due to the negligence on the part of the driver of the truck, the respondents including the appellant Insurance Company were jointly and severally liable to pay entire amount of compensation. The appellant-Insurance Company contended that the accident occurred due to the negligence of the driver of the motorcycle on which deceased Anil was travelling as pillion rider and therefore, the Insurance Company was not liable to pay any compensation to the legal representatives of deceased Anil. The parties adduced evidence before the Tribunal and after considering the evidence, the Tribunal recorded finding that the accident occurred due to contributory negligence and the negligence attributable to each of the driver can be assessed to the extent of 50% each. However, the Tribunal though held that this was a case of contributory negligence, did not apportion the liability in proportion to the negligence of the motorcycle driver and instead the owner, driver and Insurance Company of the truck is held to be liable to pay jointly and severally the amount of Rs.90,000/- with interest as stated above. This award passed by the Tribunal is challenged in this appeal.

3. Mr. Pophaly, the learned counsel for the appellant-Insurance Company contended that the Tribunal though has recorded a clear finding that this was a case of contributory negligence and the negligence attributable to the driver of each vehicle would be to the extent of 50% did not apportion the liability in proportion of the negligence of the motorcycle driver and consequently did not reduce the amount of compensation which has been awarded to the parents of deceased Anil. He contended that the owner, driver and the Insurance Company of the motorcycle were necessary and proper parties and the claim was bad for non joinder of necessary parties. He contended that in the circumstances, the impugned award cannot be sustained in law and therefore, the appeal may kindly be allowed.

4. None appeared for the respondents though served.

5. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the appellant-Insurance company. He took me through the evidence adduced on record by the parties. It is not in dispute that the accident occurred on 15-4-1990 and the two vehicles are involved in the accident i.e. the motorcycle bearing No.MHX 204 on which the deceased Anil was travelling as a pillion rider and another vehicle is truck bearing No.MTV 1477 and that the respondent No.3 is the owner of the truck and respondent No.4 is the driver of the truck. There is also no dispute that the truck involved in the accident has been duly insured with the appellant-Insurance Company covering third party risk on the date of the accident.

6. On close scrutiny, it would reveal that Hanumant (P.W.3) claims to be the eye-witness to the accident and in his cross-examination, in unequivocal terms stated that he is not in a position to give the particulars and manner in which the accident occurred. He admitted that the truck was stopped at a distance of 5-6 ft. from spot of the accident. It appears that the version of this witness that the truck stopped at a distance of 5-6- ft. in direct conflict with the recitals of the spot panchanama.

7. The spot panchanama was drawn on 14-5-1990. It appears from the recitals of the spot panchanama that the spot of accident is situated at Talegaon to Ashti on the road near Dharmashala and the spot of accident was situated at the distance of 1 Km. away towards West from village Talegaon near mile stone No.10 towards 250 ft. towards east and that the road was descending towards eastern side. The width of the tar road was 14 ft. having kuccha road of the width of 5 ft. on either side. The motorcycle involved in the accident was lying in the middle of the road passing towards West in a damaged condition and the truck was at the distance of about 11 ft. from the said motorcycle on the said road. The rear wheel of the right side of the truck was 2ft. away from the border of the tar road and the truck had gone off the road and the front wheel landed in the ditch. The recital of the spot panchanama would further reveal that the motor cycle was dragged by the truck at the time of the accident up to the length of 38 ft. 8 inch and because of that the tar up to the length of 1 ft. in the middle of the road was uprooted. These recitals of the spot panchanama clearly indicate that the accident occurred due to the negligence on the part of the truck driver. Though the motorcycle was found lying in the middle of the road, it would clearly reveal from the evidence of Suresh (D.W.1) driver of the truck that he saw one motorcycle was coming from the opposite direction. Though he says that he had blow the horn and that the driver of the motorcycle was driving the same on the middle of the road and it was in speed, there is no evidence on record except his bare words to show that he had seen the motorcycle coming from the opposite direction, took his truck to the extreme left side. However, the evidence clearly reveals that the truck had gone off the road and landed on the kuccha road at the distance of 11 ft. from the motorcycle and the motorcycle was found lying in the middle of the road where accident occurred.

8. The Tribunal has recorded the finding that this is a case of contributory negligence and the negligence attributable to the driver of both the vehicles could be assessed at the ratio of 50% : 50%. It is difficult to sustain this finding in view of the evidence adduced on record. The driver of the truck could be held solely responsible for causing this accident in as much as he had seen the motorcycle before the accident and therefore he should have exercised due care and skill to avoid the accident. It is interesting to note that the motorcycle is a light vehicle whereas the truck is a heavy vehicle. What the truck driver did that on seeing incoming motorcycle, tried to take his truck by the side of the road, but he must have been in so much high speed that the motorcycle was actually dragged up to the distance of about 38.8 ft. and that the impact of the accident was so grave that Anil sustained grievous injuries and died on the spot instantaneously. Therefore, this Court is not inclined to accept the contentions of the learned counsel for the appellant-Insurance Company that the motorcycle driver was equally responsible for causing the accident. If this is so, then it is obvious that the finding of the Tribunal that this is a case of contributory negligence cannot be sustained in law. Once this conclusion is drawn, it would follow that question of apportionment of the compensation in proportion of the contributory negligence does not arise and so also the question whether the petition is bad for non joinder of necessary parties also does not survive. In that view of the matter, this Court does not find any merit in the appeal which is dismissed but with no cost.

Appeal dismissed.