IMPORTANT POINT
Death in motor accident – Conclusion of contributory negligence on mere surmises and conjectures.

ORDER :

Leave granted.

2. Mr. Haris Beeran, learned counsel appearing for the appellant-claimant restricted his challenge in the appeal to the contributory negligence, as found by the High Court. It is argued that despite the testimony of an eyewitness being believed and also noticing the fact that there cannot be any other evidence to clearly bring out as to which of the vehicles were driven negligently, the High Court found contributory negligence of 50% on the deceased-driver of the car.

3. Mr. Manu Luv Shalia, learned counsel appearing for the insurance company contended that the inspection report of the alleged offending vehicle, a truck, clearly indicates from the damage caused to the vehicle that in all probability, the car was driven rashly and negligently.

4. The facts, except the negligence aspect, are not in dispute. At 02:30 am on 17.11.2014, an accident occurred on the National Highway in which the driver of the vehicle, the husband of the appellant, the father of the proforma respondent Nos.5 and 6 and the son of the proforma respondent Nos.7 and 8, died on the spot. An FIR was registered by the truck driver, admittedly, wherein the First Information Statement (FIS) indicated allegation of negligence against the driver of the car, the deceased. No investigation was carried out since the accused arrayed had died. In the claim petition filed, the Tribunal found negligence on the lorry driver, based on the eyewitness testimony. The High Court reversed the same finding contributory negligence and restricted the award to half of that determined as compensation.

5. The report of inspection produced as Annexure P2 indicates that the major damages to the truck were on the left side of the truck. PW-3, the eyewitness was a mechanic who was having a shop near the spot where the accident occurred.PW-3 clearly deposed that he saw the lorry being driven rashly and negligently on the right side of the four lane National Highway. It was swerved to the left and the car which was moving on the left lane tried to brake and dashed against the truck causing the accident. The eyewitness testimony regarding the rash and negligent driving of the truck clearly clinches the issue insofar as the negligence is concerned.

6. In the above circumstances, we find absolutely no reason for the High Court to have found contributory negligence on mere surmises and conjectures. The High Court merely observed that since PW-3 came to the accident spot after hearing the sound of the accident could not have witnessed what actually happened. PW-3 was present in the shop and he spoke of having seen the truck being driven rashly and negligently on the Highway and it having abruptly swerved to the left, which brings out the negligence of the truck driver.

7. True, the appellant who was examined as PW-1 could not have spoken of the accident, but the eyewitness testimony coincides with the report of the inspection of the offending vehicle. The truck having been suddenly taken to the left lane, the car, which was proceeding in the same direction on the left lane of the four-lane highway dashed against the truck. This tallies with the large-scale damages caused on the left side of the truck. PW1 In cross examination said that he ran to the spot when he heard the sound of impact. But that does not persuade us to disbelieve his version in the examination-in-chief that he saw the approaching vehicles, the car on the left lane and the truck on the right lane, the latter driven rashly. He repeated in cross examination that the accident occurred since the truck suddenly came to the left.

8. The driver/owner of the truck was examined as RW2 who deposed that he lost