The main legal point established in the judgment is the application of contributory negligence in determining liability for a motor vehicle accident, as well as the standard of proof beyond reasonable doubt.

NAJMI WAZIRI, J.

MAC.APP. 23/2017 & CM No. 7411/2017

1. The award of compensation for injury suffered by respondent no.1 in a motor vehicle accident has been impugned on the ground that the evidence does not support the liability for the same fixed on the appellant. Referring to the Detailed Accident Report (DAR), the Site Plan of the accident and the evidence filed by the respondent, the learned counsel for the appellant submits that in the first instance, the version of the injured was that he had parked his motorcycle on the side of the road where his friend, who was a pillion rider, had stayed back and the claimant had crossed over to the other side of the road for some work, but on the way back he was hit by the offending motor cycle.

2. The accident happened about two years ago on 01.06.2015 at 9.40 in the morning during the peak traffic rush. The DAR records that: (i) the offending vehicle was not over speeding; (ii) that the victim was taken to the hospital by his friend Mr. Rajiv Kr. Jha; (iii) the brief description of the accident is: the victim was crossing the road when the offending vehicle hit him on the road; (iv) that the accident happened at a place where there was no zebra crossing; (v) that the offending vehicle was not being driven dangerously or at excessive speed i.e. it was within permissible speed limits and as a corollary, in the correct lane; and (vi) that the vehicle was not poorly maintained. As to whether the offending vehicle was not observing traffic rules, or was parked on the wrong side or at a prohibited place, the DAR records in the negative. The column for recording the name of witness of the accident, the DAR does not record anything.

3. The learned counsel for the respondent states that mere fact that the offending vehicle was on the road without insurance is sufficient proof that it was not being driven as per the traffic rules. However, there is nothing on record to show that mere violation of a traffic rule linked the offending vehicle to the accident and resultant injury.

4. The learned counsel for the appellant argues that although the claim petition stated that Mr. Rajiv Kr. Jha was the pillion rider, but in his deposition on 04.02.2016, the respondent stated as under:

“....... It is correct that I used to go to office alongwith Rajeev Kumar Jha. It is correct that my friend was also having vehicle. My vehicle no. is DL9SK3707 (2012 model). When I was on leave, then my friend go to his office by his own vehicle. I am working with FNB Control since 1996. The distance between the residence of my friend Rajeev Kumar from my house is about 10 minutes. I do not remember the exact time taken to reach the spot. I was going towards Prahlad Pur at the time of the accident. I was in possession of a mobile phone at that time. I had looked on the right and left side before trying to cross the road. The accident had taken place on the side of the road. The bike had hit me from the left side. I do not remember on which side I had fallen after the hit by the motorcycle. No friend of mine was present at the spot. I was unconscious for a short while after the accident but thereafter I regained consciousness. I cannot say when the PCR has come to the spot. It is wrong to suggest that I have filed a false case in connivance with Police Officers in order to extort money or that the eye witness is planted or that the persons who were going from the spot had seen the incident or that I am deposing falsely.....” (Emphasis added)

5. The appellant argues that as per the respondents’ deposition no friend of his was present at the accident spot, therefore, the affidavit filed by Mr. Rajiv Kr. Jha would be of no consequence and of no evidentiary value. The appellant contends that his vehicle never hit the injured, instead it was some other vehicle which had hit him and in the process the appellant too fall on the road and injured himself. He refers to the mechanical inspection of his vehicle which does not r