Point of Law: Motor vehicles - Contributory negligence - Initial onus to prove rash and negligent driving of the driver of the truck rested on the claimants.

JUDGMENT :

The appellant (hereinafter referred to as the ‘insurer’) has assailed award dated 22.5.2013 passed by learned Motor Accident Claims Tribunal-I, Kangra at Dharamshala (H.P.) in MACP (RBT) No. 67- G/II/2010/2007, whereby a sum of Rs.15,29,472/- along with interest at the rate of 7.5% per annum from the date of filing of petition till realization, was awarded in favour of respondents No.1 to 3 herein (for short ‘claimants’) and the insurer was saddled with liability to satisfy the award.

2. The claimants are the legal representatives of Sh. Niranjan Singh, who had died as the result of injuries received by him in a road accident. The compensation was claimed by the claimants under Section 166 of the Motor Vehicles Act, 1988 (for short the ‘Act’) by alleging that on 02.07.2006 at about 12.15 P.M. deceased Niranjan Singh was riding a scooter with one Sh. Rattan Singh on the pillion from Nadaun to Jwalamukhi. Truck No. HP-11B0284, driven by respondent No.4 herein (for short ‘driver’) came from opposite side in a very high speed. The driver was driving the truck in a rash and negligent manner. He could not control the truck and hit the scooter ridden by deceased Niranjan Singh. Fatal injuries were received by Sh. Niranjan Singh and as a result thereof, he died on the spot. The truck was owned by respondent No.5 herein (for short ‘the owner’)

3. The claimants specifically made an averment that FIR No. 125 of 2006 registered at Police Station, Jwalamukhi was not based on true facts and the same was lodged by the police in connivance with the owner and driver of the truck.

4. The deceased was stated to be 45 years of age at the time of death. As per the claimants, the deceased was a Government employee and was serving in Rural Development Department of Himachal Pradesh Government. His monthly income was stated to be Rs.15,000/- approximately.

5. The owner and driver of the truck contested the petition by filing reply inter alia raising preliminary objection as to maintainability of the petition. On merits, it was alleged that the truck No. HP-11B-0284 was stationary at the time of the accident. The deceased Niranjan Singh had lost control while riding scooter and had smashed the scooter against parked truck. It was further submitted that the truck was parked on the side of the road. FIR No. 125 of 2006 was lodged with allegations of rashness and negligence against deceased Niranjan Singh. The police had submitted cancellation report as Niranjan Singh had died.

6. The insurer also contested the claim petition of the claimants by filing a separate reply. It was alleged that the vehicle involved in the accident was being driven in violation of the terms and conditions of policy of insurance. The allegation of collusion between the claimants and owner of truck was leveled. Contributory negligence on part of deceased Niranjan Singh was also alleged.

7. Learned Tribunal framed the following issues:

1. Whether on account of negligence and rashness on the part of respondent No.1 while driving HP-11B0284 on 2.7.2006 caused death of Niranjan ?OPP

2. If issue No. 1 is proved, to what compensation the petitioners are entitled and from whom? OPP

3. Whether deceased Niranjan Singh was himself negligent in driving Motor Cycle HP-36-8373? OPR

4. Whether respondent No.1 was not holding valid and effective driving licence at the time of accident? OPR

5. Whether offending vehicle was being driven in violation of terms and conditions of the insurance policy? OPR

6. Whether deceased Niranjan Singh contributed towards the accident? OPR

7. Relief.

8. Issues No.1 and 2 were decided in favour of the claimants and the award as noticed above was passed.

9. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

10. The fact in issue was whether the accident had occurred due to rash and negligent driving of decease