The main legal point established in the judgment is the affirmation of the tribunal's findings on negligence and contributory negligence in a road accident case.

JUDGMENT :

WASIM SADIQ NARGAL, J.

BRIEF FACTS

1. The appellant has preferred the civil miscellaneous appeal under Section 173 of the Motor Vehicles Act (hereinafter referred to as “the Act”) against the judgment/award dated 15.04.2009 passed by the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as “the Tribunal”) in Claim Petition No. 375/Claim titled Tej Krishan Raina and Others vs. New India Assurance Co. Ltd. and Another whereby respondent Nos. 1, 2 and 3 have been held entitled to a compensation of Rs. 4,11,000/- along with interest @ 7.5 % per annum.

2. The brief facts leading to the filing of the present appeal are that the respondent Nos. 1 to 3 have preferred a claim petition before the Tribunal for grant of compensation on account of death of one Meena Raina, who had succumbed to the injuries in road accident on 22.04.2005 while travelling in matador bearing registration No. JK-02P-4249 near Hotel Asia, Gandhi Nagar, Jammu when as per the appellant, the offending matador fell down after hitting with another vehicle. The respondent Nos. 4 & 5 being the owner and driver of the offending vehicle were also impleaded as respondents in the claim petition by respondent Nos. 1 to 3 before the Tribunal along with the appellant company being the insurer of the offending vehicle. As per the stand of the appellant, the appellant company after its service filed objections to the claim petition by taking various defences available to it and denied its liability to pay any compensation to the claimants in the instant case.

3. The Tribunal vide its judgment dated 15.04.2009 rejected the plea raised by the appellant company and passed the award to the tune of Rs. 4,11,000/- along with interest @ 7.5 % per annum from the date of filing of claim petition till liquidation in favour of respondent Nos. 1 to 3 and against the appellant company. The appellant, feeling aggrieved of the aforesaid award challenges the same inter-alia on following grounds:

“(a) That the judgment/award impugned is ex facie bad, contrary to the facts of the case and law on the point and the same therefore, deserves to be set aside.

(b) That as submitted above, the appellant company in its objections raised a plea that the claim petition is not maintainable for non-joinder of the necessary parties. It was further averred in the objections that as per the FIR and challan both the drivers of the two matadors involved in the accident were found guilty and challan against them has been presented in the court of law. In order to prove the plea of contributory negligence, the appellant company summoned driver Kashmir Gill as witness in the case. Kashmir Gill while deposing in the case stated that his matador was hit by a rash and negligently driven matador bearing registration no. JK-O2P-4879 on the side of his window, as a result whereof the matador driven by him had a jerk and struck against the maruti car which turned turtle resulting injuries to the deceased. The witness further stated that after this occurrence, it was he who went to the police station to register the FIR against matador no. JK-O2P-4879. Police arrested both the drivers of the two matadors. Further, it was stated by the witness that there was no negligence on his part, however, the challan has been produced by the police in the court of law against him and Raju Bakshi, the driver of the other matador. Despite the aforesaid statement of the witness Kashmir Gill produced by the appellant company, the Tribunal held that the accident has been caused by the rash and negligent driving of matador no. JK-O2P-4249 by its driver Kashmir Gill. To come to such a finding, the Tribunal held that the vehicle was also rash and negligent as a result of which it went out of control and turned turtle. This finding of the Tribunal is totally erroneous and contradictory. When the Tribunal held that the driver was also rash and negligent then it apparently becomes a case of contributory negligence where the othe