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2018 Supreme(All) 1945
IN THE HIGH COURT OF ALLAHABAD
Ajai Lamba, Anant Kumar, JJ.
The New India Assurance Company Ltd., Throu the Dy. Manager – Petitioner
Versus
Pooran Lal And Ors. – Respondents
First Appeal from Order No. - 455 of 2014
Decided On : 14-05-2018
For the Appellant : Jitendra Narain Mishra
For the Respondent: Rajendra Jaiswal
The burden of proof with regard to contributory negligence lies with the party who pleads for it, and contributory negligence should be proved like other issues.
Headnote:
Motor Vehicles Act, 1988 - Compensation - Section 173 - [Contributory Negligence] - [Section 173 of Motor Vehicles Act, 1988] - The court discussed the contributory negligence of the drivers of both vehicles involved in the accident and the liability of the Insurance Company and the owner of the other vehicle. Key legal provisions include the assessment of extent of negligence of the drivers/owners of the vehicles involved in the accident and the burden of proof with regard to contributory negligence.
Fact of the Case:
The appeal was filed by the New India Assurance Company Ltd. against the judgment and award passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Unnao in M.A.C. No. 212 of 2012. The deceased was involved in a fatal accident caused by the rash and negligent driving of a truck. The claimants were awarded compensation, and the Insurance Company filed the appeal on the grounds of contributory negligence.
Finding of the Court:
The court dismissed the appeal, finding that the accident was caused due to the sole negligence of the driver of the truck, and the liability for payment of compensation was rightly fastened upon the Insurance Company. The court upheld the findings of the Tribunal and concluded that the appellant failed to show any infirmity in the award of the Tribunal.
Issues: The main issue was the contributory negligence of the drivers of both vehicles involved in the accident, and the liability of the Insurance Company and the owner of the other vehicle for payment of compensation.
Ratio Decidendi: The court held that the burden of proof with regard to the contributory negligence lies with the party who pleads for it, and that contributory negligence should be proved like other issues. The court also emphasized the assessment of the extent of negligence of the drivers/owners of the vehicles involved in the accident.
Final Decision: The appeal was dismissed, and the court upheld the findings of the Tribunal, concluding that the appellant failed to show any infirmity in the award of the Tribunal.
1. The cost amount has been deposited. We hereby direct that the cost amount may not be deducted from the salary of the officer concerned. Order dated 07.05.2018 is amended to that extent.
2. Arguments on appeal have been heard.
3. Appeal is dismissed.
4. Reasons to follow.
5. This appeal under Section 173 of Motor Vehicles Act, 1988 has been filed by the New India Assurance Company Ltd. against the judgment and award dated 04.02.2014, passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Unnao in M.A.C. No. 212 of 2012 : Puran Lal & others Vs. Purshottam Narain Gupta & others).
6. Brief facts, relevant for disposal of this appeal are that on 18.05.2012, at about 6:30 P.M. deceased Arvind Kumar was coming from Bilhore by vehicle No. UP32 Z 9518. When the said vehicle reached near Village Dadhika, Truck No. UP 77 N 9331, which was being driven by its driver rashly and negligently, came from the side of Bangarmau and dashed the Mahindra Max No. UP 32 Z 9518, due to which deceased Arvind Kumar sustained grievous injuries and died on the spot. The driver of the truck ran away leaving the truck on the spot.
7. In the claim petition, it was stated that the deceased was a young and healthy person and was an employee in Baba Sahab Bhim Rao Ambedkar Medical College, Kannauj and he was earning Rs.12,593/- per month.
8. The claim petition was filed on behalf of the wife, father and mother of the deceased. Opposite party no.1, owner of the truck/offending vehicle, opposite party no.2/Insurance Company and Opposite Party no.3, driver of the truck filed their respective written statement.
9. On the basis of the pleadings of the parties, as many as 7 issues were framed by the Tribunal, wherein, amongst other issues, issue no.2 was framed in respect of contributory negligence of the drivers of both the vehicles. After considering all the material on record, the learned Tribunal allowed the claim petition and found that the claimants are entitled for a sum of Rs.16,52,000/-as compensation along with 7 % simple interest from the date of filing of the petition till the date of actual payment.
10. Aggrieved by the award, the Insurance Company filed this appeal.
11. We have heard learned counsel for the parties and perused the record.
12. Learned counsel for the appellant/Insurance Company has confined his argument only on the issue No. 2, as framed by the Tribunal, regarding the contributory negligence of both the vehicles at the time of accident. No other point has been pressed in this appeal.
13. It is contended by learned counsel for the appellant/Insurance Company that learned Tribunal has wrongly fastened the entire liability of payment of compensation upon the appellant/Insurance Company, though it was duly proved before the Tribunal that accident was caused due to the negligence of drivers of both the vehicles involved in the accident. It is further contended that as per settled law, liability to pay compensation lies upon the Insurance Company and the owner of the other vehicle, namely, Mahindra Max UP 32 Z 9518 and to be apportioned on the basis of assessment of extent of negligence of the drivers/owners of the vehicles involved in the accident.
In support of his contention learned counsel for the appellant/Insurance Company has referred to Paragraphs 17 and 19 of the Written Statement, wherein it is stated that the accident was caused because of the fact that the Mahindra Max vehicle involved in the accident was carrying more passengers than the limit prescribed in law, due to which the driver of the vehicle lost control and accident took place. It is also pleaded that in the accident, there was a contributory negligence of the driver of the Mahindra Max as well.
14. It is submitted that on the basis of pleadings of the Written Statement filed by the appellant, issue no.2 was framed, but the learned Tribunal while deciding issue nos. 1 & 2, has wrongly held that no proper cross examination was conducted from th
