Court No. - 26

Case :- FIRST APPEAL FROM ORDER No. - 2878 of 2018

Appellant :- United India Insurance Company Limited

Respondent :- Smt. Kusuma Devi And 9 Others

Counsel for Appellant :- Vipin Chandra Dixit

Hon'ble Ajit Kumar,J.

Heard learned counsel for the appellant.

The first appeal from order under Section 173 of Motor

Vehicles Act, 1988 is directed against the judgement and

award dated 27.2.2018 passed by Motor Accident Claims

Tribunal/Additional District Judge, Court No. 7, Firozabad in

Motor Accident Claim Petition No. 200 of 2014 whereby the

compensation amount to the tune of Rs. 5,51,000/- has

been awarded in favour of claimant respondents alongwith

interest @ 7 per cent per annum from the date of filing of

petition till the date of actual payment.

The brief facts of the case are that on 19.6.2014 deceased

Bijendra alongwith Anil Kumar, Tukman Singh, Brajesh

Kumar and his wife Krishnakanti and others were going to

Shikohabad by Ishar tractor trolly. Tractor driver was very

vigilantly and carefully driving the vehicle and when the

tractor trolly reached at national highway Road No. 2 of

Firozabad Shikohabad near Samajwadi party office at that

time a truck bearing no. U.P. 80 B/ 1081 which was being

driven very negligently ahead of the tractor, its driver

suddenly applied break and so consequently the driver of

the tractor became disturbed and by the time he could

manage his vehicle that a Trolla vehicle bearing no. HR 55

K/6503 lost its control and hit the tractor and dashed into

truck bearing no. UP 80 BT/ 1081, which was going ahead

of the tractor, from behind . Resultantly the persons in the

trolly suffered severe injuries and were taken to the

hospital where husband of the claimant succumbed to his

injuries in the hospital.

The only argument advanced to assail the impugned award

is that it was a case of contributory negligence on the part

of driver of the tractor trolly and so to that extent appellant

was not liable to pay compensation.

Considering the arguments of the counsel for the appellant

in the face of the fact that composite liability has been

fastened upon the two insurance companies, I find that

clear cut finding has come to be recorded by the Tribunal

that speedy tuck in front of the tractor had got stopped in

the middle of the road due to sudden break taken by the

driver of the truck bearing no. U.P 80 BT/1081 under the

circumstances tractor that was behind on road could

somehow manage to avoid accident. The trolla vehicle

getting uncontrolled hit the tractor trolly from behind and

dashed into truck going ahead of the tractor and so it

clearly established composite negligence of both the

vehicles. Had it been the case that tractor hit truck from

behind , it could have been said that tractor driver was also

at a fast speed but this is not a case here. The tractor

driver in fact managed his tractor and controlled it but

trolla driver lost his control and hit it from behind and

dashed into the tractor.

Moreover, the appellant could not lead any such evidence

which could otherwise establish that there was negligence

on the part of tractor trolly driver. Considering the speed of

the truck that was ahead of the tractor and the manner in

which he applied the breaks, had the tractor driver not

been vigilant, he could have himself collided with the

truck, but he managed the tractor and avoided accident

but trolla driver was in such a speed that he not only hit

the tractor trolly but dashed into the truck from behind.

This factual scene of accident sufficiently demonstrates

and binds the Court to hold that Trolla driver was driving its

vehicle rashly and negligently. In order to establish

contributory negligence burden heavily lay upon the

insurance company in a road accident case not only to

establish that there was sufficient evidence to prove it by

ocular evidence but even to lead investigation report etc.

about the accident