Court No. - 26

Case :- FIRST APPEAL FROM ORDER No. - 2847 of 2018

Appellant :- United India Insurance Company Limited

Respondent :- Shamsher Khan And 7 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. 206 of 2014 whereby the

compensation amount to the tune of Rs. 3,48,000/- has been awarded in

favour of claimants 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 Irshad @ Bhola

alongwith other persons were going from Fatehpur to Shikohabad by

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 son of the claimants succumbed to her 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 to prove its

stand.

In my considered op