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Saturday, February 10, 2018

Insurance laws - accident claims - reduction of compensation - contributory negligence - not correct - whether the order of the High Court modified the award passed by the Motor Accident Claims Tribunal, Yamuna Nagar, Jagadhari, on the finding that it was a case of “contributory negligence” and resultantly held that the claimants – injured were entitled to only 50% of the total compensation awarded to them including the enhanced compensation. = It is well settled that the nature of proof required in cases concerning accident claims is qualitatively different from the one in criminal cases, which must be beyond any reasonable doubts. The Tribunal applied the correct test in the analysis of the evidence before it. Notably, the High Court has not doubted the evidence of PW­7 as being unreliable nor has it discarded his version that the driver of the Maruti Car could not spot the parked Gas Tanker due to the flash lights of the oncoming traffic from the front side. Further, the Tribunal also adverted to the legal presumption against the driver of the Gas Tanker of having parked his vehicle in a negligent manner in the middle of the road. The Site Plan (Ext. P­45) reinforces the version of PW­7 that the Truck (Gas Tanker) was parked in the middle of the road but the High Court opined to the contrary without assigning any reason whatsoever. = We set aside the direction given by the High Court in paragraph 16 of the impugned judgment regarding deduction of 50% of the total compensation awarded to the claimants towards contributory negligence.

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REPORTABLE
             
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7300­7309 OF 2016
ARCHIT SAINI AND ANR. ….   APPELLANTS
                       
:Versus:
THE ORIENTAL INSURANCE COMPANY
LTD. AND ORS. ….RESPONDENTS
J U D G M E N T
A.M. Khanwilkar, J.
1. These appeals take exception to the judgment and order
dated 1st February, 2016 passed by the High Court of Punjab
and Haryana at Chandigarh in F.A.O. Nos.1179, 1180, 1181,
1182, 1183, 1318, 1452, 4596, 4597 & 4598 of 2013, whereby
the   High   Court   modified   the   award   passed   by   the   Motor
Accident Claims Tribunal, Yamuna Nagar, Jagadhari, on the
finding that it was a case of “contributory negligence” and
resultantly held that the claimants – injured were entitled to
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only 50% of the total compensation awarded to them including
the enhanced compensation. 
2. The sole question raised in the present appeals is about
the  justness and tenability of the approach of the High Court
in reversing the finding of fact recorded by the Tribunal on the
factum   that   the   motor   accident   which   occurred   on   15th
December, 2011 at about 10.30 P.M. was due to parking of the
offending vehicle bearing No.HR­02­AF­8590 (Gas Tanker) in
the middle of the road in a negligent manner.
3. In the petition for compensation filed before the Motor
Accident Claims Tribunal (for short, “the Tribunal”), it was
alleged that the accident was caused due to parking of the
offending Gas Tanker in the middle of the road without any
indicator or parking lights. The claimant examined the eyewitness
  Sohan   Lal   (PW­7)   who,   in   his   affidavit,   gave   an
account of the cause of accident in the following words: 
“… That on 15.12.2011 at about 10.30 P.M. I along with
P.H.G.   Ajit   Singh   was   present   near   Sanjha   Chulha
Dhaba,   on   the   National   Highway,   (which   leads   to
Jammu) in the area of Village Ajijpur, P.S. Sujanpur. At
that time all the traffic was diverted on the Eastern side
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of the road, as the Western side of road was closed due
to construction work. In meantime, a Maruti Car No.HR02­K/0448
came from Jammu side (Madhopur side) and
struck against the back of the Gas Tanker as the driver
of   car   could   not   spot   the   parked   tanker   due   to
flash­lights of the oncoming traffic from front side.
Then we rushed towards the spot of accident, and
noticed that the said tanker was standing parked
in  middle   of   the   road,  without  any   indicators   or
parking   lights.   Due   to   the   accident   the   car   was
damaged extensively. The driver of the Car and a lady
sitting by his side, died at the spot. Two children, who
were on the rear seat of car were also injured.”
(emphasis supplied)
4. The   said   witness   was   cross­examined   by   the
respondents.   The   relevant   portion   of   his   cross­examination
reads thus:
“…We   were   standing   on   Dhaba   on   duty   with   our
motorcycle.   The   truck   was   standing   just   opposite   the
dhaba on the other side of the road. I was able to see the
truck at that time. There was no fog at that time. There
was lights on the dhaba and the truck was visible to me
due to light of dhaba. I was standing at the distance
about   70   ft.   from   the   truck   because   there   was   road
between me and the truck. I have heard the voice/sound
caused by the accident only then I noticed at the car
struck against the truck. I have not seen the car before
the accident, and only seen after the accident. I reached
the spot after hearing the sound of accident. I cannot tell
the speed of the car because I have not seen the car. The
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road is about 88 ft. wide i.e. 44 ft. on each side with a
divider in between. The left portion of the truck was just
on the edge of the road towards the kucha portion.”
5. The   respondents   had   opposed   the   claim   petition   and
denied their liability but did not lead any evidence on the
relevant issue to dispel the relevant fact. The Tribunal after
analysing   the   evidence,   including   the   Site   Map   (Ext.P­45)
produced on record along with charge­sheet filed against the
driver   of   the   Gas   Tanker   and   the   arguments   of   the
respondents, answered issue No.1 against the respondents in
the following words: 
“21. Our own Hon’ble High Court in a case captioned
Lekhu Singh and other Vs. Udey Singh and others, (2007
4 PLR 507 held that while considering a claim petition,
the Tribunal is required to hold an enquiry and act not as
criminal court so as to find whether the claimants have
established   the   occurrence   beyond   shadow   of   any
reasonable doubt. In the enquiry, if there is prima facie
evidence   of   the   occurrence   there   is   no   reason   to
disbelieve such evidence. The statements coupled with
the facts of registration of FIR and trial of the accused in
a criminal court are sufficient to arrive at a conclusion
that the accident has taken place. Likewise, in Kusum
Lata Vs. Satbir, 2011 (2) RCR © 379 (SC) Hon’ble Apex
Court has held that in a case relating to motor accident
claims, the claimants are not required to rove the case as
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it is required to be done in a criminal trial. The Court
must   keep   this   distinction   in   mind.   Strict   proof   of   an
accident   caused   by   a   particular   bus   in   a   particular
manner may not be possible to be done by the claimants.
The claimants were merely to establish their case on the
touchstone of preponderance of probability. The standard
of proof beyond reasonable doubt could not have been
applied.
22. After considering the submissions made by both the
parties, I find that PW7 Sohan Lal eye­witness to the
occurrence   has   specifically   stated   in   his   affidavit   Ex.
PW7/A tendered in his evidence that on 15.12.2011 at
about   20.30   p.m.   he   alongwith   PHG   Ajit   Singh   was
present near Sanjha Chulha Dhaba on the National High
Way leads to Jummu. All the traffic of road was diverted
on the eastern side of the road on account of closure of
road on western side due to construction work. In the
meantime a Maruti car bearing No.HR­02­K­0448 came
from Jammu side and struck against the back of Gas
Tanker as the driver of the car could not spot the parked
tanker due to the flash lights of the oncoming traffic from
front side. Then they rushed towards the spot of accident
and noticed that the said tanker was standing parked in
the middle of the road without any indicators or parking
lights.
23.  The   statement   of   this   witness   clearly
establishes that this was the sole negligence on the
part of the driver of the gas tanker especially when
the accident was caused on 15.12.2011 that too at
about  10.30  p.m. which is generally  time of  pitch
darkness. In this way, the driver of the car cannot
be   held   in   any   way   negligent   in   this   accident.
Moreover, as per Rules 15 of the Road Regulations,
1989 no vehicle is to be parked on busy road.
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24.   The arguments of learned counsel for respondent
that PW7 Sohan Lal has stated in his cross­examination
that there was no fog at that time and there were lights
on the Dhaba and the truck was visible to him due to
light of Dhaba and he was standing at the distance of 70
feet from the truck being road between him and the truck
and he noticed at the car when he heard voice/sound
caused by the accident  so the respondent no.1 is not at
all   negligent   in   this   accident  but   these   submissions
will   not   make   the   car   driver   to   be   in   any   way
negligent and cannot give  clean  chit to the driver
of   the   gas   tanker   because   there   is   a   difference
between the visibility of a standing vehicle from a
place where the person is standing and by a person
who   is  coming  driving  the  vehicle  because  due  to
flash lights of vehicles coming from front side the
vehicle coming from opposite side cannot generally
spot   the   standing   vehicle   in   the   road   that   too   in
nights time when there is neither any indicator or
parking   lights   nor   blinking   lights   nor   any   other
indication   given   on   the   back   of   the   stationed
vehicle,  therefore,  the  driver  of  the  car  cannot  be
held to be in any way negligent rather it is the sole
negligence on the part of the driver of the offending
Gas Tanker as held in Ginni Devi and others’ case
(2008   ACJ   1572),   Mohan   Lal’s   case   (2007   1   ACC
785 (Allahabad). It is not the case of the respondent
that the parking lights of the standing truck were
on  or  there  were  any  other   indication  n  the  back
side  of the vehicle standing on the road to enable
the  coming  vehicle  to see  the  standing  truck. The
other arguments of learned counsel for respondent
no.3   that   the   road  was   sufficient  wide   road  and
that   the   car   driver   could   have   avoided   the
accident,   so   the   driver   of   the   car   was   himself
negligent   in   causing   the   accident   cannot   be
accepted  when   it   has  already  been  held   that   the
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accident has been caused due to sole negligence of
the  driver  of  the  offending  stationed  truck   in  the
busy   road.  The proposition of law laid down in Smt.
Harbans Kaur & others’s case (2010 4 PLR 422 (P&H)
and T.M. Chayapathi & another’s case (2005 IV ACC 61
(AP)  is not disputed at all but these authorities are not
helpful to the respondents being not applicable on the
facts and circumstances of the present case. Likewise,
non­examination of minor children of the age of 14 and 9
years who lost their father and mother in the accident
cannot be held to be in any way detrimental to the case
of the claimants when eye witness to the occurrence has
proved   the   accident   having   been   caused   by   the
negligence of   respondent no.1/driver of the offending
vehicle.
25. Moreover, in Girdhari Lal Vs. Radhey Sham and
others, 1993 (2) PLR 109, Sudama Devi and others
Vs.  Kewal  Ram  and  others,  2008  (1)  PLR  444  and
Pazhaniammal  and  others’s case (2012  ACJ 1370)
our   own  Hon’ble  High   Court   has   held   that   ‘it   is,
prima   facie   safe   to   conclude   in   claim   cases   that
the  accident   has   occurred   on  account   of   rash   or
negligent   driving   of   the   driver,   if   the   driver   is
facing   the   criminal   trial   on   account   of   rash   or
negligent driving.’
26.   Moreover,   the   respondent   no.1/driver   of   the
offending  vehicle  has not appeared in the witness
box   to   deny   the   accident   having   been   caused   by
him,   therefore,   I  am   inclined   to  draw  an  adverse
inference   against   the   respondent   no.1.   In   this
context,   I   draw   support   from   a   judgment   of   the
Hon’ble Punjab & Haryana High Court reported as
Bhagwanti   Devi   vs.   Krishan   Kumar   Sani   and
others,  1986   ACJ  331.    Moreover,   the   respondent
no.1   has   also   not   filed   any   complaint   to   higher
authorities   about   his   false   implication   in   the
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criminal   case   so   it   cannot   be   accepted   that   the
respondent no.1 has been falsely implicated in this
case.
27.   In   view   of   above   discussion,   it   is   held   that   the
claimants have proved that the accident has been caused
by   respondent   no.1   by   parking   the   offending   vehicle
bearing No. HR­02­AF­8590 on the middle of the road in
a negligent manner wherein Vinod Saini and Smt. Mamta
Saini have been died  and claimants  Archit Saini  and
Gauri Saini have received injuries on their person. Sh.
Vinod Saini deceased who was driving ill fated car on
that day cannot be held to be negligent in any way.
Accordingly, this issue is decided in favour of claimants.”
(emphasis supplied)
6. When the matter travelled to the High Court by way of
appeal for enhancement of compensation, while accepting the
claim   of   the   claimants­injured   for   giving   additional
compensation, the High Court overturned the finding of fact
recorded by the Tribunal in relation to issue No.1 and opined
that it was a case of contributory negligence of the driver of
the Maruti Car which met with the accident. The High Court
answered the said issue in its judgment as can be discerned
from paragraphs 14 & 15, which read thus:
“14.  So   far  as  the  issue   of  contributory   negligence  is
concerned, it has come in the testimony of Sohan Lal,
PW­7,   that   the   tanker/offending   vehicle   was   parked
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without   indicator   but   the   same   was   visible   from   a
distance of 70 ft. Moreover, a perusal of site plan Ex.P 45
reveals that the offending vehicle was not parked in the
middle of the road.
15. In view of the statement of PW­7 and site plan Ex.P45,
it is proved that the tanker/offending vehicle was
visible from a distance of 70 ft. and not parked in the
middle of the road. Therefore, in the concerned opinion of
this Court, it is a case of contributory negligence.”
7. In the present appeals, the moot question is whether the
High Court committed manifest error in reversing the  well
considered decision of the Tribunal on issue No.1 answered
against the respondents, instead concluding that it was a case
of 50% contributory negligence on the part of the deceased
driver of the Maruti Car. 
8. After having perused the evidence of PW­7, Site Map (Ext.
P­45) and the detailed analysis undertaken by the Tribunal,
we have no hesitation in taking the view that the approach of
the High Court in reversing the conclusion arrived at by the
Tribunal on issue No.1 has been very casual, if not cryptic and
perverse.  Indeed, the appeal before the High Court is required
to be decided on fact and law. That, however, would not permit
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the   High   Court   to   casually   overturn   the   finding   of   fact
recorded by the Tribunal.  As is evident from the analysis done
by the Tribunal, it is a well considered opinion and a plausible
view. The High Court has not adverted to any specific reason
as to why the view taken by the Tribunal was incorrect or not
supported by the evidence on record.  It is well settled that the
nature of proof required in cases concerning accident claims is
qualitatively different from the one in criminal cases, which
must be beyond any reasonable doubts. The Tribunal applied
the   correct   test   in   the   analysis   of   the   evidence   before   it.
Notably, the High Court has not doubted the evidence of PW­7
as being unreliable nor has it discarded his version that the
driver of the Maruti Car could not spot the parked Gas Tanker
due to the flash lights of the oncoming traffic from the front
side.   Further,   the   Tribunal   also   adverted   to   the   legal
presumption against the driver of the Gas Tanker of having
parked his vehicle in a negligent manner in the middle of the
road. The Site Plan (Ext. P­45) reinforces the version of PW­7
that the Truck (Gas Tanker) was parked in the middle of the
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road   but   the   High   Court   opined   to   the   contrary   without
assigning any reason whatsoever. In our view, the Site Plan
(Ext. P­45) filed along with the charge­sheet does not support
the finding recorded by the High Court that the Gas Tanker
was not parked in the middle of the road.  Notably, the High
Court has also not doubted the claimant’s plea that the Gas
Tanker/ offending vehicle was parked without any indicator or
parking lights. The fact that PW­7 who was standing on the
opposite side of the road at a distance of about 70 feet, could
see the Gas Tanker parked on the other side of the road does
not discredit his version that the Maruti Car coming from the
opposite side could not spot the Gas Tanker due to flash lights
of the oncoming traffic from the front side. It is not in dispute
that the road is a busy road. In the cross­examination, neither
has any attempt been made to discredit the version of PW­7
nor has any suggestion been made that no vehicle with flash
lights on was coming from the opposite direction of the parked
Gas Tanker at the relevant time. 
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9. Suffice it to observe that the approach of the High Court
in   reversing   the   well   considered   finding   recorded   by   the
Tribunal on the material fact, which was supported by the
evidence on record, cannot be countenanced. 
10. Accordingly, we have no hesitation in setting aside the
said finding of the High Court. As a result, the appellants
would   be   entitled   to   the   enhanced   compensation   as
determined   by   the   High   Court   in   its   entirety   without   any
deduction towards contributory negligence.   In other words,
we restore the finding of the Tribunal rendered on issue No.1
against   the   respondents   and   hold   that   respondent   no.1
negligently parked the Gas Tanker/offending vehicle in the
middle of the road without any indicator or parking lights.
11. Accordingly,   we   affirm   the   enhanced   compensation
payable to the claimants as determined by the High Court in
paragraph 13 of the impugned judgment, which reads thus:
“13.  In view of the above, the claimants­injured are held
entitled to the enhanced compensation of RS.2,80,000/­
[Rs.30,000/­ (enhancement towards ‘pain and suffering’)
+ Rs.20,000/­ (enhancement towards loss of studies) +
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Rs.10,000/­   (enhancement   towards   special   diet)   +
RS.1,90,000/­ (enhancement towards ‘loss of love and
affection’)   +   Rs.30,000/­   (enhancement   towards
cremation and last rites)] as indicated above, which shall
be payable within a period of 45 days from the date of
receipt of a certified copy of this judgment, failing which,
the claimants­appellants shall also be entitled to interest
@ 7.5% per annum, from the date of filing the present
appeal till its realization.”
We   set   aside   the   direction   given   by   the   High   Court   in
paragraph 16 of the impugned judgment regarding deduction
of 50% of the total compensation awarded to the claimants
towards contributory negligence. 
12. The   appeals   are   allowed   in   the   aforementioned   terms
with no order as to costs.
 
.………………………….CJI.
        (Dipak Misra)
…………………………..….J.
               (A.M. Khanwilkar)
…………………………..….J.
       (Dr. D.Y. Chandrachud)
New Delhi;
February 09, 2018.

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