1
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
2
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
3
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
4
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
5
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.
6
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
7
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
8
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
9
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
10
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
11
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.
12
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) +
13
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.
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
2
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
3
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
4
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
5
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.
6
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
7
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
8
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
9
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
10
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.
12
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.
