Dismissed

United India Insurance Company Limited v. Neksey Lal and 8 Others

Allahabad HC4 Jul 2018FAFO/2850/2018

Case brief

AI extract

What is this about?

The single judge dismissed the first appeal filed by the insurer. Upholding the Motor Accident Claims Tribunal's award of Rs.5,32,030/-, the court rejected the claim of contributory negligence by the tractor driver, finding that the test vehicle was the negligent party.

What did the court decide?

The appeal was dismissed; the award of Rs.5,32,030/- by the Tribunal was upheld.

United India Insurance Company Limited Vs Neksey Lal… — Motor Accident Claims | Allahabad HC (2018)

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Court No. - 26

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Case :- FIRST APPEAL FROM ORDER No. - 2850 of 2018

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Appellant :- United India Insurance Company Limited Respondent :- Neksey Lal And 8 Others Counsel for Appellant :- Vipin Chandra Dixit

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Hon'ble Ajit Kumar,J.

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Heard learned counsel for the appellant.

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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. 248 of 2014 whereby the compensation amount to the tune of Rs.5,32,030/- 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.

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The brief facts of the case are that the claimants on 19.6.2014 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 .

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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.

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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.

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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

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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.

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In my considered opinion, the appellant failed to establish the case of contributory negligence on the part of tractor trolly driver. On the point of contributory negligence and its proof, I am reminded of the judgment in Jiju Kuruvilla and Others v. Kunjujamma Mohan and Others, (2013) 9 SCC 166 , wherein vide 20.5, the Court held thus:

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"The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual."

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In view of above, the argument, therefore, of contributory negligence of the tractor driver is ill founded and is hereby rejected.

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No other argument has been advanced to assail the award under challenge.

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I do not find any error on the part of the Tribunal who recorded a finding to the effect that there was no contributory negligence on the part of the driver of the tractor.

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The appeal lacks merit and is accordingly dismissed.

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Order Date :- 4.7.2018 Sanjeev

United India Insurance Company Limited v. Neksey Lal and 8 Others

Case brief

What is this about?

What did the court decide?

United India Insurance Company Limited v. Neksey Lal and 8 Others

Case brief

What is this about?

What did the court decide?

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