V. Ramachandran and Meenakshi v. Narendra Sinh, Babubai and United India Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937 MACA.No. 941 of 2010 ( ) ------------------------AGAINST THE AWARD IN OPMV 1177/2000 of ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 31-12-2009 ## APPELLANTS/PETITIONERS:: ----------------------------------------- ## 1. V.RAMACHANDRAN S/O.LATE R.VENKATESWARAN. 2. MEENAKSHY, W/O.V.RAMACHANDRAN, BOTH ARE RESIDING AT VIJAYALAKSHMI ILLOM, 225 KRINAMPALAYAM ROAD OPPOSITE TO OLD STATE BANK COLONY, ERODE-638 003. BY ADVS.SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP ## RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. NARENDRA SINH, S/O NATHUBHA ZALA, RESIDING AT TAL-MORVI, AT PANHCASAR, T.K.RAJKOT. 2. BABUBAI, S/O.DEEVADUT BAI, RESIDING AT 6-VAJISHPURA, MORVI, T.K.RAJKOT. 3. UNITED INDIA INSURANCE COMPANY LTD., AT PANCHASAR, TAL-MORVI, T.K.RAJKOT. R3 BY ADV. SRI.MATHEWS JACOB (SR.) BY ADV. SRI.P.JACOB MATHEW BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **“CR”** ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** **-------------------------------------------------M.A.C.A.No.941 OF 2010** **-------------------------------------------------DATED THIS THE 1[st] DAY OF MARCH, 2016** ## **JUDGMENT** ## **ANIL K.NARENDRAN, J.** The appellants are the claimants in O.P.(MV)No.1177/2000 on the file of the Additional Motor Accidents Claims Tribunal, Palakkad, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Venkiteswaran, in a motor accident which occurred on 2.6.2000 at about 6.30 pm, at a place called Padalodemedu in Kuzhalmannam, on the National Highway-47. The appellants are the parents of the deceased who was aged 27 years. The deceased who was working as a Sales Executive in Bharat Shell Ltd. was driving his Maruti 800 car bearing Registration No.KL-13/E-7463 from Kochi to Erode. While the deceased was trying to overtake a bus, the car hit on a lorry bearing Registration No.GJ-3/V-8666 owned, driven and insured by respondents 1 to 3, which came in the opposite direction. It is alleged in the claim petition that, due to darkness all MACA No.941/2010 -2- around, all the vehicles plying on the road have switched on the headlights, except the lorry driven by the 2[nd] respondent. When the lorry reached the place of accident, the 2[nd] respondent suddenly switched on the headlights and halted the lorry, blurring the vision of the deceased who was driving the Maruti car. Therefore, the appellants contended that the accident occurred due to the callousness and negligence on the part of the 2[nd] respondent and that, the mishap would not have occurred if the 2[nd] respondent halted the lorry on the extreme left side of the mud margin, instead of halting it partially on the tar road and partially on the mud margin. In the accident, the deceased sustained fatal injuries, who succumbed to the injuries on the spot of accident. Claiming a total compensation of 50,00,000/-₹ under different heads, the appellants filed claim petition before the Tribunal, under Section 166 of the Act. 2. Before the Tribunal, respondents 1 and 2, namely, the owner and driver of the lorry remained ex parte. The 3[rd] respondent insurer filed a written statement contending that, the rashness and negligence attributed against the 2[nd] respondent is MACA No.941/2010 -3- incorrect and that, the appellants may be put to strict proof of the fact that the accident took place in the manner and in the circumstances as alleged in the petition. The specific contention taken by the 3[rd] respondent insurer in Para.5 of the written statement is that, at the time of accident the deceased was trying to overtake a bus which was proceeding in front of him and in that process he went to the extreme wrong side and dashed against a lorry bearing Registration No.GJ-3/V-8666, which was parked on the side of the road. The Police has registered a case and on investigation it was found that the deceased himself was responsible for the accident. As the charge stood abated on account of his death, a final report to that effect was also filed before the Magistrate Court. Therefore, the 3[rd] respondent insurer contended that, there is no contributory negligence on the part of the 2[nd] respondent driver of the lorry and as such, the appellants are not entitled for any compensation from the 3[rd] respondent. By order passed in I.A.No.2227 of 2006, the Tribunal permitted the 3[rd] respondent insurer to take all defences available to the insured and contest the claim, as provided under Section 170 of MACA No.941/2010 -4- the Act. 3. Before the Tribunal, Exts.A1 to A16 were marked on the side of the appellants and one Ganesh who stated to have witnessed the accident was examined as PW1. On the side of the respondents Exts.B1 to B4 were marked. The respondents have not chosen to adduce any oral evidence. 4. After considering the pleadings and materials on record, the Tribunal came to the conclusion that the accident took place due to the rash and negligent driving of the deceased himself and as such, the appellants are not entitled to make a claim for compensation. Accordingly, the Tribunal dismissed the claim petition. Aggrieved by the award passed by the Tribunal, the appellants are before this Court in this appeal. 5. We heard the learned counsel for the appellants and also the learned Senior Counsel appearing for the 3[rd] respondent insurer. Though service of notice was effected on 1[st] and 2[nd] respondents through paper publication they have not chosen to enter appearance. 6. The sole issue that arises for consideration in this MACA No.941/2010 -5- appeal is as to whether the Tribunal was justified in dismissing the claim petition as not maintainable, concluding that the accident took place due to the rash and negligent driving of the deceased himself. 7. The pleadings and materials on record would show that the accident occurred on 2.6.2000 at about 6.30 pm at a place called Padalodemedu in Kuzhalmannam, while the deceased was driving his Maruti 800 car on the National Highway-47. The First Information Statement given by PW1, based on which Kuzhalmannam Police registered Ext.A1 FIR, would indicate that the accident occurred while the deceased who was driving the Maruti car attempted to overtake a bus which was proceeding in front of him and in that process the car dashed against the lorry bearing Registration No.GJ-3/V-8666, which was parked on the side of the National Highway. In the said statement, PW1 has also stated that the accident occurred due to the rash and negligent driving of car by the deceased. Ext.A1 would show that, based on the statement given by PW1 at 8.30 pm on 2.6.2000, Crime No.132/2000 of Kuzhalmannam Police Station was MACA No.941/2010 -6- registered against the deceased, alleging offences under Sections 279 and 304A of the Indian Penal Code, 1860. 8. Ext.A2 Scene Mahazar would show that, at the place of accident the National Highway is lying in the north-south direction, and that the accident took place at the eastern tarred end of the road and the eastern mud margin. At the place of accident, the tarred portion of the National Highway is having a width of 7 meters and the eastern and western mud margins are having a width of 2 meters each. The vacant paddy lands on the edge of the eastern and western mud margins of the National Highway are lying at a depth of nearly 3 meters. Ext.A2 Scene Mahazar is seen prepared only on 3.6.2000, i.e., on the next day of the accident, at 11.30 am. As per Ext.A2 Scene Mahazar, the Ashok Leyland lorry driven by the 2[nd] respondent was lying in the spot of accident, facing north with its right side tyres on the tarred end of the road and left side tyres on the mud margin. 9. Ext.A2 Scene Mahazar would further show that, at the time of accident the lorry was carrying goods, which were covered with tarpaulin sheets and that, the damages caused to MACA No.941/2010 -7- the lorry are mainly on its front right side portion. Ext.A6 AMVI Report would also show that the damages caused to the lorry are mainly on its front right side portion. Ext.B4 Policy Schedule of lorry bearing Registration No.GJ-3/V-8666 would show that, the said lorry is a 1998 model 'Leyland Tusker' with a 'gross vehicle weight' of 16,200 kgs. The 'overall width' of such lorries will be around 2.4 meters with 'kerb weight' above 6,000 kgs. 10. As evident from Ext.A2 Scene Mahazar, the eastern mud margin of the National Highway is having a width of only 2 meters, which is insufficient to park the 'Leyland Tusker' lorry driven by the 2[nd] respondent, with an 'overall width' of above 2.4 meters. Since the vacant paddy land on the edge of the eastern mud margin is lying at a depth of nearly 3 meters, the 2[nd] respondent could have parked the fully loaded lorry leaving at least ½ meter distance from that edge of the eastern mud margin. If that be so, the conclusion is irresistible that, at the time of accident the lorry was parked on the eastern side of the National Highway occupying the tarred surface of the road to an extent of at least one meter. Therefore, it is discernible from MACA No.941/2010 -8- Ext.A2 Scene Mahazar that, there was negligence on the part of the 2[nd] respondent lorry driver, as the said lorry was parked on the side of the National Highway-47, which is a road carrying fast traffic, occupying the tarred surface of the road, causing danger to the life of the road users and obstruction to other vehicles. 11. Section 118 of the Motor Vehicles Act empowers the Central Government to make regulations for the driving of motor vehicles. In exercise of the powers conferred by Section 118 of the Act, the Government made the Rules of the Road Regulations, 1989, for the driving of motor vehicles, which came into force on 1.7.1989. Regulation 15 deals with parking of the vehicle. Regulation 15(1) provides that, every driver of a motor vehicle parking on any road shall park in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users and if the manner of parking is indicated by any sign-board or markings on the road side, he shall park his vehicle in such manner. Clause (iv) of Regulation 15(2) provides further that, a driver of a motor vehicle shall not park his vehicle in a main road or one carrying fast traffic. MACA No.941/2010 -9- 12. In **Jiju Kurivila v. Kunjujamma Mohan (2013 (9) SCC 166)** the Apex Court held that, 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. 13. In the instant case, as is discernible from Ext.A2 Scene Mahazar, the 2[nd] respondent parked the lorry on the eastern side of the National Highway-47, which is a road carrying fast traffic, and the lorry was occupying the tarred surface of the road to an MACA No.941/2010 -10- extent of at least one meter, in contravention of Regulation 15(2) the Rules of the Road Regulations, by causing danger to the life of the road users and obstruction to other vehicles on the road. Therefore, the evidence on record make it explicitly clear that, the accident had occurred due to the negligence of the deceased as well as that of the 2[nd] respondent driver of the lorry and the findings to the contra in the impugned award passed by the Tribunal cannot be sustained. 14. It is pertinent to note at this juncture that, Crime No.132/2000 of Kuzhalmannam Police Station was registered against the deceased for offences under Sections 279 and 304A of the Indian Penal Code, on an allegation that the accident occurred while the deceased who was driving the Maruti car attempted to overtake a bus which was proceeding in front of him and in that process the car dashed against a lorry bearing Registration No.GJ-3/V-8666, which was parked on the side of the National Highway. Ext.A7 is the Final Report filed in Crime No.132/2000 by the Police, before the Magistrate Court. As discernible from Ext.A7 Final Report, the Police on investigation MACA No.941/2010 -11- found that the accident occurred while the deceased who was driving the car attempted to overtake a bus which was proceeding in front of him and in that process the car dashed against a lorry bearing Registration No.GJ-3/V-8666 which was coming in the opposite direction through the eastern side of the National Highway. As we have already noticed, as per Ext.A2 Scene Mahazar as well as in Ext.A6 AMVI Report, the damages caused to the lorry are mainly on its front right side portion, which rule out a possibility of 'head on' collision between the car and the lorry. If, as found in Ext.A7 Final Report, the accident had occurred while the lorry was coming in the opposite direction through the eastern side of the National Highway, it can be safely concluded that the accident had occurred due to the negligence of the deceased as well as that of the 2[nd] respondent lorry driver. 15. In that view of the matter, the finding of the Tribunal that the accident took place due to the rash and negligent driving of the deceased himself and as such, the appellants are not entitled to make an claim for compensation, cannot be sustained. We hold that the accident had occurred due to the negligence of MACA No.941/2010 -12- the deceased, who was driving the Maruti car, as well as that of the 2[nd] respondent lorry driver. 16. Accordingly, the impugned award passed by the Tribunal is set aside and O.P.(MV)No.1177/2000 is remanded to the Additional Motor Accidents Claims Tribunal, Palakkad, with a direction to fix the contribution of the deceased driver of the Maruti Car as well as the 2[nd] respondent driver of the lorry, to the cause of the accident, based on evidence, after affording both sides an opportunity to adduce further evidence, if they so choose, and in the light of the findings contained in this judgment. After apportioning the negligence between the deceased and the 2[nd] respondent lorry driver, the Tribunal shall assess the compensation payable to the appellants under different heads and pass a just and reasonable award. 17. The parties shall appear before the Tribunal on **7.4.2016.** Since the claim petition is of the year 2000, the Tribunal shall finally dispose of the matter, as expeditiously as possible, at any rate, within a period of four months from the date of appearance of the parties. MACA No.941/2010 -13- 18. The appeal is disposed of accordingly. The Registry shall transmit the lower court records to the Tribunal forthwith. Sd/- **P.R.RAMACHANDRA MENON** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn True copy P.S.to Judge