National Insurance Co. Ltd. Vs. Gurudhyal Singh and ors. - Court Judgment

Excerpt:
motor vehicles - compensation - deceased was travelling by van - accident taken place between van and standing dumper and deceased died - claimants filed claim petition for compensation - petition allowed - insurance company being aggrieved by said order filed present petition - contended that accident taken place due to negligenc eof van driver thus, it is not liable to pay compensation - held, dumper was standing in manner that under normal condition it would not be possible for prudent driver to see it from safe distance - driver of dumper responsible for accident and not the driver of van - thus, insurance company liable to pay compensation - petition dismissed - - the statement of this witness further indicates that the dumper did not show any indication or warning signal to be red light or blinker on the back side, as a result in the darkness, the dumper could not be seen from a safe distance and, therefore, the accident took place. evidence available on record in the present case clearly indicates that the dumper was standing in such a manner that under the normal circumstances it would not be possible for a prudent driver to see it from a safe distance in a busy highway like a.rajendra menon, j.1. as the questions of law involved in all these appeals are identical and as accident in question, out of which these four appeals arise, is also the same, all the appeals are being decided by this common order. for the sake of convenience averments made in m.a. no. 100 of 1998 are taken note of.2. on 28.8.1993, a maruti van bearing no. mp 07-2330 driven by the deceased jaktar singh was going from morena to gwalior, when maruti van reached certain spot near banmore on agra-bombay road it dashed with a dumper standing on the road. the number of the dumper was cih 7594, it was owned by murarilal dubey, respondent no. 2 and shyam sundaram was the driver of the said dumper and the appellant national insurance co. ltd. is the insurer of the said dumper. it is stated that the dumper was standing with half of its portion on the road and with no indication or warning signal, as a result, maruti van rammed into the dumper from behind. the claimant gurudhyal singh, the respondent no. 1 in m.a. no. 100 of 1998 sustained serious injuries because of the accident, jagtar singh, driver of maruti van, indrajeet singh and kuldeep kaur who were sitting in maruti van died because of the accident. in view of this, gurudhyal singh filed claim case no. 132 of 1996 and the legal heirs of deceased persons also filed claim petitions. the said claim petitions have been allowed and various amounts of compensation have been awarded by the tribunal to gurudhyal singh so also the legal heirs of the deceased occupants of maruti van.3. this appeal is now filed by the insurance company and the only ground raised in this appeal is with regard to the question of negligence as determined by the tribunal. mr. b.n. malhotra, learned counsel for the insurance company by taking me through the evidences and other material available on record, tried to emphasise that this is a case of contributory negligence. it is argued that the accident took place due to negligence by the driver of maruti van also. it is submitted by him that by attributing 100 per cent negligence on the driver of the dumper, tribunal has committed error, accordingly sought interference in this appeal. placing reliance on a judgment rendered by a division bench of this court in the case of national insurance co. ltd. v. sahiba khatun : air1998mp238 (mp), so also a judgment of apex court in the case of tamil nadu state trans. corporation v. natarajan : air2003sc2232 , mr. b.n. malhotra emphasised that in the facts and circumstances as both the drivers were negligent in the matter of discharging their responsibilities attributing negligence only on the driver of the dumper is not warranted.4. mr. b.d. verma and mr. r.p. gupta, learned counsel representing the claimants refuted the aforesaid and pointed out that a reasonable findings arrived at by the tribunal on the basis of due appreciation of evidences and materials available on record, does not warrant any interference, therefore, they seek for dismissal of these appeals.5. having heard learned counsel for the parties and on a perusal of the records, it is seen that for the purpose of deciding the question of negligence, the only witness examined is the eyewitness, gurudhyal singh, claimant in claim case no. 132 of 1996 and respondent no. 1 in m.a. no. 100 of 1998. he was occupant of maruti van and the sole witness to the accident. from the statement of this witness, examined as pw 1 in claim case no. 132 of 1996, maruti van was going in a normal speed and when it reached a place near banmore on the a.b. road it rammed into the dumper which was standing on the road. according to the statement of this witness the dumper was standing in such a manner that half of the dumper was on the middle part of road and other half was on the left side of the road. the statement of this witness further indicates that the dumper did not show any indication or warning signal to be red light or blinker on the back side, as a result in the darkness, the dumper could not be seen from a safe distance and, therefore, the accident took place. the statement of gurudhyal singh is refuted by contending that driver of the dumper is not examined. it is seen that the owner, driver and insurance company of the dumper have not adduced any evidence to rebut the statement given by pw 1, gurudhyal singh. it was only pointed out by them that from the spot map, exh. p42, it is seen that certain boulders and stones were put around the dumper as warning to indicate a vehicle is standing on the road. this fact has been considered by learned tribunal and it is found that there is no evidence to show that the boulders or stones were put in the said place as a signal, that apart it is held that the boulders were kept in such a manner that it could not be seen in the night, it is also held by the tribunal that they may have been kept by the police after the accident for demarcation of the accident spot. this finding of the tribunal in this regard is a reasonable finding and i find no reason to interfere with the same.6. even though mr. b.n. malhotra, the learned counsel for the insurance company has tried to point out that the negligence in this case is contributing in nature and sought interference on the basis of certain observations made by a division bench of this court in the case of sahiba khatun 2000 acj 168 (mp) and tamil nadu state trans. corporation 2003 acj 1002 (sc). i am afraid, the judgments of the aforesaid cases would not apply in the facts and circumstances of the present case. in the case of sahiba khatun (supra) certain indication and light were displayed on a stationary jeep and that was the case where the dumper rammed into the jeep. each case has to be considered on the basis of evidences and materials that have came on record. evidence available on record in the present case clearly indicates that the dumper was standing in such a manner that under the normal circumstances it would not be possible for a prudent driver to see it from a safe distance in a busy highway like a.b. road. accordingly, in the facts and circumstances of the case, i find no error in the award passed by the tribunal holding the driver of dumper responsible for the accident and imposing liability on the insurance company for payment of compensation. the award passed by the tribunal is based on due appreciation of evidences and materials that have came on record and no circumstances is pointed out in this appeal warranting interference.7. mr. malhotra at the time of hearing argued that interest at the rate of 12 per cent awarded is very much on the higher side, therefore, he seeks interference in the same. the accident took place in the year 1993 and the award was passed in the year 1997, the tribunal awarded interest by considering the totality of the facts and circumstances of the case, nothing is available on record to hold that in the year 1993 what was the interest rate presented by the reserve bank of india or any other authority, accordingly, i find no case for interference. finding no merit in all four appeals, the same are dismissed without any order so as to costs.