Allahabad High Court
State Of U.P. Thru. The Distt. ... vs Shri Brajesh Kumar & Ors. on 18 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 671
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 6 Case :- FIRST APPEAL FROM ORDER No. - 1091 of 2011 Appellant :- State Of U.P. Thru. The Distt. Magistrate Raibareli & Ors. Respondent :- Shri Brajesh Kumar & Ors. Counsel for Appellant :- C.S.C. Counsel for Respondent :- Brijendra Chaudhary Hon'ble Jaspreet Singh,J.
Heard the Additional Chief Standing Counsel Shri Ravindra Pratap Singh for the appellants and Shri Brijendra Chaudhary for the respondents no.1, 2 and 3.
The instant appeal has been preferred by the appellants under Section 173 of the Motor Vehicles Act 1988 being aggrieved against the award dated 14.01.2011 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.6, Raebareli in Claim petition No.209 of 2010 whereby a sum of Rs.3,54,100/- alongwith 6% interest per annum has been awarded in favour of the claimant-respondents.
Shri Ravindra Pratap Singh while challenging the award has raised a solitary contention that a specific plea has been raised in the written statement which indicated that the accident was not the outcome of the sole negligence of the offending fire-tender truck rather the claimants who was riding the other vehicle involved i.e. motorcycle was also negligent. Though the parties had led evidence in the aforesaid backdrop but since the tribunal has not framed any issue on the aforesaid point therefore a proper finding has not been rendered which has resulted in sheer miscarriage of justice and the entire award has been fastened on the appellants.
Per contra Shri Brijendra Chauhan learned counsel for the claimant-respondents has submitted that there was ample evidence on record to indicate that the accident occurred solely on account of the negligence of the driver of the fire-tender truck since it was the case that the accident was an outcome of the negligence of the driver of the fire tender truck, accordingly there was no requirement nor there was any necessity to frame a issue regarding contributory negligence. Further more, the parties had gone to trial knowing the respective case and even otherwise the tribunal has considered the evidence available on record by which it has recorded a finding of fact that the accident occurred on account of the sole negligence of the offending fire-tender truck. Consequently the submission raised by the learned counsel for the appellants does not merit consideration and the appeal is liable to be dismissed.
The Court has considered the rival submissions and also perused the record.
In order to appreciate the controversy involved, briefly the facts giving rise to the above appeal are being noticed herein after.
The claimant-respondents instituted a claim petition bearing No.209 of 2010 before the Court of Additional District Judge, Court No.6, Raebareli, Acting as Motor Accident Claims Tribunal with the averments that on 16.04.2010. The claimant no.1 i.e. Brijesh Kumar was riding his motorcycle bearing No.UP 32 AS-0348. His wife was the pillion rider alongwith the two minor children. It was further pleaded that on the fateful day at around 6.00 P.M. while the claimant had reached Baburihakhera, near gram Vishnupur, Police Station Bachrawan, a fire-tender truck bearing No.UP 33 AG 0180 was being driven rashly and negligently which caused the accident, as a result, the wife of the claimant no.1, namely, Pushpa Devi came under the rear tyre of the fire-tender truck which crushed her and as such she expired on the spot.
The appellants who were the respondents before the tribunal filed their detailed written statement and took a defence that while the fire-tender truck had reached gram Baburihakhera at that time a motorcycle bearing No.UP 32 AS 0348 which coming from the front and a person was riding the same alongwith a lady and two children and it is on account of his negligence that the said motorcycle became uncontrolled and it hit the rear side of the fire-tender truck and as such the lady sitting on the motorcycle came under the rear tyre which caused her death. it was also specifically pleaded that no collission was caused from the front side and as such the fire-tender could not be blamed and in view of the aforesaid, the tribunal framed six issues.
While dealing issue no.1, it concluded that the accident was an outcome of rash and negligent driving of the fire-tender truck and thereafter considering the requisites for assessing the compensation a sum of Rs.3,54,100/- alongwith 6% interest per annum was awarded in favour of the claimant-respondents no.1, 2 and 3 by means of award dated 14.01.2011 which is under challenge in the instant appeal.
In view of the aforesaid backdrop, the Court has considered the submissions of the learned counsel for the parties and also perused the record.
The facts which are not disputed are that on 16.04.2010 the accident occurred which led to the death of Pushpa Devi. The only solitary contention of the learned Additional Chief Standing Counsel is that the manner in which the accident occurred it was a clear case where the motorcyclist also contributed to the accident and as such some apportionment of the award be also made on the motorcyclist for his negligence. It has further been submitted that this aspect of the matter has not been considered rather the tribunal has held that since the fire-tender truck was the larger vehicle which was involved, accordingly the entire liability has been fastened on the appellants.
Upon considering the evidence on record this Court finds that the claimants had examined Brijesh Kumar claimant no.1 who was also the husband of the deceased as well as an eye witness. Another eye witness, namely, Saroj Kumar was also examined. Both the aforesaid witnesses have clearly narrated the manner which the accident occurred. On the other hand, the respondents examined the driver of the fire-tender truck, namely, Jata Shankar.
From the perusal of the evidence of the said driver, he clearly stated that he had received the information regarding a fire incident in Gram Moon, Police Station Maharajganj and it is in furtherance thereof that the fire-tender truck was being driven by him. He also stated that since there was a motorcycle which suddenly came and while passing the aforesaid vehicle (fire-tender truck), it became dis-balanced and as such pillion rider came under the rear tyre which caused the accident and thus since the fire tender truck did not hit the vehicle from the front, therefore it is argued that it cannot be the sole negligence of the fire-tender truck driver.
From the appraisal of the aforesaid evidence it has to be judged in light of the statement given by the two eye witnesses. Both the eye witnesses examined on behalf of the claimants have clearly stated that the fire-tender truck was being a driven rashly and negligently. It has also been stated that the road was not very broad and it is also damaged from both sides that motorcycle was coming from the front which had been seen by the driver of the fire-tender truck.
Applying the principles of preponderous of probability if it is to be adjudged that the fire-tender truck is moving on the road while there is clear statement that the motorcyclist was on his side of the road and yet the same was hit on the right side would indicate that the speed of the fire-tender truck must have been at a high speed which would have dis-balanced the motorcyclist. Had the motorcyclist not taken any precaution perhaps the impact would have been much greater; inasmuch as it is only the pillion rider who fell from the motorcycle while the claimant no.1 the motorcyclist himself and his two minor children sustained minor injuries without any major injury.
The tribunal has considered the aforesaid aspect and has recorded a finding considering the overall texture of the evidence available on record and held that the accident was on account of sole negligence of the fire-tender truck driver.
As indicated above, the claim petitions are decided on preponderous of probability. The standard of proof is not as high as in the criminal cases. From the perusal of the material evidence on record, this Court is satisfied that as far as the finding regarding negligence is concerned, the same is materially and foundationally acceptable. Merely because another view is possible it will not persuade this Court to disturb a finding of fact which otherwise is reasonable and is based on the material evidence on record.
In view of the aforesaid, this Court does not find that the tribunal has committed an error in passing the award dated 14.01.2011.
In view of the aforesaid the appeal is devoid of merits and is dismissed. The award dated 14.01.2011 passed in Claim Petition No.209 of 2010 is affirmed. In the facts and circumstances, there shall be no order as to costs. The amount deposited before this Court shall be remitted to the tribunal concerned to be released in favour of the claimants. The record of the tribunal concerned shall be remitted within a period of two weeks from today.
18.02.2020 ank/-