1. Heard Ms. Pooja Arora, holding brief of Sri Prabhakar Tiwari, learned counsel for the appellant.
2. Instant appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed against the judgment and award dated 24.03.2021 passed by the Motor Accident Claims Tribunal (South), Lucknow (in short ''the Tribunal') in Motor Accident Claims No. 134/2018 (Ram Sumer Singh and Ors. vs. Assistant General Manager, Uttrakhand, State Road Transport Corporation, Kotdwar, Garhwal, Uttrakhand and Anr.).
3. By award dated 24.03.2021, the Tribunal has awarded compensation of Rs. 9,26,800/- along with interest @ 7 per cent from the date of filing claim petition till the date of payment to the claimant/respondent nos. 1 to 3.
4. The facts of the case are that the claimant-respondents filed claim petition no. 134/18 before the Motor Accident Claims Tribunal, Lucknow claiming compensation of Rs. 1,00,20,000/- on account of death of late Sujit Singh, in the accident dated 10.11.2016, near Shyampur on Najeebabad-Haridwar National Highway no. 74 caused due to rash and negligent driving of Driver of the Bus bearing Registration No. UK 07 PA 3177 of the Uttrakhand State Road Transport Corporation, Kotdwar, Garhwal, Uttrakhand (in short ''the Corporation').
5. The appellant/opposite party no. 1 in the claim petition, denied the claim of the claimant-respondent and pleaded inter alia that the accident was caused due to contributory negligence of the driver of the Maruti Car No. UP 32 FM 1777.
6. The respondent no. 4/opposite party no. 2 in the claim petition, the driver of the Bus also filed reply-written statement to the same effect as of the present appellant.
7. The Tribunal framed the following issues:-
"1. क्या दिनांक 10.11.2016 को जब मृतक सुजीत अपने दोस्तों के साथ हरिद्वार गंगा स्नान करने के लिए जा रहा था कि रास्ते में थाना श्यामपुर से पहले हरिद्वार की ओर से आ रही उत्तराखंड परिवहन निगम कोटद्वार की बस संख्या यू के - 0 7 पी ए - 3177 को उसके चालक द्वारा काफी तेजी व लापरवाही से चलाते हुए सुजीत सिंह की कार संख्या यू पी 32 एफ एम 1777 में सामने से जोरदार टक्कर मार दी जिससे सुजीत सिंह की मौके पर ही मृत्यु हो गयी ?
2. क्या उक्त दुर्घटना याची की योगदायी उपेक्षा के कारण घटित हुई ?
3. क्या दुर्घटना के समय दुर्घटना कारित करने वाली बस संख्या यू के - 0 7 पी ए - 3177 के चालक के पास वैध एवं प्रभावी ड्राइविंग लाइसेंस था ?
4. क्या दुर्घटना से समय दुर्घटना कारित करने वाली बस संख्या यू के - 0 7 पी ए - 3177 बीमा शर्तों के उल्लंघन में चलायी जा रही थी ?
5. क्या याचीगण कोई प्रतिकर प्राप्त करने का अधिकारी है यदि हाँ तो कितनी और किससे ?"
8. In evidence the claimants examined Ram Sumer as P.W. 1 and Srikant Singh as P.W. 2 and filed documentary evidence. In the evidence on behalf of the appellants, any witness was not examined, which is clear from the judgment/award at page 2 thereof, which fact has also not been disputed.
9. The Tribunal vide judgment and award under challenge allowed the claim petition in favour of the claimant-respondents.
10. On issue no. 1, the Tribunal recorded the finding that the accident was caused due to rash and negligent driving of the Driver of the bus of the appellant; resulting into the death of Sujit Singh, on the date, time and place mentioned in the claim petition. On Issue nos. 3 & 4, it was recorded that the Bus of Corporation was exempted from the insurance policy and on the date of the accident, the Driver of the appellant's Bus had effective and valid driving licence. On Issue no. 5, the Tribunal awarded an amount of Rs. 9,26,800/- with interest @ 7 per cent from the date of filing of the claim petition upto the date of payment.
11. On Issue no. 2, ''if the accident was caused due to contributory negligence of the deceased', the Tribunal, specifically recorded that the opposite parties in the claim petition (the appellant and respondent no. 4 herein) did not press Issue no. 2, which was decided accordingly.
12. Ms. Pooja Arora submitted that the Issue no. 2 was pressed before the Tribunal by the appellant but has not been decided and it has been incorrectly recorded in the judgment/award that the Issue no. 2 was not pressed.
13. She submits that the evidence in the form of the site plan of the place of accident, established contributory negligence of the deceased in causing accident which was head on collusion. If Issue no. 2 had been tried, the finding would have been in favour of the appellant and consequently, the liability of the appellant for the amount of compensation, would not have been same as determined by the Tribunal but would have been reduced.
14. Learned counsel has placed reliance on the judgments in the case of Bijoy Kumar Dugar v. Bidyadhar Dutta & Ors. [AIR 2006 SC 1255] and United India Insurance Co. Ltd. vs. Smt. Meena & Ors. [ 2010 (1) ALJ 112] of which reference shall be made shortly.
15. The points that arise for consideration are (i) when the judgment of the Tribunal records that Issue no. 2 was not pressed, if plea to the contrary can be raised in this appeal ? (ii) if there was any contributory negligence on the part of the driver of the Maruti Car ?
16. I have considered the submissions advanced and perused the material on record.
17. On the first point, Mr. Pooja Arora, when confronted that in a case, as is here, disputing the statement in judgment, the appellant should have approached the Tribunal itself, which could have determined if the appellant pressed Issue no. 2 or not, submitted that there is no provision of review, before the Tribunal under the Motor Vehicle Act, 1988 and only appeal is maintainable against the award under Section 173 of the Act, 1988. She also referred to Rule 221 of the Uttar Pradesh Motor Vehicles Rules, 1998 (hereinafter referred to as ''the Rules, 1988') to submit that Section 114 r/w Order 47 C.P.C. does not apply before the Tribunal.
18. It is true that the power of review is not an inherent power. In Patel Narshi Thakershi and Ors. vs. Shri Pradyumansinghji, [AIR 1970 SC 1273], the Hon'ble Supreme Court held that "it is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication." In Lily Thomas, Etc. vs. Union of India & Ors. [(2000) 6 SCC 224] also it has been held that "the dictionary meaning of the word "review" is "the act of looking; offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. Therefore, the power of review unless conferred by the statute cannot be exercised by a Court, Tribunal or authority". But the power of review is necessitated by way of invoking the doctrine ''actus curiae neminem gravabit' which means that no act of the court in the course of whole of the proceedings does an injury to the suitors in the court.
19. It is also well settled that the procedural review inheres in every judicial, quasi judicial or even an administrative authority, if the order is passed under an erroneous assumption of one's own power going to the root of the matter or if it is found that a fraud has been practiced or there was willful suppression. Besides, in the case of S. Nagraj vs. State of Karnataka [(1993) Supp. 4 SCC 595], the Hon'ble Apex Court has observed that it is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders were passed on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences.
20. In State of Maharashtra vs. Ramdas Shrinivas Nayak and Ors. [(1982) 2 SCC 463], the Hon'ble Supreme Court held that the principle is well settled that the statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges, who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there.
21. In Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. And Others [(2003) 2 SCC 111], Hon'ble Supreme Court referred to the case of Ramdas Shrinivas (supra) and held as under in paragraph 61:-
61. Before parting with the case, we may notice that Mr Tanna appearing on behalf of South Gujarat University in CA No. 1540 of 2002 submitted that various other contentions had also been raised before the High Court. We are not prepared to go into the said contentions inasmuch as assuming the same to be correct, the remedy of the appellants would lie in filing appropriate application for review before the High Court. Incidentally, we may notice that even in the special leave petition no substantial question of law in this behalf has been raised nor has any affidavit been affirmed by the learned advocate who had appeared before the High Court or by any officer of the appellant who was present in court that certain other submissions were made before the High Court which were not taken into consideration. In State of Maharashtra v. Ramdas Shrinivas Nayak [(1982) 2 SCC 463 : 1982 SCC (Cri) 478 : AIR 1982 SC 1249] this Court observed: (SCC p. 467, para 4) "4. When we drew the attention of the learned Attorney-General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. ''Judgments cannot be treated as mere counters in the game of litigation.' (Per Lord Atkinson in Somasundaram Chetty v. Subramanian Chetty [AIR 1926 PC 136] .) We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain [AIR 1917 PC 30 : 21 CWN 897] .) That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment."
22. In view of the aforesaid judgments, this Court is of the considered view that although there may not be power of review in the Motor Accident Claims Tribunal under the Act, 1988 and the Rules, 1998, like the power of review as is vested in a court under Section 114 C.P.C. r/w order 47 C.P.C. or for that reason under any other specific provision, but, in the case of dispute with respect to statement of fact in the judgment and award of the Tribunal, as is in the present case, if any issue was pressed or not and such statement in judgment is contradicted, then in view of Ramdas Shrinivas Nayak (supra) and Bhavnagar University (supra), ''the only way to have the record corrected is to approach the same Tribunal, and if no such step is taken, the matter must necessarily end there. If the party approaches the Tribunal raising the grievance, contradicting the statement in the judgment, the Tribunal shall have the power to review, to that limited extent, on the principle of ''actus curiae neminem gravabit' which means that no act of the Court, in the course of the proceedings does an injury to the suitors in the Court.
23. On point no. 2, the submission of Ms. Pooja Arora is that in view of the site plan, there was contributory negligence of the deceased, which was not considered by the Tribunal.
24. There can be no Rule of thumb that a head on collision must always be taken as resultant to contributory negligence of both vehicles. It depends on facts of each case which are required to be proved like any other fact. A finding of contributory negligence turns on a factual investigation whether the deceased contributed to his or her own loss by failing to take reasonable care of his or her own person or property. What is reasonable care, depends on the circumstances of the case. There are variable factors in determining whether contributory negligence exists, and if so, to what degree. The breach or failure on the part of the deceased, if any, has to be proved by the Insurance Company, as it was its burden to prove that.
25. The Tribunal has recorded finding on Issue no. 1 that the driver of the appellant's bus was negligent. The accident was caused as resultant to a rash driving of the Bus. Nothing could be pointed out even from the evidence of P.W. 1 or P.W. 2 that there was any negligence on the part of the driver of the Maruti Car which contributed, to the happening of the accident. As mentioned above, no oral evidence was produced to prove that fact. The Insurance Company failed to discharge its burden.
26. So far as the site plan, prepared by the Police is concerned, it only has its face value for the purpose of satisfaction of the Tribunal in the summary proceedings for the purpose of determination of compensation, as has beeen observed in the case of Smt. Meena (supra), upon which reliance was placed by Ms. Pooja Arora. Merely on the basis of the site plan, the finding of contributory negligence cannot be arrived, as for determining contributory negligence, various factors are required to be proved. The site plan may prove the spot of accident, where the vehicle colluded but that by itself cannot prove the contributory negligence, as the possibility of the vehicles, in the accident going to a wrong direction or side during accident cannot be ruled out. The contributory negligence has to be proved by positive evidence and it would not be safe to draw inference merely on the basis of site plan.
27. In the case of Usha Rajkhowa and Others vs. Paramount Industries and Others [(2009) 14 SCC 71], the Hon'ble Supreme Court has held in paragraph nos. 20, 21 & 22, as under:-
"20. The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak [(2002) 6 SCC 455: 2002 SCC (Cri) 1355] . That was also a case of collision between a car and a truck. It was observed in SCC p. 458, para 8:
''8. ... The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as ''negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression ''contributory negligence' it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an ''author of his own wrong'.'
21. This Court further relied on an observation of the High Court of Australia in Astley v. Austrust Ltd. [(1999) 73 ALJR 403] to the following effect:
''A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases, the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.'
22. Keeping these principles in mind, we find that there was absolutely no evidence to suggest that there was any failure on the part of the car driver to take any particular care or that he had breached his duty in any manner. Such breach on his part had to be proved by the insurance company as it was its burden and for that, the panchnama of the spot, showing tyre marks caused by brakes, and the panchnama of the damaged car and the truck could have been brought on record. The insurance company has obviously failed to discharge its burden. We, therefore, respectfully follow the abovementioned judgment."
28. In Bijoy Kumar Dugar (supra), the accident was head on collision but, there, the Motor Accident Claims Tribunal, had, on the basis of evidence and material on record, recorded a finding of contributory negligence. In the present case, finding is that the Driver of the Bus was negligent. The judgment in Bijoy Kumar Dugar (supra) is of no help to the appellant.
29. For the aforesaid, on point no. 2, it is held that the appellant failed to discharge its burden to prove contributory negligence on the part of the driver of the Maruti car.
30. For the aforesaid reasons, the appeal has got no force and is dismissed at the admission stage.
Order Date :- 30.09.2021 Nitesh ( Ravi Nath Tilhari, J. )