1. Heard Sri Vashishtha Tiwari, learned counsel for the appellant-claimants and Sri S.K. Mehrotra, learned counsel for respondents and Sri A.K. Pathak, learned counsel for U.P.S.R.T.C.
2. This appeal has been filed by the appellant-claimants being aggrieved of the award dated 09.05.2019 passed by learned Motor Accident Claims Tribunal/Additional District Judge/F.T.C. 1st, Deoria in M.A.C.P. No. 26 of 2015, on singular ground that though the learned claims tribunal has accepted contributory negligence of the deceased driver of the motorcycle, yet has apportioned the quantum of negligence in the ratio of 30%, attributing it to the driver of the motorcycle and 70% to the driver of the bus. It is submitted that this apportionment of contributory negligence should have been 50%.
3. In this regard, judgment of Supreme Court in case of T.O. Anthony vs. Karvarnan and Others, (2008) 3 SCC 748, is relevant to the present controversy in which under similar facts and circumstances, when an accident had taken place, then Hon'ble Supreme Court had apportioned percentage of contributory negligence at 25% in case of the appellant and 75% in case of other offending vehicle.
4. In that case tribunal held that the accident occurred due to the composite negligence of drivers of both the vehicles and it could not be said that the accident occurred solely due to the negligence of the first respondent. The tribunal held that as the accident occurred due to contributory and composite negligence of the drivers of both the vehicles, the liability should be 50-50 i.e., 50% each. In appeal, High Court had not disturbed the finding of percentage of negligence and therefore, special appeal was filed before the Supreme Court, which after appreciating the facts and evidence on record held that the principle of 'composite negligence' will not apply nor can be an automatic inference that the negligence was 50-50 as has been assumed in this case. It is further held that the tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoiding confusion between the composite negligence and the contributory negligence. On facts and circumstances of the case, where the evidence revealed that the appellant was not diligent, it was held the appellant was also partly responsible for the accident and responsibility was fixed at 25% on the appellant and 75% on the first respondent.
In the present case, tribunal has appreciated complete gamut of evidence and has apportioned percentage of negligence in an appropriate manner, inasmuch as there is no straight jacket formula to attribute 50% contributory negligence in every case. Parties are required to demonstrate from the evidence. After going through the evidence on record, I do not find any illegality in the impugned award fixing aspect of contributory negligence in the ratio of 30% on the driver of the claimants and 70% on the driver of the bus.
5. Thus, appeal is dismissed.
6. As far as cross appeal is concerned, claimants have filed this appeal for setting aside the finding of contributory negligence, on the ground that even at the time of filing of the written submission by the respondents, neither they had admitted the accident nor had taken the plea of contributory negligence, therefore, plea of contributory negligence on the basis of site map, cannot be treated as a substantial piece of evidence.
7. Learned counsel for the claimant has placed reliance on the judgment of Supreme Court in case of Mangla Ram vs. Oriental Insurance Co. Ltd and Others, 2018 ACJ 1300, where the Supreme Court held that finding of contributory negligence cannot be recorded on the basis of assumption. Reliance is also placed on the judgment of Supreme Court in case of U.P. State Road Transport Corporation vs. Rani Srivastava and Others, 2006 ACJ 1864, wherein the ratio of law is that plea of contributory negligence is not available where factum of accident is denied. Reliance is also placed on the judgment of Allahabad High Court in case of Uttaranchal State Road Transport Corporation vs. Chhotey Lal and Others, 2008 (3) TAC 547 (All.) is held that since no FIR was lodged, therefore, there was no occasion for the police to prepare the site plan. Under such facts and circumstances, the question of contributory negligence cannot arise.
8. It is further held that eye-witness cannot develop a case, which independently can be seen from the record, prepared by the police on the basis of the First Information Report. Reliance is also placed on the judgment of Supreme Court in case of Dinesh Kumar J. vs. National Insurance Co. Ltd. and Others, 2018 ACJ 535, wherein it is held that when no evidence was led by the insurance company about contributory negligence of motorcyclist, then tribunal and High Court were not justified in holding that motorcyclist was guilty of contributory negligence.
9. In the light of above submission record of the case is perused. Issue no. 2 has been framed in regard to contributory negligence of the driver of the motorcycle. It has discarded the evidence of PW1 on the aspect of contributory negligence, but has given a finding of contributory negligence on the basis of the evidence adduced on behalf of the insurance company, which had produced driver of the bus Ram Sewak Paswan, who deposed that he was moving on his left hand side at normal speed, when driver of the motorcycle came from a wrong direction from right hand side and had hit the bus. He had applied the break which caused injuries to passengers of the bus. Tribunal has also taken into consideration the spot map, Exhibit 88/2, produced by respondent no. 4-insurance company and prepared by the investigating officer from which it became evident that there was factum of contributory negligence on the part of the driver of the motorcycle, inasmuch as bus was moving from Gorakhpur to Deoria, when motorcycle was coming from the side of Deoria had hit the bus on the center of the road. When this evidence is taken into consideration, as has been adduced on behalf of the insurance company, then it is apparent that none of the judgments cited by the learned counsel for the claimants namely, Mangla Ram vs. Oriental Insurance Co. Ltd. and Others, 2018 ACJ 1300, U.P. State Road Transport Corporation vs. Rani Srivastava and Others, 2006 ACJ 1864, Uttaranchal State Road Transport Corporation vs. Chohtey Lal and Others, 2008 (3) TAC 547 (All.), Dinesh Kumar J. vs. National Insurance Co. Ltd. and Others, 2018 ACJ 535, have any application, inasmuch as firstly, there is an FIR, secondly, there is a thorough investigation by the police which has not been doubted and thirdly, the site map has also not been questioned and finally, there is evidence of the driver of the bus, which has not been rebutted in cross-examination by the claimants. Therefore even their appeal for setting aside the finding of contributory negligence, deserves to be dismissed and is dismissed.
10. At this stage, learned counsel for the appellant submits that Rs. 25,000/- (twenty five thousand rupees) deposited by the insurance company, in compliance of the provisions contained in Section 173 of the Motor Vehicles Act, be remitted to the claims tribunal to be adjusted from the claim amount.
11. This prayer is allowed, Registry is directed to do the needful. Record be sent back to the learned claims tribunal.
Order Date :- 20.1.2021/Vikram/-