Nishan Singh, Soniya Kaur (Minor), Anmol Singh (Minor), Karamjeet Singh (Minor) vs Oriental Insurance Company Ltd. Regional Manager., Kuljeet Singh, Parasnath

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10145 OF 2016

NISHAN SINGH & ORS. …..Appellant(s) :Versus:

ORIENTAL INSURANCE COMPANY LTD. THROUGH REGIONAL MANAGER & ORS. ....Respondent(s)

J U D G M E N T

A.M. Khanwilkar, J.

1. This appeal, by special leave, filed by the claimants

assails the judgment and order of the High Court of

Uttarakhand at Nainital in Appeal From Order No.125 of 2015

dated 5th March, 2015, whereby the appeal was dismissed and

the order passed by the MACT/Additional District Judge­III,

Rudrapur, Udham Singh Nagar, dated 10 th December, 2014 in

Motor Accident Claim Petition No.147 of 2012 dismissing the 2

claim petition on the finding that the accident in question was

not on account of rash and negligent driving of Truck bearing

No. U.P.­32 Z­2397 but on account of rash and negligent

driving of Maruti Car bearing No. U.P.­02 D­5292 resulting in

death of Balvinder Kaur who was sitting in the car driven by

Manjeet Singh, came to be upheld.

2. Briefly stated, appellant No.1 asserted that when he was

returning home to village Bindukhera with his wife Balvinder

Kaur, the mother of appellant Nos.2 to 4, from his matrimonial

home at village Kuankhera, District Bijnaur along with his

cousin brothers Manjeet Singh and Bittu and his son

Karanjeet Singh on 28th November, 2010 in a Maruti Car

bearing No. U.P.­02 D­5292 which was being driven by

Manjeet Singh, son of Kashmir Singh, the said car met with an

accident causing serious injuries to the persons travelling

therein, including the death of Balvinder Kaur. The maruti car

had dashed against Truck bearing No. U.P.­32 Z­2397 which

was running ahead of it. According to the appellants, the truck

driver suddenly applied brake while the truck was in the 3

centre of the road, bringing it to the right side, as a result of

which, the maruti car collided with the truck from the back.

Balvinder Kaur eventually succumbed to her injuries on the

same day i.e. 28th November, 2010, while she was being

treated at Govt. Hospital, Kashipur. After that, an F.I.R. was

registered on 4th December, 2010 at police station Kunda,

District Udham Singh Nagar, bearing No.93/10 u/s 279 for

offences punishable under Sections 304A, 337, 338 and 427 of

IPC. The appellants asserted that Balvinder Kaur was gainfully

employed and earned around Rs.10,000/­ (Rupees Ten

Thousand Only) per month from the dairy business.

3. On these assertions, a claim petition was filed before the

Motor Accident Claims Tribunal/Additional District Judge­III

Rudrapur, Udham Singh Nagar being M.A.C. Case

No.147/2012. Appellant No.1 who was travelling in the car

along with his wife deposed before the Tribunal. Appellants

also examined Manjeet Singh who was driving the Maruti Car

bearing No. U.P.­02 D­5292 at the relevant time. The

appellants also relied on the charge­sheet filed by the police 4

against respondent No.3 (Parasnath) driver of the offending

truck.

4. The respondents contested the claim petition. According

to the respondents, the accident occurred due to the

negligence of the driver of the maruti car and there was no

negligence on the part of the truck driver. It was asserted by

the respondents that the truck driver had a valid driving

licence. Further, the appellants had failed to implead the

owner and driver of the maruti car who was responsible for the

accident and as such, no relief could be granted to the

appellants.

5. The Tribunal analysed the entire evidence on record and

answered the issue as to whether the truck was being driven

in rash and negligent manner against the appellants. The

Tribunal instead held that the accident occurred due to rash

and negligent driving by the driver of the maruti car. The

Tribunal, therefore, concluded that the truck driver and the

insurer of the truck were not liable to pay compensation as

claimed. The Tribunal noted the issue of contributory 5

negligence but, having regard to the facts of the present case

and particularly because the owner and the driver of the

maruti car were not made parties, it held that the appellants

were not entitled to any relief. The Tribunal also noted that the

maruti car was purchased by Manjeet Singh about 1­1½ years

before the accident but the same was not transferred in his

name nor was it insured. Taking an overall view of the matter,

the Tribunal dismissed the claim petition vide judgment dated

10th December, 2014.

6. The appellants carried the matter in appeal before the

High Court of Uttarakhand at Nainital. The High Court

summarily dismissed the appeal by reiterating the finding

recorded by the Tribunal that the evidence clearly indicated

that the driver of the maruti car himself was negligent in

driving his vehicle and had failed to keep sufficient distance

between the two vehicles running in the same direction.

Furthermore, the maruti car driver, owner and concerned

insurance company were not made parties to the claim 6

petition. The High Court, thus, declined to interfere in the first

appeal.

7. The appellants have assailed the aforementioned

decisions in this appeal. According to the appellants, the

finding recorded by the Tribunal and affirmed by the High

Court, that the driver of the maruti car had not maintained

safe distance from the truck running ahead of the maruti car

in the same direction, is untenable. The appellants have also

assailed the finding of fact recorded by the Tribunal and

affirmed by the High Court that the maruti car was driven in a

rash and negligent manner. It is urged that the fact that the

maruti car was not registered in the name of Manjeet Singh or

that the documents pertaining to the maruti car and even the

valid driving licence of the driver of maruti car was not

brought on record, cannot denude the appellants to receive

compensation due to contributory negligence of the truck

driver. Further, the Tribunal committed manifest error in

recording the finding on the issue of contributory negligence

against the appellants without framing any issue in that 7

behalf. It is urged that the findings recorded by the Tribunal to

absolve the truck driver, on the ground that the truck was not

driven rashly and negligently, is perverse and untenable in

law. Moreover, the Tribunal has completely glossed over the

efficacy of the charge­sheet filed by the police against

respondent No.3 truck driver after due investigation. The

appellants have also reiterated their claim regarding

compensation, on the assertion that deceased Balvinder Kaur

was earning around Rs.10,000/­ (Rupees Ten Thousand Only)

per month and after her death, her family was facing grave

hardship. According to the appellants, the Tribunal as well as

the High Court had dealt with the matter in a hyper­technical

manner and did not appreciate the evidence on the basis of

preponderance of probabilities.

8. The respondents, on the other hand, have supported the

finding of fact recorded by the Tribunal, that the accident

occurred not because of rash and negligent driving of the

truck but was on account of rash and negligent driving by the

driver of the maruti car. On that finding, contends learned 8

counsel for the respondents, no liability can be fastened on the

respondents. He submitted that the analysis of the evidence

on record by the Tribunal and affirmed by the High Court does

not warrant any interference. The respondents have supported

the conclusions recorded by the Tribunal and affirmed by the

High Court for dismissing the claim petition.

9. We have heard Mr. Vijay Prakash, learned counsel

appearing for the appellants and Mr. K.K. Bhat, learned

counsel for the respondents.

10. The moot question is whether the Tribunal committed

any error in answering issue No.1 against the appellants and

in favour of the respondents. The Tribunal, while answering

the said issue No.1, analysed the evidence, both oral and

documentary, including the charge­sheet filed by the

appellants and observed thus:

“20. In site plan paper No.6C/6 which is filed on record, the breadth of the road in question appears to be 14 feet and about 7 steps Kachcha Lekh appears at the both sides of the road. This fact is remarkable that the said accident is not of front accident but the accident occurred as a result of collision of the Maruti Car on the rear part of the truck in question by the driver of the car in question and the same fact is also mentioned in the evidence of the petitioners. PW­ 2 Manjeet Singh driver of the car in question as stated in his 9

cross examination that he was driving the car behind the truck at the distance of about 10­15 feet. Despite there being the breadth of the road 14 feet Pucca, the driver of the car in question kept the vehicle only at the distance of 10­15 feet from the truck which doesn’t appear in accordance with traffic rules. He should have driven the vehicle maintaining the proper distance in order to escape from each circumstance but he has admitted in his cross examination as PW­2 that, “he knows that he should maintain proper distance from the heavy vehicle”. Under such circumstance if the vehicle which is running behind the heavy vehicle, must maintain the proper distance if the proper distance is not maintain then the whole negligence shall be determined on the part of rear vehicle in regard to the occurrence of accident in question. In addition no evidence in regard to the seizing of truck in question on the place of occurrence and taking into police custody the vehicles from the place of occurrence and getting done their technical survey is not available on place of occurrence.

21. By the facts mentioned in the petition and by the evidence of PW­1 and PW­2 it doesn’t appear reliable that rash and negligent driving in the accident in question was on the part of the driver of the truck in question and for this purpose only by registering of F.I.R. of said accident and submitting of charge­sheet against the driver of the truck in question, the driver of the truck in question cannot be held guilty for the said accident, whereas by the evidence of the petitioner on record this fact comes forward that the accident occurred as the driver of the car in question was not driving the car in question in accordance with traffic rules i.e. the accident occurred as the vehicle was not being driven maintaining proper distance from the truck and it appears clearly that the speed of the car would have been fast whereby the car in question collided with the rear part of the truck in question being uncontrolled and said accident took place. Under such circumstance there was no rash and negligence on the part of the driver of truck bearing No.U.P.­ 32 Z­2397 regarding the accident in question but the same is determined on the part of Manjeet Singh driver of Maruti Car bearing No.U.P.­02 D­5292.

22. On the basis of the aforesaid interpretation it appears that the said accident didn’t occur on 28.11.2010 at about 10

6:45 p.m. at village Kunda Kashipur­Jashpur Road under area of P.S. Kunda district Udham Singh Nagar by the driver of the truck bearing No. U.P.­32 Z­2397 due to rash and negligent driving of the truck and by applying sudden break but it occurred as a result of rash and negligent driving of Maruti Car bearing No. U.P.­02 D­5292 in question by Manjeet Singh driver, wherein Balvinder Kaur who was sitting in the car sustained serious injuries and expired during her treatment on account of serious injuries.”

The finding so recorded by the Tribunal has been affirmed by

the High Court, by observing that the evidence was clearly

indicative of the fact that the maruti car was being driven in a

rash and negligent manner, which was the cause for accident

of this nature and resulting in death of one of the passengers

in the maruti car. The maruti car was driven by none other

than PW­2 Manjeet Singh. In his evidence, he has admitted

that the subject truck was running ahead of the maruti car for

quite some time about one kilometre and at the time of

accident, the distance between the truck and maruti car was

only 10 ­15 feet. He has also admitted that the law mandates

maintaining sufficient distance between two vehicles running

in the same direction. It is also not in dispute that the road on

which the two vehicles were moving was only about 14 feet 11

wide. It is unfathomable that on such a narrow road, the

subject truck would move at a high speed as alleged. In any

case, the maruti car which was following the truck was

expected to maintain a safe distance, as envisaged in

Regulation 23 of the Rules of the Road Regulations, 1989,

which reads thus:

“23. Distance from vehicles in front.­ The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop.”

The expression ‘sufficient distance’ has not been defined in the

Regulations or elsewhere. The thumb rule of sufficient

distance is at least a safe distance of two to three seconds gap

in ideal conditions to avert collision and to allow the following

driver time to respond. The distance of 10–15 feet between the

truck and maruti car was certainly not a safe distance for

which the driver of the maruti car must take the blame. It

must necessarily follow that the finding on the issue under

consideration ought to be against the claimants. 12

11. The Tribunal also noted that there was no evidence on

record to indicate that the driver of the truck suddenly applied

his brake in the middle of the road. Further, the finding on

issue No.1 recorded by the Tribunal is that there was no

evidence regarding exact place of occurrence of accident and

having taken survey. Therefore, the issue under consideration

was answered against the appellants (claimants), namely, that

the subject truck was not driven rashly and negligently by the

truck driver nor had he brought the truck in the centre of the

road at right side or applied sudden brake as being the cause

of the accident. Being a concurrent finding of fact and a

possible view, needs no interference.

12. The next question is whether the Tribunal should have at

least answered the issue of contributory negligence of the

truck driver in favour of the appellants (claimants). The

question of contributory negligence would arise when both

parties are involved in the accident due to rash and negligent

driving. In a case such as the present one, when the maruti

car was following the truck and no fault can be attributed to 13

the truck driver, the blame must rest on the driver of the

maruti car for having driven his vehicle rashly and negligently.

The High Court has justly taken note of the fact that the driver

and owner of the maruti car, as well as insurer of that vehicle,

had not been impleaded as parties to the claim petition. The

Tribunal has also taken note of the fact that in all probability,

the driver and owner of the maruti car were not made party

being close relatives of the appellants. In such a situation, the

issue of contributory negligence cannot be taken forward.

13. However, even in such a case, the Tribunal could have

been well advised to invoke Section 140 of the Motor Vehicles

Act, 1988, (for short “the Act”) providing for liability of the

owner of the vehicle (subject truck) involved in the accident. It

is a well settled position that fastening liability under Section

140 of the Act on the owner of the vehicle is regardless of the

fact that the subject vehicle was not driven rashly and

negligently. We may usefully refer to the decisions in Indra

Devi and others Vs. Bagada Ram and another1 and

1 (2010) 13 SCC 249 14

Eshwarappa alias Maheshwarappa and Another Vs. C.S.

Gurushanthappa and Another2, which are directly on the

point.

14. Accordingly, even though the appeal fails insofar as claim

petition under Section 166 of the Act, for the appellants

having failed to substantiate the factum of rash and negligent

driving by the driver of the subject truck, the appellants must

succeed in this appeal to the limited extent of relief under

Section 140 of the Act. We have no hesitation in moulding the

relief on that basis.

15. For the reasons mentioned above, this appeal is partly

allowed. The appellants are granted limited relief under

Section 140 of the Act. The respondent Nos.2 and 3 are made

jointly and severally liable to pay a sum of Rs.50,000/­

(Rupees Fifty Thousand Only) to the appellants towards

compensation under Section 140 of the Act, on account of the

death of Balvinder Kaur in the accident which occurred on 28 th

2 (2010) 8 SCC 620 15

November, 2010, along with interest at the rate of 9% from the

date of filing of the claim petition till realization.

16. The appeal is partly allowed in the above terms with no

order as to costs.

.………………………….CJI.

(Dipak Misra)

…………………………..….J. (A.M. Khanwilkar)

…………………………..….J. (Dr. D.Y. Chandrachud) New Delhi;

April 27, 2018.