ARCHIT SAINI AND ANR. versus THE ORIENTAL INSURANCE COMPANY LTD. AND ORS. on 9 February 2018

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SUPREME COURT REPORTS[2018] 1 S.C.R. 626

[2018] 1 S.C.R.

AARCHIT SAINI AND ANR.

v.

THE ORIENTAL INSURANCE COMPANY LTD. AND ORS.

(Civil Appeal Nos. 7300-7309 of 2016)

BFEBRUARY 09, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Motor Vehicles Act, 1988: s.166 – Fatal accident –Contributory negligence – Collision of car with the offending vehicleCon the busy road causing death of driver and one person andinjuring two others – Tribunal relied on the evidence of eye-witness(PW-7) that the offending vehicle, the Gas Tanker was parked inthe middle of road without any indicator or parking lights and itwas a sole negligence on the part of the driver of the Gas Tanker –DHigh Court modified the award on the finding that it was a case ofcontributory negligence and, therefore, the claimants-injured wereentitled to only 50% of total compensation – Held: High Court didnot doubt the evidence of PW-7 as being unreliable nor did it discardhis version that the driver of the car could not spot the parked GasTanker due to the flash lights of the oncoming traffic from the frontEside – The site plan did not support the finding that the Gas Tankerwas not parked in the middle of the road – The fact that PW-7 whowas standing on the opposite side of the road at a distance of about70 feet, could see the Gas Tanker parked on the other side of theroad would not discredit his version that the car coming from theopposite side could not spot the Gas Tanker due to flash lights ofFthe oncoming traffic from the front side – It is not in dispute that theroad is a busy road – The approach of the High Court in reversingthe well considered finding recorded by the Tribunal on the materialfact, which was supported by the evidence on record, cannot becountenanced – The appellants would be entitled to the enhancedGcompensation as determined by the High Court in its entirety withoutany deduction towards contributory negligence.

Partly allowing the appeals, the Court

HELD: 1. It is well settled that the nature of proof requiredin cases concerning accident claims is qualitatively different fromH

Conclusion

the one in criminal cases, which must be beyond any reasonabledoubts. The Tribunal applied the correct test in the analysis ofthe evidence before it. Notably, the High Court has not doubtedthe evidence of PW-7 as being unreliable nor has it discarded hisversion that the driver of the car could not spot the parked GasTanker due to the flash lights of the oncoming traffic from thefront side. Further, the Tribunal also adverted to the legalpresumption against the driver of the Gas Tanker of having parkedhis vehicle in a negligent manner in the middle of the road. TheSite Plan reinforces the version of PW-7 that the Truck (GasTanker) was parked in the middle of the road but the High Courtopined to the contrary without assigning any reason whatsoever.The Site Plan filed along with the charge-sheet does not supportthe finding recorded by the High Court that the Gas Tanker wasnot parked in the middle of the road. The fact that PW-7 who wasstanding on the opposite side of the road at a distance of about70 feet, could see the Gas Tanker parked on the other side ofthe road does not discredit his version that the Maruti Car comingfrom the opposite side could not spot the Gas Tanker due toflash lights of the oncoming traffic from the front side. It is not indispute that the road is a busy road. In the cross-examination,neither has any attempt been made to discredit the version ofPW-7 nor has any suggestion been made that no vehicle withflash lights on was coming from the opposite direction of theparked Gas Tanker at the relevant time. The approach of theHigh Court in reversing the well considered finding recorded bythe Tribunal on the material fact, which was supported by theevidence on record, cannot be countenanced. The appellantswould be entitled to the enhanced compensation as determinedby the High Court in its entirety without any deduction towardscontributory negligence. The direction given by the High Courtregarding deduction of 50% of the total compensation awardedto the claimants towards contributory negligence is set aside.[Paras 8, 9, 10 and 11] [633-G-H; 634-A-G; 635-C-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7300-7309 of 2016.

From the Judgment and Order dated 01.02.2016 of the High Courtof Punjab and Haryana at Chandigarh in F. A. O. Nos. 1179, 1180, 1181,1182, 1183, 1318, 1452, 4596, 4597 and 4598 of 2013.

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628SUPREME COURT REPORTS

ABimlesh Kumar Singh, Ms. Anjali Sharma, Advs. for the Appellants.

Ms. Amrreeta Swaarup, Adv. for the Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. These appeals take exception toBthe judgment and order dated 1[st] February, 2016 passed by the HighCourt of Punjab and Haryana at Chandigarh in F.A.O. Nos.1179, 1180,1181, 1182, 1183, 1318, 1452, 4596, 4597 & 4598 of 2013, whereby theHigh Court modified the award passed by the Motor Accident ClaimsTribunal, Yamuna Nagar, Jagadhari, on the finding that it was a case of“contributory negligence” and resultantly held that the claimants – injuredCwere entitled to only 50% of the total compensation awarded to themincluding the enhanced compensation.

2. The sole question raised in the present appeals is about thejustness and tenability of the approach of the High Court in reversing thefinding of fact recorded by the Tribunal on the factum that the motorDaccident which occurred on 15[th] December, 2011 at about 10.30 P.M.was due to parking of the offending vehicle bearing No.HR-02-AF-8590 (Gas Tanker) in the middle of the road in a negligent manner.

3. In the petition for compensation filed before the Motor AccidentClaims Tribunal (for short, “the Tribunal”), it was alleged that the accidentEwas caused due to parking of the offending Gas Tanker in the middle ofthe road without any indicator or parking lights. The claimant examinedthe eye-witness Sohan Lal (PW-7) who, in his affidavit, gave an accountof the cause of accident in the following words:

“… That on 15.12.2011 at about 10.30 P.M. I along withFP.H.G. Ajit Singh was present near Sanjha Chulha Dhaba,on the National Highway, (which leads to Jammu) in the areaof Village Ajijpur, P.S. Sujanpur. At that time all the trafficwas diverted on the Eastern side of the road, as the Westernside of road was closed due to construction work. Inmeantime, a Maruti Car No.HR-02-K/0448 came from JammuGside (Madhopur side) and struck against the back of the GasTanker as the driver of car could not spot the parked tankerdue to flash-lights of the oncoming traffic from front side.Then we rushed towards the spot of accident, and noticedthat the said tanker was standing parked in middle of the H

road, without any indicators or parking lights. Due to theaccident the car was damaged extensively. The driver of theCar and a lady sitting by his side, died at the spot. Twochildren, who were on the rear seat of car were also injured.”

(emphasis supplied)

4. The said witness was cross-examined by the respondents. Therelevant portion of his cross-examination reads thus:

“…We were standing on Dhaba on duty with our motorcycle.The truck was standing just opposite the dhaba on the otherside of the road. I was able to see the truck at that time. Therewas no fog at that time. There was lights on the dhaba andthe truck was visible to me due to light of dhaba. I was standingat the distance about 70 ft. from the truck because there wasroad between me and the truck. I have heard the voice/soundcaused by the accident only then I noticed at the car struckagainst the truck. I have not seen the car before the accident,and only seen after the accident. I reached the spot afterhearing the sound of accident. I cannot tell the speed of thecar because I have not seen the car. The road is about 88 ft.wide i.e. 44 ft. on each side with a divider in between. Theleft portion of the truck was just on the edge of the roadtowards the kucha portion.”

5. The respondents had opposed the claim petition and deniedtheir liability but did not lead any evidence on the relevant issue to dispelthe relevant fact. The Tribunal after analysing the evidence, includingthe Site Map (Ext.P-45) produced on record along with charge-sheetfiled against the driver of the Gas Tanker and the arguments of therespondents, answered issue No.1 against the respondents in the followingwords:

“21. Our own Hon’ble High Court in a case captioned LekhuSingh and other Vs. Udey Singh and others, (2007 4 PLR507 held that while considering a claim petition, the Tribunalis required to hold an enquiry and act not as criminal courtso as to find whether the claimants have established theoccurrence beyond shadow of any reasonable doubt. In theenquiry, if there is prima facie evidence of the occurrence A

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there is no reason to disbelieve such evidence. The statementscoupled with the facts of registration of FIR and trial of theaccused in a criminal court are sufficient to arrive at aconclusion that the accident has taken place. Likewise, inKusum Lata Vs. Satbir, 2011 (2) RCR © 379 (SC) Hon’bleApex Court has held that in a case relating to motor accidentclaims, the claimants are not required to rove the case as it isrequired to be done in a criminal trial. The Court must keepthis distinction in mind. Strict proof of an accident caused bya particular bus in a particular manner may not be possibleto be done by the claimants. The claimants were merely toestablish their case on the touchstone of preponderance ofprobability. The standard of proof beyond reasonable doubtcould not have been applied.

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22. After considering the submissions made by both theparties, I find that PW7 Sohan Lal eye-witness to theDoccurrence has specifically stated in his affidavit Ex. PW7/Atendered in his evidence that on 15.12.2011 at about 20.30p.m. he alongwith PHG Ajit Singh was present near SanjhaChulha Dhaba on the National High Way leads to Jummu. Allthe traffic of road was diverted on the eastern side of theroad on account of closure of road on western side due toEconstruction work. In the meantime a Maruti car bearingNo.HR-02-K-0448 came from Jammu side and struck againstthe back of Gas Tanker as the driver of the car could notspot the parked tanker due to the flash lights of the oncomingtraffic from front side. Then they rushed towards the spot ofFaccident and noticed that the said tanker was standing parkedin the middle of the road without any indicators or parkinglights.

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23. The statement of this witness clearly establishes that thiswas the sole negligence on the part of the driver of the gastanker especially when the accident was caused on15.12.2011 that too at about 10.30 p.m. which is generallytime of pitch darkness. In this way, the driver of the car cannotbe held in any way negligent in this accident. Moreover, asper Rules 15 of the Road Regulations, 1989 no vehicle is tobe parked on busy road.

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24. The arguments of learned counsel for respondent thatPW7 Sohan Lal has stated in his cross-examination that therewas no fog at that time and there were lights on the Dhabaand the truck was visible to him due to light of Dhaba and hewas standing at the distance of 70 feet from the truck beingroad between him and the truck and he noticed at the carwhen he heard voice/sound caused by the accident so therespondent no.1 is not at all negligent in this accident butthese submissions will not make the car driver to be in anyway negligent and cannot give clean chit to the driver of thegas tanker because there is a difference between the visibilityof a standing vehicle from a place where the person is standingand by a person who is coming driving the vehicle becausedue to flash lights of vehicles coming from front side the vehiclecoming from opposite side cannot generally spot the standingvehicle in the road that too in nights time when there is neitherany indicator or parking lights nor blinking lights nor anyother indication given on the back of the stationed vehicle,therefore, the driver of the car cannot be held to be in anyway negligent rather it is the sole negligence on the part ofthe driver of the offending Gas Tanker as held in Ginni Deviand others’ case (2008 ACJ 1572), Mohan Lal’s case (20071 ACC 785 (Allahabad). It is not the case of the respondentthat the parking lights of the standing truck were on or therewere any other indication n the back side of the vehiclestanding on the road to enable the coming vehicle to see thestanding truck. The other arguments of learned counsel forrespondent no.3 that the road was sufficient wide road andthat the car driver could have avoided the accident, so thedriver of the car was himself negligent in causing the accidentcannot be accepted when it has already been held that theaccident has been caused due to sole negligence of the driverof the offending stationed truck in the busy road. Theproposition of law laid down in Smt. Harbans Kaur & others’scase (2010 4 PLR 422 (P&H) and T.M. Chayapathi &another’s case (2005 IV ACC 61 (AP) is not disputed at allbut these authorities are not helpful to the respondents beingnot applicable on the facts and circumstances of the presentcase. Likewise, non-examination of minor children of the age ABC

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of 14 and 9 years who lost their father and mother in theaccident cannot be held to be in any way detrimental to thecase of the claimants when eye witness to the occurrence hasproved the accident having been caused by the negligence ofrespondent no.1/driver of the offending vehicle.

25. Moreover, in Girdhari Lal Vs. Radhey Sham and others,1993 (2) PLR 109, Sudama Devi and others Vs. Kewal Ramand others, 2008 (1) PLR 444 and Pazhaniammal and others’scase (2012 ACJ 1370) our own Hon’ble High Court has heldthat ‘it is, prima facie safe to conclude in claim cases that theaccident has occurred on account of rash or negligent drivingof the driver, if the driver is facing the criminal trial on accountof rash or negligent driving.’

26. Moreover, the respondent no.1/driver of the offendingvehicle has not appeared in the witness box to deny theaccident having been caused by him, therefore, I am inclinedto draw an adverse inference against the respondent no.1. Inthis context, I draw support from a judgment of the Hon’blePunjab & Haryana High Court reported as Bhagwanti Devivs. Krishan Kumar Sani and others, 1986 ACJ 331. Moreover,the respondent no.1 has also not filed any complaint to higherauthorities about his false implication in the criminal case soit cannot be accepted that the respondent no.1 has been falselyimplicated in this case.

27. In view of above discussion, it is held that the claimantshave proved that the accident has been caused by respondentno.1 by parking the offending vehicle bearing No. HR-02-AF-8590 on the middle of the road in a negligent mannerwherein Vinod Saini and Smt. Mamta Saini have been diedand claimants Archit Saini and Gauri Saini have receivedinjuries on their person. Sh. Vinod Saini deceased who wasdriving ill fated car on that day cannot be held to be negligentin any way. Accordingly, this issue is decided in favour ofclaimants.”

(emphasis supplied)

6. When the matter travelled to the High Court by way of appealfor enhancement of compensation, while accepting the claim of the claimants-injured for giving additional compensation, the High Courtoverturned the finding of fact recorded by the Tribunal in relation toissue No.1 and opined that it was a case of contributory negligence ofthe driver of the Maruti Car which met with the accident. The HighCourt answered the said issue in its judgment as can be discerned fromparagraphs 14 & 15, which read thus:

“14. So far as the issue of contributory negligence isconcerned, it has come in the testimony of Sohan Lal, PW-7,that the tanker/offending vehicle was parked without indicatorbut the same was visible from a distance of 70 ft. Moreover, aperusal of site plan Ex.P 45 reveals that the offending vehiclewas not parked in the middle of the road.

15. In view of the statement of PW-7 and site plan Ex.P-45, itis proved that the tanker/offending vehicle was visible from adistance of 70 ft. and not parked in the middle of the road.Therefore, in the concerned opinion of this Court, it is a caseof contributory negligence.”

7. In the present appeals, the moot question is whether the HighCourt committed manifest error in reversing the well considered decisionof the Tribunal on issue No.1 answered against the respondents, insteadconcluding that it was a case of 50% contributory negligence on the partof the deceased driver of the Maruti Car.

8. After having perused the evidence of PW-7, Site Map (Ext.P-45) and the detailed analysis undertaken by the Tribunal, we have nohesitation in taking the view that the approach of the High Court inreversing the conclusion arrived at by the Tribunal on issue No.1 hasbeen very casual, if not cryptic and perverse. Indeed, the appeal beforethe High Court is required to be decided on fact and law. That, however,would not permit the High Court to casually overturn the finding of factrecorded by the Tribunal. As is evident from the analysis done by theTribunal, it is a well considered opinion and a plausible view. The HighCourt has not adverted to any specific reason as to why the view takenby the Tribunal was incorrect or not supported by the evidence on record.It is well settled that the nature of proof required in cases concerningaccident claims is qualitatively different from the one in criminal cases,which must be beyond any reasonable doubts. The Tribunal applied thecorrect test in the analysis of the evidence before it. Notably, the High A

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ACourt has not doubted the evidence of PW-7 as being unreliable nor hasit discarded his version that the driver of the Maruti Car could not spotthe parked Gas Tanker due to the flash lights of the oncoming trafficfrom the front side. Further, the Tribunal also adverted to the legalpresumption against the driver of the Gas Tanker of having parked hisvehicle in a negligent manner in the middle of the road. The Site PlanB(Ext. P-45) reinforces the version of PW-7 that the Truck (Gas Tanker)was parked in the middle of the road but the High Court opined to thecontrary without assigning any reason whatsoever. In our view, the SitePlan (Ext. P-45) filed along with the charge-sheet does not support thefinding recorded by the High Court that the Gas Tanker was not parkedCin the middle of the road. Notably, the High Court has also not doubtedthe claimant’s plea that the Gas Tanker / offending vehicle was parkedwithout any indicator or parking lights. The fact that PW-7 who wasstanding on the opposite side of the road at a distance of about 70 feet,could see the Gas Tanker parked on the other side of the road does notdiscredit his version that the Maruti Car coming from the opposite sideDcould not spot the Gas Tanker due to flash lights of the oncoming trafficfrom the front side. It is not in dispute that the road is a busy road. In thecross-examination, neither has any attempt been made to discredit theversion of PW-7 nor has any suggestion been made that no vehicle withflash lights on was coming from the opposite direction of the parked GasETanker at the relevant time.

9. Suffice it to observe that the approach of the High Court inreversing the well considered finding recorded by the Tribunal on thematerial fact, which was supported by the evidence on record, cannotbe countenanced.F

10. Accordingly, we have no hesitation in setting aside the saidfinding of the High Court. As a result, the appellants would be entitled tothe enhanced compensation as determined by the High Court in its entiretywithout any deduction towards contributory negligence. In other words,we restore the finding of the Tribunal rendered on issue No.1 against theGrespondents and hold that respondent no.1 negligently parked the GasTanker/offending vehicle in the middle of the road without any indicatoror parking lights.

11. Accordingly, we affirm the enhanced compensation payableto the claimants as determined by the High Court in paragraph 13 of theHimpugned judgment, which reads thus:

ARCHIT SAINI AND ANR. v. THE ORIENTAL INSURANCECOMPANY LTD. [A. M. KHANWILKAR, J.]

“13. In view of the above, the claimants-injured are heldentitled to the enhanced compensation of RS.2,80,000/-[Rs.30,000/- (enhancement towards ‘pain and suffering’) +Rs.20,000/- (enhancement towards loss of studies) +Rs.10,000/- (enhancement towards special diet) +RS.1,90,000/- (enhancement towards ‘loss of love andaffection’) + Rs.30,000/- (enhancement towards cremation andlast rites)] as indicated above, which shall be payable withina period of 45 days from the date of receipt of a certifiedcopy of this judgment, failing which, the claimants-appellantsshall also be entitled to interest @ 7.5% per annum, from thedate of filing the present appeal till its realization.”

We set aside the direction given by the High Court in paragraph16 of the impugned judgment regarding deduction of 50% of the totalcompensation awarded to the claimants towards contributory negligence.

12. The appeals are allowed in the aforementioned terms with noorder as to costs.

Devika Gujral

Appeals partly allowed.

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