NISHAN SINGH & ORS. versus ORIENTAL INSURANCE COMPANY LTD. THROUGH REGIONAL MANAGER & ORS. on 27 April 2018

[2018] 6 S.C.R. 795

NISHAN SINGH & ORS.

v.

ORIENTAL INSURANCE COMPANY LTD.THROUGH REGIONAL MANAGER & ORS.

(Civil Appeal No. 10145 of 2016)

APRIL 27, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR AND

DR. D. Y. CHANDRACHUD, JJ.]

Motor Vehicles Act, 1988 – ss.166 and 140 – Fatal accident– Victim-deceased was travelling along with herhusband-appellant no.1 in the car driven by PW-2 – The car dashedagainst the truck which was running ahead of it – Resulting indeath of victim-deceased – Claim petition – Tribunal held thataccident occurred due to rash and negligent driving by the driverof the car and concluded that truck driver and the insurer of thetruck were not liable to pay any compensation – High Court upheldthe order of the Tribunal – Held: PW-2 admitted that the subjecttruck was running ahead of the car for quite some time about onekilometre and at the time of accident, the distance between the truckand car was only 10-15 feet – He also admitted that the lawmandates maintaining sufficient distance between two vehiclesrunning in the same direction – Distance of 10-15 feet between thetruck and car was certainly not a safe distance for which the driverof the car must take the blame – When car was following the truckand no fault can be attributed to the truck driver, the blame mustrest on the driver of car for having driven his vehicle rashly andnegligently – However, s.140 of the Act provides for liability of theowner of the vehicle (subject truck) involved in the accident –Fastening liability u/s.140 of the Act on the owner of the vehicle isregardless of the fact that the subject vehicle was not driven rashlyand negligently – Therefore, appellants granted limited relief u/s.140of the Act – Rules of Road Regulations, 1989 – regn. 23 – RoadSafety – Distance of vehicles in front.

Partly allowing the appeal, the Court

HELD: 1.1 The maruti car was driven by none other thanPW-2-cousin brother of appellant no.1. In his evidence, he has

A

B

C

DE

FG

H

Aadmitted that the subject truck was running ahead of the maruticar for quite some time about one kilometre and at the time ofaccident, the distance between the truck and maruti car was only10 -15 feet. He has also admitted that the law mandatesmaintaining sufficient distance between two vehicles running inthe same direction. It is also not in dispute that the road on whichBthe two vehicles were moving was only about 14 feet wide. It isunfathomable that on such a narrow road, the subject truck wouldmove at a high speed as alleged. In any case, the maruti car whichwas following the truck was expected to maintain a safe distance,as envisaged in Regulation 23 of the Rules of the RoadCRegulations, 1989. [Para 10] [802-F-H]

1.2 The expression ‘sufficient distance’ has not beendefined in the Regulations or elsewhere. The thumb rule ofsufficient distance is at least a safe distance of two to three secondsgap in ideal conditions to avert collision and to allow the followingDdriver time to respond. The distance of 10–15 feet between thetruck and maruti car was certainly not a safe distance for whichthe driver of the maruti car must take the blame. It mustnecessarily follow that the finding on the issue under considerationought to be against the claimants. [Para 10] [803-B-C]

E2. The Tribunal also noted that there was no evidence onrecord to indicate that the driver of the truck suddenly appliedhis brake in the middle of the road. Further, the finding by theTribunal is that there was no evidence regarding exact place ofoccurrence of accident and having taken survey. Therefore, itwas answered against the appellants (claimants), namely, that theFsubject truck was not driven rashly and negligently by the truckdriver nor had he brought the truck in the centre of the road atright side or applied sudden brake as being the cause of theaccident. Being a concurrent finding of fact and a possible view,needs no interference. [Para 11] [803-C-E]G

3. The question of contributory negligence would arise whenboth parties are involved in the accident due to rash and negligentdriving. In a case such as the present one, when the maruti carwas following the truck and no fault can be attributed to the truckdriver, the blame must rest on the driver of the maruti car for H

having driven his vehicle rashly and negligently. The High Courthas justly taken note of the fact that the driver and owner of themaruti car, as well as insurer of that vehicle, had not beenimpleaded as parties to the claim petition. The Tribunal has alsotaken note of the fact that in all probability, the driver and ownerof the maruti car were not made party being close relatives of theappellants. In such a situation, the issue of contributorynegligence cannot be taken forward. [Para 12] [803-F-H]

4. Section 140 of the Motor Vehicles Act, 1988, providesfor liability of the owner of the vehicle (subject truck) involved inthe accident. It is a well settled position that fastening liabilityunder Section 140 of the Act on the owner of the vehicle isregardless of the fact that the subject vehicle was not drivenrashly and negligently. The appellants are granted limited reliefunder Section 140 of the Act. The respondent Nos.2 and 3 aremade jointly and severally liable to pay a sum of Rs.50,000/-(Rupees Fifty Thousand Only) to the appellants towardscompensation under Section 140 of the Act, on account of thedeath of wife of appellant No.1 in the accident, along with interestat the rate of 9% from the date of filing of the claim petition tillrealization. [Paras 13 and 15] [804-A-B, D-E]

Indra Devi and Others v. Bagada Ram and Another(2010) 13 SCC 249 : [2010] 10 SCR 347 ; Eshwarappaalias Maheshwarappa and Another v. C.S.Gurushanthappa and Another (2010) 8 SCC 620 :[2010] 10 SCR 362 - referred to.

Case Law Reference

[2010] 10 SCR 347 referred to Para 13[2010] 10 SCR 362 referred to Para 13CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10145of 2016.

From the Judgment and Order dated 05.03.2015 of the High Courtof Uttarakhand at Nainital in Appeal Order No. 125 of 2015.

Vijay Prakash, Ms. Nidhi, Advs. for the Appellant.

K.K. Bhat, Ranjan Kumar Pandey, Advs. for the Respondents.

A

B

C

D

E

F

G

H

AThe Judgment of the Court was delivered by A.M. KHANWILKAR, J. 1. This appeal, by special leave, filedby the claimants assails the judgment and order of the High Court ofUttarakhand at Nainital in Appeal From Order No.125 of 2015 dated 5[th]March, 2015, whereby the appeal was dismissed and the order passedBby the MACT/Additional District Judge-III, Rudrapur, Udham SinghNagar, dated 10[th] December, 2014 in Motor Accident Claim PetitionNo.147 of 2012 dismissing the claim petition on the finding that theaccident in question was not on account of rash and negligent driving ofTruck bearing No. U.P.-32 Z-2397 but on account of rash and negligentdriving of Maruti Car bearing No. U.P.-02 D-5292 resulting in death ofCBalvinder Kaur who was sitting in the car driven by Manjeet Singh, came to be upheld.

came to be upheld.

2. Briefly stated, appellant No.1 asserted that when he wasreturning home to village Bindukhera with his wife Balvinder Kaur, themother of appellant Nos.2 to 4, from his matrimonial home at villageDKuankhera, District Bijnaur along with his cousin brothers Manjeet Singhand Bittu and his son Karanjeet Singh on 28[th] November, 2010 in aMaruti Car bearing No. U.P.-02 D-5292 which was being driven byManjeet Singh, son of Kashmir Singh, the said car met with an accidentcausing serious injuries to the persons travelling therein, including theEdeath of Balvinder Kaur. The maruti car had dashed against Truck bearingNo. U.P.-32 Z-2397 which was running ahead of it. According to theappellants, the truck driver suddenly applied brake while the truck wasin the 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 Kaureventually succumbed to her injuries on the same day i.e. 28[th] November,F2010, while she was being treated at Govt. Hospital, Kashipur. Afterthat, an F.I.R. was registered on 4[th] December, 2010 at police stationKunda, District Udham Singh Nagar, bearing No.93/10 u/s 279 foroffences punishable under Sections 304A, 337, 338 and 427 of IPC. Theappellants asserted that Balvinder Kaur was gainfully employed andGearned around Rs.10,000/- (Rupees Ten Thousand Only) per month fromthe dairy business.

3. On these assertions, a claim petition was filed before the MotorAccident Claims Tribunal/Additional District Judge-III Rudrapur, UdhamSingh Nagar being M.A.C. Case No.147/2012. Appellant No.1 who wasHtravelling in the car along with his wife deposed before the Tribunal.

Appellants also examined Manjeet Singh who was driving the MarutiCar bearing No. U.P.-02 D-5292 at the relevant time. The appellantsalso relied on the charge-sheet filed by the police against respondentNo.3 (Parasnath) driver of the offending truck.

4. The respondents contested the claim petition. According to therespondents, the accident occurred due to the negligence of the driverof the maruti car and there was no negligence on the part of the truckdriver. It was asserted by the respondents that the truck driver had avalid driving licence. Further, the appellants had failed to implead theowner and driver of the maruti car who was responsible for the accidentand as such, no relief could be granted to the appellants.

5. The Tribunal analysed the entire evidence on record andanswered the issue as to whether the truck was being driven in rash andnegligent manner against the appellants. The Tribunal instead held thatthe accident occurred due to rash and negligent driving by the driver ofthe maruti car. The Tribunal, therefore, concluded that the truck driverand the insurer of the truck were not liable to pay compensation asclaimed. The Tribunal noted the issue of contributory negligence but,having regard to the facts of the present case and particularly becausethe owner and the driver of the maruti car were not made parties, it heldthat the appellants were not entitled to any relief. The Tribunal alsonoted that the maruti car was purchased by Manjeet Singh about 1-1½years before the accident but the same was not transferred in his namenor was it insured. Taking an overall view of the matter, the Tribunaldismissed the claim petition vide judgment dated 10[th] December, 2014.

6. The appellants carried the matter in appeal before the HighCourt of Uttarakhand at Nainital. The High Court summarily dismissedthe appeal by reiterating the finding recorded by the Tribunal that theevidence clearly indicated that the driver of the maruti car himself wasnegligent in driving his vehicle and had failed to keep sufficient distancebetween the two vehicles running in the same direction. Furthermore,the maruti car driver, owner and concerned insurance company werenot made parties to the claim petition. The High Court, thus, declined tointerfere in the first appeal.

7. The appellants have assailed the aforementioned decisions inthis appeal. According to the appellants, the finding recorded by theTribunal and affirmed by the High Court, that the driver of the maruti A

B

C

D

E

F

G

H

Acar had not maintained safe distance from the truck running ahead ofthe maruti car in the same direction, is untenable. The appellants havealso assailed the finding of fact recorded by the Tribunal and affirmedby the High Court that the maruti car was driven in a rash and negligentmanner. It is urged that the fact that the maruti car was not registered inthe name of Manjeet Singh or that the documents pertaining to the marutiBcar and even the valid driving licence of the driver of maruti car was notbrought on record, cannot denude the appellants to receive compensationdue to contributory negligence of the truck driver. Further, the Tribunalcommitted manifest error in recording the finding on the issue ofcontributory negligence against the appellants without framing any issueCin that behalf. It is urged that the findings recorded by the Tribunal toabsolve the truck driver, on the ground that the truck was not drivenrashly and negligently, is perverse and untenable in law. Moreover, theTribunal has completely glossed over the efficacy of the charge-sheetfiled by the police against respondent No.3 truck driver after dueinvestigation. The appellants have also reiterated their claim regardingDcompensation, on the assertion that deceased Balvinder Kaur was earningaround Rs.10,000/- (Rupees Ten Thousand Only) per month and afterher death, her family was facing grave hardship. According to theappellants, the Tribunal as well as the High Court had dealt with thematter in a hyper-technical manner and did not appreciate the evidenceEon the basis of preponderance of probabilities.

8. The respondents, on the other hand, have supported the findingof fact recorded by the Tribunal, that the accident occurred not becauseof rash and negligent driving of the truck but was on account of rash andnegligent driving by the driver of the maruti car. On that finding, contendsFlearned counsel for the respondents, no liability can be fastened on therespondents. He submitted that the analysis of the evidence on recordby the Tribunal and affirmed by the High Court does not warrant anyinterference. The respondents have supported the conclusions recordedby the Tribunal and affirmed by the High Court for dismissing the claimpetition.G

9. We have heard Mr. Vijay Prakash, learned counsel appearingfor the appellants and Mr. K.K. Bhat, learned counsel for the respondents.

10. The moot question is whether the Tribunal committed anyerror in answering issue No.1 against the appellants and in favour of the H

NISHAN SINGH v. ORIENTAL INSURANCE COMPANY LTD.THR. REGIONAL MANAGER [A.M. KHANWILKAR, J.]

respondents. The Tribunal, while answering the said issue No.1, analysedthe evidence, both oral and documentary, including the charge-sheet filedby the appellants and observed thus:

“20. In site plan paper No.6C/6 which is filed on record, thebreadth of the road in question appears to be 14 feet and about 7steps Kachcha Lekh appears at the both sides of the road. Thisfact is remarkable that the said accident is not of front accidentbut the accident occurred as a result of collision of the Maruti Caron the rear part of the truck in question by the driver of the car inquestion and the same fact is also mentioned in the evidence ofthe petitioners. PW-2 Manjeet Singh driver of the car in questionas stated in his cross examination that he was driving the carbehind the truck at the distance of about 10-15 feet. Despite therebeing the breadth of the road 14 feet Pucca, the driver of the carin question kept the vehicle only at the distance of 10-15 feetfrom the truck which doesn’t appear in accordance with trafficrules. He should have driven the vehicle maintaining the properdistance in order to escape from each circumstance but he hasadmitted in his cross examination as PW-2 that, “he knows thathe should maintain proper distance from the heavy vehicle”. Undersuch circumstance if the vehicle which is running behind the heavyvehicle, must maintain the proper distance if the proper distanceis not maintain then the whole negligence shall be determined onthe part of rear vehicle in regard to the occurrence of accident inquestion. In addition no evidence in regard to the seizing of truckin question on the place of occurrence and taking into policecustody the vehicles from the place of occurrence and gettingdone their technical survey is not available on place of occurrence.

21. By the facts mentioned in the petition and by the evidence ofPW-1 and PW-2 it doesn’t appear reliable that rash and negligentdriving in the accident in question was on the part of the driver ofthe truck in question and for this purpose only by registering ofF.I.R. of said accident and submitting of charge-sheet against thedriver of the truck in question, the driver of the truck in questioncannot be held guilty for the said accident, whereas by the evidenceof the petitioner on record this fact comes forward that theaccident occurred as the driver of the car in question was not

A

BC

D

E

F

G

H

A

Adriving the car in question in accordance with traffic rules i.e. theaccident occurred as the vehicle was not being driven maintainingproper distance from the truck and it appears clearly that thespeed of the car would have been fast whereby the car in questioncollided with the rear part of the truck in question being uncontrolledand said accident took place. Under such circumstance there wasBno rash and negligence on the part of the driver of truck bearingNo.U.P.-32 Z-2397 regarding the accident in question but the sameis determined on the part of Manjeet Singh driver of Maruti Carbearing No.U.P.-02 D-5292.

22. On the basis of the aforesaid interpretation it appears that theCsaid accident didn’t occur on 28.11.2010 at about 6:45 p.m. atvillage Kunda Kashipur-Jashpur Road under area of P.S. Kundadistrict Udham Singh Nagar by the driver of the truck bearingNo. U.P.-32 Z-2397 due to rash and negligent driving of the truckand by applying sudden break but it occurred as a result of rashDand negligent driving of Maruti Car bearing No. U.P.-02 D-5292in question by Manjeet Singh driver, wherein Balvinder Kaur whowas sitting in the car sustained serious injuries and expired duringher treatment on account of serious injuries.”

The finding so recorded by the Tribunal has been affirmed by theEHigh Court, by observing that the evidence was clearly indicative of thefact 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 ofone of the passengers in the maruti car. The maruti car was driven bynone other than PW-2 Manjeet Singh. In his evidence, he has admittedthat the subject truck was running ahead of the maruti car for quiteFsome time about one kilometre and at the time of accident, the distancebetween the truck and maruti car was only 10 -15 feet. He has alsoadmitted that the law mandates maintaining sufficient distance betweentwo vehicles running in the same direction. It is also not in dispute thatthe road on which the two vehicles were moving was only about 14 feetGwide. It is unfathomable that on such a narrow road, the subject truckwould move at a high speed as alleged. In any case, the maruti carwhich 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:

H

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

The expression ‘sufficient distance’ has not been defined in theRegulations or elsewhere. The thumb rule of sufficient distance is atleast a safe distance of two to three seconds gap in ideal conditions toavert collision and to allow the following driver time to respond. Thedistance of 10–15 feet between the truck and maruti car was certainlynot a safe distance for which the driver of the maruti car must take theblame. It must necessarily follow that the finding on the issue underconsideration ought to be against the claimants.

11. The Tribunal also noted that there was no evidence on recordto indicate that the driver of the truck suddenly applied his brake in themiddle of the road. Further, the finding on issue No.1 recorded by theTribunal is that there was no evidence regarding exact place of occurrenceof accident and having taken survey. Therefore, the issue underconsideration was answered against the appellants (claimants), namely,that the subject truck was not driven rashly and negligently by the truckdriver nor had he brought the truck in the centre of the road at right sideor applied sudden brake as being the cause of the accident. Being aconcurrent finding of fact and a possible view, needs no interference.

12. The next question is whether the Tribunal should have at leastanswered the issue of contributory negligence of the truck driver in favourof the appellants (claimants). The question of contributory negligencewould arise when both parties are involved in the accident due to rashand negligent driving. In a case such as the present one, when the maruticar was following the truck and no fault can be attributed to the truckdriver, the blame must rest on the driver of the maruti car for havingdriven his vehicle rashly and negligently. The High Court has justly takennote of the fact that the driver and owner of the maruti car, as well asinsurer of that vehicle, had not been impleaded as parties to the claimpetition. 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 closerelatives of the appellants. In such a situation, the issue of contributorynegligence cannot be taken forward.

A

BC

D

E

FG

A

A

BC

D

E

FG

A

A13. However, even in such a case, the Tribunal could have beenwell advised to invoke Section 140 of the Motor Vehicles Act, 1988, (forshort “the Act”) providing for liability of the owner of the vehicle (subjecttruck) involved in the accident. It is a well settled position that fasteningliability under Section 140 of the Act on the owner of the vehicle isregardless of the fact that the subject vehicle was not driven rashly andBnegligently. We may usefully refer to the decisions in Indra Devi andothers Vs. Bagada Ram and another[1]and Eshwarappa aliasMaheshwarappa and Another Vs. C.S. Gurushanthappa andAnother[2], which are directly on the point.

14. Accordingly, even though the appeal fails insofar as claimCpetition under Section 166 of the Act, for the appellants having failed tosubstantiate the factum of rash and negligent driving by the driver of thesubject truck, the appellants must succeed in this appeal to the limitedextent of relief under Section 140 of the Act. We have no hesitation inmoulding the relief on that basis.

D

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 paya sum of Rs.50,000/- (Rupees Fifty Thousand Only) to the appellantstowards compensation under Section 140 of the Act, on account of theEdeath of Balvinder Kaur in the accident which occurred on 28[th] November,2010, along with interest at the rate of 9% from the date of filing of theclaim petition till realization.

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

F

Ankit Gyan

Appeal partly allowed.

G

1(2010) 13 SCC 2492(2010) 8 SCC 620

H