High Court · 2025

Heard Sri Aftaf Ahmad appearing under the authority of Sri M.A. Siddiqui learned counsel for the appellants and Mrs. Richa Tiwari appearing under the authority of Sri Onkar Nath Tiwari learned counsel for the claimant respondent. None has put in appearance on behalf of the respondent no.3. Learned counsel for the appellants, at the outset, submits that respondent nos.4 and 5 have died. The appellants have moved an application for substitution which was allowed vide order dated 21.04.2024, however, the amendment could not be carried out and he prays to do so during course of the day. The request is allowed. Learned counsel for the appellants shall carry out necessary amendment. As far as respondent nos.4 and 5 are concerned they are the parents of the deceased, they were proforma opposite parties. The instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 assailing the award dated 30.11.2010 passed by Motor Accident Claims Tribunal, Faizabad, Court no.2 in a Claim Petition no.316 of 2009 wherein in a death case a sum of Rs.3,89,000/- has been awarded in favour of the claimant respondent against the appellants. Submission of learned counsel for the appellants is that it was a case of contributory negligence which has not been considered by the Tribunal. It is a case of head on collision and in such circumstances, since there was an apparent negligence of the deceased, hence, at least 50% of negligence should be attributed to the deceased which would consequently lower the quantum as far as the appellants are concerned. Learned counsel for the appellants further submits that it is the finding of issue no.1 which is under challenge, however, as far as the quantum is concerned, he does not wish to raise any challenge thereto. Elaborating his submissions, it is urged that the appellants had examined two witnesses who have clearly indicated that the deceased got hit with another vehicle, as a consequence, he came under the trailer which was attached with the tractor, hence, for the negligence of the deceased the appellants cannot be made to suffer the award. It is further urged that even the material on record including the chargesheet and the site plans which was prepared after investigation indicates the contributory negligence and in such circumstances, the finding on issue no.1 is not just and proper consequently, it deserves to be set aside. Learned counsel for the claimant respondent has refuted the aforesaid submissions and has urged that the tribunal has taken a holistic view and taking note of the evidence led by the parties both oral and documentary has recorded finding of fact which is based on record and such findings in an appeal under Section 173 of M.V. Act is not liable to be disturbed, unless any perversity is shown. On a bare perusal of the statement of the claimant witness it would indicate that the accident occurred on account tractor/driver/owner, in such circumstances, the appeal is without merit and deserves to be dismissed. of rash and negligent driving of The Court has considered the rival submissions of the parties and also perused the record. It would reflect that on 02.12.2009, Vinod Kumar (deceased) was riding his motorcycle bearing no.U.P.42-L/6681 and around 3.00 p.m., while he had reached near Mahanmau M.D.ent Bhatta a tractor bearing no.U.P.42-A2154 which is alleged to have been driven rashly and negligently hit from the wrong side and as a consequence, Vinod Kumar (deceased) died on the spot. An FIR was lodged relating to the said incident and in light of the aforesaid loss of life, the claimants preferred C.P. no.316 of 2009. The same came to be contested by the owner/driver by filing a written statement wherein factum of accident was denied. It was pleaded that the driver of the tractor was driving the said vehicle cautiously and it was the deceased who was coming from behind and he hit some other vehicle, as a consequence, he came under the trailer of the tractor, hence, in such circumstances, the owner/driver could not be held to be negligent as he is not required to look behind while driving the said tractor, in such circumstances, no award can be passed. Upon the exchange of pleadings, the Tribunal framed three issues. The parties led evidence and upon due consideration, the issue no.1 was decided against the appellants holding that the accident occurred was the outcome of rash and negligent driving of the tractor driver. It was also noticed that two alleged eyewitnesses which were examined on behalf of the tractor driver/owner, there was material contradiction in their statements, as a result their testimony was not accepted and finding was returned in favour of the claimants. The tribunal further noticed that the said tractor was neither insured nor there was any document in this regard, accordingly, it went on to compute the compensation and a sum of Rs.3,89,000/- has been awarded along with 6% interest by means of award dated 30.11.2010 which is under challenge before this Court. Considering the submissions of learned counsel for the parties and from a perusal of the material on record, the issue regarding contributory negligence which is sought to be raised by the learned counsel for the appellants must fail for more than one reason. At the outset, it may be noticed by the written statement filed by the defendant bearing paper no.Ga/19 it was clearly stated that the deceased was coming from behind. It was also stated that it appears that the deceased has dashed against some other vehicle, as a consequence, he came under the trailer. This plea which is taken by the defendants in paragraph-4, 5 and 7 is absolutely contrary to the evidence which has been led as well as the submissions advanced before this Court. Contributory negligence could have been envisaged if there would have been a head on collision. As per the statement of the defendant the deceased was coming behind the trailer, in such circumstances, that could not have been a chance for the accident to be a case of contributory negligence. The pleadings would indicate that the defendant had denied the factum of the incident and any negligence attributed to the appellants, however, in so far as the evidences which were led on behalf of the defendant, there a contradictory plea was taken by the witness. One version as stated by the witness was that the deceased had hit two women who were walking on the said road and after hitting the said two women the deceased fell under the trailer which was attached to the tractor. The other version was that the deceased was travelling on the motor vehicle and he hit some other vehicle and thereafter, he came under trailer. From a perusal of the statements of the said two witnesses who were examined on behalf of the defendants, both the said witnesses had taken a different stand that what was the case of the defendants in their written statement. The record indicates that the site plan proposed by the police, which is on record, indicates that the tractor/trolley had come on to the right side of the road and had hit the deceased. Now, in light of the decision of the Apex Court in Jiju Kuruvila v. Kunjujamma Mohan; (2013) 9 SCC 166, the site plan alone is not sufficient to prove contributory negligence. Considering the aforesaid, this Court finds that the plea of contributory negligence which has been raised is neither made out from the statement of the witnesses of the appellants nor from the site plan and importantly nor was it part of the pleadings and it is for the said reason that it does not find place in the issues so framed. No effort was made by the defendant to get the issues reframed if at all he felt serious about the issue of contributory negligence. In this view of the matter, where the claimants have established foundational fact regarding the accident and the consequent death of the deceased coupled with the fact that there were other documentary evidences as the FIR under chargesheet which clearly indicate the negligence of tractor driver/owner. In such circumstances, this Court finds that finding returned by the Tribunal do not suffer from any palpable error which may persuade this Court to reverse the same. For the aforesaid reasons, this Court does not find that there is any error, accordingly, the award dated 30.11.2010 passed in C.P. no.316 of 2009 is affirmed. The appeal being devoid of merits is dismissed. Any amount deposited before this Court shall be remitted to the Tribunal to be released in favour of the claimant as per award and any shortfall shall also be made good within 60 days from today. The record of the Tribunal be returned forthwith. Order Date :- 16.7.2025/Harshita HARSHITA HARSHITA High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

Heard Sri Aftaf Ahmad appearing under the authority of Sri M.A. Siddiqui learned counsel for the appellants and Mrs. Richa Tiwari appearing under the authority of Sri Onkar Nath Tiwari learned counsel for the claimant respondent. None has put in appearance on behalf of the respondent no.3. Learned counsel for the appellants, at the outset, submits that respondent nos.4 and 5 have died. The appellants have moved an application for substitution which was allowed vide order dated 21.04.2024, however, the amendment could not be carried out and he prays to do so during course of the day. The request is allowed. Learned counsel for the appellants shall carry out necessary amendment. As far as respondent nos.4 and 5 are concerned they are the parents of the deceased, they were proforma opposite parties. The instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 assailing the award dated 30.11.2010 passed by Motor Accident Claims Tribunal, Faizabad, Court no.2 in a Claim Petition no.316 of 2009 wherein in a death case a sum of Rs.3,89,000/- has been awarded in favour of the claimant respondent against the appellants. Submission of learned counsel for the appellants is that it was a case of contributory negligence which has not been considered by the Tribunal. It is a case of head on collision and in such circumstances, since there was an apparent negligence of the deceased, hence, at least 50% of negligence should be attributed to the deceased which would consequently lower the quantum as far as the appellants are concerned. Learned counsel for the appellants further submits that it is the finding of issue no.1 which is under challenge, however, as far as the quantum is concerned, he does not wish to raise any challenge thereto. Elaborating his submissions, it is urged that the appellants had examined two witnesses who have clearly indicated that the deceased got hit with another vehicle, as a consequence, he came under the trailer which was attached with the tractor, hence, for the negligence of the deceased the appellants cannot be made to suffer the award. It is further urged that even the material on record including the chargesheet and the site plans which was prepared after investigation indicates the contributory negligence and in such circumstances, the finding on issue no.1 is not just and proper consequently, it deserves to be set aside. Learned counsel for the claimant respondent has refuted the aforesaid submissions and has urged that the tribunal has taken a holistic view and taking note of the evidence led by the parties both oral and documentary has recorded finding of fact which is based on record and such findings in an appeal under Section 173 of M.V. Act is not liable to be disturbed, unless any perversity is shown. On a bare perusal of the statement of the claimant witness it would indicate that the accident occurred on account tractor/driver/owner, in such circumstances, the appeal is without merit and deserves to be dismissed. of rash and negligent driving of The Court has considered the rival submissions of the parties and also perused the record. It would reflect that on 02.12.2009, Vinod Kumar (deceased) was riding his motorcycle bearing no.U.P.42-L/6681 and around 3.00 p.m., while he had reached near Mahanmau M.D.ent Bhatta a tractor bearing no.U.P.42-A2154 which is alleged to have been driven rashly and negligently hit from the wrong side and as a consequence, Vinod Kumar (deceased) died on the spot. An FIR was lodged relating to the said incident and in light of the aforesaid loss of life, the claimants preferred C.P. no.316 of 2009. The same came to be contested by the owner/driver by filing a written statement wherein factum of accident was denied. It was pleaded that the driver of the tractor was driving the said vehicle cautiously and it was the deceased who was coming from behind and he hit some other vehicle, as a consequence, he came under the trailer of the tractor, hence, in such circumstances, the owner/driver could not be held to be negligent as he is not required to look behind while driving the said tractor, in such circumstances, no award can be passed. Upon the exchange of pleadings, the Tribunal framed three issues. The parties led evidence and upon due consideration, the issue no.1 was decided against the appellants holding that the accident occurred was the outcome of rash and negligent driving of the tractor driver. It was also noticed that two alleged eyewitnesses which were examined on behalf of the tractor driver/owner, there was material contradiction in their statements, as a result their testimony was not accepted and finding was returned in favour of the claimants. The tribunal further noticed that the said tractor was neither insured nor there was any document in this regard, accordingly, it went on to compute the compensation and a sum of Rs.3,89,000/- has been awarded along with 6% interest by means of award dated 30.11.2010 which is under challenge before this Court. Considering the submissions of learned counsel for the parties and from a perusal of the material on record, the issue regarding contributory negligence which is sought to be raised by the learned counsel for the appellants must fail for more than one reason. At the outset, it may be noticed by the written statement filed by the defendant bearing paper no.Ga/19 it was clearly stated that the deceased was coming from behind. It was also stated that it appears that the deceased has dashed against some other vehicle, as a consequence, he came under the trailer. This plea which is taken by the defendants in paragraph-4, 5 and 7 is absolutely contrary to the evidence which has been led as well as the submissions advanced before this Court. Contributory negligence could have been envisaged if there would have been a head on collision. As per the statement of the defendant the deceased was coming behind the trailer, in such circumstances, that could not have been a chance for the accident to be a case of contributory negligence. The pleadings would indicate that the defendant had denied the factum of the incident and any negligence attributed to the appellants, however, in so far as the evidences which were led on behalf of the defendant, there a contradictory plea was taken by the witness. One version as stated by the witness was that the deceased had hit two women who were walking on the said road and after hitting the said two women the deceased fell under the trailer which was attached to the tractor. The other version was that the deceased was travelling on the motor vehicle and he hit some other vehicle and thereafter, he came under trailer. From a perusal of the statements of the said two witnesses who were examined on behalf of the defendants, both the said witnesses had taken a different stand that what was the case of the defendants in their written statement. The record indicates that the site plan proposed by the police, which is on record, indicates that the tractor/trolley had come on to the right side of the road and had hit the deceased. Now, in light of the decision of the Apex Court in Jiju Kuruvila v. Kunjujamma Mohan; (2013) 9 SCC 166, the site plan alone is not sufficient to prove contributory negligence. Considering the aforesaid, this Court finds that the plea of contributory negligence which has been raised is neither made out from the statement of the witnesses of the appellants nor from the site plan and importantly nor was it part of the pleadings and it is for the said reason that it does not find place in the issues so framed. No effort was made by the defendant to get the issues reframed if at all he felt serious about the issue of contributory negligence. In this view of the matter, where the claimants have established foundational fact regarding the accident and the consequent death of the deceased coupled with the fact that there were other documentary evidences as the FIR under chargesheet which clearly indicate the negligence of tractor driver/owner. In such circumstances, this Court finds that finding returned by the Tribunal do not suffer from any palpable error which may persuade this Court to reverse the same. For the aforesaid reasons, this Court does not find that there is any error, accordingly, the award dated 30.11.2010 passed in C.P. no.316 of 2009 is affirmed. The appeal being devoid of merits is dismissed. Any amount deposited before this Court shall be remitted to the Tribunal to be released in favour of the claimant as per award and any shortfall shall also be made good within 60 days from today. The record of the Tribunal be returned forthwith. Order Date :- 16.7.2025/Harshita HARSHITA HARSHITA High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench