Insurance laws – accident claims – reduction of compensation – contributory negligence – not correct – whether the order of the High Court modified the award passed by the Motor Accident Claims Tribunal, Yamuna Nagar, Jagadhari, on the finding that it was a case of “contributory negligence” and resultantly held that the claimants – injured were entitled to only 50% of the total compensation awarded to them including the enhanced compensation. = It is well settled that the nature of proof required in cases concerning accident claims is qualitatively different from the one in criminal cases, which must be beyond any reasonable doubts. The Tribunal applied the correct test in the analysis of the evidence before it. Notably, the High Court has not doubted the evidence of PW­7 as being unreliable nor has it discarded his version that the driver of the Maruti Car could not spot the parked Gas Tanker due to the flash lights of the oncoming traffic from the front side. Further, the Tribunal also adverted to the legal presumption against the driver of the Gas Tanker of having parked his vehicle in a negligent manner in the middle of the road. The Site Plan (Ext. P­45) reinforces the version of PW­7 that the Truck (Gas Tanker) was parked in the middle of the road but the High Court opined to the contrary without assigning any reason whatsoever. = We set aside the direction given by the High Court in paragraph 16 of the impugned judgment regarding deduction of 50% of the total compensation awarded to the claimants towards contributory negligence.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7300­7309 OF 2016

ARCHIT SAINI AND ANR. …. APPELLANTS

:Versus:

THE ORIENTAL INSURANCE COMPANY

LTD. AND ORS. ….RESPONDENTS

J U D G M E N T

A.M. Khanwilkar, J.

1. These appeals take exception to the judgment and order

dated 1st February, 2016 passed by the High Court of Punjab

and Haryana at Chandigarh in F.A.O. Nos.1179, 1180, 1181,

1182, 1183, 1318, 1452, 4596, 4597 & 4598 of 2013, whereby

the High Court modified the award passed by the Motor

Accident Claims Tribunal, Yamuna Nagar, Jagadhari, on the

finding that it was a case of “contributory negligence” and

resultantly held that the claimants – injured were entitled to

2

only 50% of the total compensation awarded to them including

the enhanced compensation.

2. The sole question raised in the present appeals is about

the justness and tenability of the approach of the High Court

in reversing the finding of fact recorded by the Tribunal on the

factum that the motor accident which occurred on 15th

December, 2011 at about 10.30 P.M. was due to parking of the

offending vehicle bearing No.HR­02­AF­8590 (Gas Tanker) in

the middle of the road in a negligent manner.

3. In the petition for compensation filed before the Motor

Accident Claims Tribunal (for short, “the Tribunal”), it was

alleged that the accident was caused due to parking of the

offending Gas Tanker in the middle of the road without any

indicator or parking lights. The claimant examined the eyewitness

Sohan Lal (PW­7) who, in his affidavit, gave an

account of the cause of accident in the following words:

“… That on 15.12.2011 at about 10.30 P.M. I along with

P.H.G. Ajit Singh was present near Sanjha Chulha

Dhaba, on the National Highway, (which leads to

Jammu) in the area of Village Ajijpur, P.S. Sujanpur. At

that time all the traffic was diverted on the Eastern side

3

of the road, as the Western side of road was closed due

to construction work. In meantime, a Maruti Car No.HR02­K/0448

came from Jammu side (Madhopur side) and

struck against the back of the Gas Tanker as the driver

of car could not spot the parked tanker due to

flash­lights of the oncoming traffic from front side.

Then we rushed towards the spot of accident, and

noticed that the said tanker was standing parked

in middle of the road, without any indicators or

parking lights. Due to the accident the car was

damaged extensively. The driver of the Car and a lady

sitting by his side, died at the spot. Two children, who

were on the rear seat of car were also injured.”

(emphasis supplied)

4. The said witness was cross­examined by the

respondents. The relevant portion of his cross­examination

reads thus:

“…We were standing on Dhaba on duty with our

motorcycle. The truck was standing just opposite the

dhaba on the other side of the road. I was able to see the

truck at that time. There was no fog at that time. There

was lights on the dhaba and the truck was visible to me

due to light of dhaba. I was standing at the distance

about 70 ft. from the truck because there was road

between me and the truck. I have heard the voice/sound

caused by the accident only then I noticed at the car

struck against the truck. I have not seen the car before

the accident, and only seen after the accident. I reached

the spot after hearing the sound of accident. I cannot tell

the speed of the car because I have not seen the car. The

4

road is about 88 ft. wide i.e. 44 ft. on each side with a

divider in between. The left portion of the truck was just

on the edge of the road towards the kucha portion.”

5. The respondents had opposed the claim petition and

denied their liability but did not lead any evidence on the

relevant issue to dispel the relevant fact. The Tribunal after

analysing the evidence, including the Site Map (Ext.P­45)

produced on record along with charge­sheet filed against the

driver of the Gas Tanker and the arguments of the

respondents, answered issue No.1 against the respondents in

the following words:

“21. Our own Hon’ble High Court in a case captioned

Lekhu Singh and other Vs. Udey Singh and others, (2007

4 PLR 507 held that while considering a claim petition,

the Tribunal is required to hold an enquiry and act not as

criminal court so as to find whether the claimants have

established the occurrence beyond shadow of any

reasonable doubt. In the enquiry, if there is prima facie

evidence of the occurrence there is no reason to

disbelieve such evidence. The statements coupled with

the facts of registration of FIR and trial of the accused in

a criminal court are sufficient to arrive at a conclusion

that the accident has taken place. Likewise, in Kusum

Lata Vs. Satbir, 2011 (2) RCR © 379 (SC) Hon’ble Apex

Court has held that in a case relating to motor accident

claims, the claimants are not required to rove the case as

5

it is required to be done in a criminal trial. The Court

must keep this distinction in mind. Strict proof of an

accident caused by a particular bus in a particular

manner may not be possible to be done by the claimants.

The claimants were merely to establish their case on the

touchstone of preponderance of probability. The standard

of proof beyond reasonable doubt could not have been

applied.

22. After considering the submissions made by both the

parties, I find that PW7 Sohan Lal eye­witness to the

occurrence has specifically stated in his affidavit Ex.

PW7/A tendered in his evidence that on 15.12.2011 at

about 20.30 p.m. he alongwith PHG Ajit Singh was

present near Sanjha Chulha Dhaba on the National High

Way leads to Jummu. All the traffic of road was diverted

on the eastern side of the road on account of closure of

road on western side due to construction work. In the

meantime a Maruti car bearing No.HR­02­K­0448 came

from Jammu side and struck against the back of Gas

Tanker as the driver of the car could not spot the parked

tanker due to the flash lights of the oncoming traffic from

front side. Then they rushed towards the spot of accident

and noticed that the said tanker was standing parked in

the middle of the road without any indicators or parking

lights.

23. The statement of this witness clearly

establishes that this was the sole negligence on the

part of the driver of the gas tanker especially when

the accident was caused on 15.12.2011 that too at

about 10.30 p.m. which is generally time of pitch

darkness. In this way, the driver of the car cannot

be held in any way negligent in this accident.

Moreover, as per Rules 15 of the Road Regulations,

1989 no vehicle is to be parked on busy road.

6

24. The arguments of learned counsel for respondent

that PW7 Sohan Lal has stated in his cross­examination

that there was no fog at that time and there were lights

on the Dhaba and the truck was visible to him due to

light of Dhaba and he was standing at the distance of 70

feet from the truck being road between him and the truck

and he noticed at the car when he heard voice/sound

caused by the accident so the respondent no.1 is not at

all negligent in this accident but these submissions

will not make the car driver to be in any way

negligent and cannot give clean chit to the driver

of the gas tanker because there is a difference

between the visibility of a standing vehicle from a

place where the person is standing and by a person

who is coming driving the vehicle because due to

flash lights of vehicles coming from front side the

vehicle coming from opposite side cannot generally

spot the standing vehicle in the road that too in

nights time when there is neither any indicator or

parking lights nor blinking lights nor any other

indication given on the back of the stationed

vehicle, therefore, the driver of the car cannot be

held to be in any way negligent rather it is the sole

negligence on the part of the driver of the offending

Gas Tanker as held in Ginni Devi and others’ case

(2008 ACJ 1572), Mohan Lal’s case (2007 1 ACC

785 (Allahabad). It is not the case of the respondent

that the parking lights of the standing truck were

on or there were any other indication n the back

side of the vehicle standing on the road to enable

the coming vehicle to see the standing truck. The

other arguments of learned counsel for respondent

no.3 that the road was sufficient wide road and

that the car driver could have avoided the

accident, so the driver of the car was himself

negligent in causing the accident cannot be

accepted when it has already been held that the

7

accident has been caused due to sole negligence of

the driver of the offending stationed truck in the

busy road. The proposition of law laid down in Smt.

Harbans Kaur & others’s case (2010 4 PLR 422 (P&H)

and T.M. Chayapathi & another’s case (2005 IV ACC 61

(AP) is not disputed at all but these authorities are not

helpful to the respondents being not applicable on the

facts and circumstances of the present case. Likewise,

non­examination of minor children of the age of 14 and 9

years who lost their father and mother in the accident

cannot be held to be in any way detrimental to the case

of the claimants when eye witness to the occurrence has

proved the accident having been caused by the

negligence of respondent 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 Ram and others, 2008 (1) PLR 444 and

Pazhaniammal and others’s case (2012 ACJ 1370)

our own Hon’ble High Court has held that ‘it is,

prima facie safe to conclude in claim cases that

the accident has occurred on account of rash or

negligent driving of the driver, if the driver is

facing the criminal trial on account of rash or

negligent driving.’

26. Moreover, the respondent no.1/driver of the

offending vehicle has not appeared in the witness

box to deny the accident having been caused by

him, therefore, I am inclined to draw an adverse

inference against the respondent no.1. In this

context, I draw support from a judgment of the

Hon’ble Punjab & Haryana High Court reported as

Bhagwanti Devi vs. Krishan Kumar Sani and

others, 1986 ACJ 331. Moreover, the respondent

no.1 has also not filed any complaint to higher

authorities about his false implication in the

8

criminal case so it cannot be accepted that the

respondent no.1 has been falsely implicated in this

case.

27. In view of above discussion, it is held that the

claimants have proved that the accident has been caused

by respondent no.1 by parking the offending vehicle

bearing No. HR­02­AF­8590 on the middle of the road in

a negligent manner wherein Vinod Saini and Smt. Mamta

Saini have been died and claimants Archit Saini and

Gauri Saini have received injuries on their person. Sh.

Vinod Saini deceased who was driving ill fated car on

that day cannot be held to be negligent in any way.

Accordingly, this issue is decided in favour of claimants.”

(emphasis supplied)

6. When the matter travelled to the High Court by way of

appeal for enhancement of compensation, while accepting the

claim of the claimants­injured for giving additional

compensation, the High Court overturned the finding of fact

recorded by the Tribunal in relation to issue No.1 and opined

that it was a case of contributory negligence of the driver of

the Maruti Car which met with the accident. The High Court

answered the said issue in its judgment as can be discerned

from paragraphs 14 & 15, which read thus:

“14. So far as the issue of contributory negligence is

concerned, it has come in the testimony of Sohan Lal,

PW­7, that the tanker/offending vehicle was parked

9

without indicator but the same was visible from a

distance of 70 ft. Moreover, a perusal of site plan Ex.P 45

reveals that the offending vehicle was not parked in the

middle of the road.

15. In view of the statement of PW­7 and site plan Ex.P45,

it is proved that the tanker/offending vehicle was

visible from a distance of 70 ft. and not parked in the

middle of the road. Therefore, in the concerned opinion of

this Court, it is a case of contributory negligence.”

7. In the present appeals, the moot question is whether the

High Court committed manifest error in reversing the well

considered decision of the Tribunal on issue No.1 answered

against the respondents, instead concluding that it was a case

of 50% contributory negligence on the part of the deceased

driver of the Maruti Car.

8. After having perused the evidence of PW­7, Site Map (Ext.

P­45) and the detailed analysis undertaken by the Tribunal,

we have no hesitation in taking the view that the approach of

the High Court in reversing the conclusion arrived at by the

Tribunal on issue No.1 has been very casual, if not cryptic and

perverse. Indeed, the appeal before the High Court is required

to be decided on fact and law. That, however, would not permit

10

the High Court to casually overturn the finding of fact

recorded by the Tribunal. As is evident from the analysis done

by the Tribunal, it is a well considered opinion and a plausible

view. The High Court has not adverted to any specific reason

as to why the view taken by the Tribunal was incorrect or not

supported by the evidence on record. It is well settled that the

nature of proof required in cases concerning accident claims is

qualitatively different from the one in criminal cases, which

must be beyond any reasonable doubts. The Tribunal applied

the correct test in the analysis of the evidence before it.

Notably, the High Court has not doubted the evidence of PW­7

as being unreliable nor has it discarded his version that the

driver of the Maruti Car could not spot the parked Gas Tanker

due to the flash lights of the oncoming traffic from the front

side. Further, the Tribunal also adverted to the legal

presumption against the driver of the Gas Tanker of having

parked his vehicle in a negligent manner in the middle of the

road. The Site Plan (Ext. P­45) reinforces the version of PW­7

that the Truck (Gas Tanker) was parked in the middle of the

11

road but the High Court opined to the contrary without

assigning any reason whatsoever. In our view, the Site Plan

(Ext. P­45) filed along with the charge­sheet does not support

the finding recorded by the High Court that the Gas Tanker

was not parked in the middle of the road. Notably, the High

Court has also not doubted the claimant’s plea that the Gas

Tanker/ offending vehicle was parked without any indicator or

parking lights. The fact that PW­7 who was standing 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

not discredit his version that the Maruti Car coming from the

opposite side could not spot the Gas Tanker due to flash lights

of the oncoming traffic from the front side. It is not in dispute

that the road is a busy road. In the cross­examination, neither

has any attempt been made to discredit the version of PW­7

nor has any suggestion been made that no vehicle with flash

lights on was coming from the opposite direction of the parked

Gas Tanker at the relevant time.

12

9. Suffice it to observe that the approach of the High Court

in reversing the well considered finding recorded by the

Tribunal on the material fact, which was supported by the

evidence on record, cannot be countenanced.

10. Accordingly, we have no hesitation in setting aside the

said finding of the High Court. As a result, the appellants

would be entitled to the enhanced compensation as

determined by the High Court in its entirety without any

deduction towards contributory negligence. In other words,

we restore the finding of the Tribunal rendered on issue No.1

against the respondents and hold that respondent no.1

negligently parked the Gas Tanker/offending vehicle in the

middle of the road without any indicator or parking lights.

11. Accordingly, we affirm the enhanced compensation

payable to the claimants as determined by the High Court in

paragraph 13 of the impugned judgment, which reads thus:

“13. In view of the above, the claimants­injured are held

entitled 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) +

13

Rs.10,000/­ (enhancement towards special diet) +

RS.1,90,000/­ (enhancement towards ‘loss of love and

affection’) + Rs.30,000/­ (enhancement towards

cremation and last rites)] as indicated above, which shall

be payable within a period of 45 days from the date of

receipt of a certified copy of this judgment, failing which,

the claimants­appellants shall also be entitled to interest

@ 7.5% per annum, from the date of filing the present

appeal till its realization.”

We set aside the direction given by the High Court in

paragraph 16 of the impugned judgment regarding deduction

of 50% of the total compensation awarded to the claimants

towards contributory negligence.

12. The appeals are allowed in the aforementioned terms

with no order as to costs.

.………………………….CJI.

(Dipak Misra)

…………………………..….J.

(A.M. Khanwilkar)

…………………………..….J.

(Dr. D.Y. Chandrachud)

New Delhi;

February 09, 2018.