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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

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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 eye­

witness 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

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of the road, as the Western side of road was closed due to construction work. In meantime, a Maruti Car No.HR­ 02­K/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

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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

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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.

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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

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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

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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

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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.P­ 45, 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

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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

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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.

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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) +

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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.