SWATI SHARMA Vs. ASHRAF KHAN

JUDGEMENT

(1.) All these appeals, bearing FAO No. 135 of 2019, FAO No. 138 of 2018, and, FAO No. 442 of 2017, arise, from a common verdict, rendered, by the learned Motor Accident Claims Tribunal-III, Solan, District Solan, H.P. in MACT petition No. 15ADJ-11/2 of 2014, titled, Swati Sharma & another vs. Ashraf Khan & another, (i) wherethrough, the learned MACT concerned, on, 15.6.2017, assessed, compensation amount, borne in a sum of Rs. 61,36,440/-, along with interest, levied thereon at the rate of 7% per mensem, and, commencing, from, the date of filing the petition, till, realization. The compensation amount was apportioned amongst the co-claimants, in the manner, comprised in the operative part, of, the impugned verdict, and, the apposite 50% idemnificatory liability, stood fastened, upon, the insurer of the offending vehicle.

(2.) The claimants, contest, the validity of findings, returned, in the impugned award, upon, issues No. 1 and 3. The findings returned, upon, the issues No. 1 and 3, unfold, vis-a-vis, the learned Tribunal, on, an analysis of the evidence on record, proceeding to make a conclusion, vis-a-vis, the deceased, while atop his motorcycle, being along with respondent No.1, also hence negligent rather in driving it or his being a co-tortfeaser, (i) and thereafter, though, proceeded to, in paragraph-31, of, the impugned award, compute a total compensation amount, of Rs. 1,22,72,880/-, yet, from, the afore awarded amount, it, proceeded to make a 50%, deduction and, proceeded, to, saddle the apposite thereto, 50 per centum, indemnificatory liability qua therewith, vis-a-vis, the insurer, of, the offending truck. Since the effect, of, the afore inference, of, contributory negligence, drawn, by the learned Tribunal, visits, rather apposite ill-effects, upon, the quantum, of, compensation, (ii) thereupon the counsel appearing for the claimants, has, contended with much vigor, before this Court qua the findings returned thereon, hence warranting interference by this Court. Obviously, the counsel appearing, for the insurer, of, the offending truck, has made submissions, before this Court rather for sustaining the findings, recorded thereon, hence by the learned Tribunal.

(3.) For determining the validity, of, the findings, returned upon issues No. 1 and 3, it is imperative to bear in mind, the factum (i) qua the learned Tribunal proceeding to irrevere, the deposition, of, an eye witness to the occurrence, who, stepped into witness box, as PW-5, and, who during the course of his examination-in-chief, had tendered into evidence, his affidavit, borne in Ext. PW-5/A, (i) and, wherein, he had ascribed commission, of, tort of negligence, vis-a-vis, respondent No.1, hence in the latter, driving the offending truck, (ii) also the learned Tribunal, not meteing apt deference, vis-a-vis, PW-5, during, the course of his cross-examination, conducted, by the counsel for the insurer, wherein, rather he meted dis-affirmative answers, vis-a-vis, the thereto, put suggestion to him, by the afore counsel, (iii) qua their being, a, headon collision, inter-se, the offending truck, and, the motorcycle, driven by the deceased. (iv) Since obviously, PW-5 meted hence an affirmative answer, qua, the, afore facet, hence obviously rather absolute deference, was, enjoined to be meted thereto. However, the learned Tribunal, despite, PW-5, besides his being, an ocular witness qua the occurrence, his also being the informant, of FIR, borne in Ext. PW-2/A, and, with candid echoings, borne therein, vis-a-vis, commission, of, tort, of, negligence rather by respondent No.1, it, contrarily proceeded to mete deference, vis-a-vis, the echoings made, by the Investigating Officer concerned, who, stepped into the witness box, as RW-3, (iii) and, who in his examination-in-chief, rendered articulations, therein, vis-a-vis, apt contributory negligence, being ascribable, vis-a-vis, respondent No.1, and, the deceased, in, the latter driving the motorcycle. Also, it proceeded, to, from the reflections cast in the site plan, and, embodied in Ext. R-1, hence, recorded, a, suo moto conclusion, qua given the width of the road, at the relevant site, being 23 feet, (iv) qua hence given their being evident contributory negligence, ascribable, vis-a-vis, respondent No.1, in driving the offending truck, and, also, vis-a-vis, the deceased, in, the latter driving his motorcycle. However the effect of the afore conclusion, warrants interference, (i) as there, is, palpable gross over looking(s), by the learned Tribunal, vis-a-vis, the afore uneroded ocular echoings, rendered by PW-5, and, who also as aforestated, is also the informant, (ii) and, thereupon, in, rather the learned Tribunal, proceeding to untenably mete deference, to, the afore solitary echoing, borne, in examination-in-chief of RW-3, who, was neither, the, informant nor an ocular witness, vis-a-vis, the occurrence, (iii) also though in his examination-in-chief, he has echoed, vis-a-vis, the relevant mishap being attributable, vis-a-vis, bothrespondent No.1, and, the deceased, both being negligent, in, driving the respective vehicle(s), (iv) nonethless, upon making a commulative reading of, the echoings, occurring in the cross-examination, of RW-3, and, the echoings borne in PW-5/A, conspicously, whenRW-3 makes echoings, vis-a-vis, in respondent No.1, hence driving the offending truck, at the relevant site of occurrence, his driving the truck, rather negligently, visibly has committed an error, of, mis appreciation, of, the afore evidence, (iv) thereupon even when the width, of, the mettled portion of the road, existing at the site, is, 23 feet, yet, the afore width, is, rendered inconsequential, (v) given, the site plan, embodied in Ext. R-1, making trite echoings, vis-a-vis, the relevant collision, occurring in the middle of the road, and, it, occurring hence trite at the apposite divider, rather separating, the, two portions of the road, (vi) thereupon besides when the offending truck is larger in seize, vis-a-vis, the motorcycle, and, when hence respondent No.1, could easily sight, the motorcycle concerned, to, arrive from the opposite direction, (vii) thereupon it was enjoined, upon, respondent No.1 to ensure his steering, the, truck onto, the, abundant space, available, for, stationing the offending truck. Contrarily, respondent No.1, despite, hence abundant space, existing, on, the apposite appropriate site rather, for, the offending truck, being stationed thereat, hismaneuvering, it, onto the divider, hence separating the two portions, of, the road, and, whereat, a, headon collision interse, it, and, the motorcycle, driven at the relevant site, by the deceased, hence occurred, rather makes, open bespeakings qua commission of, tort, of, negligence by respondent No.1, (ix) thereupon the findings recorded upon issues No. 1 and 3 warrant interference, and, it is concluded qua the compensation amount, borne in a sum, of, Rs. 1,22,72,880/-, determined, vis-a-vis, the claimants, being in totality disbursable qua the claimant, and, the apposite absolute indemnificatory liability, being fastenable, upon, the insurer, of, the offending vehicle.