ALI SHER Vs. SHAMIRAJ

JUDGEMENT

(1.) The instant misc. appeal has been filed by the appellant/claimant claiming the following reliefs :-

(2.) The unfortunate accident happened on 27.3.1996 when the claimant was going towards Devli from Jahajpur on a scooter and met with an accident with truck bearing No. RJ-20/G-908 which was being driven rashly and negligently. As a result of this accident, the appellant/claimant suffered grievous injuries.

(3.) Learned Counsel for the appellant/claimant submits that while deciding the issues No. 1 and 4, the learned Tribunal has arrived at the conclusion that there was 50% contributory negligence of the scooter driver whereas the truck driver has not even been examined. Learned Counsel for the appellant points out that the scooter was being driven carefully and proper indicators were given for overtaking the truck and due to the sudden cut by the truck, the accident occurred. Learned Counsel for the appellant has relied upon the judgment of the Hon'ble Apex Court in the case of Jiju Kuruvila and Ors. Vs. Kunjujamma Mohan and Ors. reported in 2015(2) R.A.R. 182 (SC) wherein the Hon'ble Apex Court has held that without examining the erring driver, the Court cannot reach at a corroboratory evidence of contributory negligence of the vehicle in question. All the factors have to be taken into account to create a scene of the accident in front of the Court by reading the depositions made while taking into consideration the factors like, speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other etc. The direct and corroborative evidence has to be taken into consideration while drawing a conclusion of contributory negligence. Learned Counsel for the appellant has also relied upon the judgment of this Court in the case of Oriental Insurance Co. Ltd. Vs. Vijay Kumar Ratnani and Ors. reported in 2016(1) R.A.R. 258 (Raj.), relevant paras No. 15 and 16 whereof read as follows :-