contributory negligence = Of course, the Tribunal below is right in saying that mere acquittal of the driver of the jeep in C.C.No.290 of 2003 is not a ground to say that there was no rash and negligence on his part in causing the accident. - When two vehicles are involved in the accident, the Tribunal below should give a categorical finding as to whether there is contributory negligence or not and if there is any contributory negligence, the driver of which vehicle is responsible. The findings of the Tribunal below are not satisfactory.
THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR
M.A.C.M.A.No.327 of 2013
ORDER:
This appeal is preferred by the appellant-Insurer of TVS XL bearing registration No. AP-16-AE-1293 against the judgment and decree dated 01.04.2011 passed in M.V.O.P.No.59 of 2006 on the file of the Motor Accidents Claims Tribunal-cum-IX Additional District Judge (Fast Track Court), Krishna at Machilipatnam.
The appellant seems to have pleaded that the 4th respondent, who is the driver of TVS XL bearing registration
No. AP-16-AE-1293, on which the 1st respondent-claimant was traveling as pillion rider, drove his vehicle in a rash and negligent manner and at high speed in spite of several requests made by the 1st respondent to drive his vehicle slowly. Of course, it is also pleaded that the 2nd respondent-driver of the Jeep bearing registration No.AP-16-P-262 also drove it in a rash and negligent manner. It appears that the Police, after completing the investigation, filed charge sheet before the competent Court against the driver of the Jeep and, after trial, the driver of the Jeep was acquitted in C.C.No.290 of 2003 by the learned Additional Judicial First Class Magistrate, Gudivada. Thus, there is another factor to be taken into consideration i.e., the counter filed by the appellant-Insurer of TVS XL. As per the counter filed by the appellant, there was contributory negligence on the part of the drivers of both vehicles involved in the accident. Even according to the pleadings of the 1st respondent-claimant, both the drivers were rash and negligent for causing the accident. Further, it is brought to the notice of this Court that the driver of the Jeep was acquitted of the charge framed against him for the offence under Section 338 of I.P.C. by the learned Additional Judicial First Class Magistrate, Gudivada in C.C.No.290 of 2003. In such circumstances, it cannot be said that the driver of the Jeep alone is responsible for causing the accident. The Tribunal below has to appreciate the oral and documentary evidence adduced before it in a proper perspective. The negligence cannot be decided merely basing on the contents of the charge sheet or upon the opinion of the Investigating Officer.
No. AP-16-AE-1293, on which the 1st respondent-claimant was traveling as pillion rider, drove his vehicle in a rash and negligent manner and at high speed in spite of several requests made by the 1st respondent to drive his vehicle slowly. Of course, it is also pleaded that the 2nd respondent-driver of the Jeep bearing registration No.AP-16-P-262 also drove it in a rash and negligent manner. It appears that the Police, after completing the investigation, filed charge sheet before the competent Court against the driver of the Jeep and, after trial, the driver of the Jeep was acquitted in C.C.No.290 of 2003 by the learned Additional Judicial First Class Magistrate, Gudivada. Thus, there is another factor to be taken into consideration i.e., the counter filed by the appellant-Insurer of TVS XL. As per the counter filed by the appellant, there was contributory negligence on the part of the drivers of both vehicles involved in the accident. Even according to the pleadings of the 1st respondent-claimant, both the drivers were rash and negligent for causing the accident. Further, it is brought to the notice of this Court that the driver of the Jeep was acquitted of the charge framed against him for the offence under Section 338 of I.P.C. by the learned Additional Judicial First Class Magistrate, Gudivada in C.C.No.290 of 2003. In such circumstances, it cannot be said that the driver of the Jeep alone is responsible for causing the accident. The Tribunal below has to appreciate the oral and documentary evidence adduced before it in a proper perspective. The negligence cannot be decided merely basing on the contents of the charge sheet or upon the opinion of the Investigating Officer.
As far as issue No.1 framed by the Tribunal below is concerned, there is no satisfactory finding by it. Of course, the Tribunal below is right in saying that mere acquittal of the driver of the jeep in C.C.No.290 of 2003 is not a ground to say that there was no rash and negligence on his part in causing the accident. But, when the appellant-Insurer of TVS XL itself has stated that there was contributory negligence on the part of the drivers of both the vehicles, the Tribunal below ought to have given a finding on the issue as to whether there is any contributory negligence or not. When two vehicles are involved in the accident, the Tribunal below should give a categorical finding as to whether there is contributory negligence or not and if there is any contributory negligence, the driver of which vehicle is responsible. The findings of the Tribunal below are not satisfactory.
For the foregoing reasons, the appeal is allowed by setting aside the judgment of the Tribunal below and the matter is remanded back to it for de novo consideration. The Tribunal below may decide the matter as early as possible, preferably, within a period of three months from the date of receipt of a copy of this order and both parties may be given an opportunity to adduce further evidence, if necessary. No order as to costs.
Miscellaneous petitions, if any pending in this appeal, are disposed of as infructuous.
_______________________
B.CHANDRA KUMAR,J
12th February, 2013
kkm/cbs
THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR
M.A.C.M.A.No.327 of 2013
12th February, 2013
kkm/cbs
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