1. This appeal arises out of the order of the Motor Accidents Claims Tribunal at Surat whereby the claim petition of the appellants filed before it, bearing No. 103 of 1977 was dismissed.
2. The relevant facts giving rise to the aforesaid petition may be stated as under:-
The appellants are the widow, minor sons, minor daughter and parents of the deceased Nilamchand Sadilal Sharma who met with a fatal motor accident at about 7-40 P. M. on December 24, 1976. The deceased had gone to the house of his in-laws at village Gangadhara on scooter, bearing No. GTR 4557 belonging to one Chhabildas Khushaldas Modi, The deceased started from his in-law's house at about 7-00 or 745 P. M. having on the pillion of the scooter his brother-in-law, Ramesh, aged about 10 or 11 years. It is the case of the appellants that there was thick fog all along the highway. When deceased reached between village Kumbharia and Rang Kutir, the scooter collided with a trailer attached to the tractor, which was stationed on the left side of the road. It was the further case of the appellant, that the trailer attached with the tractor was stationed without taking the requisite and the statutory precautions such as the reflectors and the red-light at the rear with the result that the deceased could not notice the tractor and consequently the accident occurred, wherein the, scooter driver lost his life. The tractor was facing Surat and did not have the lights either in the front or in' the rear. The deceased sustained serious injuries as a result of which he died there and then and Ramesh, who was sitting on the pillion, also received injuries on his head and became unconscious. one Yogesh Nagjibhai Tailor who came on a Bullet Motor Cycle, removed Ramesh in the rickshaw to the Civil Hospital, Surat.
3. According to the appellants, the deceased was 26 years of age at the material time. He was very intelligent, hard-working and the only earning member of the family, consisting of the deceased, the widow, three minor children and the parents. The appellants claimed compensation of Rs. 75,000 for the death of the deceased from the respondents, the respondent No. I being the owner of the tractor and respondent No. 4 being the driver of it. Respondents Nos. 2 and 3 are the National Insurance. Co. Ltd, and its branch office at Surat.
4. The petitioner was resisted by the respondents by their written statements (Exhs. 19 and 23). The defence of respondent No. I and respondent No. 4 is to the effect that there was no negligence, much less rashness on the part of respondest No. 4 in the occurrence of the accident. They denied that there were no reflectors on the tractor and the trailer. They also denied that there was a thick fog on account of which the deceased could not see the tractor and the trailer. According to them, the accident occurred only on account of the negligence on the part of the deceased himself and that they were not in any way responsible for it. They submitted that the tractor and the trailer were kept on the left side of the road in such a manner that a part of it was on the Kuchha road and they had also placed stones around so as to permit the safe passing of the vehicular traffic on the road. They further submitted that the tractor was required to be stationed because the rear left tube of the wheel was punctured. The respondents also denied the quantum of compensation claimed by the appellants.
5. The Tribunal framed issues at Exh. 30. The Tribunal found that deceased Nilamchand Sadilal Sharma did die in the motor accident which occurred on December 24, 1976 at 7-40 P.M. near the culvert on the road in between Kumbharia and Rang Kutir in the District of Surat. However, on the question of negligence. the Tribunal found that the deceased died as a result of his own negligence and not on account of any negligence on the part of the driver of the tractor. In view of such a finding on the question of negligence, the Tribunal did not consider at all the claim of the appellants stating that the finding on that question did not arise. The Tribunal also did not answer the issue regarding the vicarious liability of respondent No. 1 for the alleged negligence on the part of the driver, respondent No. 4. In that view of the Tribunal, the application was dismissed with no order as to costs.
6. Being dissatisfied with the order of the Tribunal, the appellants have filed the present appeal.
7. The appellants alleged negligence on the part of respondent No. 4, the driver, on the ground that the latter had parked the tractor and the trailer in a negligent manner and in disregard of the safety and convenience of the other users of the road and in violation of the statutory rules. They further alleged negligence to him on the ground that besides negligently parking the tractor and the trailer on the asphalt road, the further negligence consisted of the fact that he had kept the tractor and the trailer unattended and without the rear red-lights and the reflectors.
8. The appellants alleged that thus the accident occurred solely on account of the negligence of respondent No. 4 for which the respondent No. 1, being the owner of the tractor and the trailer, is vicariously liable.
9. As indicated above, the Tribunal disbelieved the appellants in regard to their allegation of negligence against respondent No. 4 and dismissed their application. Or. close perusal of the evidence, we are of the view that the Tribunal was not right in its appreciation of the evidence on the record and that if, erred in dismissing the application.
10. We shall now proceed to appreciate the relevant evidence on the record of the case.
11. Rameshbhai Vasudev Sharma (PW 3) was on the pillion of the scooter when the accident occurred. He was round about 10 to 11 years of age at the relevant time. He deposed that they left Gangadhara between 6-30 and 6-45 p. m. and in his cross-examination he deposed that the accident occurred about 45 minutes after they started from Gangadhara. The time of the accident was, therefore, 7-15 to 7-30 P. M, It was the month of December, to be precise, 24th December, 1976, on which day the accident occurred, and therefore, it can easily by realised that there -must have been complete darkness. Further, Rameshbhai has stated that the atmosphere was foggy. These are the facts which are not assailed and we shall be on a firm ground when we proceed to appreciate other f acts in this background, namely that the accident occurred on a dark foggy night. Rameshbhai has further deposed that when they reached near Puna Kumtharia, the scooter collided with the trailer attached to the tractor which was parked on the left-hand side of the road. The tractor was facing Surat. He has further deposed that as it was night time, the trailer could not be seen and he has also stated in clear terms that there were no back-lights either on the trailer or on the tractor. He sustained injuries on his head and was removed to the hospital at Surat. The first factor to benoted about this witness is that his presence at the time of the accident is unassailable and is unassailed. In his cross-examination, Rameshbhai has further stated that even reflectors were not to be found on the back of the trailer. After the occurrence of the accident, while he was lying with his feet underneath the trailer and his head out of it, he observed that there were no reflectors to the trailer. He stated in his cross-examination that he could not see the other parts of the trailer because there was darkness. He could not even see the wheels of the trailer. There was one truck running from the opposite direction with full lights on. He stated that he saw the lights of the truck for the first time when it was hardly at a distance of 15 to 20 feet from the scooter. One significant fact stated by him in his cross-examination is that the tractor and the trailer were so standing that the right wheels were on the asphalt road 'and left side wheels were on the Kuchha road.
12. The noticeable feature of this witness is that he has in unmistakable terms stated about the manner in which the tractor was parked on the asphalt road and the fact that there were no back-lights and reflectors either on the tractor or on the trailer.
13. The Tribunal has disbelieved this witness on the supposed ground that his evidence contradicts the contents of a Panchnama (Ext. 42) wherein the presence of back-lights and the reflectors is mentioned. He has disbelieved him also on the ground that if there was such fog In the atmosphere in the dark night that he could not see the wheels and other parts of the trailer he also could not have seen whether there were backlights and reflectors on the trailer. We are of the view that the Tribunal has not appreciated the evidence of this witness correctly. It may be observed that although Rameshbhai categorically stated in his evidence that there were no back-lights either on the trailer or on the tractor, this statement of his is not assailed in his cross-examination. It may further be observed that Rameshbhai has nowhere mentioned about the presence or the absence of the reflectors in his examination-in-chief and that that fact was put to him only, in his cross-examination. If he wanted to concoct the story about the reflectors, he would have straightway said about the absence of the reflectors in his very examination-in-chief. We do not find any cogent reason to disbelieve the say of this young eye-witness,
14. The second witness on the point is one Gurudevsinh Variyamsinh (PW 4). This witness knew the deceased as both were staying in the same locality. When he learnt the news of the accident, he went on the scooter to the place of the occurrence and reached there at about 8-00 P. M. He saw the dead body of the deceased Nilamchand which was lying near the trailer attached to the tractor. He deposed in his examination-in-chief that the lights of the tractor were off and there was no reflector on the trailer. He returned to his locality and informed the persons of the locality that Nilamchand was lying dead. He returned to the place of occurrence, reaching there at 9-00 P.M. At about 10-00 P.M., Police from Rander came and made the Panchnama of the place of occurrence. At about 2-00 or 2-30 A. M., he signed as one of the Panchas to the Panchnama, In his cross-examination. Gurudevsinh stated that he could not say what was the number of the trailer and the tractor and also could not say whether the reflector had fallen down or that it was not at all fixed. He also could not remember whether it was written in the Panchnama that there were no reflectors at the back of the trailer. He did not inform the police that there was no reflector. He also did not ascertain as to whether the back-light was in a working condition or not.
15. The Tribunal has disbelieved this witness also. The grounds of disbelief are that the deposition of this witness runs counter to the Panchnama and also on the ground that if he had really gone to the scene of occurrence, he would have remembered the number of the trailer and the tractor and could also have given other details, about which his cross-examination was directed. It is also pointed out by the Tribunal that this witness stated as residing in the same locality as the deceased did and therefore he was interested in supporting the appellants' claim. In this case also, we must observe that the Tribunal has not made a correct approach in appreciating ' the evidence. We may point out a fact in the evidence on the record of the case which is very significant and though prima facie it may appear to be trivial, it must be given due weight in the light of the fact that its significance emerges from the deposition of an independent witness. Gurudevsinh has stated in the last part of his examination-in-chief that he left the scene of occurrence after the dead body was removed to Civil Hospital at about 2-00 or 2-30 A.M. Now, if we peruse the deposition of Dr, Subbashchandra Chandulal Soni (PW 2), it would be noticed that according to this witness, the dead body of Nilamchand was brought to the hospital for having its post-mortem examination at about 3-45 A. M. Had Gurudevsinh not been to the scene of occurrence, this synchronization of the time would not have come out of his evidence. It matters little, in our opinion, whether he remembered the number of the trailer and the tractor or whether the reflectors had fallen down or not. We are not prepared to impeach the evidence of this witness on such counts. We would not call him a partisan witness also because he has nothing to lose or gain by his evidence. The Tribunal disbelieved him also on the ground that the witness has stated that he had signed a Panchnama, whereas he does not appear to be one of the attesting witnesses to the Panchnama (Exh. 42). It is not clear to us whether the Panchnama of the dead body was made or not, but in the normal course of events, the Panchnama of the dead body would be made and it is not unlikely that Gurudevsinh had signed this Panchnama of the dead body. He has stated that there were four persons, who had signed the Panchnama and that statement of his goes to corroborate the view which we are taking, and it is possible that the two Panchas signed one Panchnama and the other two Panchas signed the second Panchnama which of course is not on the record of the case. Suffice it to say that we are not convinced about the reasons given by the Tribunal in disbelieving this witness altogether.
16. Keeping in mind the salient features of the deposition of these two witnesses, namely, Rameshbhai and Gurudevsinh, we may now examine the Panchnama (Exh. 42) which had been brought on the record by the consent of the rival sides. The following facts emerge from the Panchnama (Exh, 42):-
The road was proceeding east-west, the asphalted portion of the road was 20 feet in width north-south and there were Kuchha shoulder-, on both the side-* of three feet width. The trailer was 6 feet, 9 inches in width and the length of the tractor and the trailer taken together was 25 feet. The following further facts may be more closely noted:-
The Kuchha strip from the rear lefthand wheel was three feet, whereas the right-hand edge of the asphalt road was 15 feet.
17. The Tribunal has observed that the driver had taken all possible precautions to park the tractor and the trailer on the correct side of the road. We do not agree with this view of his as in our opinion the driver ought to have taken care to park the tractor and the trailer completely on the Kuchha road. There is nothing to indicate in the evidence that the earth by the side of the Kuchha strip was so low in level that the tractor and the trailer could not have been parked on the Kuchha strip. It was further be noticed from the Panchnama that one of the wheels of the tractor rested on the jack as in fact the tractor was required to be parked because the tube of the left read wheel was punctured. At the time of the accident, the driver was not at the scene of occurrence. The tractor was, therefore, from the inception parked under such circumstances that it was to lie on the road for a fairly long time.
18. So far as the rear lights are concerned, it is found stated that at the back of the tractor, there was a white light which was connected and that thatractor had two reflectors at the back and a red-light on the right side at the rear.
19. There were no brake-marks found. There were stones arranged on the right side of the tractor. The Panchnama was made at about 7-00 or 8-00 A.M. on 25-12-1976.
20. We shall now discuss the negligence or otherwise on the part of the respondent No. 4 in the light of the aforesaid evidence consisting of the deposition of Rameshbhal and Gurudevsinh and the contents of the Panchnama (Exh. 42) in the further light of the statutory rules framed under the Motor Vehicles Act, 1939.
21. The first act of negligence on the part of neligence No. 4 consists of manner in which he had parked the tractor and the trailer. According to the 'aforesaid evidence, the., tractor and trailer were so parked that the left-hand rear wheel was on the edge of the asphalt road, whereas there was a distance of about 15 feet between the right band side wheel and the edge of the asphalt road on the right side of the tractor and the trailer. There is no reason why the respondent No. 4-driver did not park the tractor and the trailer entirely off the asphalt road so as to avoid all possibility of an accident. This is all the more so as the tractor lay on the road in the darkness of the night which further was a foggy one according to the deposition of Rameshbhai. A similar situation was also found in the case of British India Insurance Co. Ltd. v. Khagesh Devendraprasad Jani, reported in 1977 ACJ 416 (Guj). It is found observed in the judgment that there was evidence establishing facts that the truck on the tar road had been parked because its type had burst on the tar road itself and the front left wheel had been slightly on the Kuchha road. Even though the lights were on, the fact remained that the truck was an obstruction on the highway road because it was a dark night when the other road users on the national highway would find such a parked vehicle a great obstacle because the truck-driver had not taken ordinary precautions to park the truck on the Kuchha portion of the road. It is found observed further as under:-
'There was no question of any extra precaution in such cases but teachings of the ordinary experience would have re quired the truck driver to take the nor mal precaution not to occupy so much of this road when other road users on this national highway *ould be so seri ously obstructed. Traffic on such a dark night would be going with a fair amount of speed on this highway and conditions of our Indian roads would have a driver that the lights on night dazzle the vehicle on the opposite side resulting in loss of vision and loss of nerve so that the driver would have to bounce on such a parked truck.'
The identical position is found in the present case. Although the tractor-cum-trailer was parked on the left side of the asphalt road, it would still not exonerate the respondent No. 4 from negligence as in, fact it was his duty under the circumstances of the case to park his tractor and trailer absolutely off the asphalt road and on the Kuchha strip so that the entire asphalt road would be left open and unobstructed for the other users of the highway. So much about the careless parking of the tractor-cumtrailer on the road during the foggy night.
22. The other ground to hold respondent No. 4 guilty of negligence is that he had parked the tractor and the trailer without the efficient back-lights and re-1 Rectors.
23. We have observed earlier while we discussed the evidence of Rameshbhai and Gurudevsinh that both of them have stated that there were no red-lights and reflectors on the rear side of the tractor and the trailer. As observed by us earlier, we do not find any cogent reason to distrust the say of these two witnesses. The Tribunal has relied upon the contents of a Panchnama wherein the presence of the red-lights and the reflectors is stated. It is true that there is inconsistency between the say of the two witnesses and the Panchnama, but even if we go by the contents of the Panchnama it is necessary that the respondents should show that at the relevant time the red-lights and the reflectors were in an efficient working order. It is under these circumstances that the question of onus arises. The appellants have discharged the initial burden by examining the two witnesses, both of whom stated about the absence of the red-lights and the reflectors on the rear of the tractor and the trailer. It was then for the respondents to prove that not only both were present on the vehicle but that both were in working condition. We have no evidence on this point. The respondents have led no evidence whatever and we are left only with the appellants' witnesses and the Panchnama. The Panchnama was drawn on the next day morning and therefore, it would be no evidence on the question whether at the relevant time the red-lights and the reflectors on the rear of the tractor and the trailer were in working condition or not. We may note here the relevant statutory position. S. 81 of the Motor Vehicles Act, 1939 runs in the following terms-
'No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to remain at rest on any road in such a position or in such a condition or in such circumstances as to cause or be likely to cause danger, obstruction or undue inconvenience to the other users of the road.'
In continuation of this section, we may read the relevant portion of Rule 146 of the Bombay Motor Vehicles Rules, 1959, which runs as under:-
'146. Lamps:- (1) Save as hereinafter provided, every motor vehicle while in a public place during the period between half an hour after sunset and half an hour before sunrise and at any other time when there is no sufficient light to render clearly discernible persons and vehicles on the road at a distance of 150 metres ahead, shall carry the following lamps (hereinafter referred to as 'obligatory front lamps)':-
'Provided that when a motor vehicle is drawing another vehicle or vehicles and the distance between such vehicles does not exceed 1.5 meters it shall not, subject to any other provision of these rules be necessary for the drawn vehicles to carry obligatory front lamps or for any save the last drawn vehicle to carry a rear lamp or a lamp illuminating the rear registration mark. .
24. Sub-rules (5) and (6) of Rule 146 run as under:-
'(5) The rear lamp shall be fixed either on the centre line of the vehicle or to the right hand side and, save in the case of a transport vehicle, at a height of not more than one metre from the ground. In the case of a transport vehicle the rear light may be fixed at such level as may be necessary to illuminate the registration mark.'
(6) Where a trailer is being drawn. by a motor vehicle. other than the drawn part of an articulated vehicle, a lamp of as nearly as possible the same size and power as the rear lamp and showing a red light to the rear shall be affixed to the trailer vertically above or below the rear lamp at a distance of not less than fifty centimetres or more than one metre from the rear lamp.'
25. These rules, may further be read with Rule 213 which relates to the question of fitment of reflectors. Rule 213 runs as under:-
'213. Fitment of reflectors- (1) Every transport vehicle other than motor cab shall be fitted with-
(a) two rear red reflectors having diameter of not less than 76 millimetres each across rafters on both the sides of the body, and
(b) one green reflector having a diameter of not less than 76 millimetres on the front side of the load body at the extreme right and facing to the front, at a height between 1.2 to 1.5 metres from the around level.
(2) The reflectors referred to in sub-rule (1) shall, while the vehicle is in a public place during the period between half an hour after sunset and half an hour before sunrise and at any other time when there is no sufficient light to render clearly discernible persons and vehicles on the road at a distance of 160 metres be kept unobscured and clean.'
26. These rules, therefore, clearly show that it was not enough for the Tribunal to find the presence of a red-light and the reflector in the Panchnama, but the Tribunal's conscience should also have been satisfied that both of them were in efficient condition and that reflectors were kept 'unobscured and clean'. We cannot lose sight of the most important fact that these statutory rules are framed for the safety of the traffic and that the violation of these rules endanger the lives as well as safety of the property. These rules cannot therefore be lightly violated. There is a purpose in framing them and those who use the vehicles on the road must give due regard to them and must comply with them. The Tribunal was quite in the wrong in exonerating respondent No. 4 from negligence merely on finding the mention of the red-light and the reflectors in the Panchnama, without further ascertaining whether both were kept in a working and efficient condition. We are not prepared to assume without the necessary evidence on the record of the case that both of them were in fact efficient and in working order at the relevant time.
27. A similar question arose before the Division Bench of this Court in the case of Shekurmiya Imammiya Shaikh v. Minor Surendra Singh Rup Singh, 1978 ACJ 130. It was found that the truck was parked on the tar road and it had been left there by opponent No. 1-driver without any back light or reflector or without any headlight at the rear and without leaving any signal to indicate the presence of the parked truck. A scooter, under circumstances similar to the present case, collided with the parked truck and the pillion rider was killed. The driver of the parked truck ran away with the truck after the accident and did not file written statement or gave evidence in the witness box. The Tribunal apportioned the liability in the proportion of 75 to 25 per cent between the truck driver and the scooter driver. The importance of apportionment of liability did not arise in that case as it was a case of composite negligence and the victim of the accident could recover the entire amount of compensation from either of them. During the course of the judgment, the following observation was made:-
'It appears that the motor cyclist having been dazzled had collided with this parked truck. Therefore, from the primary facts of leaving the parked truck wholly on the tar road on such dark cloudy night without any rear light or reflector or signal to show presence of this parked truck and when the driver, opponent No. 1, and the conductor had been sleeping in the truck, negligence of the park truck clearly emerges. Neither the driver nor the conductor has come in the witness box to rebut the' presumption of negligence which arises from these primary facts.'
28. Considering the evidence on record, we have no manner of doubt that the respondent No. 4-driver cannot be exonerated from the charge of negligence. We, therefore, upturn the finding of the Tribunal on this issue and hold respondent No. 4-driver guilty of negligence.
29. There was no issue framed by the Tribunal on the question of contributory negligence nor was any evidence led on that point by the respondents. As a matter of fact, we find no discussion on the question of contributory negligence of the deceased scooter-driver. However, Mr. P. R. Jani, the learned Advocate, submitted before us that there are circumstances which can be gathered from the evidence which would go to make the deceased scooter driver guilty of contributory negligence and that to do justice to both the sides we must look at the question from the point as to whether the deceased scooter driver could be held guilty of contributory negligence and if yes to what extent? We have endeavoured to examine the evidence from the point from which Mr. Jam wanted us to examine it. We find that there is no evidence whatever to hold the deceased scooter driver guilty of contributory negligence. For this purpose, we have closely perused the cross-examination of Rameshbhai. There is nothing to suggest in the cross-examination of Rameshbhai that the scooter-driver was guilty of contributory negligence. Besides, there is no evidence led by the respondents to show that the scooter driver was guilty of contributory negligence. We do not enter into the technical question as to whether in the absence of pleadings and issues, we can enter into the discussion of the question of contributory negligence. Assuming that we can examine this question, we must find evidence to hold the scooter driver guilty of contributory negligence. Mr. Jani wanted us to raise a presumption of contributory negligence from the circumstances found in the evidence, more particularly the Parichnama. With respect, we cannot do so as the evidence, as it stands before us, does not reflect anything to support the view that the scooter driver was even partially responsible for the occurrence of the incident. If the efficient working of the backlights and reflectors are not proved by the respondents, we have no reason to disbelieve the say of Rameshbhai that the tractor and the trailer were not noticed by the scooter-driver and himself. The use of the back-lights and the reflectors is that they give a sufficient warning to the vehicles when they are still quite at a distance and therefore when the night is dark and foggy. It would be quite natural that the parked vehicle is not noticed altogether or it may be noticed at a belated stage. Under the circumstances, therefore, we cannot accept the submission of Mr. Jani to hold the scooter-driver guilty of contributory negligence.
30.-33. x x x x x x
34. Appeal partly allowed.