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.

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

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515