1 2025:CGHC:25453 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 119 of 2022  Yugbodh Agrawal Son Of Late Lalchand Agrawal Aged About 49 Years Resident Of -H.No. 16/01, Sheetal Nagar, Behind Central Auto, Choubey Colony, P.S. D.D. Nagar, Raipur Chhattisgarh ... Appellant(s) versus 1. Smt. Sadhna Agrawal Wife Of Late Pradeep Kumar Agrawal Aged About 63 Years Residence Of Block No. 09, Plot No. 7, Nehru Water Tank, Nehru Nagar (West), Bhilai, Durg Chhattisgarh 2. Prasun Kumar Agrawal Son Of Late Pradeep Kumar Agrawal Aged About 33 Years Residence Of Block No. 09, Plot No. 7, Nehru Water Tank, Nehru Nagar (West), Bhilai, Durg Chhattisgarh 3. Narendra Kumar Pathak Son Of Late Keshri Prasad Pathak Aged About 43 Years Resident Of Behind Dhela Bai Hostel, Changori Bhata, Raipur, P.S. D.D., Nagar, Raipur Chhattisgarh ... Respondent(s) For Appellant : Mr. Ali Asgar, Adv. For Respondent No. 1 & 2 : Ms. Vaishali Jeswani, Adv. on behalf of Mr. Sumit Singh Adv. For Respondent No. 3 : Mr. Shobhit Mishra, Adv. Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 18/06/2025 1) Appellant has preferred this appeal challenging the award passed by the learned Eighth Additional Motor Accident Claims Tribunal, Durg in Claim Case No. 259/2018 dated 02.12.2021, whereby the learned 2 Tribunal has passed an award to tune of Rs. 11,14,904/- along with interest @ 6% p.a. from the date of application and liability was fastened upon the owner and driver of the offending vehicle. 2) Facts of the present case are that on the fateful day i.e. 07.07.2016 at about 01:30 p.m., the deceased, namely Pradeep Kumar Agrawal while driving his MARUTI-800 car bearing registration No. CG–07–ZD–4117 dashed the stationary INNOVA car bearing registration No. CG–04– DN–7500 owned by the appellant herein and being driven by respondent No. 3 on Telibandha Road, Raipur. Admittedly, the offending vehicle was not insured. 3) The claimants are the unfortunate widow and son of the deceased– Pradeep Kumar Agrawal. They filed a claim case under Section 166 of the MV Act inter-alia on the ground that at the time of the accident, the age of the deceased was 66 years, he was earning Rs. 15,000/- and claimed Rs. 33,47,245/- as compensation. The driver and owner of the offending vehicle (INNOVA car) filed their reply and denied the averments raised in the application. They specifically pleaded that the INNOVA car was parked on the left-side of the road and the driver (respondent No. 3) was waiting for the owner (appellant) and at the same time, the deceased while driving his car rashly dashed his car in the broad day light from the rear-side. 4) The learned Tribunal framed issues and parties led their evidence; the driver of the offending vehicle was examined as NAW/1, who deposed that the offending vehicle was stationary when it was dashed by the car of deceased. The evidence adduced by NAW/1 remained uncontroverted. Admittedly, there was no eye-witness to the scene. 3 Wife of the deceased who was examined as AW/1 deposed that the driver of INNOVA car overtook the deceased’s car and suddenly applied brakes and as a result, the vehicle of the deceased dashed the offending vehicle. She is a hear-say witness and has admitted the fact that she was narrated about the incident by someone else. The Tribunal though framed an issue with regard to the contributory negligence but found it not-proved and held that even if the offending vehicle was in a stationary position, it cannot be concluded that the offending vehicle had not caused the accident. It was also held that there were contradictions in the evidence of the owner and driver of the offending vehicle. 5) Learned counsel appearing for the appellant–owner submits that the learned Tribunal only on the basis of conjecture and surmises decided the issue of contributory negligence in negative. He further submits that there was no eye witness to the incident and the driver of the offending vehicle has admitted that the INNOVA car was in a stationary position. He contends that though there is a discrepancy in the evidence led by the owner and driver but on that ground alone, it should not have been held by the Tribunal that there was no contributory negligence on the part of the deceased. In support thereof, he placed reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Raj Rani & Ors. Versus Oriental Insurance Company Limited & Ors. 1 . 6) On the other hand, learned counsel appearing on behalf of respondents No. 1 and 2–claimants submits that the offending vehicle was in moving condition and after overtaking the MARUTI-800, its driver suddenly applied brakes and the deceased dashed his car from 1. (2009) 13 SCC 654 4 the rear. She further submits that even if the vehicle is assumed to be in a stationary position, parking lights or signal lights were not operating and the vehicle was parked contrary to the motor vehicle rules. She contends that the Tribunal has rightly decided the issue of contributory negligence in negative against the appellant. She has placed reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Sushma Versus Nitin Ganapati Rangole & Ors. 2 . 7) Learned counsel appearing for respondent No. 3–driver supports the contention raised by Mr. Asgar. 8) Heard learned counsel for the parties and perused the record. 9) In the matter of Sushma (supra), the Hon’ble Supreme Court has elucidated the position with regard to the parking of a vehicle in public place after dealing with various provisions of the Motor Vehicle Act and rules and has held that “every vehicle should be parked or abandoned or remain at rest in a public place or in such a condition in such a way that it does not cause or is not likely to cause danger, obstruction or undue convenience to other road users”. It is further held that “if a vehicle is parked on a highway or a public road, the driver of such vehicle should use signal or parking lights”. It is also held that “had the accident taken place during the daytime or if the place of accident was well illuminated, then perhaps, the car driver could have been held equally responsible for the accident by applying the rule of last opportunity.” The relevant para of the aforementioned judgment is reproduced herein below:- “33. These legal provisions leave no room for doubt that the person in control of the offending truck acted 2. 2024 SCC OnLine 2584 5 in sheer violation of law while abandoning the vehicle in the middle of the road and that too without taking precautionary measures like switching on the parking lights, reflectors or any other appropriate steps to warn the other vehicles travelling on the highway. Had the accident taken place during the daytime or if the place of accident was well illuminated, then perhaps the car driver could have been held equally responsible for the accident by applying the rule of last opportunity. But the fact remains that there was no illumination at the accident site either natural or artificial. Since the offending truck was left abandoned in the middle of the road in clear violation of the applicable rules and regulations, the burden to prove that the placement of the said vehicle as such was beyond human control and that appropriate precautionary measures taken while leaving the vehicle in that position were essentially on the person in control of the offending truck. However, no evidence was led by the person having control over the said truck in this regard. Thus, the entire responsibility for the negligence leading to the accident was of the truck owner/driver.” 10) The Hon’ble Supreme Court in the matter of Raj Rani (supra) while dealing with the issue of contributory negligence held that “in a case where the truck was stationary, some part of negligence on the part of the deceased cannot be ruled out”. Relevant paras of the aforementioned judgment are reproduced herein below :- “18. The principle of 50:50 in cases of contributory negligence has been discussed and applied in many cases be fore this Court. In Krishna Vishweshwar Hede v. Karnataka SRTC7 this Court upheld the judgment of the Tribunal assessing the ratio of liability 6 at 50:50 in view of the fact that there was contributory negligence on the part of the appellant and fixed the responsibility for the accident in the ratio of 50:50 on the driver of the bus and the appellant. 19. In this case. the tuck was stationary. Some amount of negligence on the part of the deceased cannot be ruled out. Hence in the instant case. We t find that there was contributory negligence on the part of the deceased and accordingly the claimant was entitled to only 50% of the total amount of loss of dependency. 20. The question now arises for consideration is as to whether the Tribunal could have made a further deduction of 1/3rd from the amount of compensation on the rationale that the amount is being paid in a lump sum. We do not think so. Few decisions of this Court may be noticed in this regard.” 11) In the present case, the accident took place in broad day-light and there is contradictory evidence with regard to the stationary or moving condition of the INNOVA car. If the offending vehicle was in moving condition; it overtook the car of the deceased and suddenly applied brakes and the car of the deceased dashed the INNOVA car from the rear, even then there was some amount of contributory negligence on the part of the deceased. The deceased could have applied brakes too. Also, if for the sake of arguments, if INNOVA car was stationary and parked on the left side of the road but the signal was not given and the vehicle of the deceased dashed it from the rear, then it can safely be construed that there was some amount of contributory negligence on the part of the deceased. 12) Taking into consideration the facts discussed above and the law laid down by the Apex Court in the matters of Raj Rani (supra) and 7 Sushma (supra), in the opinion of this Court, the learned Tribunal erred in law while deciding the issue of contributory negligence in negative against the driver and owner of the offending vehicle. 13) It is held that the ratio of contributory negligence would be 60 : 40 (driver & owner : deceased) and the driver and owner of the offending vehicle shall be liable to pay 60% of the award amount passed by the Tribunal to the claimants. 14) It is informed by Mr. Asgar that 50% of the award amount with interest has already been deposited by the appellant and the same has been withdrawn by the claimants. Therefore, it is directed that the remaining part of the award amount with interest shall be deposited by the driver of the offending vehicle within a period of 60 days from today. 15) Accordingly, the appeal stands partly allowed. Sd/- Rakesh Mohan Pandey JUDGE Ajinkya Digitally signed by AJINKYA PANSARE Date: 2025.06.23 14:21:46 +0530