- (1.) The appellants/claimants have preferred this misc.appeal claiming the following relief :- "It is, therefore humbly prayed that the appeal may kindly be accepted, the impugned award passed by the learned Motor Accident Claims Tribunal, Sojat City dated 08.08.2012 be kindly ordered to be set aside and while accepting the claims petition filed by the claimants an award of Rs.1,02,08,300/- with interest @ 12% from the date of filing the application for compensation on 31.07.2007 till realization be kindly passed in favour of the claimants against the respondents no.1 to 3 jointly and severally with costs throughout."
(2.) Brief facts as noticed by this Court are that late Shri Omprakash Mutha was posted as Divisional Manager, Oriental Insurance Company Ltd. (O.I.C.), Pali. He along with one late Shri Satyanarayan Meena, Divisional Manager, O.I.C., Sirohi, left Pali for Jaipur to attend meeting of the company in the night on 16/17.3.2007 in Car No. RJ24-C-2121. A Trolla bearing no. HR55-D-5697 was approaching Saini Hotel in Baghawas village situated between Pali and Sojat from the side of Pali in the same direction as was the deceased. It is claimed that the driver of the Trolla suddenly applied brakes negligently as a result thereof the car dashed into the trolla despite taking all due necessary precautions of applying the brakes etc. Late Shri Omprakash Mutha was 46 years of age at the time of accident and drawing monthly salary of Rs.33,123/-and so also, was earning Rs.6,000/- per month by other means. He was an income tax payer and was holding the degrees of M.Com., Ll.B., PG Diploma in Labour Law and Personal Management, C.S., C.A., I.C.W.A. 2.2 The learned Tribunal vide judgment dated 15.10.2009 dismissed the application for compensation against which appeal being S.B. Civil Misc. Appeal No.1479/2009 before this Court. The appeal was partly accepted vide order dated 27.2.2012 and the matter was remanded back to the Tribunal to decide the issue no.1 after taking the evidence of respondent no.1 Kailash Singh (driver of trolla). 2.3 The matter was again dismissed by the learned Tribunal holding no negligence on the part of the trolla in question vide judgment dated 8.8.2012. The learned Tribunal has observed that the site plan reflected that the trolla was on one side of the road and there was no sign of any brakes being applied. The learned Tribunal observed that the car in which the deceased was travelling applied the brakes and the brake marks started 42 feet behind the trolla. The learned Tribunal has also held that 42 feet was a long distance and even applying the brakes, if a car cannot be controlled uptil 42 feets, then the negligence of the car driver was apparent. The learned Tribunal has also discussed the evidence of the driver respondent no.1 Kailash Singh who has deposed that the trolla was under repair and was standing at the same place on account of mechanical fault ; the indicator was on and stones were put around the truck. The learned Tribunal has thus concluded that sufficient precautions were taken by the driver.
(3.) Learned counsel for the appellants submits that the learned Tribunal has also evaluated both the positions when the trolla would be standing where it is and secondly, when the trolla applied sudden brakes, then in both the conditions, the negligence of the driver was proved. Learned counsel for the appellants has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Archit Saini vs. Oriental Insurance Company Ltd. (Civil Appeal Nos.7300-7309/2016, the relevant portion whereof reads as follows :- "2. The sole question raised in the present appeals is about the justness and tenability of the approach of the High Court in reversing the finding of fact recorded by the Tribunal on the factum that the motor accident which occurred on 15 th December, 2011 at about 10.30 P.M. was due to parking of the offending vehicle bearing No.HR02AF8590 (Gas Tanker) in the middle of the road in a negligent manner. 3. In the petition for compensation filed before the Motor Accident Claims Tribunal (for short, "the Tribunal"), it was alleged that the accident was caused due to parking of the offending Gas Tanker in the middle of the road without any indicator or parking lights. The claimant examined the eye witness Sohan Lal (PW7) who, in his affidavit, gave an account of the cause of accident in the following words: "... That on 15.12.2011 at about 10.30 P.M. I along with P.H.G. Ajit Singh was present near Sanjha Chulha Dhaba, on the National Highway, (which leads to Jammu) in the area of Village Ajijpur, P.S. Sujanpur. At that time all the traffic was diverted on the Eastern side of the road, as the Western side of road was closed due to construction work. In meantime, a Maruti Car No.HR 02K/0448 came from Jammu side (Madhopur side) and struck against the back of the Gas Tanker as the driver of car could not spot the parked tanker due to flash- lights of the oncoming traffic from front side. Then we rushed towards the spot of accident, and noticed that the said tanker was standing parked in middle of the road, without any indicators or parking lights. Due to the accident the car was damaged extensively. The driver of the Car and a lady sitting by his side, died at the spot. Two children, who were on the rear seat of car were also injured." (emphasis supplied) ;