1. Instant appeal has been preferred by the claimants/appellants against the impugned judgment and award dated 07.03.2002 passed by Motor Accident Claims Tribunal, Jaipur District, Jaipur in MAC No.388/1998 by which the claim petition filed by the claimants-appellants has been dismissed.

2. Counsel for the appellant submits that a claim petition was submitted by the claimants before the Tribunal stating that deceased Avatar Singh was driving vehicle cantor No.HNA-8680. When he reached about one and a half kilometer ahead of Dantri, accident occurred due to parking of a truck No.RJ-14-9972 on the road without parking lights and without showing any signals on the road. It was also stated in the petition that in absence of the precautions taken by the driver of aforesaid vehicle, the accident occurred, due to which Avatar Singh received injuries, which resulted into his death.

3. In spite of service of notice the driver did not appear before the Tribunal, hence, ex parte proceedings were initiated against him and despite service of notice, no reply was submitted by the respondent No2 and hence his opportunity of filing the reply was closed. The Insurance Company submitted its reply and denied the averments made in the claim petition, wherein it was mentioned that on the date of accident, the driver was not having any valid license, hence, the Insurance Company is not liable to make payment of compensation. A plea was also taken by the Insurance Company that no information was given about the accident, hence, there was breach of terms and conditions of the policy. On the basis of the pleadings of the parties, the Tribunal framed as many as 5 issues. Thereafter, evidence of claimants and other witnesses were recorded before the Tribunal. While deciding issue No.1, the Tribunal recorded the finding that the accident occurred because of the negligent driving of the deceased himself and accordingly the claim petition was dismissed.

4. Learned counsel for the appellant submits that bare perusal of the FIR lodged by one Satnam Singh indicates that because of puncture of canter No. HR-29A-2782, the vehicle was parked on the side of the road. Thereafter, a vehicle came from behind i.e. No.RJ-14-9972 and that was also parked at the distance of 75 yards. After ten minutes, a vehicle bearing No.HNA-8680 came from Ajmer side and struck against the rear portion of the vehicle bearing No.RJ-14-9972, due to which the driver of the vehicle sustained injuries and expired. Thereafter, FIR No.451/1995 was registered and site plan was prepared and final report negative was submitted.

5. In support of the claim petition, the claimants examined two witnesses namely Bhajan Singh and Balwinder Singh, who deposed before the Tribunal that the vehicle bearing No.RJ-14- 9972 was parked on the road side without lighting the backlights and because of that the accident has occurred.

6. Learned counsel submits that discarding the statements of these two witnesses, the Tribunal has decided issue No.1 against the claimants by treating it a case of 100% negligence on the part of the deceased. Counsel submits that as per Rule 15 of the Rules of the Road Regulations, 1989 (for short ‘the Rules of 1989’), every driver of a motor vehicle parking on any road shall park in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users and the manner of parking is indicated by any sign board or markings on the road side, she shall park his vehicle in such manner.

7. Counsel submits that here in the instant case, the driver of vehicle bearing No.RJ14-9972 has not followed the above precautions as per rule 15 of the Rules of 1989. The accident occurred in the night at 11.00 PM, when the aforesaid vehicle was not visible because of the non-user of any indicators or reflectors or any parking lights. Counsel submits that under these circumstances, the Tribunal has not committed any error in rejecting the claim petition.

8. Counsel submits that this may be a case of contributory negligence on the part of drivers of both the vehicles but in any case, this cannot be treated as a case of 100% negligence on the part of the deceased. In support of his contentions, he has placed reliance on the judgments of this Court in the case of Sohan Lal & anr. Vs. Bal Swaroop Bal Bhatnagar & Ors. Reported in 1987 ACJ 113 and Smt. Rajan Devi & Ors. Vs. Sajjan Singh & Ors. In SB Civil Misc. Appeal No.26/2002. Hence, he prayed that interference of this case is warranted.

9. Per contra, learned counsel for the respondents opposed the arguments raised by counsel for the appellant and supported the findings recorded by the Tribunal and further submitted that the Tribunal has not committed any error in rejecting the claim petition. Counsel submits that the driver of vehicle No.RJ-14-9972 was not supposed to add the mandate under Rule 15 of the rules of 1989, as the vehicle was not standing there in a parking position. The vehicle came after ten minutes and the driver of the said vehicle was sitting inside. Hence, in view of Section 126 and 127 of the Motor Vehicles Act, the Tribunal has recorded a cogent reasoning and finding, which is not required to be interfered by this Court.

10. Counsel submits that AW2 Bhajan Singh and AW3 Balwinder Singh are not the eye witnesses of the accident, hence, there police statements were not recorded during the course of investigation. Counsel submits that considering the material available on record, the impugned order has been passed.

11. Heard. Considered the arguments of rival sides and perused the impugned judgment.

12. This fact is not in dispute that the accident has occurred at 11 PM in the night on 09.09.1995. This fact is also not in dispute that the vehicle bearing No.HR29A-2782 was parked in the side of the road and this fact is also not in dispute that the other vehicle bearing No.RJ-14-9972 was also lying in a standing position behind the back of this vehicle. The accident has occurred from the rear side of the vehicle bearing No.RJ-14-9972.

13. Now the only question which remains for consideration of this Court is that whether there was 100% negligence on the part of the deceased or not.

14. As per the evidence submitted by the claimants before the Tribunal, this fact has been brought into notice of the Tribunal that the back light of the vehicle No.9972 was not on and the vehicle bearing No.8680 came and struck against the rear portion of vehicle No.9972 and the driver sustained injuries and died subsequently. There is no such reply submitted by either of the non-applicants that all precautional measures as contained under Rule 15 of the Rules of 1989 were followed. There is no such evidence available on the record that the reflector or the indicators of the vehicle bearing No.9972 was on, so with no stretch of imagination it cannot be believed that the accident has occurred only because of rash and negligent driving of the deceased. This may be a case of contributory negligence as this Court has dealt with this issue in the cases of Sohal Lal (supra) and Rajan Devi (supra).

15. Under these circumstances, the matter requires reconsideration in the light of the judgments referred above. Hence, the impugned judgment dated 07.032002 passed by the Tribunal is quashed and set aside and the matter is remanded back to the Tribunal to decide it afresh after affording opportunity of hearing to both sides.

16. The parties are directed to appear before the Tribunal on 29.09.2022.

17. Since the matter pertains to the year 1995, the Tribunal is expected to decide the matter afresh within a period of six months from the date of appearance of the parties before the Tribunal.

18. As discussed above, the present appeal is disposed of.

19. All pending application(s), if any also stand disposed of.