Delhi High Court
Reliance General Insurance Co ... vs Ashok Kumar & Anr. on 11 May, 2017
$~11 & 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 11th May, 2017
+ MAC.APP. 145/2017 & CM No.6135/2017
RELIANCE GENERAL INSURANCE CO LTD. ..... Appellant
Through: Mr. Rajeev M. Roy, Advocate.
Versus
ASHOK KUMAR & ANR. ..... Respondents
Through: Mr. Manish Maini, Advocate for
Respondent No.1.
+ MAC.APP. 147/2017 & CM No.6139/2017
RELIANCE GENERAL INSURANCE CO LTD. ..... Appellant
Through: Mr. Rajeev M. Roy, Advocate.
Versus
PREMA DEVI & ANR. ..... Respondents
Through: Mr. Manish Maini, Advocate for
Respondent No.1.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. These appeals under Section 173 of the Motor Vehicles Act, 1988
impugn the common Award dated 17.11.2016 passed in DAR No.D-200/14
awarding compensation of Rs.2,92,464/- and Rs.5,17,450/- with interest at
the rate of 12% per annum to respondent No.1 respectively in each appeal
for the injuries suffered on account of the motor vehicle accident. The
MAC.APP.Nos.145 & 147 of 2016 Page 1 of 5
vehicle was insured with the appellant. Accordingly, the liability has been
fixed on it. The appellant contends that there is a contributory negligence on
behalf of the respondents, since the cycle-rickshaw in which the respondents
were travelling was being driven on the wrong side of the road, therefore, to
some extent, the awarded amount should be reduced.
2. The Tribunal has dealt with this contention as follows:-
"11. During cross-examination by R1, PW-1. and 2
stated that rickshaw was on the wrong side of the
road/ flyover. It is correct that they were going in lane
meant for vehicles coming from the front side where
vehicles from other side. is not ail owed. His
statement was recorded in the hospital. The rickshaw
puller also sustained injuries in the accident. The
suggestion is denied that accident has taken place due
to their negligence as rickshaw was on the wrong
side.
12. During cross-examination by R2, the
suggestion is denied by PW-1 and 2 that they have
compelled the rickshaw puller to go on the wrong side
or accident has taken place due to their negligence.
13. I have heard ld. Counsel for the parties and
perused the record. The testimony of PW-1 and 2 is
material in nature as they are the victims. It is clear
from the evidence on record that PW-1 and 2 were
going on a cycle rickshaw and reached at 5.00 p.m. at
Flyover, Anand Vihar, Delhi. One Xylo Car bearing
no. UP-14CT-1700 being driven by respondent no. 1
came in a high speed and in a rash and negligent
manner hit against cycle rickshaw as a result both of
them fell down and sustained injuries. The respondent
no. 1 stopped his vehicle after the accident. They were
removed to Dr. Hedgewar Hospital by PCR Van. The
accident has taken place due to the rash and negligent
MAC.APP.Nos.145 & 147 of 2016 Page 2 of 5
(sic) of respondent no. 1. Respondent no. 1 has taken
the defence that no accident has taken place with his
vehicle. The defence does not inspire confidence. No
question or suggestion is put to PW-1 and 2 that
respondent no. 1 has not hit his car against their cycle
rickshaw or he was not driving the car in a rash and
negligent manner. Their testimony on material
aspects of the case has gone unrebutted. Respondent
no. 1 has not put his defence to PW-1 and 2 for the
reasons best known to him. The mechanical inspection
report shows that front portion of the car has been
damaged which corroborates the version of PW-1 and
2 that car hit the cycle rickshaw from the front side.
FIR has been registered against respondent no. 1. He
has not made any complaint against the IO to his Sr.
Officials in case he has not caused any accident. All
these facts show that his defence is without any
merits. Respondents have failed to shatter PW-1 and 2
during the course of their cross-examination.
14. The testimony of PW-1 and 2 shows that cycle
rickshaw was on the wrong side. The rickshaw puller
might be at fault but that is no ground to conclude
that there was any contributory negligence on the part
of PW-1 and 2."
In view of the clear reasons and sound conclusion arrived at, the
Court finds no reason to interfere with it.
3. It is not in dispute that the rickshaw was not being pulled by the
injured passengers but by the rickshaw puller. They may have protested it
being taken on the wrong side of the road but the passenger could not have
jumped off the rickshaw to stop it while it was still moving. The latter
course would be daring, adventurous and fraught with serious threat of
corporal injury. The accident had happened at about 5.00 pm on 9th March,
MAC.APP.Nos.145 & 147 of 2016 Page 3 of 5
2014. On that date, sunset in Delhi happened at 6.20 p.m., therefore, at 5.00
p.m. there would have been sufficient day light for the driver in the
offending vehicle to see anybody coming in its direction. Yet if despite such
apparent visibility, if a human pedalled cycle rickshaw could not be avoided
from crashing into them, the only conclusion which can be drawn is that the
offending vehicle was being driven at a high speed in a rash and negligent
manner. This conclusion has been logically arrived at by the Tribunal after
taking into consideration the evidence on record.
4. The other ground contended by the appellant is that instead of
awarding interest at the usual rate of 9% per annum on the compensation
amount, the impugned Award grants the interest at 12% per annum. The
Court finds reason in the said contention. Accordingly, keeping in view the
decisions of the Supreme Court in Municipal Corporation of Delhi, Delhi
Vs. Association of Victims of Uphaar Tragedy and Ors. (2011) 14 SCC 481
and also of this Court in the case of National Insurance Co. Ltd. Vs. Komal
& Ors. 2014 ACJ 1540, the interest rate applicable would be 9% per annum.
4. In the circumstances, the appeals are allowed only on this count and
the order of the Tribunal is modified to the extent of reducing the rate of
interest from 12% per annum to 9% per annum. The amount of
compensation shall be payable at the rate of 9% per annum from the date so
specified in the Award.
5. It is noted that by order dated 15.02.2017 that this Court stayed the
execution of the impugned Award and directed the appellant to deposit the
awarded amount alongwith interest at the rate of 9% per annum. The
amounts so deposited by the appellants shall be released to the respective
beneficiaries in terms of the Award. Should there be any shortcoming in
MAC.APP.Nos.145 & 147 of 2016 Page 4 of 5
satisfying the Award, the appellant shall make good the same. The statutory
amount shall be released to the appellant. After the digitization of the Trial
Court record within two weeks, it shall be returned to the Tribunal
concerned.
6. The appeals along with pending applications stand disposed off in the
above terms.
NAJMI WAZIRI, J.
MAY 11, 2017 sb MAC.APP.Nos.145 & 147 of 2016 Page 5 of 5