Krishan Kumar vs Chander Pal & Ors.
2009 Latest Caselaw 3161 Del

10
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                    +      FAO.No.825/2003

                             Date of Decision: 13th August, 2009
%


      KRISHAN KUMAR                       ..... Appellant
                   Through : Ms. Richa Kapoor, Adv.

                  versus

      CHANDER PAL & ORS.                ..... Respondents
                   Through : Mr. M.L. Sharma and
                             Mr. P.K. Sharma, Advs.
                             for R - 1 and 2.
                             Mr. K.L. Nandwani, Adv.
                             for R - 3.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may              YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?             YES

3.      Whether the judgment should be                     YES
        reported in the Digest?


                        JUDGMENT (Oral)

1. The appellant has challenged the award of the learned

Tribunal whereby the claim petition was dismissed.

2. The accident dated 31st January, 1995 resulted in the

injuries to the appellant. On 31st January, 1995 at about

1:40 pm, the appellant was driving his two wheeler scooter

and when he reached Prem Piao and Nangal turn near Delhi

Police Lane on Kanjhawala Road, Delhi, he met with an

accident with truck bearing No.H-26-6155 coming from the

opposite side. The appellant filed the claim petition against

the driver, owner and insurance company of the truck.

3. The driver and owner of the offending truck filed a joint

written statement dated 21st September, 1995 in which it

was stated that the appellant over took the parked truck all

of a sudden and tried to cross the road in haste and received

injuries.

4. Paras 1 and 23 of the written statement of respondent

Nos.1 and 2 are reproduced herein:-

"1. That the present petition is without any cause of action as the alleged accident is not the result of negligence and rashness of the respondent no.1. The petitioner is taking advantages of his own wrongs. The respondent no.1 was driving the Truck No.,H-26-6155 at normal speed in the right direction and at correct side. The petitioner came after crossing a truck all of sudden. The truck was parked at the edge of the road. Without seeing and without caring the injured tried to cross the road in haste and received injured on his person of simple nature. The petition is liable to be dismissed against the replying respondents."

"23. Para 23 of the petition is wrong and denied. It is submitted that the respondent no.1 was driving the vehicle at a very modest and slow speed in the right side when the petitioner jumped on the road after crossing a parked vehicle. He was driving the two wheeler scoter in a most negligent manner and at a very fast speed. He came into contact with the truck and fell down on the ground and sustained only some abrasions. He was discharged after first aid and he had not spent any amount on his treatment".

5. The driver of the truck appeared in the witness box as

RW-1 and took a contradictory stand. RW- 1 deposed that a

DTC bus was coming from the opposite direction and the

appellant over took the DTC bus and on seeing the truck, he

applied sudden brakes which resulted in skidding of the

scooter due to which he fell down and sustained injuries. It

was further stated that no injuries were caused by the truck.

Paras 5 to 10 of the evidence of respondent No.1 are

reproduced herein:-

"5. That when the deponent reached between Bawana and Kanjhwala and was coming with low speed on his correct side i.e. left of the road which has no devider in between the road was in only wide and can permit crossing of one up and one down vehicle at a time.

6. That a TDC Bus coming from opposite direction i.e. doing to Bawana was about to cross the truck of the deponent.

7. That the petitioner who was following the DTC Bus, was at high speed and without caring from the opposite traffic attempted to overtake the DTC Bus.

8. That the petitioner suddenly at High speed started over taking DTC Bus and was seeing the truck of the deponent, he applied sudden break which resulted in skidding of the scooter and petitioner fell down on road hence sustained injuries due to his own negligency.

9. That this incident witnesses by Sh. Radhubir Singh who was travelling in Cabin along with the deponent.

10. That no injury was sustained from the truck of the deponent."

6. The eye witness, Raghubir Singh appeared as R1/RW-2

and repeated the same statement as given by the driver of

the offending truck.

7. The owner of the truck appeared as RW-2 and

altogether denied the accident between the scooter and the

truck.

8. The officer of the Insurance Company appeared in the

witness box as R3W1 and deposed that the policy was

cancelled before the accident due to dishonour of the cheque

towards the premium.

9. The site plan of the accident was prepared by the police

which shows that the accident occurred at point „A‟ and the

truck dragged the scooter for a considerable distance up to

point „B‟.

10. The photographs of the accident were also exhibited

before the learned Tribunal which show that the scooter was

entangled between the wheels and the scooter appears to

have been dragged by the truck.

11. The learned Tribunal held that the truck was on the

correct side of the road and the scooter had come on the

wrong side and, therefore, there was no negligence of the

truck driver. The learned Tribunal placed credence on the

statement of the driver of the offending vehicle. The driver

of the offending truck is unworthy of credit in as much as he

made absolute contradictory statement in the written

statement and the evidence which aspect has not been

considered by the learned Tribunal. Although the truck was

on the correct side of the road and the scooter came on the

wrong side which resulted in the accident but the driver of

the truck cannot be absolved altogether because he hit the

scooter and dragged it for a considerable distance. A person

driving the vehicle on the road on the correct side has no

right to hit any person who comes on the wrong side. Due

care and caution has to be exercised by all drivers of the

motor vehicles on the road and even if a person comes on

the wrong side, the driver of the motor vehicle has a duty to

take all measures to avoid the accident. The finding of the

learned Tribunal with respect to the negligence is, therefore,

set aside. It is held that the accident occurred due to the

contributory negligence of the appellant as well as the driver

of the truck and they are equally responsible for the

accident.

12. With respect to the insurance of the offending truck, it

has come in evidence that the offending truck was insured

with respondent No.3 but since the cheque was dishonoured,

respondent No.3 cancelled the policy before the date of the

accident. However, there is no evidence on record that the

intimation of cancellation of the policy was sent to the

Transport Authority.

13. It is well settled that the Insurance Company remains

liable towards the third party till the time intimation is sent to

the Transport Authority.

14. The learned Tribunal has not given any finding on the

computation of compensation as well as on the aspect of

liability of Insurance Company and, therefore, this case

needs to be remanded back to the learned Tribunal for

computation of compensation and for ascertaining the

liability of the Insurance Company.

15. The appeal is allowed and the impugned award is set

aside. The matter is remanded back to the learned Tribunal

for adjudication.

16. The learned Tribunal may given opportunity to the

parties to lead further evidence, if deemed necessary, before

deciding the matter.

17. The parties are directed to appear before the learned

Tribunal on 16th September, 2009.

18. Considering that this case relates to the accident dated

31st January, 1995, the learned Tribunal is directed to

expedite the matter and decide the same preferably within a

period of six months.

19. Copy of this order be given „Dasti‟ to learned counsel

for both the parties under signatures of Court Master.

20. The LCR be returned back forthwith.

J.R. MIDHA, J

AUGUST 13, 2009 mk