New India Assurance Company Ltd. vs Kunti Devi & Others
2010 Latest Caselaw 5403 Del

                                    REPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     MAC APP. NO.109/2009


NEW INDIA ASSURANCE COMPANY LTD.         ..... Appellant
             Through: Mr. D.K. Sharma, Advocate.

             versus


KUNTI DEVI AND ORS..                                ..... Respondents
             Through:           Mr.Sajan K. Singh, Advocate, for the
                                respondents no.1 to 6.

%                         Date of Reserve : November 10, 2010
                          Date of Decision : November 29, 2010

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?


: REVA KHETRAPAL, J.

1. By way of this appeal, the appellant seeks to assail the Award

dated 27th September, 2008 passed by the Motor Accident Claims

Tribunal awarding a sum of ` 8,74,000/- along with interest @ 7.5%

per annum from the date of the filing of the petition till realization,

passed in favour of the respondents no.1 to 6.

2. The brief facts necessary for the disposal of the present appeal

are delineated as follows: On 31st December, 2005 at about 9.20

p.m. the motorcycle of one Mahender Pratap Singh (hereinafter

referred to as „the deceased‟) was hit by a tempo bearing registration

no. RJ-02-G-3961 on the main Ring Road, near the red light of Maya

Puri Fly Over. The deceased was removed to DDU Hospital where

he was declared "brought dead." A claim petition under Section 166

of the Motor Vehicles Act, 1988 was filed on behalf of his widow, his

three minor children and his parents (the respondents no.1 to 6

herein), against the driver (respondent no.7 herein), the owner

(respondent no.8 herein) and the insurer (the appellant herein) of the

offending vehicle. The respondents no.7 and 8 did not contest the

petition and were proceeded ex parte in default of appearance. The

appellant also denied the claim of the petitioners, though admitted the

fact that the offending vehicle stood insured with it on the date of the

accident.

3. The sole ground on which the award has been assailed by the

appellant is that the learned Tribunal erred in relying upon the

evidence of PW2, Sh. Narender Sharma, the alleged eye-witness. Mr.

D.K. Sharma, the learned counsel for the appellant contended that the

First Information Report had been registered on the statement of

R3W2, Sh. Ankur Patni, at 9.25 p.m., who was unable to give the

registration number of the offending vehicle to the police. It was on

1st March, 2006 that the police was informed about the registration

number of the vehicle, i.e. two months after the accident and the

petition itself was filed on 4th September, 2006. In such

circumstances, the learned counsel contended that the finding

rendered by the Tribunal with regard to the rash and negligent driving

of the respondent no.7 (the respondent no.1 in the claim petition) was

wrong.

4. It may be noted at this stage that the respondents no.7 and 8,

the driver and owner of the offending vehicle, though duly served

with the notice of the filing of the appeal did not care to appear and

were accordingly proceeded ex parte. Mr. Sajan K. Singh, the

learned counsel for the respondents no.1 to 6, however, sought to

rebut the contentions raised by the appellant by pointing out that

neither the respondent no.7 nor the respondent no.8 in their respective

written statements filed before the learned Tribunal had denied the

factum of the accident with their vehicle and as a matter of fact, both

the respondents in paragraph 10 of their respective written statements

had alleged contributory negligence on the part of the deceased. This

being so, it was not open to the appellants to contend that the

testimony of PW2, Sh. Narender Sharma, should be brushed aside

merely on account of the fact that he was tardy in forwarding the

vehicle number of the offending vehicle to the police.

5. A look now at the affidavit by way of evidence tendered by the

PW2, Sh. Narender Sharma, before the Tribunal, which is reproduced

hereunder in its entirety and reads thus:

"Affidavit of Shri Narender Sharma, son of Shri B L Sharma, resident of RZG-105, Vishwas Park, Uttam Nagar, New Delhi.

I, the above named deponent do hereby, solemnly affirm and declare as under :

1. That the deceased Shri Mahender Pratap Singh was my friend and was working in the same company with me as Senior Machine Operator and drawing of Rs.6,000/- per month apart from other benefits and allowances. Apart from his regular job, he was also working part time as Consultant with the various Printing Press concerns and also earning about Rs.4,000/- to 4,500/- per month.

2. That on 31.12.2005, both of us were going to attend our duty on our respective motor cycle from the residence of the deceased at a normal speed taking due care and caution as well as by following the traffic rules.

3. That on 31.12.2005 at about 9.20 p.m., when we reached at Main Ring Road, Near Mayapuri flyover, New Delhi, a Tata Tempo bearing no.RJ-02-G-3961 had come from behind, driven by respondent no.1 Shri Sharwan Kumar rashly and negligently, and hit the deceased. As a result of the impact, deceased had fallen down and sustained multiple fatal injuries. After the accident, the driver of the offending tempo had fled away from the spot. I had chased the offending vehicle and noted down the number of the offending vehicle in my diary. But unfortunately my diary was misplaced when the same was found I had informed the police about the number of offending vehicle.

4. That the accident in question had happened only because of rash and negligent driving of the respondent no.1 who was driving the tempo in question very rashly and negligently."

6. In the course of his cross-examination, PW2, Sh. Narender

Sharma, reiterated that he had chased the offending vehicle and noted

down its number. He also volunteered to state that on 1st March, 2006

he had given in writing to the SHO regarding the fact that he was an

eye-witness to the accident, certified copy whereof was on record as

Ex.PW1/A. He explained that he had lost his diary in which he had

noted the number of the offending vehicle but had found the same

after about 8 days. Thereafter, he had gone to Alwar as the police had

asked him to enquire about the vehicle whose number had been

written by him in his diary.

7. The evidence of PW2, Sh. Narender Sharma, is corroborated by

the evidence of R3W2, Sh. Ankur Patni, who was also an eye-witness

to the accident. In the course of his testimony, R3W2 stated that on

31st December, 2005, he witnessed a truck hitting a motor cycle at the

Mayapuri Fly Over while he was going from Naraina to his house at

New Rajender Nagar, Delhi, in his Santro Car. The motorcycle was

going ahead of the truck and the truck had hit it from the back. The

truck was at the speed of 40-50 kmph and the accident had happened

because of the negligence of the truck driver. As a result of the

impact, the motorcyclist had fallen and his skull had come under the

tyres of the truck. He, however, stated that he did not follow the truck

as the truck driver had fled away from the spot after the accident.

Interestingly, this witness in cross-examination stated that there was

one more motorcyclist there at the time of the accident.

8. The aforesaid statement of R3W2 also finds support from the

death report wherein the name of PW2 Sh.Narender Sharma is

mentioned. PW2, Sh. Narender Sharma cannot therefore, be called a

planted witness, as is sought to be made out by the learned counsel

for the appellant. It is not in dispute that the deceased and PW2

Narender Sharma were working as machine operators in the printing

press belonging to the same company, viz., Swan Press, B-71,

Naraina Industrial Area, Phase-II, Delhi. Both the deceased and the

PW2 were residing at Uttam Nagar, which is apparent from the

statements of PW1, Smt. Kunti Devi (the widow of the deceased) and

PW2 himself, recorded by the learned Tribunal. Both were bound for

the same destination at the fateful hour and were proceeding on their

respective motorcycles to the printing press where they were working.

PW2 has testified that he had chased the offending vehicle in order to

note down the number of the offending vehicle and his testimony

stands corroborated by the fact that the eye-witness to the accident

produced by the appellant itself, i.e. R3W2, Mr. Ankur Patni, testified

that the truck driver had fled away from the spot after the accident

and was chased by some people. He also stated that there was one

more motorcyclist there at the time of the accident.

9. In view of all the aforesaid facts and circumstances taken

cumulatively, I find no reason to doubt the testimony of PW2, Sh.

Narender Sharma, who was neither related to the deceased nor had

any axe to grind with the Insurance Company. The report filed by the

said witness with the SHO, Police Station Kirti Nagar, Delhi, dated 1st

March, 2006 further lends credence to his version. There also does

not appear to be any plausible reason as to why the driver and the

owner of the offending vehicle would unequivocally admit in their

written statements that the accident was caused by the offending

vehicle. Their only defence that the deceased was guilty of

contributory negligence further fortifies the version of the

respondents no.1 to 6 that the accident was caused by the offending

vehicle.

10. In view of the aforesaid discussion, there is no merit in the

present appeal. The same is accordingly dismissed.

REVA KHETRAPAL (JUDGE) November 29, 2010 sk