Delhi High Court
Chander Bahadur Nepali & Anr. vs Maimo @ Mehbho on 29 November, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17th November, 2011
Pronounced on: 29th November, 2011
+ MAC APP. 47/2011
CHANDER BAHADUR NEPALI & ANR. ..... Appellants
Through: Mr. Saqib, Advocate
Versus
MAIMO @ MEHBHO ..... Respondent
Through: Mr. M. K. Sinha, Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellants who are the driver and owner of CRPF Truck
No.HR 38A 2934 impugn the award dated 02.02.2010 passed
by the MACT whereby a compensation of ` 3,75,000/- was
awarded in respect of death of a child Tarun Kumar aged 14
years at the time of accident which took place on 30.09.2006.
The Tribunal while relying on Sudesh v. Jai Prakash, MAC.
APP. No.418/2009 decided on 16.11.2009; Manju Devi v.
Musafir Paswan, VII (2005) SLT 257; Shyam Narain v. Kitty
Tours and Travels, 2006 ACJ 320; R. K. Malik v. Kiran Pal, III
(2006) ACC 261 Delhi High Court; R. K. Malik v. Kiran Pal,
2009 (8) Scale 451 (SC), awarded ` 3,75,000/- along with
interest @ 7.5% per annum.
2. The grounds of challenge are as under: -
(i) The accident took place on account of negligence of
Rajbir Sharma (PW-2), who was the driver of motorcycle
No.DL-3SW-7629 on which the deceased was travelling
as a gratuitous passenger. At least there was contributory
negligence on his part.
(ii) The amount of ` 50,000/- paid along with interest @ 6%
was not ordered to be deducted from the compensation
awarded by the Tribunal by impugned award.
CONTENTION NO.1
3. To prove the negligence the Respondent examined Rajbir
Sharma. He deposed that on 30.09.2006 he was going towards
Gurgaon from Mehrauli on his motorcycle bearing No.DL-
3SW-7629 and deceased Tarun was sitting as a pillion rider.
When they reached at M.G. Road Aya Nagar red light the
offending Truck No.HR-38A-2934 came from behind and
struck against his motorcycle. In cross-examination PW-2
denied the suggestion that he took a right turn suddenly and hit
the offending Truck. The Appellants examined Chander
Bahadur Nepali as R1W1 to testify the defence. The affidavit
Ex. R1W1/X and the case set up in the cross-examination by
Appellant Chander Bahadur Nepali is different from the one set
up in cross-examination of PW-2 Rajbir Sharma. In affidavit
Chander Bahadur Nepali testified that the motorcycle No.DL-
39W-7629 overtook from the left side at a very high speed.
Thus, the Appellant No.1's testimony is not believable. A
criminal case under Section 279/ 304A IPC by FIR
No.699/2006, P.S. Mehrauli was registered against the
Appellant No.1. On the basis of the evidence produced during
the inquiry before the Tribunal including the record of the
criminal case, it was clearly established that the accident took
place on account of rashness and negligence on Appellant
No.1's part.
4. Though, there is nothing to conclude that there was contributory
negligence on the part of motorcycle driver. Even if it is
assumed that the motorcyclist was also at fault even then it was
not a contributory negligence but a composite negligence. In
Bherlal v. Kamal Singh, (2005) 2 TN MAC 39 (Mad), it was
held by the Madras High Court that in case of composite
negligence a third party travelling in one of the vehicles will not
be guilty of contributory negligence. In T.O. Anthony v.
Karvarnani, (2008) 3 SCC 748, which is relied on by the
Appellants it was held as under: -
"6. „Composite negligence‟ refers to the
negligence on the part of two or more persons.
Where a person is injured as a result of negligence
on the part of two or more wrong doers, it is said
that the person was injured on account of the
composite negligence of those wrong-doers. In
such a case, each wrong doer, is jointly and
severally liable to the injured for payment of the
entire damages and the injured perso has choice of
proceeding against all or any of them. In such a
case, the injured need not establish the extent of
responsibility of each wrong-doer separately, nor
is it necessary for the court to determine the extent
of liability of each wrong-doer separately. On the
other hand where a person suffers injury, partly
due to the negligence on the part of another person
or persons, and partly as a result of his own
negligence, then the negligence of the part of the
injured which contributed to the accident is
referred to as his contributory negligence. Where
the injured is guilty of some negligence, his claim
for damages is not defeated merely by reason of
the negligence on his part but the damages
recoverable by him in respect of the injuries stands
reduced in proportion to his contributory
negligence."
5. Thus, in case of composite negligence the claimant could have
proceeded against either of the tort feaser, though on facts I
have found that the accident took place on account of rash and
negligent driving of Appellant No.1.
CONTENTION NO.2
6. The compensation of ` 3,75,000/- was rightly granted on the
basis of Manju Devi v. Musafir Paswan, VII (2005) SLT 257;
Shyam Narain v. Kitty Tours and Travels, 2006 ACJ 320; R. K.
Malik v. Kiran Pal, 2009 (8) Scale 451 (SC). The Appellants,
however, are right to the extent that the interim compensation of
` 50,000/- granted under Section 140 of Motor Vehicles Act
was liable to be deducted.
7. For the aforesaid reasons the Award is modified only to the
extent that the amount of interim compensation shall be
deducted from the final compensation. In case, the full amount
has been deposited the excess amount shall be refunded to
Appellant No.2 and rest of the amount shall be disbursed in
terms of the directions of the Tribunal as contained in para 17 of
the Award.
(G.P. MITTAL)
JUDGE
NOVEMBER 29, 2011
hs
