Delhi High Court
Neelam Sikka vs United India Insurance Co. Ltd. & ... on 30 July, 2012
Author: G.P. Mittal
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30th July, 2012
+ MAC. APP. No.677/2010
NEELAM SIKKA
..... Appellant
Through: Mr. R.P. Sharma, Advocate
Versus
UNITED INDIA INSURANCE CO. LTD. & ORS.
..... Respondents
Through: Mr. S.L. Gupta with Mr. Ram
Ashray, Advocates for the
Respondent No.3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant Neelam Sikka impugns a judgment dated
04.05.2010 passed by the Motor Accident Claims Tribunal(the
Claims Tribunal) whereby while holding that the Appellants were
entitled to the compensation of `20,90,160/-, deducted 80%
thereof as the Claims Tribunal held the deceased Ajay Kumar
Sikka to have contributed to the accident by his negligence to the
extent of 80%.
2. It is urged that had the tanker No.GJ-12U-9687 not been parked
carelessly and negligently, the accident would not have taken place
and thus the Claims Tribunal erred in apportioning contributory
negligence to the extent of 80% on the deceased. It is urged that in
any case the deceased cannot be said to be negligent to the extent
of more than 50%.
3. The Claims Tribunal dealt with the issue of contributory
negligence as under:
"PW-1 Smt. Neelam Sikka, who is mother of
injured Anuj Sikka in Claim Petition bearing No.389/08,
injured herself in Claim Petition bearing No.391/08 and
wife of deceased Shri Ajay Kumar Sikka in Claim
Petition bearing No.393/08, tendered in evidence her
examination-in-chief by way of affidavit Mark Ex.PW-
1/X. She stated therein that on 27/03/2005, she
alongwith her deceased husband Shri Ajay Kumar Sikka
and son Shri Anuj Sikka were coming to Delhi from
Jaipur. Her husband was driving his Hundai Accent Car
bearing registration No.UP-32AS-7200. One tanker
bearing registration No.GJ-12u-9687 was stationed
carelessly in front of Vikas Dharam Kanta near
Manoharpur on Delhi-Jaipur Highway. When the
vehicle of the deceased was about 100 meter away from
stationed vehicle, a boy about 20 years of age abruptly
ran to cross the road towards the side of Vikas Dharam
Kanta. To save the boy, the deceased slowed down his
vehicle and while doing so, he had to take his vehicle
towards his left side. Thus, his vehicle had hit the
stationed vehicle from the backside. As a result thereof,
Shri Ajay Kuamar Sikka had died and she and Shri Anuj
Sikka had sustained grievous injuries............
On being cross examined by Sh. Neeraj Tiwari,
Advocate for respondent No.1, she stated that there was
no indication in the nature of any red-light or flag about
breakdown of the truck or of the fact that the truck tanker
was stationary so as to caution the vehicular traffic on
the road. Nor there was any person near the truck tanker
so as to regulate the traffic.
On being cross examined by Ms. Subhadra Khosla,
Advocate for Respondent No.5, she has denied that the
driver of the truck tanker had put red-light and also the
read indicators were on regarding the stationary or
parked truck on the road to caution the vehicular traffic.
She stated that she was travelling in the car at the time of
accident.......
On being further cross examined by Ms. Shubhdha
Khosla, Advocate for Respondent No.4, she stated that
the accident had taken place in broad day light. There
was no middle divider and the width of the road was
sufficient enough to ply two buses side by side. The truck
was stationary and was stationed half on the kucha road
and half on the pucca road. The truck driver had not
indicated the diversion by placing the red flag or
indicator or by placing stones etc to show that the truck
was stationed on the road. She stated that she had
sustained fracture on the right forearm and knee. She
had remained admitted in the hospital at Jaipur till
29/02/2005 and thereafter at Sir Ganga Ram Hospital,
Delhi."
4. Thus, it is evident that the truck was parked on kachcha road as
well as on the pucca road. There was definitely negligence on the
part of the driver of the truck. The accident took place because the
deceased wanted to save a young boy who suddenly appeared on
the road.
5. In Raj Rani & Ors. v. Oriental Insurance Co. Ltd. & Ors., (2009)
13 SCC 654, the offending vehicle had been parked in the middle
of the road and contributory negligence of 50:50 was attributed to
the driver of the parked vehicle as well as to the deceased. In the
circumstances of the case, in my view both, the driver of the tanker
No.GJ-12U-9687, which was parked on kachcha road as well as
pucca road, and the deceased driver of Accent Car No.UP-32AS-
7200 equally contributed to the accident. The Claims Tribunal
erred in holding the deceased liable to the extent of 80%. Thus,
the Appellant would be entitled to 50% of the compensation
amount of `20,90,160/- assessed by the Claims Tribunal i.e. `
10,45,080/-. The enhanced compensation of `6,27,048/- shall carry
interest @ 7.5% per annum.
6. The Respondent No.3 New India Assurance Co. Ltd. is directed to
deposit the enhanced amount of `6,27,048/- along with interest in
the name of the Appellant in UCO Bank, Delhi High Court Branch
within six weeks.
7. The Appeal is allowed in above terms.
8. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
JULY 30, 2012
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