Mohd Israj vs Dharambir & Ors
2012 Latest Caselaw 1465 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of decision: 1st March, 2012

+       MAC.APP. 191/2011
        MOHD ISRAJ                            ..... Appellant
                       Through:     Mr.Manish Maini, Avocate

                   versus

        DHARAMBIR & ORS                    ..... Respondents
                    Through:        Mr.D.D.Singh and Mr.Navdeep
                                    Singh, Advocates
        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL
                      JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant Mohd. Israj impugns a judgment dated 18.10.2010 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby a compensation of Rs.73,672/- was awarded for the injuries suffered by him in an accident which occurred on 25.05.2008. While awarding the compensation the Claims Tribunal opined that the Appellant also contributed to the accident and thus held the Respondents liable to pay only 50% of the compensation awarded.

2. The Appellant suffered fractures of nasal bones, right forearm, left knee, right wrist. His three teeth were partly broken. He was granted compensation under various heads which can be

tabulated hereunder:-

        (a) Loss of income                        `10,900/-

        (b)Medical expenses                       `2772/-

        (c) Pain and suffering etc.               `50,000/-

(d)Special diet and conveyance charges ` 10,000/-

________ Total ` 73672/-

_________

3. It is urged by the learned counsel for the Appellant that the Tribunal erred in holding the Appellant negligent merely on the ground that the Appellant did not possess a driving licence to drive a two wheeler at the time of accident. Reliance is placed on Sudhir Kumar Rana v. Surinder Singh AIR 2008 SC 2405. The learned counsel for the Appellant states that though there was disfigurement as the Appellant lost three teeth, no compensation was awarded for disfigurement to him.

4. On the other hand, Insurance Company submits that no evidence was adduced by the Appellant to the effect that the Appellant was proficient in driving a two wheeler and in the absence of such evidence the Claims Tribunal rightly came to the conclusion that the Appellant also contributed to negligence. Reliance is placed on a judgment of Allahabad High Court in

State of U.P. thr. Collector, Deoria & Ors. v. Vidyawati Singh & Anr. 1994 ACJ 553. Learned counsel submits that the compensation awarded is just and proper.

5. I have perused the Appellant's affidavit Ex.PW-1/A filed by way of evidence. He testified that on 25.05.2008 at about 7:30 AM while driving his two wheeler bearing No.HR-26J-4889 at normal speed he was proceeding from Samaipur to his residence at Suraj Park. When he reached in front of bus stand Badli Railway Station a bus bearing registration No.DL-1PB-1068 driven rashly and negligently by Respondent No.1 came from behind, overtook him and then suddenly took a left turn and hit against the two wheeler with great force. He deposed that as a result of forceful impact he along with the two-wheeler fell down on the road and suffered injuries. In cross-examination on behalf of the driver and owner of the bus a suggestion was given that the Appellant himself struck against the stationary bus and that he was responsible for causing the accident. This suggestion was denied by the Appellant. Driver of the offending bus i.e. Respondent No.1 contested the petition but preferred not to enter the witness box to put forth his version as to how the accident occurred. In the circumstances, the Appellant's version has to be accepted and in view of the judgment in Sudhir Kumar (supra) simply on account of non-possession of valid licence the Appellant cannot be held to have contributed to the accident. The

authority cited by the learned counsel for the Respondent/Insurance Company is not attracted to the facts of the present case as the driver has not entered the witness box to rebut the manner of the accident.

6. I, therefore hold that the Claims Tribunal erred in concluding that the Appellant contributed to the accident. In my view it was Respondent No.1 who caused the accident by his rash and negligent driving. The Claims Tribunal awarded a sum of `50,000/- towards pain and suffering which in my view included the compensation for loss of three teeth. There was no such disfigurement as to entitle the Appellant to a separate compensation under the Head of "Disfigurement". The award of compensation of `73,672/- is just and fair. The same is affirmed. Let the remaining 50% of the compensation be deposited with the Registrar General of this Court along with interest @7.5% per annum from the date of filing of the petition till the date of payment within 30 days. On deposit the amount shall be held in Fixed Deposit for a period of two years in UCO Bank, Delhi High Court Branch, Delhi.

7. The Appeal is allowed in above terms.

(G.P. MITTAL) JUDGE MARCH 01, 2012/mr