Icici Lombard General Insurance ... vs Suman & Ors
2012 Latest Caselaw 3053 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 8th May, 2012
+        MAC.APP. 772/2010

         ICICI LOMBARD GENERAL INSURANCE CO LTD.
                                                 .... Appellant
                       Through: Ms. Suman Bagga, Advocate

                     versus

         SUMAN & ORS                      ..... Respondents
                              Through:   Mr. S.N. Parashar, Advocate
                                         for the Respondents No.1 & 4.

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

                              JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant ICICI Lombard General Insurance company Limited impugned the judgment dated 30.07.2010 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby the Claims Tribunal held that the accident was caused on account of the rash and negligent driving of bus No.DL-1PC- 0457 driven by Yashwant Rathor (Respondent No.5 herein).

2. The sole ground raised during the hearing of the Appeal is that there was no negligence on the part of the driver of bus No.DL- 1PC-0457, in any case, argues the counsel, it was a case of contributory negligence and the compensation awarded is liable

to be reduced.

3. Learned counsel for the Appellant has very forcefully argued that in fact a blueline bus of route No.259 was going ahead of the bus No.DL-1PC-0457. The driver of the blueline bus suddenly applied brakes; in order to avoid any damage to the blueline bus as also to the children being carried in bus No.DL- 1PC-0457, the driver (Respondent No. 5) also applied the brakes. The deceased Hari Prakash, who was driving his motorcycle in the process of overtaking the bus rammed his motor cycle against the rear portion of the bus No.DL-1PC- 0457 and he fell down. He suffered injuries which proved fatal.

4. The Claims Tribunal dealt with the issue of negligence as under:-

"PW5 is the eye witness who has stated that the deceased was travelling on his motorcycle and was hit by the offending vehicle from behind, which was being driven by respondent no. 1, in rash and negligent manner. Due to the accident caused by respondent no. 1 the motorcyclist fell on the road and the motorcycle rammed into the Blue line Bus of route no. 259. In cross-examination he stated that he had seen the accident from the distance of about 20 steps. He denied the suggestion that the offending vehicle was HP20A4360 which had caused the accident. He also stated that the front left portion of the bus had hit the rear portion of the motorcycle of the deceased.

RW1 is the driver of the offending vehicle who has stated that on the day of accident he was driving the school bus carefully but suddenly a Blue line Bus of route no. 259 applied brakes as a result of which respondent no. 1 had

stopped the school bus at a safe distance. But in the meantime the deceased on his motorcycle in an attempt to overtake the school bus from the left side, hit the left rear portion of the bus and fell down. He stated that he with a view of help the injured had called the police and helped him in being taken to the hospital. In cross- examination he admitted that accident in question took place between the offending vehicle and the motorcycle of the deceased. He also stated that the police had arrested him on the spot. He denied the suggestion that he hit the motorcycle driven by the deceased from behind. He admitted that he had been removed from his job of driver by respondent no. 2 after the accident and his driving license was also cancelled by the transport authority.

Petitioner's case is that deceased was on his motorcycle which was running between a blue line bus and the offending bus. The deceased was hit from behind by the offending Bus. Respondent's case is that offending vehicle was behind the Blue line Bus and the deceased, in an attempt to overtake had himself hit the left rear portion of the offending bus."

5. The manner of the accident has been duly stated by PW-5. PW-

5 was not cross-examined and the manner of the accident as alleged by the Respondent driver, who entered the witness box as RW-1 has not been put to PW-5.

6. From the testimony of PW-5 it is apparent that bus No.DL-1PC-

0457 struck the motorcycle from behind and the motorcycle rammed against another bus going ahead on route No.259. Respondent No.5, the driver was apprehended at the spot.

7. PW-5's testimony finds corroboration from the registration of a criminal case against the driver. It is well settled that in a Claim Petition under Section 166 of the Motor Vehicles Act (the Act) negligence is required to be proved only on the touchstone of preponderance of probability. Negligence is not required to be proved beyond shadow of all reasonable doubt as is required to be done in a criminal case. Respondents No.1 to 4 successfully proved culpable negligence on the part of the driver of bus No.DL-1PC-0457.

8. Thus, the finding reached by the Claims Tribunal is logical and well reasoned.

9. The Appeal is devoid of any merit; the same is accordingly dismissed.

10. The statutory deposit of `25,000/- be refunded to the Appellant Insurance Company.

11. The amount lying deposited in this Court shall be released in favour of Respondents No.1 to 4 in terms of the order passed by the Claims Tribunal.

(G.P. MITTAL) JUDGE MAY 08, 2012 vk