Lad Kunwar & Anr. vs Sanjay Kumar & Ors.
2012 Latest Caselaw 5536 Del

$~50
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Decided on: 14th September, 2012
+      MAC.APP. 942/2011

       LAD KUNWAR & ANR.                             ..... Appellants
                   Through                Mr. O.P. Mannie, Advocate


                        versus

       SANJAY KUMAR & ORS.                      .... Respondents
                   Through                Ms. Suman Bagga, Advocate for
                                          the Respondent No.3 Insurance
                                          Company


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

                                  JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellants are aggrieved of a judgment dated 10.06.2011 passed by the Motor Accident Claims Tribunal(the Claims Tribunal) whereby while awarding the compensation of `3,75,000/- in case of death of a minor(on the basis of the judgment of this Court in National Insurance Co. Ltd. v. Farzana, 2009 ACJ 2763), the Claims Tribunal opined that there contributory negligence on the part of the Appellants being the child's parents. Thus, 50% of the compensation was deducted towards contributory negligence.

2. It is urged by the learned counsel for the Appellants that there was ample material available on the record to show that there was culpable negligence on the part of the First Respondent Sanjay Kumar, the driver of the Tempo No.DL-1LK-6067 and the Appellants cannot be said to have contributed to the Accident. The learned counsel for the Appellants has taken me through the affidavit Ex.PW1/A of Rajesh Kumar, the deceased's father, his cross-examination and also the site plan to urge that the accident took place not on a main road, but in a street where the offending vehicle took a sharp turn, came on the wrong side of the street and struck against the deceased and the right front wheel of the tempo ran over his body.

3. The relevant portion of the affidavit Ex.PW1/A is extracted hereunder:

"That on 02.08.09 at about 10.00 A.M. when my son Master Shiva @ Shivam was standing at in front of H.No.F-4/166, Sec. 16, Rohini, Delhi then I saw a Tata 407 Tempo bearing its Regn. No.DL-1LK-6067 being driven by its driver Sh. Sanjay Kumar-Respondent No.1 at a very high speed, rashly, negligently, without taking necessary precautions, without observing proper look out, violating the traffic rules and without blowing any horn came from DDA park side and took sudden sharp left turn and violently hit my son Master Shiva @ Shivam, after coming on the wrong side of the road, with a great force. As a result of which my son fell down on the road and front side tyre of the offending Tempo ran over his body and my son Master Shiva @ Shivam died at the spot. Crowd gathered there. Someone from the crowd informed the police. The driver Sh. Sanjay Kumar-Respondent No.1 fled away from the spot of the accident after leaving his offending

Tata 407 Tempo there. The offending Tata 407 Tempo No.DL-1LK-6067 was also seized by the police from the spot of the accident. My statement was also recorded by the police at the spot of the accident. The said accident took place solely and entirely due to the rash and negligent driving on the part of driver Sh. Sanjay Kumar of the offending Tata 407 Tempo No.DL-1LK- 6067."

4. In cross-examination, PW1 deposed as under:

"I have not placed the birth certificate of my deceased son on record. At the time of accident my deceased child was standing on the side of the road(patri). He was not standing alone and was standing with other children. I and my wife both work as beldar. It is wrong to suggest that I have spent `30,000/- on conveyance, transportation of dead body, funeral expenses and last rites of my deceased son. I have one more son, who is aged about 4 years at present. I had seen the truck approaching the child and I asked to child to move back, but I could not save the child due to high speed of the offending tempo..."

5. PW1's testimony that the Tata tempo No.DL-1LK-6067 was being driven rashly and negligently, that it took a sharp left turn and that it came on the wrong side of the road is corroborated from the site plan prepared by the police in case FIR No.429/09 registered in P.S. Prashant Vihar. The First Respondent was expected to be extra cautious while driving the tempo in a street in midst of the residential houses.

6. This is true that there could be contributory negligence on the part of a child and sometimes on the part of the parents. However, in the instant case, there was no such material to infer contributory

negligence on the part of the parents of the deceased's child. The factum of the First Respondent fleeing from the spot immediately after the accident, instead of removing the child immediately to the hospital, also lend credence that it was the First Respondent who was solely responsible for the accident. In the circumstances, the Claims Tribunal was not justified in deducting 50% of the compensation payable on account of contributory negligence.

7. The balance compensation of `1,87,500/- along with interest @ 7.5% per annum as awarded by the Claims Tribunal from the date of the filing of the Petition till its deposit shall be deposited by the Respondent No.3 Royal Sundram Alliance Insurance Co. Ltd. with the Claims Tribunal within six weeks.

8. The amount shall be equally disbursed among the Appellants.

50% of the amount shall be held in fixed deposit for a period of two years and rest shall be released on deposit.

9. The Appeal is allowed in above terms.

10. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE SEPTEMBER 14, 2012 pst