Rajia Khatoon vs Suraj Chopra & Ors.
2012 Latest Caselaw 5545 Del

$~R-41

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                        Decided on: 14th September, 2012

+      MAC.APP. 511/2004

       RAJIA KHATOON                         ..... Appellant
                    Through            Mr. Peeush Sharma, Advocate


                        versus


       SURAJ CHOPRA & ORS.                    .... Respondents
                    Through            Nemo


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

                                 JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant impugns a judgment dated 17.05.2004 passed by the Motor Accident Claims Tribunal(the Claims Tribunal) whereby while holding that the Appellant suffered damages to the extent of `1,53,600/- it granted a compensation of `56,100/-, that is, to the extent of 30% on the ground that the driver of the scooter contributed in the accident to the extent of 70%.

2. There is twin challenge to the judgment. First, it is urged that there was no negligence on the part of the two-wheeler driver. Even if it is so, it was a case of composite negligence and the Appellant could recover compensation from either one of the tortfeasors. Second, that no interest was awarded to the Appellant.

3. The Appellant by way of evidence produced her affidavit Ex.PW2/A. She testified that the two-wheeler No.DL-8S-H-6527 was being driven by her husband at a normal speed and with all necessary precautions. She deposed that car No.DL-8-CF-7134 being driven by the First Respondent in a rash and negligent manner came from Sector 9, Rohini and hit the scooter with great force. This part of the Appellant's testimony was not challenged in cross-examination. The Appellant's testimony was corroborated by PW3 Mohd. Zakir, her husband. In cross-examination, a suggestion was given to PW3 that the accident was caused because he had lost the balance of his scooter, which was denied by him.

4. A perusal of the written statement filed by the First Respondent is completely silent as to the manner of the accident. Thus, the suggestion given was clearly an afterthought.

5. Not only this, the First Respondent pleaded guilty to the offence under Section 279 and compounded the offence under Section 338 IPC. It is note-worthy that the front portion of the two-wheeler on which the Appellant was travelling as a pillion rider also broke down on account of the forceful impact. It is very strange that the Claims Tribunal instead of appreciating the evidence of the injured, which largely remained unchallenged and the involvement

of the car (in question) in the accident which was not in dispute went on to observe that the colour of the car involved in the accident was not given by the Appellant. It went on to add that the suspension of the two-wheeler must have broken on account of lack of proper maintenance. The conclusions reached by the Claims Tribunal were not based on any evidence. The Claims Tribunal's finding that there was contributory negligence to the extent of 70% on the part of the scooter driver is without any evidence and is perverse.

6. Moreover, the Claims Tribunal ought to have been conscious of the fact that the Appellant herself did not contribute to the accident. Even if there was some negligence on the part of the two-wheeler driver, the Appellant was at liberty to seek compensation from the driver of the Matiz car and its insurer. I am supported in this view by the judgment of T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748.

7. The impugned order, therefore, cannot be sustained.

8. It is held that the accident was caused on account rash and negligent driving of Matiz car No.DL-8-CF-7134 being driven by the First Respondent and the Appellant is entitled to compensation of `1,53,600/- as computed by the Claims Tribunal. The Appellant would be entitled to interest @ 7.5% per annum from the date of the filing of the Petition till its payment. 50% of the compensation shall be held in fixed deposit for a period of two years and rest shall be released on deposit.

9. The balance compensation along with interest shall be deposited

with the Claims Tribunal by the Respondent No.3 United India Insurance Co. Ltd. within six weeks.

10. The Appeal is allowed in above terms.

11. Pending Applications stand disposed of.

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