National Insurance Co. Ltd. vs Liyakat & Anr.
2013 Latest Caselaw 3965 Del

R~20D
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%             Judgment delivered on: 5th September, 2013

+      MAC.APP. 833/2005
NATIONAL INSURANCE CO. LTD.             ..... Appellant
                 Through: Ms. Khyati Sharma and Ms. Sonia
                 Sharma, Advs.

                       Versus

LIYAKAT & ANR.                                         ..... Respondents
                             Through: NEMO.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. Instant appeal has been preferred against the order dated 30.04.2005, whereby ld. Tribunal while granting the compensation amount has fastened the liability upon the appellant to pay the compensation.

2. Ld. Counsel appearing on behalf of the appellant submits that on 10.11.2001, at about 2.00 am, respondent no. 2 was travelling in a truck bearing registration no. UP-12-7484 and was going to Faridabad from Gokalpuri, Delhi. When he reached at Gajrola Main Road, then another truck no. UP-12D-6518 driven by its driver at a very high speed rashly and negligently without caring for the traffic rules came from the back side and hit the truck. As a result of the forceful

impact, respondent no. 2 Surender Singh sustained serious injuries all over his body.

3. Ld. Tribunal has opined that the accident took place on the account of rash and negligent driving on the part of the driver of the offending vehicle, truck no. UP-12D-6518 insured with the appellant.

4. Ld. Counsel for the appellant submits that either the driver of the truck no. UP-12-7484 was negligent or maximum would have been opined by the ld. Tribunal that the said accident was caused due to the contributory negligence of both the vehicles.

5. Ld. Counsel further submits that neither the owner nor the driver of the truck no. UP-12-7484 has been made as a party before the ld. Tribunal. Therefore, how the accident took place has not been properly decided by the ld. Tribunal.

6. On perusal of the evidence, it is emerged that Respondent no. 2 / claimant examined himself as PW2 and deposed that on 10.11.2001 at about 2.00 am, he was travelling in a truck bearing no. UP-12-7484 and was going to Faridabad from Gokalpuri. When he reached at Gajrola Main Road, a Truck bearing No. UP-12D-6518 came from the back side at a very high speed without caring of the traffic rules and tried to overtake his truck without any indication. During the process of overtaking, the truck got unbalanced and hit his truck. Due to the forceful impact, he received grievous injuries on his right leg and left wrist. To prove the injuries suffered by him respondent no. 2 / claimant has examined Dr. Rajender Kumar as PW1. The said Doctor

deposed that Mr. Surender Singh, respondent no. 2 was admitted in St. Stephens Hospital on 10.11.2001 and was discharged on 27.11.2001. He was treated for open fracture Grade 3A upper 1/4 th right tibia comminuted with intera articular extension with fracture base of second metacarpal left hand with multiple sutured wounds over face.

7. On the other hand, the appellant did not examine the driver of offending truck to prove the circumstances in which the accident took place or to prove that there was negligence on the part of the driver of the truck no. UP-12-7484.

8. It is not in dispute that the injured Surender Singh was admitted in St. Stephens hospital with the alleged history of road traffic accident. The treatment documents Ex.PW1/A establishes that the respondent no. 2 / claimant sustained injuries on the right leg, left hand and face in the accident. Moreover FIR was lodged against the driver of the offending vehicle bearing No. UP-12D-6518 and charge sheet was filed against Saleem, driver of the offending vehicle for the offences under Section 279/338/339/427 and 304A IPC. In the said charge sheet respondent no. 2 has been shown as complainant and driver Saleem was shown as accused. The appellant has not proved any witness to prove that there was some contributory negligence on the part of other vehicle, i.e, Truck No. UP-12-7484.

9. In view of above, I do not find any discrepancy in the order passed by ld. Tribunal.

10. Accordingly, instant appeal is dismissed with no order as to costs.

11. Consequently, statutory amount be released in favour of the appellant.

SURESH KAIT, J

SEPTEMBER 05, 2013/Jg