Delhi High Court
New India Assurance Co Ltd. vs Vimlesh & Ors. on 17 April, 2014
Author: Suresh Kait
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17th April, 2014
+ MAC.APP.No.1169/2011
NEW INDIA ASSURANCE CO LTD. .....Appellant
Represented by: Mr. Kanwal Chaudhary,
Advocate.
Versus
VIMLESH & ORS. ..... Respondents
Represented by: None.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The instant appeal is preferred against the award dated 24.09.2011,
whereby the learned Tribunal awarded compensation for an amount of
Rs.11,58,200/- with interest at the rate of 7.5% per annum from the date of
filing of the claim petition till realization of the amount.
2. Mr.Kanwal Chaudhary, learned counsel appearing on behalf of the
appellant/Insurance Company argued that the present case was of a head-on
collision. Thus, while affixing the liability, the learned Tribunal ought to
have assessed the contributory negligence on the part of the vehicle driven
by the deceased.
3. To support his submission, the learned counsel has drawn the
attention of this Court towards the site plan prepared by the Investigating
Officer in the case bearing FIR No.871/08, U/Ss 279/304-A/427 IPC read
with Sections 177/184 of the Motor Vehicles Act, 1988, registered against
the driver of offending vehicle.
4. It is an admitted fact that the criminal case was registered against the
driver of the offending vehicle and no case has been registered against the
deceased.
5. For adjudicating the issue of contributory negligence, brief facts of the
case are necessary to mention hereunder.
6. On 07.11.2008, deceased Sh. Anil Kumar @ Rajbeer was going on his
motorcycle bearing registration No.UP-13H-0328, when he reached near
Omax, Mathura Pur at about 2.10 pm, another motorcycle bearing
registration No.DL-7SAU-6986, driven by respondent No.8 in rash and
negligent manner at high speed, came from opposite side and had hit the
motorcycle of the deceased. As a result therefore, he had sustained grievous
injuries and died on the way to the hospital.
7. After considering the evidence on record, the learned Tribunal framed
the issue No.1 as under:-
"(i) Whether the deceased Sh.Anil Kumar @ Rajbeer had died
due to the injuries sustained by him in an accident which
took place on 07.11.2008 at about 2.10 pm because of
rash and negligent driving of vehicle bearing registration
no.DL-7SAU-6986 i.e. Motorcycle by respondent No.1?"
8. To prove the accident, the claimants have examined PW1, Smt.
Vimlesh, wife of the deceased, but she was not an eye witness as has been
admitted by her during her cross-examination.
9. PW2, Nannu Singh was the eye witness, who filed his evidence by
way of affidavit Ex.PW2/A, wherein he deposed that on 07.11.2008, he was
going to Village Ghodi Bacheda to meet his relatives. He stated that
deceased Anil was going ahead on his motorcycle bearing registration
No.UP-13H-0328, in the meantime one motorcycle bearing registration
No.DL-SAU-6986, being driven by respondent No.8 in rash and negligent
manner at high speed came from opposite direction and hit the motorcycle of
the deceased. As a result therefore, he had sustained grievous injuries.
10. On being cross-examined, PW2 deposed that police had recorded his
statement. The offending vehicle was hit from the front side. There was
heavy rush of traffic at the place of accident. The offending vehicle was
coming from the wrong side. He denied the suggestion that the accident had
taken place due to negligence of the deceased.
11. Moreover, a criminal case was registered as mentioned above against
the respondent No. 8, i.e., driver of the offending vehicle, after proper
investigation.
12. Keeping in view the facts noted above, I do not find any merit in the
instant appeal. The same is accordingly dismissed.
13. Consequently, the Registry of this Court is directed to release the
statutory amount in favour of the appellant/Insurance Company and the
balance compensation in favour of the respondents/claimants in terms of the
award dated 24.09.2011 on taking necessary steps by them.
SURESH KAIT, J.
APRIL 17, 2014
Sb/jg
