New India Assurance Co Ltd vs Santosh Devi & Ors
2014 Latest Caselaw 6605 Del

$~12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 09.12.2014
+    MAC.APP. 398/2011

     NEW INDIA ASSURANCE CO LTD                   ..... Appellant
                  Through: Mr. Manish Kaushik, proxy counsel for
                           Mr. K L. Nandwani, Advocate

                         versus

     SANTOSH DEVI & ORS                      ..... Respondents
                  Through: Mr. K. S. Sharma, Advocate
     CORAM:
     HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present appeal is filed by the appellant to impugn the award dated 15.02.2011.

2. The brief facts are that the deceased Smt. Premwati on 08.03.2006 was going to open her tea shop. She passed M. B. Road. Deceased was going with her mother Smt. Santosh Devi. Deceased was hit by a dumper. The deceased sustained fatal injuries and expired.

3. Based on the evidence on record, the Tribunal concluded that the accident took place due to rash and negligent driving of the offending vehicle/dumper.

4. On compensation, the Tribunal awarded a total sum of Rs.4,86,720/- as follows:-

      Loss of dependency               Rs.4,41,720/-


       Funeral charges                 Rs.10,000/-
      Love and affection              Rs.30,000/-
      Loss of estate                  Rs. 5,000/-
                    Total             Rs.4,86,720/-

5. Learned counsel appearing for the appellant submits that the Tribunal has erroneously concluded that the accident took place due to the rash and negligent driving of the offending truck. He submits that the deceased was crossing the road at a place where there is no marked crossing and was hit by a truck. Hence he submits that it is a clear case of contributory negligence as the deceased was not supposed to cross the road at that place. He next submits that the driver and owner should be made liable to pay the award amount inasmuch as the driving license of the offending vehicle was found fake. The Tribunal has granted recovery rights to the driver and owner of the offending vehicle but learned counsel for the appellant submits that appellant should have been exonerated.

6. It is lastly submitted that Tribunal has considered the children of the deceased as dependents upon her whereas the father is alive and the children would be dependent on the father. Hence he submits there would be no dependents in the facts and circumstances of this case. At best loss of estate could have been awarded but no loss of dependency could be awarded.

7. I first deal with the issue of contributory negligence. PW1 Smt. Santosh Devi who was accompanying her daughter the deceased and an eye witness in her affidavit by way of evidence states that the truck was being driven in a rash and negligent manner because of which the accident took place. In her

cross examination she has denied that the accident did not take place due to the fault of the driver of the offending vehicle.

8. I may refer to the site plan prepared by the police at the spot. The site plan shows that it is a major crossing where the accident had taken place. There is also a red light. Normally zebra crossings are marked on such crossing.

9. I may in any case note that as per Rule 8 of the Rules of the Road Regulations, 1989 (issued under Section 118 of the Motor Vehicles Act, 1988) the driver of the motor vehicle has to slow down when approaching at a road intersection or a road junction and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon. The Rule reads as under:-

"8. Caution at road junction.- The driver of a motor vehicle shall slow down when approaching at a road intersection, a road junction, pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon."

10. In the light of the above, it is clear that the driver of the offending truck has to slow down when approaching at a road intersection, a road junction, pedestrian crossing or a road corner and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon. In the present case had the truck driver slowed down no accident could have occurred. Keeping in view these regulations, the evidence of PW1 and the chargesheet filed by the police there is no merit in the contention of the learned counsel for the

appellant that the accident took place because of any contributory negligence of the deceased.

11. Regarding liability, the Tribunal has come to the conclusion that the driver of the offending truck does not have a valid driving licence and granted recovery rights. There is no reason to modify the said directions in the award. I may refer to the judgment of the Supreme Court in National Insurance Company Ltd. Vs Saju P.Paul and another where in para 25 it was held as under:-

"25. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur (2004) 2 SCC 1 and Challa Bharathamma (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years' old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 01.08.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along-with accrued interest. The insurance company (Appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma (2004) 8 SCC 517."

12. In the present case the deceased has left behind two minor children whose father has abandoned them. The children are being looked after by their

maternal grand mother. The directions given in the award are in order.

13. The next argument of the learned counsel for the appellant about the children not being dependent is also misplaced. The perusal of the evidence of PW1 shows that the husband of the deceased is said to be a habitual drunkard and sat at home. He used to quarrel with the deceased and also physically assaulted the deceased i.e. Ms. Premwati. She further states that the minor children are staying with her and not with their father inasmuch as the father has not maintained any relationship with the minor children. In the light of the above evidence, the said contention of learned counsel for the appellant has no merit.

14. In view of the above, there is no merit in the appeal and same is dismissed. Interim order stands vacated.

15. Statutory amount deposited by the appellant be refunded.

JAYANT NATH, J DECEMBER 09, 2014 An