Delhi High Court
The New India Assurance Co.Ltd vs Anand Ballabh Phulara & Ors on 23 December, 2014
$~A-3 & 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23.12.2014
+ MAC.APP. 1133/2014
THE NEW INDIA ASSURANCE CO.LTD ..... Appellant
Through Mr.Anshum Jain, Mr.Shiv Bhalla,
Mr.Rahul Kochar and Ms.Isha
Aggarwal, Advocates.
versus
ANAND BALLABH PHULARA & ORS ..... Respondents
Through None.
+ MAC.APP. 1136/2014
THE NEW INDIA ASSURANCE CO. LTD ..... Appellant
Through Mr.Anshum Jain, Mr.Shiv Bhalla,
Mr.Rahul Kochar and Ms.Isha
Aggarwal, Advocates.
versus
REWA DHAR PHULARA & ORS ..... Respondents
Through None.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
CM No. 20568/2014 (exemption) in MAC.APP. 1133/2014
CM No. 20598/2014 (exemption) in MAC.APP. 1136/2014
Exemption is allowed subject to just exceptions.
MAC.APP. 1133/2014 and CM No.20567/2014 (stay)
MAC.APP. 1136/2014 and CM No.20597/2014 (stay)
1. These are two appeals filed seeking to impugn the award dated
23.09.2014.
2. The brief facts are that on 13.06.2011 Smt.Laxmi Devi and Smt. Joyti
along with their family members were travelling in a Bolero going to Almora in
Uttrakhand. In district Udham Singh Nagar, Uttrakhand the Bolero hit a truck
which was going ahead. Smt. Laxmi Devi and Smt. Joyti suffered injuries and
died on the spot. Two claim petitions were accordingly filed.
3. The basic issue which is argued is as to whether the accident took place
due to the rash and negligent driving of the Bolero or of the truck. The
appellant is the insurance company of the Bolero whereas the truck after the
accident ran away from the site and its whereabouts are not known.
4. The Tribunal based on the evidence on record concluded that the
accident took place on account of the rash and negligent driving of the truck
and Bolero. As it was a case of composite negligence, the Tribunal held that
there was no need to apportion the negligence between the driver of the truck
and the driver of the Bolero Car inasmuch as the driver of the truck has not
even been impleaded as a party.
5. Learned counsel appearing for the appellant submits that PW-1 Rewa
Dhar Phulara, the husband of the deceased Smt. Laxmi Devi who was also in
the Bolero Car has in his evidence by way of affidavit before the Tribunal
claimed that the driver of the Bolero Car was driving the said vehicle at a very
high speed rashly, negligently and carelessly and lost control of his vehicle and
hit the truck going ahead while overtaking the same. Learned counsel points
out that in contrast to his evidence before the Tribunal in his statement before
the police on the basis of which the FIR is registered, he has said that the
accident took place due to the negligence of the truck. Learned counsel also
points out that the FIR was registered against the truck driver but as the
whereabouts of the truck are not known, the police have filed a untraceable
report. He submits that the said PW-1 who is claiming before the Tribunal that
the blame rests on the Baleno car is only manipulating facts and stating
something at one place and something else at another place. Hence, he submits
that in view of the statement of PW-1 before the police it is clear that the
accident took place on account of the negligence of the truck.
6. A perusal of the evidence of PW-1 shows that he has said that the driver
of the Bolero Car was driving the same at a very high speed rashly, negligently
and carelessly and while overtaking the truck, he hit the truck. In his cross-
examination, he states that there were four to five vehicles before the Bolero
Car. The truck was 10 feet ahead of the vehicle. The speed of his vehicle was
about 90-100 KMPH. He denies that the Bolero Car was not being driven
rashly and negligently.
7. A perusal of the FIR shows that PW-1 has said in the statement on the
basis of which the FIR is registered that the truck which was being driven
dangerously and negligently hit the Bolero Car which caused the death of his
wife.
8. The Tribunal notes the discrepancies in the statement of PW-1. The
Tribunal further notes that when PW-1 had appeared for cross-examination
before the Tribunal, he was not confronted with the contents of the FIR by the
appellant Insurance Company so that PW-1 could have explained the different
versions. The Tribunal further noted that the evidence of R1W1, namely, the
driver of the Bolero Car who in his cross-examination said that he was driving
the Bolero Car at around 70-80 KMPH. He has confirmed that while he was
trying to overtake the truck, the truck suddenly moved right side and the same
resulted in the said accident. On the basis of the evidence of R1W1 and PW-1,
the Tribunal concluded that there was negligence of the Bolero Car and also of
the unknown truck inasmuch as the Bolero Car was being driving at a high
speed on a single road.
9. In my opinion there are no reasons to differ with the findings recorded by
the Tribunal. The statement made before the Tribunal by PW-1 is made on oath
and has been subjected to cross-examination. This is in contrast to the
statement which was apparently made before the police which is neither on
oath and nor subjected to any cross-examination. It is obvious that both the
vehicles were being driven at a high speed and the Bolero Car had tried to
overtake the truck and the accident took place that caused the death of the
deceased. The truck obviously must have moved to the right side that is why
the Bolero Car was hit on the left side.
10. As it is a case of composite negligence between the driver of the truck
and the driver of the Bolero Car, in the light of the above facts, there is no merit
in the appeals. The same are dismissed.
11. The appellant may comply with the award within six weeks from today.
12. Statutory amount, if any, be refunded to the appellant.
13. Pending applications also stands dismissed.
JAYANT NATH, J
DECEMBER 23, 2014
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