Oriental Insurance Co. Ltd. vs Bhupinder Kaur & Ors.
2014 Latest Caselaw 801 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment delivered on: 11th February 2014


+                          MAC.APP. 1050/2006

       ORIENTAL INSURANCE CO. LTD.                ..... Appellant
                    Represented by: Mr. J.P.N. Shahi, Adv.


                           Versus

       BHUPINDER KAUR & ORS.                                ..... Respondents
                   Represented by:              Mr.Ramesh Kumar,
                                                Advocate for Respondent
                                                Nos. 1 to 4.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. The present appeal is preferred against the impugned award dated 17.08.2006, whereby the learned Tribunal has granted compensation for a sum of Rs.8,97,500/- with interest at the rate of 6% per annum from the date of filing the claim petition till realization of the amount.

2. Learned counsel appearing on behalf of the appellant/Insurance Company has argued that the deceased Amarjit Singh Kakkar sustained fatal injuries on 28.04.2004. He submitted that the case of the claimants was that the deceased left for Delhi from Ludhiana in Mahindra Scorpio No.PB10BF 0343 which was being driven by Kulvinder Singh . When they reached G.T. Road, Shahpur about 3 k.m. after Asha Ram Public

School, Ambala Cantt., within the jurisdiction of P.S. Nanhera, District Ambala, Haryana at about 8.00 a.m., respondent No. 5 was driving bus bearing No. HR-37A-4126, suddenly and negligently applied brakes as a result of which the driver of the Mahindra Scorpio could not control the vehicle and rammed into the back portion of the bus causing the death of the deceased on the spot.

3. Learned counsel further submitted that the Learned Tribunal framed the following issues:-

"(1)............................... (2) Whether deceased Amarjit Singh Kakkar died due to rash and negligent driving of the offending bus bearing No. HR-37A- 4126 by respondent No.1 in a rash and negligent manner? (3)................................. (4)................................"

4. Ld. Counsel submitted that keeping in view the averments of the claimants and the manner in which the accident had taken place, both the vehicles had contributed to the accident. However, the Ld. Tribunal has not assessed the contributory negligence on the part of the driver of the Mahindra Scorpio No.PB10BF 0343 in which the deceased was travelling.

5. Ld. Counsel appearing on behalf of the appellant further argued that there was no proof of earning of the deceased, however, the Ld. Tribunal has considered the annual income of the deceased at Rs.70,000/-.

6. On perusal of the record and the impugned award, it is established that PW-2 Kulvinder Singh testified that he was driving the Mahindra

Scorpio car on the correct left side of the road and the deceased was travelling with him. A bus was going in front of the Scorpio car and on his right there was a Maruti car and a Toyata Qualis. The offending bus suddenly applied the brakes and the Scorpio rammed into it from behind.

7. He further testified that the bus was being driven at the speed of about 60 to 65 km per hour and the driver of the bus was at fault since he suddenly applied brakes and stopped the bus on the road.

8. In his cross-examination, he denied the suggestion that the bus was stationary and commuters were getting down on left side of the road. He also denied the suggestion by the counsel for the appellant/Insurance Company that the brakes of the Scorpio Car failed and its steering did not function and in order to save Maruti and Toyata Qualis on his right the Scorpio dashed against the bus.

9. It is an admitted fact that the deceased was not driving the Mahindra Scorpio. It is also on record that when the driver of the bus applied sudden brakes without giving any indication or signal in such a situation the driver of the offending vehicle was negligent at the time of the accident. Moreover, the driver of the offending vehicle did not lead any evidence regarding the manner of the accident.

10. It is also true that the driver of the Mahindra Scorpio was also supposed to keep some distance while driving on the highway but when a front vehicle applies sudden brakes, it is very difficult for the other vehicle to apply brakes and stop the vehicle immediately. In the present case also, the offending bus was also in a high speed and had applied

sudden brakes, therefore, the Mahindra Scorpio car rammed into it and due to which the deceased received fatal injuries.

11. Accordingly, the Ld. Tribunal has rightly fastened the liability on the appellant / Insurance Company.

12. On perusal of the record it is revealed that the annual income of the deceased for the assessment year 2002-2003 was assessed at Rs. 63,000/-; and for the assessment year 2003-2004 the annual income of the deceased was assessed at Rs.68,650/-. The deceased died in the accident on 28.04.2004. Though the claimants had filed ITR for the assessment year 2004-2005 Ex. PW1/6 in which the income of the deceased was shown as Rs.1,48,000/-. However, the Ld. Tribunal has not considered the said income by recording that the aforesaid ITR was filed after the accident. The Ld. Tribunal has considered the income of the deceased at Rs.68,650/- as per the ITR for the assessment year 2003- 2004 which has been rounded to Rs.70,000/- for calculating the compensation amount.

13. In view of the above discussion, I do not find any merit in the instant appeal and the same is accordingly dismissed.

14. The statutory amount be released in favour of the appellant.

15. The compensation amount be released in favour of the respondents/claimants on taking necessary steps by them.

SURESH KAIT, J.

FEBRUARY 11, 2014 RS/jg