Delhi High Court
New India Assurance Co Ltd. vs Vivek Arora & Ors. on 27 March, 2014
Author: Suresh Kait
$~16-19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 27th March, 2014
+ MAC.APP. 107/2012
NEW INDIA ASSURANCE CO LTD. ..... Appellant
Represented by: Mr.Sameer Nandwani,
Advocate.
Versus
DIKSHA & ORS. ..... Respondents
Represented by: Mr.Amit Kumar Pandey and
Mr.Atul Aggarwal, Advocates
for Respondent No.1.
AND
+ MAC.APP. 110/2012
NEW INDIA ASSURANCE CO LTD. ..... Appellant
Represented by: Mr.Sameer Nandwani,
Advocate.
Versus
VIVEK ARORA & ORS. ..... Respondents
Represented by: Mr.Amit Kumar Pandey and
Mr.Atul Aggarwal, Advocates
for Respondent No.1.
AND
+ MAC.APP. 111/2012
NEW INDIA ASSURANCE CO LTD. ..... Appellant
MAC.APP. Nos.107,110, 111, & 113 of 2012 Page 1 of 6
Represented by: Mr.Sameer Nandwani,
Advocate.
Versus
VIVEK ARORA & ORS. ..... Respondents
Represented by: Mr.Amit Kumar Pandey and
Mr.Atul Aggarwal, Advocates
for Respondent No.1.
AND
+ MAC.APP. 113/2012
NEW INDIA ASSURANCE CO LTD. ..... Appellant
Represented by: Mr.Sameer Nandwani,
Advocate.
Versus
VIVEK ARORA & ORS. ..... Respondents
Represented by: Mr.Amit Kumar Pandey and
Mr.Atul Aggarwal, Advocates
for Respondent No.1.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. These appeals have been preferred by the appellant New India
Assurance Company Limited against the common impugned award dated
15.10.2011, therefore, this Court has decided to dispose of these appeals by
this common judgment.
2. The issue raised in these appeals is that the learned Tribunal had erred
in coming to the conclusion that the accident had taken place due to sole
negligence of the driver of the offending truck without appreciating the fact
that the Metro work was going on at the place of accident and the front side
of the car could not have damaged by reversal of the truck. The learned
Tribunal had failed to appreciate the fact that the car had turned turtle at the
spot and that a reversing truck could not give such an impact until the car
struck to the truck with a great force.
3. Mr. Sameer Nandwani, learned counsel appearing on behalf of the
appellant/Insurance Company submits that the learned Tribunal had not
appreciated that it was a complete case of sole negligence of the driver of the
car, i.e., respondent No. 1, himself, therefore, erred in not exonerating the
driver of the truck and the appellant.
4. Ld. Counsel further submits that respondent No.1/claimant had
admitted in his cross-examination that the front bumper of the car was
damaged in the accident, which proves that the truck was static and the
driver of the car was negligent in causing the accident.
5. Brief facts of the case are that on 17.08.2008, at about 10.45 am,
deceased Poonam Arora and Shivangi were going with their family members
alongwith Vivek Aora and Diksha in a car bearing No.DL2CZ5822 was
being driven by respondent No.1, Vivek Arora. When they reached at
Ridge Road, Opposite Budha Garden, Chanakaya Puri, New Delhi, all of a
sudden a truck bearing No. HR-28M-4551, which was being reversed at a
high speed by respondent No.3 in a rash and negligent manner, hit the maruti
car with great force. Due to the impact of the accident, all the occupants of
the car sustained grievous injuries and the car was badly damaged.
Accordingly, all the injured were removed to RML Hospital, where Poonam
Arora and Shivangi were declared brought dead.
6. To prove the negligence, learned Tribunal had framed issue No. 1 as
under:-
"1. Whether the wife Smt. Poonam and daughter Shivangi
sustained fatal injuries in suit no. 451/08, and suit
no.452/08 and the another daughter Diksha in suit
no.450/08 and petitioner himself in suit no.499/08
sustained injuries on their person in the road accident on
17.08.2008 at about 10.45 AM by the vehicle no.HR-
38M4551 was being driven by respondent no.3 in a rash
and negligent manner when they were travelling in their
Maruti Car no.DL-2CZ-5822. The offending vehicle
owned by respondent no.2 and was insured with
respondent no.1? OPP."
7. On perusal of the record, it is revealed that respondent No.1/injured,
Sh. Vivek Arora, examined himself as PW1 and tendered his examination-
in-chief by way of affidavit stating therein that on 17.08.2008 at about 10.45
am he was going in maruti car bearing No. DL2CZ5822 with his family
members, i.e, his wife Poonam Arora, daughters, Shivangi and Diksha.
When they reached at Ridge Road, Opp. Budha Garden, Chanakya Puri,
New Delhi, a Truck bearing No.HR-38M4551, was being reversed without
caring traffic rules and other vehicles on the road and without giving signals.
Accordingly, the said Truck hit against the maruti car with great force. He
further submitted that due to the impact of the accident his car was badly
damaged and all the occupants of the car sustained grievous injuries. He also
stated that his wife Poonam Arora and daughter Shivangi died on the way to
the hospital whereas he received fractures in his left hand and his seven teeth
were broken. He also sustained multiple injuries all over the body and
remained under treatment for about four months.
8. During his cross-examination, he stated that his car was damaged
from the front bonnet and windscreen with other parts. Thus, whole car was
damaged. He specifically denied that the accident occurred due to his
negligence. He also denied that he had hit against a stationary truck.
9. Moreover, perusal of certified copies of the criminal proceedings
which was placed on record by PW1 reveals that on completion of the
investigation, charge sheet under Sections 279/338/304A IPC was filed
against the respondent No.3. The Mechanical inspection of the offending
vehicle was carried out, which proves the involvement of the offending
vehicle in the accident.
10. It is important to note that respondent Nos. 2 and 3 in their written
statement have denied the allegations of rash and negligent driving by
respondent No. 3 resulting in the death of Ms.Poonam Arora and Shivangi
and grievous injuries to the respondent No.1/injured Vivek Arora and
Diksha. But the fact remains that neither the appellant/Insurance Company
nor the respondent Nos. 2 and 3 examined any witness to prove that the
driver of the car was negligent in committing the accident.
11. Besides, in criminal case, respondent No. 3 was tried as an accused,
but he did not make any complaint to the Higher Authorities regarding his
false implication.
12. In view of the above noted facts, I do not find any merit in these
appeals. The same are dismissed accordingly.
13. Consequently, the Registry of this Court is directed to release the
statutory amount in favour of the appellant/Insurance Company and the
compensation in favour of the respondents/claimants in the above noted
cases in terms of the award dated 15.10.2011 on taking necessary steps by
them.
SURESH KAIT, J.
MARCH 27, 2014
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