Delhi High Court
New India Assurance Co Ltd vs Jasvinder Singh & Ors on 25 November, 2014
$~A-7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:25.11.2014
+ MAC.APP. 591/2011
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through Mr.Manish Kaushik, Adv. for
Mr.K.L.Nandwani and Mr.Sameer
Nandwani, Advocates
versus
JASVINDER SINGH & ORS ..... Respondent
Through Mr.J.S.Arora, Adv. for R-4
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. By the present appeal the appellant seeks to impugn the Award dated
18.3.2011.
2. The brief facts are that on 03.10.2006 Shri Harjeet Singh while working
in front of import and export examination area, ICD, Tughlakadbad, Okhla
Phase-I, New Delhi was hit by a crane driven by respondent No.5. On account
of the accident he suffered grievous injuries and succumbed to the same.
3. Based on the evidence on record the Tribunal concluded that the accident
took place due to the rash and negligent driving of respondent No.5.
4. On compensation a total compensation of Rs.9,50,000/- was awarded,
Loss of dependency of Rs.9,00,000/- was awarded, Rs.5,000/- towards funeral
charges, Rs.30,000/- towards love and affection, Rs.5,000/- towards loss of
estate and Rs.10,000/- was awarded towards loss of consortium.
5. Learned counsel appearing for the appellant submits that the
claimants/respondents No.1 to 3 have failed to prove rash and negligent driving
by respondent No.5 as the cause of the accident. He urges that there is nothing
on record to show that the accident took place due to the negligent driving of
respondent No.5.
6. A perusal of the Award shows that the Tribunal relied upon the evidence
of PW-1/claimant i.e. respondent No.1 who has narrated the accident in detail.
The Tribunal also notes that in his cross-examination there has been no
inconsistency or contradiction. The Tribunal also relied upon certified copy of
the chargesheet, certified copy of the FIR, site plan etc. on record and relied
upon the judgment of this Court in the case of National Insurance Company
Limited vs. Pushpa Rana, 2009 ACJ 287 to hold that the accident took place
due to the rash and negligent driving of respondent No.5.
7. A perusal of the evidence of PW-1, however, shows that he is not an eye
witness to the accident. PW-1 is the father of the deceased. He narrates that on
03.10.2006 at the relevant place in Okhla, his son was going to check the
container in which items meant for export were being packed. At that stage,
the Crane came in a negligent manner and hit the deceased with great force
from the back side. The deceased was crushed under the crane. He was
declared brought dead by the hospital. It is obvious that PW1 is not an eye
witness. He has further not stated anything about how the accident has taken
place.
8. A perusal of the FIR translated copy of which has been filed on record
shows that when the police reached the spot they have noted that no eye
witness could be found on the spot.
9. Copy of the chargesheet is on record. It may also be noted that
respondent No.5 was proceeded ex parte and has not even entered the witness
box.
10. This court has in National Insurance Company Limited vs. Pushpa
Rana (supra) held that rash and negligent driving can be proved based on the
chargesheet and other connected documents of the criminal court. A similar
view was expressed by the Madhya Pradesh High Court in Basant Kaur & Ors.
vs. Chatarpal Singh & Ors. 2003 ACJ 369 MP (DB.). This Court in
Cholamandalam MS General Insurance Co. Ltd. vs. Smt. Kamlesh and
Ors. 2009 (3) AD (Delhi) 310. has held that the Court can draw an adverse
inference when the driver of the offending vehicle does not enter the witness
box.
11. The driver of the offending vehicle did not enter the witness box. Apart
from the above, in my opinion, the accident has not taken place on the
highway. The deceased was on his foot in the area concerned. Respondent No.5
was driving the crane in an enclosed area. While driving the crane he should
have been careful so that no injury is caused to any person who may be around
in that area. The fact that he managed to crush the deceased under his vehicle
itself indicates that the driver of the said crane was grossly negligent in driving
his crane. The doctrine of res ipsa loquitor would be squarely applicable to the
facts of this case. There is no merit in the contention of the appellant.
12. Appeal is dismissed.
13. Statutory amount, if any, deposited by the appellant/insurance company
may be refunded to the appellant/insurance company.
JAYANT NATH, J
NOVEMBER 25, 2014
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