Delhi High Court
Naresh Kumar Etc. vs Satender Kumar Etc. on 6 May, 2015
Author: G.P. Mittal
$-10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 06th May, 2015
+ MAC.APP. 668/2011
NARESH KUMAR ETC.
..... Appellants
Through: Mr.Jatinder Kamra, Advocate
versus
SATENDER KUMAR ETC. ..... Respondents
Through: Ms. Archana Gaur, Advocate
for Respondent no.3
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The appeal is directed against the judgment dated 24.03.2011
passed by the Motor Accident Claims Tribunal(Claims
Tribunal) whereby compensation of Rs.5,08,760/- was awarded
in favour of the Appellants for the death of their bachelor son
Yogesh Kumar @ Sonu who suffered fatal injuries in a motor
vehicular accident which occurred on 26.11.2006.
2. There is twin challenge to the judgment. First, that the Claims
Tribunal erred in holding that there was contributory negligence
on the part of the deceased and second, that the compensation
towards non-pecuniary damages is on the lower side.
3. The learned counsel for Respondent no.3, however, supports the
judgment. She urges that the bus bearing no.DL-1PB-3441 was
parked on the extreme left side of the road. The motorcyclist
was himself negligent and dashed against the stationary bus. It
was thus, evident that the Claims Tribunal rightly held 50%
contributory negligence on the part of the deceased. It is argued
that the compensation awarded is just and reasonable.
NEGLIGENCE:
4. I have the Trial Court record before me. I have perused the
testimony of PW-3 Sandeep Malik, solitary witness produced
by the parties with regard to the factum of negligence. He
testified that on 26.11.2006, he was riding pillion on the
motorcycle no.DL-8S-AH-4832 which was being driven by his
friend Yogesh. At about 2:45 A.M., when they reached near
Bakshi Petrol Pump, suddenly a speeding vehicle came from
behind and in order to give way to the vehicle, the deceased
turned his vehicle towards left side where a bus bearing no.DL-
1PB-3441 was left abandoned on the road without any indicator
or signal. The motorcycle dashed against the rear of the bus due
to which deceased Yogesh suffered fatal injuries. This
testimony of PW-3 remained unchallenged and unrebutted. The
Claims Tribunal, however, held the deceased to have
contributed to the accident after relying on some photographs of
the spot which reflected that the bus was parked on the left side
of the road. I have been unable to find any photograph of the
spot of accident in the Trial Court record nor there is any
evidence to prove such photographs. The Claims Tribunal,
therefore, ought not to have made use of the alleged
photographs to hold that the deceased was himself liable for
causing the accident.
5. It may be noted that the accident occurred at 2:45 A.M. It is
established from PW-3's statement that the offending bus was
left unattended without any indicator. Even if, the bus was
parked on the left side without any indicator at 2:45 A.M. on a
village road, any unwary driver driving at a normal speed is
bound to dash against such vehicle. In his testimony, an
explanation has also been given by PW-3 as to how the accident
occurred i.e. the deceased had turned the vehicle towards left
side in order to give way to the vehicle coming from behind. In
view of this, the finding that the deceased himself contributed to
the accident cannot be sustained; the same is accordingly set
aside.
COMPENSATION:
6. The loss of dependency without making any deduction for
contributory negligence comes to `4,73,760/- as awarded by the
Claims Tribunal.
7. As far as non-pecuniary damages are concerned, I grant
Rs. 1,00,000/- towards loss of love and affection, Rs. 25,000/-
as funeral expenses and Rs.10,000/- as loss to estate in
consonance with the three judge bench judgment of the
Supreme Court in Rajesh and Ors. vs. Rajbir Singh and Ors.
(2013) 9 SCC 54. The overall compensation hence, comes to
`6,08,760/-.
8. The compensation is thus, enhanced by Rs.1,00,000/- which
shall carry interest @ 7.5% per annum from the date of filing of
the claim petition till its payment.
9. The enhanced compensation shall be equally shared between
the Appellants who are the parents of the deceased. 50% of the
enhanced compensation shall be released on deposit. Rest 50%
shall be held in Fixed Deposit for a period of two years.
10. Respondent no.3 National Insurance Company Ltd. is directed
to deposit the enhanced compensation in UCO Bank, Delhi
High Court Branch, New Delhi within six weeks.
11. The appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
MAY 06, 2015
pst
