Delhi High Court
Surender Kumar vs Delhi Transport Corporation & ... on 8 December, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: December 08, 2016
(i) + MAC.APP. 898/2014
DELHI TRANSPORT CORPORATION & ANR. ... Appellants
Through: Ms.Avnish Ahlawat & Ms.Latika
Choudhary, Advocates.
Versus
SURENDER KUMAR & ANR. ..... Respondents
Through: Mr.Saurabh Kansal, Advocate for
respondent No.1.
Mr.Priyadarshi Acharya, Advocate
for respondent No.2/Insurer.
(ii) + MAC.APP. 899/2014
DELHI TRANSPORT CORPOATION & ANR. ... Appellants
Through: Ms.Avnish Ahlawat & Ms.Latika
Choudhary, Advocates.
Versus
NEETU THAKUR & ORS. ..... Respondents
Through: Mr.Saurabh Kansal, Advocate for
respondent No.1.
Mr.Priyadarshi Acharya, Advocate
for respondent No.6/Insurer.
(iii) + MAC.APP. 316/2015 & C.M.No.6112/2015
SURENDER KUMAR ..... Appellant
Through: Mr.Saurabh Kansal, Advocate
Versus
MAC.APP.898/2014 Page 1 of 6
MAC.APP.899/2014
MAC.APP.316/2015
DELHI TRANSPORT CORPORATION & ORS.
..... Respondents
Through: Ms.Avnish Ahlawat & Ms.Latika
Choudhary, Advocates for
respondent No.1/DTC.
Mr.Priyadarshi Acharya, Advocate
for respondent No.3/Insurer.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
1. In the above captioned first two appeals, challenge is on merits to
the impugned Award of 3rd July, 2014 which assesses that compensation
of `31,65,256/- with interest is payable to the legal heirs of deceased
Rishi Thakur, who had died in a road accident on 23rd May, 2010 and
grants compensation of `85,834/- with interest to injured- Surrender
Kumar. Impugned Award grants recovery rights to respondent- Insurer
of the Delhi Transport Corporation's bus (henceforth referred to as the
„DTC bus‟) in question, as DTC had failed to produce the valid permit.
Whereas, in the above captioned third appeal, enhancement of
compensation is sought by injured-Surrender Kumar. The facts unfolded
in the testimony of eye witness Surrender Kumar (PW-2), as noted in the
impugned Award, are as under:-
"PW-2 Surrender Kumar who has seen the entire
accident has stated that on 23/5/2010 at about 6.00 AM he
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MAC.APP.316/2015
alongwith Rishi Kumar Thakur were coming in Maruti car
bearing no.DL-2CN-2472 from Rewari being driven by
deceased Rishi Kumar Thakur. He further stated that when
they reached NH-8 near Iron Foot Over Bridge in front of
Shankar Vihar, PS Delhi Cantt a DTC bus beairng no. DL-
1PC-7213 was going ahead of their car being driven by
respondent no.1 Sh. Dalip Kumar rashly and negligently. He
further stated that the driver of the bus suddenly and abruptly
applied the brakes without giving any indications. Due to
which their car collided with the offending vehicle. Rishi
Kumar Thakur succumbed to his injuries on 2/6/2010 and
Surrender Kumar received head injuries in his nasal bone."
2. On the basis of evidence led by both the sides, learned Motor
Accident Claims Tribunal vide impugned Award has granted the
compensation after apportioning it while holding that there was
contributory negligence of 50% each on the part of deceased Rishi
Thakur and the driver of DTC bus in question. On the aspect of
contributory negligence, after taking note of the relevant clauses of Road
Regulations, 1989 the finding returned by the learned Motor Accident
Claims Tribunal is as under:-
"17. In view of the above clauses duty is cast upon both the
vehicle first that the vehicle which is going in the front
should not apply its brakes abruptly. At the same time duty
is casted upon the vehicle which is following it, to maintain a
sufficient distance to avoid any collusion, if the vehicle in
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front should suddenly slow down or stop.
18. In the cross-examination Surrender Kumar has
admitted that the distance between their car and offending
vehicle was 5 to 6 feet meaning thereby their car perilously
close to the bus and moment the bus had applied brakes the
car collided with the bus causing an accident. The natural
corollary is that both the vehicles have done what they were
no supposed to do while driving their respective vehicle.
And the car must have also been driven at a high speed as a
result he could not stop his vehicle in time.
19. Therefore, the Maruti Car being driven by Rishi
Kumar Thakur has also contributed towards the happening
of the accident. Thus, there is a contributory negligence on
the part of Rishi Kumar Thakur for causing the accident to
the extent of 50%."
3. counsel for DTC submits that finding of contributory negligence is
unwarranted as negligence was of the car driver, who was driving the car
in a rash and negligent manner on a high speed and his car had struck
against the DTC bus in question and so, the awarded compensation ought
to be paid by the Insurer of the car in question.
4. To appreciate the above contention of learned counsel for DTC, it
is relevant to note that the Insurer of the car in question has not been
made a party. Be that as it may.
5. Learned counsel for DTC submits that the grant of compensation
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of `85,834/- with interest to injured Surrender Kumar is a just
compensation and no case for enhancement of compensation is made out,
as he has not produced any evidence regarding his income.
6. To the contrary is the submission of counsel for the injured
Surrender Kumar who submits that the awarded compensation is on the
lesser side and it deserves to be suitably enhanced because injured
Surrender Kumar had sustained grievous injury i.e. fracture of the nazal
bone resulting in disfigurement of his face and thereby reducing his
marriage prospects and this fact has not been taken into consideration by
the learned Motor Accident Claims Tribunal. It is submitted that
reasonable compensation ought to have been granted to injured-
Surrender Kumar to get plastic surgery done for restoration of his
disfigured face.
7. At this stage, learned counsel for DTC submits that compensation
awarded to injured Surrender Kumar needs to be proportioned in the
same manner as has been done in the case of deceased Rishi Kumar
Thakur. Nothing else is urged on behalf of the parties.
8. Upon hearing and on perusal of impugned Award as well as
evidence on record, I find that evidence of DTC bus driver and of injured
Surrender Kumar cannot be accepted to be gospel truth, as on perusal of
the site plan of the spot, which is on record, it appears that the DTC bus
driver had suddenly applied the brake and so, the car in question got
struck underneath the back portion of the DTC bus at the time of
accident. It is so said by injured Surrender Kumar in his evidence. In
this view of the matter, I find that learned Motor Accident Claims
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Tribunal had rightly concluded that the DTC bus driver as well as the car
driver were negligent and their negligence has been aptly assessed to be
50% each. Thus, the compensation granted to the legal heirs of deceased
Rishi Kumar Thakur has been correctly apportioned and on the same
analogy, the compensation awarded to injured Surrender Kumar also
needs to be apportioned.
9. So far as the enhancement of compensation in the case of injured-
Surrender Kumar is concerned, I find that this injured has nowhere stated
in his evidence that there was any disfigurement of his face due to
fracture in his nazal bone or that there is need of plastic surgery. So, no
case for enhancement of compensation is made out.
10. In view of the above, the impugned Award is modified to the
extent that DTC will have the right to recover 50% of the compensation
already paid to injured- Surrender Kumar from the owner/ insurer of the
car in question.
11. With aforesaid modifications, the above captioned three appeals
and application are disposed of.
(SUNIL GAUR)
JUDGE
DECEMBER 08, 2016
r
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MAC.APP.316/2015
