Delhi High Court
The New India Asurance Co. Ltd. vs Meera Devi & Ors. on 18 February, 2016
$~R-13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18th February, 2016
+ MAC.APP. 963/2006
THE NEW INDIA ASURANCE CO. LTD. ..... Appellant
Through: Mr. R.B. Shami, Adv.
versus
MEERA DEVI & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 15.01.2004, Paras Sharma was travelling as a labourer in truck
bearing registration no.HR-26GA-1381 (described in the impugned
judgments as the deceased's vehicle) which was driven by Aarif (ninth
respondent). The said vehicle was owned by Mahesh Chander Garg (eight
respondent) and it was concededly insured against third party risk with the
appellant/insurance company. The driver, owner and insurer of the said
truck were impleaded as third to fifth respondents in the claim petition
before the motor accident claims tribunal (the tribunal), registered as suit
no.43/2005. The truck was involved in collision against another truck
bearing registration no.DL-1GH-2576 (described in the impugned judgment
as the offending vehicle). The offending vehicle was driven by Nand Lal
(sixth respondent herein) and was owned by Sriniwas (seventh respondent
herein). It appears that the offending vehicle was not insured against third
party risk for the relevant period.
2. Paras Sharma died as a result of injuries suffered. The dependant
members of his family (first to fifth respondents herein) brought a claim
under Section 166 & 140 of Motor Vehicles Act, 1988 (the MV Act) on
19.03.2004, inter-alia, contending that the accident had occurred due to
negligent driving on the part of the drivers of both the vehicles. After
notice, the tribunal held inquiry and on its conclusion passed judgment dated
29.08.2006 which is impugned in the appeal at hand. The tribunal
concluded that the accident had occurred on account of negligent driving of
the offending vehicle by the sixth respondent herein. Yet, while assessing
the compensation awardable at `6,97,000/-, it directed the insurer company
(appellant) of what is described as deceased's vehicle to pay the sum to the
claimants in terms of Section 163-A of the MV Act, having been persuaded
to take such recourse following the view taken by a learned single judge of
this court in case reported as Bala and Ors. Vs. Moti Chand Gupta & Ors.,
2003 VIII AD (Delhi) 256.
3. The appeal was filed by the insurance company to contend that the
liability could not have been fastened on it since the driver of the truck in
which regard it had issued the insurance policy had not been found guilty. It
was submitted that even if on account of use it had to be burdened to bear
responsibility towards compensation, the same should have been restricted
to what could be awarded under Section 163-A of MV Act or under the
Workmen's Compensation Act, 1923, now known as Employee's
Compensation Act, 1923.
4. It is noted that the claimants have been resisting the appeal at hand,
their contention, as noted in the order dated 09.07.2009 being that the
tribunal had fallen into order by absolving the driver of the truck in which
respect the appellant/insurance company had issued the insurance policy
against the third party risk of the responsibility in the accident.
5. Given the issue raised by the insurance company in appeal, the
question as to who was at fault or negligent in causing collision is at large.
Having regard to this fact, this court called upon the learned for the
appellant to argue on the issue of negligence.
6. Having heard the learned counsel for the appellant and gone through
the record of the tribunal, it is found that the tribunal had fallen into an error
in rejecting the evidence of the claimants that the accident had occurred due
to negligence on the part of the drivers of both the vehicles. The evidence
led was summarized by the tribunal in the impugned judgment in the
following words:-
"PW1 has deposed that he was the brother of the
deceased aged 35 years at the time of accident. He has also
deposed that he was an eye witness. He has also deposed that
on 15.01.2004 at about 07:30 AM, the respondent No.4
proceeded the vehicle No.HR-26GA-1381 from Vijay Vihar to
JC Bhatta Sohati after boarding 8-10 labourers and when they
reached near Mohani Hospital, Jaunti, another truck No.DL-
1GB-2576, came from the front side and suddenly both vehicles
hit each other and thereby deceased sustained multiple injuries
and was taken to the nearest hospital. He has also deposed that
the accident took place due to contributory negligence of
respondent Nos.1 & 2. Said deposition of PW1, though cross-
examined on behalf of R-1, I observe, has gone unshaken. PW2
has also deposed to the similar effect as deposed to by PW1 and
though cross-examined on behalf of Respondent, his deposition
has also gone unshaken. Though respondent No.1, who
appeared as R1W1, has deposed that he did not drive the
offending vehicle rashly and negligently and that the deceased
was victim of the rash and negligent driving of the truck in
which he was traveling, his such sole deposition, I am not
inclined to believe in view of the challan Ex.PX that has come
to be filed U/s 279/337/304-A IPC and wherein the accused is
none else but him only, as also the fact that there is nothing on
record to show that the petitioners or any of the police official
have had any enmity against him to falsely implicate him in the
case. Site plan forming part of challan Ex.PX and the location
of the truck in which the deceased was travelling and the place
of occurrence of the accident by itself also indicates that the
offending vehicle had come on the wrong side of the road and
hit into the deceased truck. Though, both PW1 & PW2 have
deposed that there was contributory negligence of the drivers of
both the truck, keeping in view the site plan forming part of
challan Ex.PX and the consequent filing of the challan U/s
279/337/304-A IPC wherein the accused is none else but the
respondent No.1, I have no hesitation in holding that it was the
offending vehicle that was being driven rashly and negligently
and was responsible for the occurrence of the accident and the
consequent fatal injuries sustained by the deceased. Issue in
hand is answered accordingly."
7. It is clear from bare perusal of the aforesaid observations of the
tribunal that it accepted the impression gathered by the investigating police
officer as the gospel truth. The charge-sheet to which reference has been
made by the tribunal for absolving the driver of the truck in which the
deceased was travelling of any responsibility is nothing but opinion of the
investigating police officer that could not have clinched the issue. The
brother of the deceased (PW1) was an eye witness and his testimony that the
two vehicles had collided from front side indicates that it was a head-on
collision, in which view the plea of contributory negligence required to be
acutely examined. Given the testimony of PW1, the case of the claimants
that both drivers had been negligent could not have been rejected. The site
plan referred to by the tribunal in reaching conclusions to the contrary rather
shows that the truck in which the deceased was travelling had been hit by
the other truck coming from the opposite direction in the middle of the road.
8. In above facts and circumstances, the finding returned by the tribunal
holding the driver of the truck in which the deceased was travelling not to be
guilty of negligence is set aside. It is held that drivers of both vehicles i.e.
sixth and ninth respondent herein were equally guilty of negligence, each
having contributed to the cause leading to the fatal mishap.
9. In view of above, the liability to pay the compensation is apportioned
in equal ratio on the owner and driver of the offending vehicle (sixth and
seventh respondent herein) jointly and severally and the owner and driver of
the deceased's vehicle (eighth and ninth respondent) jointly and severally.
In the result, the appellant insurance company is held liable to indemnify the
eighth respondent to the extent of his liability which is fifty percent of the
award.
10. By order dated 01.12.2006, the appellant/insurance company had been
directed to deposit the entire awarded amount with the tribunal within the
period specified. By order dated 21.08.2008, fifty percent (50%) of the said
deposited amount with interest was allowed to be released to the claimants
in terms of the impugned judgment. By subsequent order dated 24.11.2009 ,
another sum of `50,000/- was allowed to be released to the first claimant by
transferring the said amount to her savings bank account at her native place,
remainder directed to be kept in fixed deposit in her name for a period of 5
years with liberty given to draw monthly interest therefrom.
11. The tribunal shall calculate the amounts payable by the appellant
insurance company in terms of the award modified as above apportioning
the liability only to the extent of fifty percent in its respect and deal with the
deposited amount accordingly. If any further amount is to be released from
the amount deposited by the insurance company to the claimants, necessary
orders shall be passed by the tribunal to that effect. Conversely, if the
amount lying in deposit is in excess of the liability of the appellant/insurance
company, the same shall be refunded to it with accrued interest. If amount
already released to the claimants is in excess of the liability of the
appellant/insurance company, it shall be granted liberty to take out
appropriate proceedings to recover it from driver and owner of the other
vehicle (sixth and seventh respondent herein) in accordance with law.
12. The sixth and seventh respondents are directed to pay the amount
payable by them to the claimants by depositing the same with the tribunal in
terms of the award modified as above within 30 days of today. In case of
any default on their part, the claimants are at liberty to get it recovered by
way of appropriate proceedings in accordance with law.
13. The statutory amount deposited by the appellant/insurance shall be
refunded.
14. The appeal is disposed of in above terms.
R.K. GAUBA
FEBRUARY 18, 2016/ssc (JUDGE)
