Delhi High Court
Anshu Gupta vs Sanjay Panchal And Anr on 14 March, 2016
$~ R-38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 14th March, 2016
+ MAC.APP. 406/2007
ANSHU GUPTA ..... Appellant
Through: None.
versus
SANJAY PANCHAL AND ANR ..... Respondents
Through: Mr. Pradeep Gaur & Amit Gaur,
Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The appellant had suffered injuries in a motor vehicular accident that
occurred on 19.11.2001 involving collision between two wheeler scooter
bearing registration no.DL-1SJ-9920 (hereinafter referred to as the
claimant's scooter) and the scooter bearing registration no.DL-7SP-1407
(hereinafter referred to as the offending vehicle). He filed a claim petition
through his wife (next friend) on 13.05.2002 before the motor accident
claims tribunal (the tribunal) seeking compensation for the injuries and
disability consequently suffered, impleading the owner/driver of the
offending vehicle and its insurer as first and second respondents. On the
basis of inquiry held, the tribunal, by judgment dated 22.03.2007, calculated
the compensation payable to be `34,96,971/-.
2. The claim petition had been contested, inter-alia, on the ground that
the claimant himself had been negligent in driving his scooter. This
contention was examined by the tribunal, it concluded that the claimant had
been guilty of contributory negligence to the extent of fifty percent (50%)
and, thus, reduced the compensation awardable to him to the extent of 50%,
directing the insurance company to pay with interest.
3. Though the appeal was preferred raising several issues concerning the
calculation of the compensation, at the hearing it is pressed only on the
ground that the finding of the tribunal that the claimant was also guilty of
contributory negligence to the extent of 50% was not correct.
4. Having heard the learned counsel on both sides and having gone
through the tribunal record, this court does not find any substance in the
contention urged.
5. The claimant had been rendered disabled to the extent of 70%. He did
not examine himself in evidence. However, on his behalf Nitin Gupta
(PW3) an eye witness was examined. PW3 was following the scooter of the
claimant in his car in the same direction. He deposed that when the vehicle
had reached Madhuban Chowk, the offending vehicle had come from the
left side at a high speed with the pillion rider and hit the scooter of the
claimant forcing him to take "3-4 rounds" after falling on the ground. The
rider of the offending vehicle, the first respondent herein, also examined
himself as R1W1. According to his evidence, the scooter of the claimant
had come from behind and hit his scooter rendering him fall down and
suffering injuries, having became unconscious.
6. The claimant also relied on the record of the investigation conducted
by the police during the probe into the first information report (FIR)
no.594/2001 which have been registered in police station Preet Vihar, Delhi.
The said record includes copy of the site plan (page 257 of the tribunal
record), depicting the layout of the public roads and the junction where the
collision took place.
7. The tribunal concluded that the claimant was guilty of contributory
negligence observing as under:-
"At the same time, one cannot ignore the statement of R1W1 who
gives his version of the accident who is also injured. The petitioner
injured himself is not examined. We are left with the statements of
PW3 and R1W1. According to R1W1 one scooter came from behind
and hit his scooter. According to PW3 scooter no.1407 (respondent
no.1's scooter) came from left hand side. None of these witnesses had
stated the directions and the course of these vehicles as per the site
plan prepared by the police. Ex.PW4/D is the site plan. The site plan
also does not depict the course of the two vehicles involved in the
accident. If the statement of PW3 is to be understood as the course of
the scooter of the injured Anshu Gupta, as proceeding from east to
west, the vehicle of the respondent no.1 must be traversing from west to
east in the opposite direction. If this be correct, the respondent no.1
who was supposed to move in the other lane i.e. towards the south in
the site plan had switched over to the track meant for traffic flowing
from the opposite direction. R1W1 stated that the scooter hit him from
behind. In the cross-examination of R1W1, nothing is elicited to
demolish his say by the petitioner that the vehicle of injured hit him
from behind. On the other hand, R1W1 had denied that he hit the
vehicle of the petitioner while coming from the opposite direction. In
the result, I am only to choose between the evidence of PW3 who stated
that respondent no.1 was coming from opposite direction and that of
R1W1 who deposed that he was hit from behind which means he was
also in the flow from east to west as per the site plan. Though it was
attributed by PW3 that respondent no.1 was negligent, it cannot be
denied that both the scooterists were rash and negligent either.
Therefore, I hold issue no.1 partially in favour of the petitioner holding
in the circumstances the blameworthiness of the petitioner Anshu
equally to the accident considering that the vehicles involved are of
similar capacity."
8. Upon the evidence adduced being examined in the light of the site
plan referred to above, the view taken by the tribunal is found to be correct
and proper. The scooter of the claimant, after the collision, was found on
the carriage way of the road which was meant for movement of traffic from
west to east. Having regard to the case set up by him he was on way from
east to west and, thus, would have come in the path of the offending vehicle.
9. In this view, the appeal is found devoid of substance and is
accordingly dismissed.
R.K. GAUBA
(JUDGE)
MARCH 14, 2016
ssc
