Delhi High Court
Shri Sanjeev Chopra vs Shri Anjan Gupta & Ors on 23 March, 2016
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd March, 2016
+ MAC.APP. 665/2006
SHRI SANJEEV CHOPRA ..... Appellant
Through: Mr. Ram N. Sharma, Adv.
versus
SHRI ANJAN GUPTA & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The appellant was driving two wheeler scooter No. DL 75 D 4076
(the scooter) in the area of Sector 62 Noida, District Gautam Budh Nagar,
UP, on 04.05.2003 at about 12.30 p.m. when it was involved in a collision
against a Maruti car bearing No. DL 1CE 0726 (the car), as a result of
which he sustained injuries. He filed a claim petition under Sections 166
and 140 of Motor Vehicles Act, 1988 (MV Act) before the motor accident
claims tribunal (the tribunal) on 03.07.2003 seeking compensation, it being
registered as Suit No. 148/2003. In the said claim case Anjan Gupta (first
respondent) was impleaded as the driver of the car, in addition to Aprajita
Malik, (third respondent) she being the owner of the car, in addition to
second respondent M/S Tata AIG Insurance Co. Ltd. (insurer), it having
admittedly insured the car against third party risk for the period in
question.
2. On the basis of inquiry held, the tribunal, by judgment dated
19.04.2006, granted compensation in the sum of ₹ 2,63,270/- with interest
in favour of the claimant directing the insurer to pay.
3. By the appeal at hand, the claimant seeks enhancement in the
compensation under the non-pecuniary head of pain & suffering, in
addition to questioning the finding recorded that he being the scooterist
was guilty of contributory negligence to the extent of 30%, on which
account, the compensation awarded was 70% of what was computed to be
payable.
4. The tribunal calculated the compensation in the following manner:-
1. Pain &Suffering for two fractures 30,000/-
2. Actual medical expenses 1,13,247/-
3. The special diet and conveyance : 15,000/-
4. The loss of income during the period 63,852/-
of treatment from 04.05.03 to 11.05.03
and another operation on 31.10,03 total
taken for a period of one year considering
tile injuries
5. Future medical unhappiness 50,000/-
6. Expenses on attendant driver talcen for
A period of 1 ½ years since there is no 54,000/-
permanent disability
7. Future medical expenses &loss of 50,000/-
amenities in life
TOTAL 3,76.099/-
8. It was held by the tribunal that the claimant was guilty of
contributory negligence. The reasoning for this conclusion is set out
mainly in para 7 (c), appearing at internal page 7 of the impugned
judgment, which reads thus:
" In view of the above, I am to answer that the petitioner
received injuries consequent to the accident involving offending
vehicle but not exclusively due to the rash and negligent act of
respondent number 1 since, I find that the petitioner was also
responsible to the accident which can be easily gathered from
the fact that the PW1 does not describe the manner of accident
in his evidence apart from the unwillingness of the petitioner to
have asked for the MLC at the initial place of treatment".
9. This Court finds the reasoning given by the tribunal to be wholly
incomprehensible. The conclusion reached by the tribunal, even
otherwise, is not borne out from the material on record which may be
presently seen.
10. The claimant had placed on record, amongst others, copy of the first
information report (FIR) which had been registered by the local police on
the date of accident (vide ExPW-1/1). It had been alleged in the said FIR
that the accident had occurred due to rash/negligent driving of the car it
having hit the scooter. The claimant led evidence by examining himself as
PW-1 on the basis of his own affidavit wherein he mentioned the use of the
car in negligent manner by its driver to be the cause of collision. During
cross-examination, he was called upon to describe the layout of the roads
where the collision took place. At that stage, he clarified that the road in
question was a wide one with a central divider and further that he was
moving on the extreme left side of the road. The car driver Anjan Gupta
(the first respondent) made no attempt to discredit him on this account. He
appeared as witness in his defence (as RW1) wherein he attributed
negligence to the scooterist stating that he had come at a fast speed, in a
zig-zag manner. Noticeably, no such suggestions had been given to the
claimant when he was examined as PW-1. In above facts and
circumstances, the claimant could not have been found guilty of
contributory negligence. The accident thus had occurred due to fault of the
car driver and, therefore, compensation assessed by the tribunal had to be
paid to the claimant without any deduction.
11. The evidence on record shows that the claimant had suffered
multiple fractures. As demonstrated by the medical records relating to
treatment, particularly Ex.PW1/6, he had to undergo surgical procedures
wherein nails were planted. It is in this view that the tribunal found it
necessary to take care of future medical needs as well. In the overall facts
and circumstances, award of ₹ 30,000/- under the head of pain & suffering
seems to be on the lower side. It is increased to ₹ 60,000/- . The net result
is that the compensation would stand enhanced by ₹30,000/-. Needless to
add, it shall carry interest as levied by the tribunal.
12. The claimant has already received the compensation as awarded by
the tribunal. Since deduction on account of contributory negligence to the
extent of 30% was made, and since there is increase in the award by an
amount of ₹ 30,000/-, the insurer (the second respondent) will be obliged
to pay more. The second respondent (insurer) is, therefore, directed to pay
the balance payable in terms of the award modified as above, by depositing
the same with the tribunal within 30 days, whereupon it shall be released to
the claimant.
13. The appeal stands disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 23, 2016
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