Delhi High Court
Pushpa vs Pankaj Kumar & Ors. on 11 May, 2016
$~R-84 & 85
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11th May, 2016
+ MAC.APP. 581/2007
SUMER SINGH CHAUHAN
..... Appellant
Through: Mr. O P Mannie, Adv.
versus
PANKAJ KUMAR & ORS.
..... Respondent
Through: Mr. Pradeep Gaur, Adv. for insurance
+ MAC.APP. 582/2007
PUSHPA
..... Appellant
Through: Mr. O P Mannie, Adv.
versus
PANKAJ KUMAR & ORS.
..... Respondent
Through: Mr. Pradeep Gaur, Adv. for insurance
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 02.09.2002, Sumer Singh Chauhan (first appellant in
MAC.APP.No.581/2007) was driving two wheeler scooter bearing
registration No.DL 4S 8067 (the scooter) with his wife Pushpa (appellant in
MAC.APP.No.582/2007) and their two children including son (Yash
Chauhan) then aged seven years riding on the pillion. When the scooter had
reached Maksoodpur area, a tempo bearing No.DDL-4716 (the offending
vehicle) statedly came in a negligent manner from Mahipalpur side and
collided against it resulting in the driver and pillion riders of the scooter
falling down and sustaining injuries. As a result, Yash Chauhan, the minor
son of the two appellants, died.
2. Three accident claim petitions were preferred, one (suit No.114/03)
on account of death of Yash Chauhan and the other two (suit No,117/03 and
115/03) on account of injuries suffered by Sumer Singh Chauhan and
Pushpa Chauhan respectively. In all the three accident claim cases brought
before the motor accident claims tribunal, Oriental Insurance Co. Ltd.
(insurer) was shown as a respondent party along with the owner and driver
of the offending vehicle. Upon inquiry, in which Pushpa Chauhan and
Sumer Singh Chauhan appeared as witnesses (PW1 and PW2), the tribunal,
by common judgment rendered on 01.05.2007, returned finding to the effect
that the accident had occurred due to negligence on the part of both the
scooter driver and also the driver of the offending vehicle. The
responsibility on the scooterist was fastened to the extent of 30%. The
tribunal assessed compensation. In the case of death of the child an amount
of Rs.2,25,000/- was awarded. In the case of injuries of Pushpa Chauhan
compensation in the sum of Rs.19,500/- was awarded and for the injuries of
Sumer Singh Chauhan compensation in the sum of Rs.38,330/- was
awarded. The tribunal directed the insurer to pay with interest at 7% per
annum in each case, though in the case of death of Yash Chauhan and
injuries of Sumer Singh Chauhan deduction was made to the extent of 30%
on the basis of finding of contributory negligence. It is noted that the
tribunal upheld the plea of the insurance company about breach of terms and
conditions of the insurance policy and on that basis granted it recovery
rights against the owner of the offending vehicle.
3. By these appeals, the finding of contributory negligence is questioned.
In addition, the appellants submit that the rate of interest levied is
inadequate.
4. It may be added here that an appeal has also been filed concerning the
award on account of death of Yash Chauhan, the said appeal
(MAC.APP.No.580/2007) having been heard and the judgment reserved to
be separately pronounced with other similar cases of claims arising out of
death of minor children.
5. Having heard both sides and gone through the record, this Court finds
merit in the contention of the appellant that the conclusion reached by the
tribunal as to contributory negligence was unwarranted. The tribunal seems
to have been swayed by the fact that the scooterist had allowed three persons
to travel with him on the pillion. It failed to bear in mind that two of the
said pillion rides were minor children of the parties aged hardly seven and
nine years respectively. There is nothing on record to show that the
presence of an additional child on the sctooer had contributed to the cause
for accident. The evidence of PW1 and PW2 clearly bringing out the
negligence on the part of the driver of the offending vehicle has gone
unchallenged and unrebutted. The tribunal itself noted that in spite of
opportunity, the driver of the offending vehicle did not enter the witness
box. Thus, in a case where the cause for accident is wholly and squarely
that of the negligent driving of the offending vehicle, deduction on account
of contributory negligence in the manner done was not called for. The
finding and its consequence is thus set aside.
6. Following the consistent view taken by this Court [see judgment dated
22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta
Devi & Ors.], the rate of interest is increased to 9% per annum from the date
of filing of the respective petitions till realization.
7. The insurer shall be duty bound to deposit the requisite amount
inclusive on account of the increase in the rate of interest and without any
deduction on account of contributory negligence with the tribunal within 30
days. Upon such deposits being made, same shall be released to the
claimants in terms of the impugned judgment. Needless to add the recovery
rights already granted to the insurer shall inure in its favour even respecting
the enhanced effect of the award.
8. Both appeals are disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 11, 2016
VLD
