Delhi High Court
United India Insurance Company ... vs Smi Fateh Alam And Ors. on 26 October, 2016
$~R-202
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: October 26, 2016
+ MAC.APP. 68/2013
UNITED INDIA INSURANCE COMPANY LTD. ....Appellant
Through: Mr. Abhishek Kumar, Advocate
Versus
SMI FATEH ALAM AND ORS. .....Respondents
Through: Mr. Athar Alam, Mrs. Sumbu
Athar, Mr. Azhar Alam & Ms.
Kanchan Mala, Advocates for
respondents No.1, 2 & 4
Ms. Manisha Tyagi, Advocate for
respondent No.7
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 26th October, 2012 grants compensation of
`3,96,008/- along with interest @7.5% p.a. on account of death of a
motor cycle pillion rider aged 33 years on 27 th November, 2007, in
vehicular accident in which pillion rider was crushed under the wheels of
a DTC bus.
2. The factual matrix, as noticed in the impugned Award, is as under:-
"2. Brief facts as narrated in petition are that on
27.11.2007, the victim was travelling with Danish Raza
(respondent No.1 herein) as pillion rider on a motorcycle
bearing No.DL-7SR-9857 and at about 8:40 p.m. when they
reached near pillanju bus stand, it was hit by a three wheeler and
at that time a DTC Bus DL-1PB-0231 which was being driven by
its driver (respondent No.3 herein) struck the motorcycle from
behind and due to this impact deceased/ victim was thrown on
the road and came under the wheel of the bus resultantly causing
grievous injuries. The victim was removed to Safdarjung
Hospital where he expired. It is claimed that victim was young
man of 33 years. He was a Senior Store Officer in RPG
Cellucum based in Delhi (NCR) and was earning Rs.17,000/- per
month (Rs.2,09, 086/- p.a.)"
3. Apart from the evidence of other witnesses on record, there is
evidence of court witness-Mohd. Danish Raza, who was driving the
motor cycle in question on the day of accident. Trial court in the
impugned Award has chosen not to rely upon the evidence of court
witness Mohd. Danish Raza and has relied upon circumstantial evidence,
as detailed in paragraph No.13 of the impugned Award and has held that
the accident in question took place due to negligence of DTC bus, owned
by respondent No.7 herein. Appellant is the insurer of the said bus and
so, appellant has been called upon by the trial court vide impugned
Award to pay the compensation awarded.
4. The challenge to the impugned Award by learned counsel for
appellant-insurer is on the ground that trial court has erroneously
discarded the evidence of court witness Mohd. Danish Raza and has
relied upon the circumstantial evidence and such a submission is made
while relying upon the cancellation report filed in the FIR case qua the
bus driver. Learned counsel for appellant submits that the impugned
Award deserves to be set aside and respondents-claimants' claim petition
ought to be dismissed.
5. To the contrary is the submission by learned counsel for
respondents-claimants, who supports the impugned Award and submits
that there is no substance in this appeal, as the circumstances detailed in
the Award sufficiently show that the deceased was crushed under the
wheels of the insured DTC bus and the standard of proof to prove the
negligence is not the same as in criminal proceedings. It is thus
submitted that this appeal deserves to be dismissed.
6. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that the proof of negligence in criminal and civil
proceedings cannot be equated and that evidence of the court witness
Mohd. Danish Raza has been rightly excluded by the trial court, as the
circumstances detailed in paragraph No.13 of the impugned Award
clearly show that the face of the deceased was compressed and the extent
of compression was such that the face of deceased could not be
recognized. There is post mortem report of the deceased on record which
supports the finding of the learned Tribunal. Apart from it, there are
photographs of the spot which shows that the motor cycle in question had
fallen just near the DTC bus in question. By preponderance of
probability, the view taken by the learned Tribunal appears to be correct.
7. In the aforesaid view, this Court finds no illegality or infirmity in
the impugned Award and hence, this appeal is dismissed. While
entertaining this appeal, appellant was directed to deposit 50% of the
awarded amount and it was directed to be kept in fixed deposit receipt in
the UCO Bank, Delhi High Court Branch. Office noting shows that a
sum of `2,62,906/- with upto date interest was deposited by appellant in
the aforesaid Bank.
8. At this stage, learned counsel for respondents-claimants submits
that respondents-claimants have opened a bank account in State Bank of
India branch in District Court Saket, New Delhi and UCO Bank be
directed to remit the deposited amount with interest to respondents-
claimants' bank account in State Bank of India branch in District Court
Saket, who shall permit the disbursement of the awarded amount in terms
of Award in question. It is ordered accordingly.
9. Upon respondents-claimants furnishing the details of their bank
account(s) in State Bank of India branch in District Court Saket, New
Delhi to the UCO Bank, branch in Delhi High Court, the amount of fixed
deposit in question along with interest accrued thereupon, be remitted to
State Bank of India branch in District Court Saket, New Delhi. Four
weeks' time is granted to appellant to deposit balance 50% of the
awarded amount with interest in State Bank of India branch in District
Court Saket, New Delhi for its disbursement in terms of the impugned
Award. The statutory deposit, if made by the insurer, shall be refunded.
Let UCO Bank in Delhi High Court Branch be accordingly intimated.
10. The appeal is disposed of in aforesaid terms.
(SUNIL GAUR)
JUDGE
OCTOBER 26, 2016
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