Delhi High Court
Shamim Khan & Anr. vs Ramkali & Ors on 2 August, 2017
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 02nd August, 2017
+ MAC.APP. 356/2008 and CM 8596/2008 and 11196/2009
SHAMIM KHAN & ANR. ..... Appellants
Through: Mr. Pankaj Gupta for Mr. P.C.
Aggarwal, Advocate
Versus
RAMKALI & ORS ..... Respondents
Through: Mr. A.K. Soni, Adv. for R-9 & 10
Mr. Sameer Nandwani and Mr. P.Acharya,
Advocates for R-11
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Pooran Singh, the husband of the first respondent and the bread
winner for other members of the family, they being second to sixth
respondents (collectively, the claimants), was travelling in a motor
vehicle described as Tata Sumo bearing registration no.HR-63-6854
(Tata Sumo) on 08.10.2005 from Delhi to Aligarh (U.P.). The vehicle
met with an accident in the area of police station Lodha, Aligarh
involving collision against another vehicle described as an ambulance
bearing registration no.UP-81N-9900 (ambulance) and died as a result
of the injuries suffered.
2. The claimants instituted accident claim case (suit no.131/06)
impleading the driver, owner and insurer of the ambulance they being
seventh, eight and ninth (as also tenth) respondents herein besides the
driver and owner of the Tata Sumo (they being the appellants) in
addition to its insurer (eleventh respondent herein). Noticeably, the
allegations in the claim proceedings were that drivers of both vehicles
were negligent. Further, noticeably, the eleventh respondent, the
insurer of the Tata Sumo took the defence, inter alia, that it was not
liable to indemnify since the vehicle was being plied for commercial
purposes which was in breach of the insurance policy (Ex. R6W1/3).
3. The Motor Accident Claims Tribunal (Tribunal), after inquiry,
by judgment dated 17.04.2007, awarded compensation in the sum of
Rs.2,30,000/- in favour of the claimants. It found the drivers of both
the vehicles guilty of contributory negligence and apportioned the
liability amongst them in the ratio 50:50. The Tribunal directed the
insurer of the ambulance (ninth / tenth respondent) to pay the
compensation but granted right to it to recover 50% from the appellant
herein, insurer of the Tata Sumo having been exonerated.
4. The appeal was filed by the appellants primarily contending that
the first appellant, the driver of Tata Sumo had also suffered injuries
in the process and that the vehicle had been taken out not for any
remuneration or money but due to friendly relations with the family of
the deceased for purposes of facilitating him to attend some marriage
ceremony. The finding on the question of negligence has also been
questioned.
5. Having heard the submissions and having gone through the
Tribunal's record, this court finds that the reasons set out by the
Tribunal to hold the drivers of both the vehicles guilty of contributory
negligence do not deserve to be disturbed or interfered with. It is clear
from the evidence of PW-2, an eye witness, that while the ambulance
was moving at an excessive speed in a zigzag manner, the accident
had occurred in the middle of the road, it being a case of head-on
collision, the driver of Tata Sumo also being responsible for the
mishap, he having used excessive speed. The injuries suffered by the
first appellant cannot be a good defence.
6. PW-1, during his cross-examination, had conceded that Tata
Sumo had been taken on hire for the journey during which the
accident occurred. No effort was made by the appellants to challenge
the said testimony by any evidence or rebuttal. In these
circumstances, the finding that the insurance policy (Ex. R6W1/3)
would not cover the risk of use of the vehicle for hire or reward also
does not call for any interference.
7. The appeal is, thus, devoid of substance and is dismissed. The
pending applications also stand dismissed.
R.K.GAUBA, J.
AUGUST 02, 2017
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