Delhi High Court
Balvinder Singh vs Gopal Kotian on 22 August, 2017
$~R-131
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 22nd August, 2017
+ MAC APPEAL No. 548/2009
BALVINDER SINGH .... Appellant
Through: None.
versus
GOPAL KOTIAN ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Accident claim case (suit no. 700/2004) was instituted by the
first respondent (claimant) on 30.07.2004 impleading the appellant
herein as the second respondent describing him as the registered
owner of the car make Ambassador bearing registration no. DL 3CH
0623, which was statedly driven in a negligent manner by Mangal
Singh, impleaded as first respondent before the tribunal. The claim
for compensation for the injuries suffered was allowed by the tribunal,
by judgment dated 11.08.2008, whereby compensation in the sum of
Rs. 98,570/- was awarded with interest @ 9% per annum and the
appellant herein, and the said Mangal Singh, were held jointly and
severally liable.
2. The appellant filed the present appeal questioning the said
judgment and award contending that the element of contributory
negligence was not considered, the award for loss of income for the
period of leave of absence from duty was uncalled for and that the
medical expenses towards treatment had been reimbursed by the
department where the claimant was working also pointing out that
Mangal Singh was acquitted in the corresponding criminal case.
3. The appeal was directed to be listed in "regulars" by order dated
31st May, 2010. At the hearing, no one has appeared for the appellant
to assist.
4. It is noted from the tribunal's record that Mangal Singh, the
driver of the offending vehicle did not appear and was set ex-parte.
The appellant had appeared on notice but midway the inquiry, he also
stopped participating and was set ex-parte by order dated 10.04.2007.
Thereafter, the impugned judgment was rendered on the basis of
available evidence. It is noted that no evidence was brought on record
by the appellant to prove the defence of contributory negligence. The
result of the corresponding criminal case is inconsequential as liability
in tort is tested on preponderance of probabilities. The loss of leave
account also has to result in corresponding compensation. There is
nothing to show that the medical expenses which have been taken into
consideration by the tribunal were subject of any reimbursement.
5. The appeal is, thus, devoid of substance and is dismissed.
6. At the time of appeal being entertained, by order dated
12.11.2009, the appellant had been directed to deposit Rs. 73,570/-,
after adjustment of the statutory amount of Rs. 25,000/-. The said
amount was allowed to be released to the claimant by directions in the
order dated 20.01.2010. The statutory amount deposited by the
appellant will also be released to the claimant for further satisfaction
of his claim under the impugned award.
7. The appeal is dismissed. If there is deficiency, the claimant is
at liberty to take out appropriate proceedings before the tribunal.
R.K.GAUBA, J.
AUGUST 22, 2017
nk
