Delhi High Court
Murti Devi & Ors. vs Harun Khan & Ors. on 24 August, 2017
$~R-140
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 24th August, 2017
+ MAC APPEAL NO.598/2009 & CM 17736/2009
MURTI DEVI & ORS. ..... Appellant
Through: None
versus
HARUN KHAN & ORS. ..... Respondents
Through: Mr. J.P.N. Shahi and Mr.
Komal Dhingra, Advocates for
R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Harish Kumar Yadav, then 36 years old, employed as a driver
with the office of the Joint Director (Agriculture) of the Development
Department of Govt. of NCT of Delhi, suffered injuries and died in
the consequence in a motor vehicular accident that occurred on
09.02.1998 at about 9.30 p.m., involving collision of two vehicles one
being Toyota Tempo bearing registration no.DL-1L-1731 (Tempo)
and the other being truck bearing registration no.HR-38A-4945
(truck), in the area of PAI Farm House, within the jurisdiction of
police station Vasant Kunj. The deceased was the driver of the tempo
while the truck in question was driven by the first respondent, it being
admittedly insured against third party risk with the third respondent
(insurer) for the period in question. The widow and other members
of the family depending on the deceased, they being the appellants
herein, instituted accident claim case (petition no.842/2008) on
27.05.1998 seeking compensation.
2. The Motor Accident Claims Tribunal (Tribunal), after inquiry,
by judgment dated 20.05.2009, returned a finding that the accident
had occurred due to the negligence on the part of both the deceased
and the truck driver, holding them equally responsible. It computed
the compensation in the total sum of Rs.9,82,040/- but on the basis of
finding to above effect directed the insurer of the truck to pay half of
the above said amount as compensation to the claimants.
3. The appeal was filed questioning the finding of contributory
negligence and the computation of compensation. As per order dated
23.07.2013, the appeal was put in the category of regulars. When the
appeal is taken up for hearing, there is no appearance for the
claimants / appellants. The learned counsel for the insurer has been
heard and with his assistance record perused.
4. In the opinion of this court, the finding of contributory
negligence on the part of the deceased was wholly uncalled for,
unjust and unfair. In fact, that was nobody's case during the inquiry.
This was not even put as a defence to the eye witness Dr. Nagender
Yadav (PW-4) during his cross-examination. The tribunal has
observed that it was a case of head-on collision. It is not understood
as to what was the basis for such assumption. PW-4 had instead
spoken of the truck hitting against the tempo on the corner of the
driver side. Even if it was assumed, that there was a head-on
collision, that by itself would not mean that the tribunal could jump to
the conclusion that both the drivers were equally responsible. To
hold the deceased also accountable for the accident, it had to be found
out, from the evidence that he was in the wrong lane or moving in
wrong direction. No such material having been brought out, the
conclusions to the above effect and the finding of contributory
negligence are unfounded and, therefore, set aside. It is held that the
claimants are entitled to the entire compensation to be paid without
any deduction.
5. The appeal, however, also raises the issue of computation of
loss of dependency stating that the colleague of the deceased was
earning much higher wages in July 2007. The wages earned by some
other person in later years cannot become the benchmark. The
tribunal has accepted the evidence led by the claimants on the basis of
pay certificate (Ex. PW1/3), added the component of future prospects
of increase and applied the correct multiplier to grant the award.
There is no merit in the contentions urged in the appeal about the
computation.
6. The appeal is, thus, partly allowed. It is directed that the insurer
is obliged to pay the entire amount of Rs.9,82,040/- (Rupees Nine
Lakhs Eighty Two Thousand and Forty Only) as determined by the
tribunal to the claimant.
7. The insurance company shall deposit the balance of its liability
in terms of the modification ordered above, by making an appropriate
deposit with the tribunal within thirty (30) days failing which it shall
be liable to pay interest at the rate of nine per cent (9%) per annum.
thereupon. Upon the deposit being made, the tribunal shall release
the amount in terms of the dispensation in the impugned judgment to
the claimants.
8. The appeal and the pending application are disposed of in above
terms.
2.
R.K.GAUBA, J.
AUGUST 24, 2017
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