Delhi High Court
The New India Assurance Co Ltd vs Bindeshwari Devi & Ors on 4 July, 2017
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 04th July, 2017
+ MAC.APP. 919/2014 and CM No.17180/2017
THE NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. J.P.N. Shahi, Advocate
versus
BINDESHWARI DEVI & ORS ..... Respondents
Through: Mr. Aditya Kr. Chaudhary,
Advocates for R-1 to 4
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
% JUDGMENT (ORAL)
1. A collision took place in the wee hours of 26.02.2011 at G.T.
Road near Shani Temple, Village Barhi, PS Gannaur, District Sonepat,
Haryana between two vehicles one being Canter (LMV) bearing
no.DL-1LK-0895 (Canter) and the other a truck bearing no.PB-08-BC
9680 (truck), it resulting in death of Vinay Kumar Choudhary (driver
of the Canter). His legal heirs (respondent nos.1 to 4 herein) took out
an accident claim case (petition no.149/2013) before the Motor
Accident Claims Tribunal (Tribunal), impleading the driver and owner
of the Canter (5th and 6th respondents herein respectively), and its
insurer (the appellant), as parties, in addition to Vipin Bhatia, the
registered owner of the Canter (and employer of the deceased) as
additional respondent, seeking compensation primarily on the ground
MAC Appeal No. 919/2014 Page 1 of 4
that the accident had occurred due to negligence on the part of the
driver and the truck it having been parked in the middle of the road in
a careless manner without any caution sign. The Tribunal on the basis
of evidence led during inquiry, upheld the contention of the claimants
about negligence and thus, granted compensation calculating it in the
sum of Rs.18,23,000/- with interest at the rate of 9% p.a. directing the
appellant insurance company to pay.
2. The insurance company, by the appeal at hand, seeks to assail
the judgment of the tribunal on two counts, one on the finding of
negligence, its contention being that the deceased was also guilty of
contributory negligence in that his vehicle had rammed into the truck
from behind, the second submission concerning the addition of the
element of future prospects of increase in the income for calculating
the loss of dependency.
3. Having heard the learned counsel for both sides and having
gone through the tribunal's record, this court is of the view that the
appellant must fail on both counts.
4. The evidence led before the tribunal included the testimony of
Vipin Bhatia (PW-2), the owner of the Canter and employer of the
deceased person. A copy of the chargesheet which was submitted on
conclusion of investigation into the corresponding FIR (Ex. PW1/C)
reveals that PW-2 had reached the scene of accident after the event.
His evidence clearly shows that he had found the two vehicles having
collided into each other in the middle of the road and it is his version
to such effect which led to the registration of the corresponding
MAC Appeal No. 919/2014 Page 2 of 4
criminal case. It is clear from his testimony and the other material on
record including the site plan prepared by the investigating police
officer that the truck was parked in the middle of the road in the dead
of night with no caution sign. Even if there was a break down of the
vehicle, the Motor Vehicles' Rules required some caution sign to be
put in position. Since the driver of the truck did not take any such
steps, it is very clear that it is on account of his negligence that the
collision took place.
5. The view taken in Raj Rani & Ors. Vs. Oriental Insurance
Company Ltd. and Ors., (2009) 13 SCC 654, does not assist the cause
of the appellant. Each case has to be seen on its own merits. It may
be that the driver of the Canter (deceased) may have noticed the truck
in the middle of the road but given the fact that it was a highway on
which he was moving with no caution sign, in all probability, by the
time he realized that the vehicle was not mobile, it would have been
too late for him to react and check or divert his vehicle to avoid
collision. In these circumstances, this court is not impressed with the
plea of contributory negligence.
6. Coming to the other contention, the prime reason why the
appellant takes exception to the addition of future prospects is that the
employer (PW-2) would not show any documentary proof regarding
employment of the deceased. PW-2 had deposed on oath that the
deceased was his employer for the last 4-5 years, his current salary
being Rs.10,000/-. The fact that the deceased had been in such
employment for such a long period, the fact that he was 40 years old at
MAC Appeal No. 919/2014 Page 3 of 4
the relevant point of time and the fact that he was a professional driver
collectively show that he was in regular employment of PW-2, a
transporter by avocation. Given the fact that it was a regular
employment, the element of future prospects will have to be factored
in.
7. The appeal, therefore, is devoid of substance and is dismissed.
The pending application also stands disposed of.
8. In terms of order dated 13.10.2014, the appellant would have
deposited the entire awarded amount with accumulated interest, out of
which, 50% was allowed to be released to the claimant. The balance
amount alongwith interest shall also now be released by the Registrar
General to the claimants in terms of the amount awarded.
9. The statutory deposit shall be refunded.
R.K.GAUBA, J.
JULY 04, 2017
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