Delhi High Court
Anshu Gupta vs Sanjay Panchal & Anr. on 14 July, 2017
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 14th July, 2017
+ Review Petition 35/2017 & CM Nos. 3472/2017(for
condonation of delay in filing) & CM No. 3473/2017 (for
condonation of delay in re-filing) in MAC APPEAL No.
406/2007
ANSHU GUPTA ..... Appellant
Through: Mr. R.K. Mehta, Mr. Puneet
Bhatnagar, Ms. Himanshi
Andley & Mr. Rajat Advs.
versus
SANJAY PANCHAL & ANR. ..... Respondents
Through: Mr. Pradeep Gaur, Adv. for R-
2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The review petitioner's accident claim case (suit no. 474/2004)
resulted in judgment dated 22.03.2007 passed by the motor accident
claims tribunal whereby compensation was awarded in his favour for
the injuries suffered by him in a motor vehicular accident that had
occurred on 19.11.2001, the accident having involved collision
between two vehicles, both two wheelers, one bearing registration no.
DL 1SJ 9920 (the claimant's scooter) and other bearing registration
no. DL 7SP 1407 (the offending vehicle). The offending vehicle was
admittedly driven by the first respondent Sanjay Panchal.
2. The tribunal, after considering the evidence led on the question
of negligence, held the claimant guilty of having contributed to the
cause primarily on the conclusion that he was in wrong lane on the
public road moving from East to West. Thus, the compensation,
which could have been awarded, and was assessed, in the total sum of
Rs. 34,96,971/- was halved and the insurance company (second
respondent) of the offending scooter was called upon to pay only 50%
of the said amount, it having been calculated as Rs. 17,48,486/-.
3. The appellant had come up to this Court by MAC Appeal No.
406/2007 which was dismissed by judgment dated 14 th March, 2016
upholding the finding of contributory negligence and thereby
accepting the conclusions of the tribunal to above effect. The review
petitioner approached the Supreme Court by Special Leave to Appeal
(Civil) no. 22176/2016 which was allowed to be withdrawn and
dismissed accordingly by order dated 19.09.2016 though with liberty
granted to approach this Court by review petition.
4. On notice on the review petition, the second respondent
(insurer) has appeared through counsel.
5. The learned counsel on both sides have been heard and the
evidence adduced before the tribunal has been re-examined. There
has indeed been an error in proper reading of the evidence both on the
part of the tribunal and this Court.
6. The site plan prepared by the local police during the
investigation into the corresponding FIR No. 594/2001 under Sections
279/337 IPC of police station Preet Vihar, was submitted with
material on record before the tribunal and is available at page 257. It
would show that both the vehicles, after the collision, were found by
the investigating police officer on the carriageway meant for
movement of traffic from West to East. The petitioner had adduced his
version by Nitin Gupta (PW-3) to prove the sequence of events that
had led to the accident. It is noted that in the course of the said
evidence PW-3 had explained that both he (PW-3) and the claimant
had gone together to watch a movie in PVR Saket and were returning
to their respective homes, both being across Yamuna river. This
would mean that both would be obliged to move from West to East on
the road in question.
7. The evidence of PW-3 further shows that PW-3 was following
the claimant, he (PW-3) moving in his car, while the claimant was
moving ahead on his scooter, the time of the occurrence being late in
the night at 11.30 pm. PW-3 is on record to state that the offending
vehicle had come from left hand side. He would explain the said
direction to be one where Coffee Home existed. This, in the
submission of the counsel for the petitioner, would mean the offending
vehicle would have come on to the road from the wrong side. He
pointed out that this version is confirmed by Tausif Nawaj (R1W2),
the witness examined by the first respondent himself. Per R1W2, both
the scooterists who had collided had come from opposite directions,
the accident having taken place near coffee home.
8. The first respondent had also appeared as a witness (R1W1).
He tried to give a different colour to the incident by claiming that his
scooter had been hit from behind. This obviously cannot be accepted
because his own witness R1W2 would speak differently.
9. Be that as it may, the assumption that the claimant was moving
from East to West on the basis of which the tribunal decided, and
which finding was affirmed by this Court, thus, is wrong.
10. For the foregoing reasons, the review petition must be accepted.
The finding of contributory negligence against the petitioner is,
therefore, set aside. It is held that he would be entitled to receive the
entire compensation, as has been computed without any deduction.
Needless to add, the balance shall be paid with interest, as has been
levied.
11. The learned counsel for the petitioner submits that the amount
of compensation as awarded earlier (to the extent of 50%) with
corresponding interest has already been received. The insurance
company shall pay the balance in terms of the modification now made
in the award by depositing it with the tribunal within 30 days.
12. The petition and miscellaneous applications are disposed of.
R.K.GAUBA, J.
JULY 14, 2017
nk
