Delhi High Court
Fakir Chand Taneja & Ors vs Sudama Gupta & Ors on 28 November, 2017
$~R-559 & 560
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 28th November, 2017
+ MAC.APP. 806/2012
FAKIR CHAND TANEJA & ORS ..... Appellants
Through: Mr. Vikas Jain, Advocate.
versus
SUDAMA GUPTA & ORS ..... Respondents
Through: Mr. Pradeep Gaur, Advocate for
R2.
Mr. A.K. Soni, Advocate for
R5.
+ MAC.APP. 951/2012
THE ORIENTAL INSURANCE CO. LTD. .....Appellant
Through: Mr. A.K. Soni, Advocate.
versus
FAKIR CHAND TANEJA & ORS ..... Respondents
Through: Mr. Pradeep Gaur, Advocate for
R8.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Sunil Taneja, working as Assistant Vice President (Exports) in a
private company (Maral Oversees Limited), then aged 36 years, was
travelling as a passenger in a motor vehicle described as Tata Qualis,
bearing registration No. MP-09V-6753 (the car), on 03.02.2007 from
District Khargone, Madhya Pradesh to Shirdi in Maharashtra. At
about 7.30 a.m., when the car had reached the area of Babhalephata on
National Highway No.3, within the jurisdiction of Police Station
Sindkhera, District Dhule, it was involved in a head on collision with
Tata truck bearing registration No. MH-04-CP-357 (the truck). As a
result of the impact, Sunil Taneja and the car driver died on the spot.
The local police registered a criminal case (FIR) and proceeded with
the investigation.
2. The members of the family dependent upon Sunil Taneja
(collectively, the claimants), instituted accident claim case (MACT
Suit No. 357/10), on 02.04.2007 impleading, amongst others, the
insurer of the truck as party respondent, this in addition, of course, to
the driver and owner of the truck besides the owner and insurer of the
car, the driver of the car though shown in the array having expired in
the accident. On conclusion of inquiry, the Tribunal, by judgment
dated 21.05.2012, held that the accident had occurred due to
negligence on the part of the truck driver. It awarded compensation in
the total sum of Rs.1,01,50,000/- and directed the insurer of the truck
to pay the same with interest.
3. The insurer of the truck, by its appeal (MAC. Appeal No.
951/2012), has challenged the said judgment of the Tribunal on the
ground that the liability should also have been fastened on the car
driver and, thus, the responsibility to pay compensation should have
been apportioned.
4. Per contra, the claimants by their appeal (MAC. Appeal No.
806/2012), seek enhanced compensation on the ground that the
income of the deceased was wrongly taken as Rs.50,000/-, this
resulting in error in the calculation of loss of dependency.
5. The learned counsel on all sides have been heard and with their
assistance the record perused.
6. The claimants had examined Kishan Dattu Patil (PW-2), who
runs a hotel in the name of Kishan Hotel in the vicinity of the place of
accident, as an eye-witness, his evidence showing that the collision
had taken place when the truck driver while trying to overtake another
vehicle had come in the path of the car, he having used excessive
speed and this resulting in the collision. On the other hand, the truck
driver was examined (as R3W1), his evidence seeking to indicate that
the car driver was negligent in driving and had come in the lane of the
truck all of sudden while overtaking another vehicle moving in its
path. During the course of hearing, the counsel for the insurer of the
truck referred to the FIR and the record relating to the investigation
thereinto.
7. Having perused the evidence led before the Tribunal during the
inquiry and also the corresponding record of the criminal case,
particularly the site plan which was prepared during the course of
investigation by the local police, translated copy whereof has been
submitted with the appeal of the insurer (page 53A), this Court finds
no merit in the submissions raised by the insurer of the truck. The fact
that PW-2 was running a hotel in the vicinity of the accident is not in
dispute. It is clear from the record that he was a signatory to the
panchnama prepared during the course of investigation immediately
after the collision. His presence is, thus, duly confirmed by the
contemporaneous police record. The evidence of R3W1 is clearly a
self-serving certificate by the truck driver given to himself seeking to
get absolved from the complicity in the accident. PW-2 was
categorical in revealing that the truck driver had come in the path of
the car and thus, in the wrong lane, this primarily being the cause for
accident. The manner in which the two vehicles ended up after the
collision, as revealed by the site plan referred to above, speaks
volumes about the excessive and uncontrolled speed at which the truck
was moving. The findings on the issue of negligence as returned by
the Tribunal, therefore, do not call for any interference.
8. The learned Tribunal has given valid reasons for exclusion of
certain allowances from the calculation of loss of dependency. The
wife of the deceased was in government employment and would be
entitled to house rent allowance. Other allowances on which reference
was made being personal in nature, the calculation of loss of
dependency is not erroneous. Thus, both appeals are dismissed.
9. By order dated 29.08.2012 (in MAC. Appeal No. 951/2012), the
insurer of the truck had been directed to deposit the entire awarded
amount, the period for compliance being later enlarged by order dated
05.11.2012. By subsequent orders, some portion of the said deposit
was released to the claimants. The balance, if any, lying in deposit
shall be released to the claimants in terms of the judgment of the
Tribunal. If there is any deficiency, the claimants would be at liberty
to move the Tribunal for enforcement.
10. The statutory deposit made by the insurer of the truck shall be
refunded.
11. Both the appeals are disposed of in above terms.
R.K.GAUBA, J
NOVEMBER 28, 2017
srb
