Delhi High Court
United India Insurance Co Ltd vs Sombir & Ors on 1 April, 2019
$-16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 01.04.2019
+ MAC.APP. 421/2019
UNITED INDIA INSURANCE CO LTD ..... Appellant
Through: Mr.Sankar Sinha, Advocate
versus
SOMBIR & ORS ..... Respondents
Through
CORAM:
HON'BLE MR. JUSTICE A.K. CHAWLA
JUDGMENT
A.K. CHAWLA, J. (ORAL)
CM APPL. 14847/2019
Exemption allowed, subject to just all exceptions.
MAC.APP. 421/2019 and CM APPL.14848/2019 (STAY)
1. By the instant appeal, the appellant - insurer assails the impugned
judgment - award, whereunder, a total compensation of Rs.4,94,768/- has
come to be awarded to the respondent no.1 - the injured, for the injuries
sustained by him in the motor accident involving Car bearing Registration
No.UP-14 BU 2590, in short 'the offending vehicle', of which, the appellant
is the insurer.
2. Concisely, the relevant facts are that on 29.11.2017 at about 12:00
noon, when the injured along with a pillion rider was going to his village
driving motor cycle bearing registration No.HR-10 Q 7690, it met with an
accident with the offending vehicle. According to the injured, the accident
occurred on account of rash and negligent driving of the offending vehicle.
3. During the course of hearing, learned counsel for the appellant
submits that the challenge to the impugned judgment / award is restricted to
the element of deduction towards contributory negligence. In view of such
submissions, the aspect of rash and negligence driving of the offending
vehicle; the insurer's liability; and the compensation awarded under the
different heads being not in dispute, the only aspect of contributory
negligence is under consideration.
4. The tribunal while passing the impugned award has deducted 30% of
the compensation towards contributory negligence, observing, as under:
"28. Keeping in view the facts and circumstances, I consider
the following amount to be the just compensation to the
Claimant:-
1. Future Loss of Income Rs.2,53,368/-
2. Towards Pain Shock & Suffering Rs.1,00,000/-
3. Towards Loss of Amenities & Rs.50,000/-
Enjoyment of Life
4. Towards Servant / Attendant Rs.20,000/-
Charges
5. Towards Conveyance & Special Rs.30,000/-
diet
6. Towards medical bills Rs.0/-
7. Towards loss of wages Rs.41,400/-
Total = Rs.4,94,768/-
Ld. counsel for insurance company vehemently argued
that due to the contributory negligence of the petitioner, he is
not entitled for the compensation and claim petition should be
dismissed. The contributory negligence of petitioner is proved
in view of his testimony as during cross examination the
witness has admitted that he did not have any DL to drive the
bike. Keeping in view of circumstances of the case, the 30% of
the total compensation amount is deducted towards
contributory negligence. The petitioner is accordingly entitled
for compensation of Rs.3,46,338/- from the respondents.
I accordingly award an amount of compensation of
Rs,3,46,338/- in favour of the Claimant and against
respondents."
5. The deduction towards contributory negligence has simply been
premised on the basis that the injured, who was driving the motor-cycle, did
not have any driving licence to drive the motor cycle. During the course of
hearing, learned counsel for the appellant was queried as to whether any
evidence had emerged for the motor-cycle having been driven rashly and
negligently and such driving, resulted into accident equally. To such
pointed queries, learned counsel for the appellant failed to make even an
oblique reference. The sole contention has been only to the effect that the
absence of the driving licence by itself would imply rash and negligent
driving. His such submission does not appeal to any reason. The tribunal
having arrived at a categorical finding for the occurrence of the accident
attributable to the rash and negligent driving of the offending vehicle, mere
absence of the driving licence by the injured to drive the motor-cycle, cannot
be taken to attribute contributory negligence in the occurrence of the
accident. May be, the injured violated the provisions of the Motor Vehicle
Act in driving the motor-cycle without holding a valid driving licence and
also committed an offence punishable under the Motor Vehicle Act, drawing
an inference of contributory negligence for the occurrence of the accident on
that count, does not sound well founded. In support of his submissions,
learned counsel for the appellant however, placed reliance on Sri Krishna
Vishweshwar Hegde Vs. General Manager, Karnataka State Road
Transport Corporation (2008) 15 SCC 771 and Renukadevi H. and Ors.
Vs. Bangalore Metropolitan Transport Corporation & Ors, (2008) 17 SCC
56. Reliance on Sri Krishna Vishweshwar Hegde (Supra) is outrightly
misplaced and out of context. In the case supra, on the facts and
circumstances, the Supreme Court took the view that the judgment of the
Tribunal assessing the ratio of liability at 50:50 was proper and the High
Court ought not to have interfered with it. In other words, only the question
of apportionment of liability on contributory negligence was decided by the
Supreme Court. In Renukadevi's case (Supra), on facts, the finding of
contributory negligence was given, inasmuch as, the injured was found to be
driving his scooty on the wrong side and held negligent in the occurrence of
the accident. Suffice to say, absence of driving licence by itself inviting an
inference of contributed negligence, was not the subject, even in the said
case. The contentions raised to the contrary are, therefore, rejected. Though,
the Tribunal, in the impugned judgment-Award, has deducted 30% of the
compensation towards negligence, it would suffice to say that this court does
not deem it necessary to get into the legality thereof, for the simple reason
that the appellant cannot be said to be aggrieved thereof.
6. For the foregoing reasons, there is no merit in the appeal and the same
is hereby dismissed.
(A.K. CHAWLA)
JUDGE
APRIL 01, 2019
ssn
