Delhi High Court
Iffco Tokio General Insurance Co ... vs Jitender Pal Singh & Ors on 22 January, 2020
$~20 to 22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 22.01.2020.
+ MAC.APP. 203/2019
IFFCO TOKIO GENERAL INSURANCE CO LTD ..... Appellant
versus
JITENDER PAL SINGH & ORS ..... Respondents
+ MAC.APP. 205/2019
IFFCO TOKIO GENERAL INSURANCE CO LTD ..... Appellant
versus
RAJWANT KAUR & ORS .....Respondents
+ MAC.APP. 209/2019
IFFCO TOKIO GENERAL INSURANCE CO LTD ..... Appellant
versus
MAN MOHAN SINGH & ORS .....Respondents
Through: Mr. A.K. Soni and Mr. Pavan Kumar
Vashisth, Advocates for insurance
company.
Mr. M.L. Bajaj, Advocate for
respondents.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. These appeals impugn the award of compensation dated 22.10.2018
passed by the learned MACT in Suit Nos. 536/2011 (MACT No.
357363/2016), 538/2011 (MACT No. 357398/2016) & 537/2011 (MACT
No. 357364/2016), apportioning 50% of the liability on the appellant
apropos a head on collision between two vehicles which occurred at
midnight on 11.08.2010. The unfortunate accident resulted in two fatalities
and two serious injuries.
2. The learned Tribunal found contributory negligence on the part of Mr.
Jitender Pal Singh - driver of the car bearing registration no. DL-3C-AF-
8199. It is the appellant's case that there was no negligence on the part of
the driver of the offending vehicle.
3. The impugned order has dealt with the issue as under:
" (v) The car in question was being driven by
PW4 Jitender Pal Singh whereas Man Mohan Singh
(PW3) was travelling in the said car. In their
examination-in-chief they testified that on
11.08.2010 at about 12 o' clock (mid night) they
alongwith deceased Sohan Singh @ Sonu and
Jhirmal were going from Delhi to Nawa Sahar,
Punjab in their car bearing registration No. DL-3C-
AF-8199. They further testified that when they
reached about 100 yards prior to Banur Sale Tax
Barrier, car was collided with a Canter bearing
registration No. PB-10CE-7159 all of sudden as the
canter was coming from wrong side at high speed in
a rash and negligent manner. Due to the accident,
all of them sustained injuries.
(vi) In their cross-examination, they admitted
that the car was being driven in the centre of road
and they further admitted that though there was a
road divider, but it was slightly ahead to the place of
accident and clarified that there was no road divider
at the placed of accident. They further testified that
the offending canter came from wrong side. By
deposing so they intended to say that since the road
divider was slightly ahead to the place of accident,
canter came from wrong side at fast speed and hit in
their car.
(vii) In their cross-examination, they further
admitted that they had seen the canter from the
distance of 100 meter and thereafter, the canter hit
them. Counsel appearing for insurance company
contented that no reliance can be placed on their
deposition as the same is contrary to DD No. 8. No
doubt, the deposition of PW3 & PW4 is contrary to
the DD No. 8, but during cross-examination neither
of the witnesses was got confronted with their
previous statement made to the police. Even they
were not got confronted with DD No. 8. In other
words, no opportunity was given to the witnesses to
explain the said contradiction. Since, no such
opportunity was given to the witnesses, I am of the
view that : the previous statement made to the police
and the DD can not ; be used against them.
(viii) From the/testimony of PW3 and PW4, it
becomes clear that there was no road divider at the
place of accident, but it was located a slightly ahead
to the spot. From their statement, it can safely be
culled out that the offending vehicle came from
wrong side from the cut of the road divider.
However, from the deposition of PW3 & PW4, it is
also clear that they had seen the said truck from the
distance of about 100 metre. It means that the car
driver Jitender Pal Singh had sufficient time to take
appropriate step to avoid collision, but he failed to
do so. Though both the witnesses testified that at the
time of accident, car was being driven in the middle
of road, but their testimony to that extent appears
untrustworthy. Had the car been driven in the
middle of road and the offending truck came from
the cut of central verge in that situation the truck
would be on the extreme right side i.e. near the
central verge and the position of the car would be in
the middle of the road. But since the accident had
taken place, it shows that the car must be driven at
the extreme right side towards the center verge. But
since car driver (PW4) had seen the truck from the
distance of 100 metre, it mean that car driver was
not vigilant and due to that reason he failed to take
any step to avoid the accident. Thus, there was a
contributory negligence on the part of Jitender Pal
Singh.
(ix) Considering the facts and circumstances
of the case, I am of the view that 50% of the award
amount is liable to be deducted from the total award
granted in favour of Jitender Pal Singh. However;
since deceased Sohan Singh @ Sonu and injured
Man Mohan Singh were travelling in the said car, it
cannot be said that there was any contributory
negligence on their part. Accordingly no amount is
liable to be deducted in their case."
4. What emanates from the above discussion is that there was good
reason for the learned Tribunal to conclude that the offending vehicle was
equally responsible for the accident because it was coming from the wrong
side of the road. This very act, ipso facto, establishes the rashness and
negligence on the part of the offending vehicle. There is no merit in the
appellant's argument. It is accordingly rejected.
5. In view of the above, the appeals are dismissed.
6. The statutory amounts, alongwith interest accrued thereon, be
deposited into the 'AASRA' Fund created by this Court for the treatment
and rehabilitation of burn victims.
NAJMI WAZIRI, J
JANUARY 22, 2020
AB
