Urmila Tyagi & Ors. v. Akbar Khan & Ors.

1. The present appeal has been filed seeking to impugn the Award dated 12.04.2012. The brief facts leading to filing of the claim petition by the appellants are that on 15.12.2005, the deceased Vijender Kumar Tyagi was going with Mr. Rinku i.e.Nitin Tyagi in a Maruti Zen Car. Near Akrabad Petrol Pump they were hit by a truck said to be driven rashly and negligently by respondent No.1. The occupants of the car were grievously injured. Later on, Mr. Vijender Kumar Tyagi succumbed to his injuries.

2. On the issue of negligence of respondent No.1, the driver of the offending truck, the tribunal noted the evidence of PW[2] Mr. Nitin Tyagi who was an eye witness. The tribunal also noted about the fact that a charge sheet has been filed against respondent No.1. Further the tribunal relying on the copy of the site plan placed on record noted that the deceased was driving his car just prior to the accident on the wrong side of the road, 2014:DHC:5995 namely on the right side whereas he should have driven his car on the left side. This conclusion was based on the site plan placed on record. Hence, the tribunal concluded and held that the deceased and respondent No.1 were equally rash and negligent due to which the accident took place. On compensation, the tribunal awarded the following compensation:

1. Loss of dependency 19,32,840/-

2. Loss of consortium 10,000/-

3. Loss of estate 10,000/-

4. Loss of love and affection 25,000/-

5. Funeral expenses 5,000/-

6. Total 19,82,840/-

3. The tribunal held the deceased also negligent in driving the car, the respondent insurance company was held liable to pay half of the compensation amount i.e. Rs.9,91,420/-.

4. Learned counsel appearing for the appellant challenges the findings of the tribunal holding the deceased to be guilty of negligence and deducting 50% of the compensation amount payable by the respondent insurance company. It is averred that the issue of contributory negligence was never even raised by the insurance company in the written statement. It is further stated that the driver respondent No.1 has in his written statement never said that there was contributory negligence by the deceased. In fact the claim of the driver in the written statement was that the accident took place when the bus was stationary and parked inside the road.

5. Learned counsel for respondent No.3 insurance company has defended the Award stating that the site plan clearly shows contributory negligence of the parties.

6. We may look at the evidence of the parties. PW[2] the eye witness Mr.Nitin Tyagi, in his affidavit by way of evidence has said that the driver of the truck respondent No.1 was driving the vehicle in a rash and negligent manner. He came on the front side i.e. he was coming from the opposite side and dashed the car of the deceased. He has reiterated that the truck was driven rashly and negligently without taking care of the rules of traffic. In his cross examination, he denied that the truck was stationary on the kutcha road at the time of the accident. He was not cross examined on the issue of negligence of the deceased while driving his vehicle.

7. The police have also filed a copy of the charge sheet against respondent No.1 in the criminal court. The relevant portion of the English Translation of the charge sheet reads as follows: “....After the investigation, it was revealed that the accused at column No.3 with the speedy and rashly driven (sic.), suddenly, hit the Maruti due to which Maruti car was got broken and Rinku and Vijender Tyagi sustained injuries. After that Vijender died. From the investigation carried out till now and testimonies of witnesses, the offence punishable u/S 279/338/304A/427 of IPC has been registered against the accused Akbar Khan (Column No.3).”

8. The tribunal has relied heavily on the site plan filed by the police. The site plan shows that the Maruti car driven by the deceased has gone off from the right side to the left side and the accident took place on the left side of the road indicating that the deceased has gone to the right side i.e. off the route as per the traffic rules for some time. However no police personnel was examined to show as to how the site plan was prepared. The basis of preparing the site plan and as to how the IO concluded that the deceased has gone off from the left side to the right side for a short while is not known. Anyhow, the accident took place on the left side which is the side on which the deceased should have run his vehicle. The offending vehicle i.e. the truck had no business to be driven on that side; as it was coming from the opposite side was clearly driven contrary to the traffic rules.

9. Reference may be had to the judgment of Supreme Court in the case of Pramod Kumar Rasikbhai jhaveri v. Karmasey kunvargi tak and ors (2002) 6 SCC 455 where in para 8 the Supreme Court has held as follows: