Full Text
HIGH COURT OF DELHI
JUDGMENT
NEW INDIA ASSURANCE CO LTD. ..... Appellant Represented by: Mr.K.L. Nandwani, Advocate.
Mr. Nalin L. Sahay, Advocate for Respondent Nos. 4 and 5.
CM No. 1338/2012 (for additional evidence)
Since the recovery rights have already been granted in favour of the appellant/Insurance Company, therefore, the present application has become infructuous.
The same is accordingly dismissed.
CM No. 1337/2012 (for delay)
In view of the averments made in the application, the delay of 35 days in filing the instant appeal is condoned.
The application stands disposed of.
2014:DHC:107
1. Vide the present appeal, the appellant/Insurance Company has assailed the impugned award dated 21.09.2011, whereby the learned Tribunal has granted compensation for a sum of Rs.5,45,800/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization.
2. Learned counsel appearing on behalf of the appellant/Insurance Company has submitted that the offending vehicle, i.e., Truck bearing No.HR-38-BG-5196 was stationary, which has been hit by Indica Car bearing No. DL-3CW7555, thus, the driver of Indica Car was negligent, but the learned Tribunal has failed to establish the contributory negligence on his part.
3. Brief facts of the case, as stated by PW[1], Smt. Roshi wife of the deceased (respondent No.1 herein), are that on 23.04.2008 at about 11.00 am, deceased alongiwth his cousin brother Rahul, his wife Pooja and one Ranjeet were returning from village Risara, Aligarh, UP in an Indica Car bearing No.DL-3CW-7555 and when the car reached NH-2, near Bapu Nagar, Faridabad, Haryana, it struck against the Truck bearing No.HR-38- BG-5196, which was parked in the middle of the public way without giving any indicator or signal. She further stated that the accident took place due to the negligent parking of the offending vehicle.
4. PW[2] Smt. Ram Katori and PW[3] Shri Mahinder Singh, parents of the deceased, have also supported the version of PW[1].
5. Initially, the claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, which was converted into Section 163A of the Act and accordingly adjudicated upon.
6. On perusal of the Trial Court record and evidence of the aforementioned witnesses, it is established that though the offending vehicle was in a stationary condition but there was no indicator or signal. Nowadays, traffic is so heavy on every road, if proper care is not taken on roads, then it invites the accident as had happened in the present case. It was expected from the stationary vehicle to give proper signal which could have avoided the accident.
7. On considering the facts and circumstances of the case, the learned Tribunal has rightly not assessed the contributory negligence on the part of the driver of the Indica Car as there was no evidence led by the appellant/Insurance Company in support thereof nor any material has emerged out from the witnesses examined on behalf of the respondents/claimants.
8. In view of the above, I do not find any merit in the instant appeal. Therefore, the same is dismissed.
9. Consequently, statutory amount be released in favour of the appellant/Insurance Company.
10. Remaining compensation amount shall be released in favour of the respondents/claimants on taking necessary steps by them. CM No. 1335/2012 (for stay) With the dismissal of the appeal itself, this application has become infructuous. The same is accordingly dismissed.
SURESH KAIT, J. JANUARY 08, 2014 sb