Full Text
HIGH COURT OF DELHI
Date of Decision: 20th November, 2024
Meenu Attery & Ors. .....Appellants
Through: Mr. Anshuman Bal & Ms. Divya Saini, Advocates
Through: Mr. Ravi Sahharwal, Advocate for respondent No.1
JUDGMENT
1. The present appeal under Section 173 of the Motor Accident Vehicles Act, 1988 (henceforth referred to as the “MACT’) has been filed by the Claimants (parents) against the Award dated 04.03.2023 whereby their Petition under Sections 166/140 of the Act, on account of death of their son Kapil Dev Attery in a road accident on 05.10.2014, has been partly allowed by the learned Motor Accident Claims Tribunal.
2. The claimants have challenged impugned Award essentially on the following grounds:-
(i) That 25% contributory negligence has been erroneously attributed to the deceased by observing that the deceased was under the influence of alcohol and was not wearing helmet at the time of accident; and
(ii) That the Interest must be enhanced from 7% p.a.to 9% p.a.
3. The Claimants are the parents of the deceased, who filed the Claim Petition under Section 166 of the Act. The total compensation of Rs.37,66,411/- along with interest @7% per annum has been granted by the learned Tribunal. However, while calculating the “loss of dependency” 25% has been deducted towards contributory negligence on the part of the deceased.
4. Submissions Heard and Record perused.
5. Briefly stated, on 06.10.2014, at about 12:00 p.m. the deceased Kapil Dev Attery was going on his motorcycle with one Dhiraj Kumar as pillion rider. When they reached near Mamara Chowk, Sector 58 Notida, UP; their motorcycle collided with a stationery Truck bearing No. RJ 01GB 6522, (hereinafter referred as offending Vehicle) which was parked in the middle of the road which was not visible and no indicators or blinkers as a sign of caution were put by the truck driver. Both of them fell and suffered injuries and were rushed to the hospital, however, Kapil Dev Attery succumbed to the injuries.
6. FIR No. 434/2017, under Sections 279/337/304A IPC, was registered at P.S. Noida Sector 58, on 08.10.2024.
7. The only aspect which is under challenge is whether the deceased under the influence of alcohol had contributed in the occurrence of the accident and deduction of 25% of the contributory negligence to the deceased, was justifiable?
8. The claimants have examined PW-3 Dhiraj Kumar @ Vicky, eye witness, who had deposed that he was going on the motorcycle which was being driver by the deceased Kapil Dev Attery. He has categorically deposed that the offending truck was parked in a middle of the road in complete darkness without any blinkers, in a negligent manner, consequent to which the motorcycle hit into the parked truck. This witness in his cross- examination has further explained that the head lights of the motorcycle were in fit condition and there was satisfactory visibility up to 15 feet. However, there was very less time to react before the motorcycle hit the truck.
9. Pertinently, the testimony of the eye witness has been consistent and credible. It establishes that the accident occurred in the middle of the night at about 12:30 AM. His testimony also establishes that there were no indicators or blinkers around the vehicle which could have given any timely indication of the truck being parked in the middle of the road. The accident has happened in the middle of the night at about 12:30 AM. Moreover, even if there was a visibility, then too whether the Truck is moving or stationary, cannot be deciphered on the principle of relative motion. If the Truck had to be parked on the road, it needs to be indicated by putting indicators and by switching on the blinker lights.
10. The circumstances as deposed by the eye witness PW-3, clearly establish that the vehicle was parked in the middle of the road without any indication in the middle of the road and it was the negligence on the part of the driver of the truck in not putting the indicators around the parked vehicle.
11. Similar facts as in present case, were considered in the case of Jumani Begum vs Ram Narayan, (2020) 5 SCC 807, wherein the Apex court was concerned with the issue of determination of contributory negligence when the deceased victim driving a two-wheeler at night and dashed into truck trailer on road without any reflectors. The court held that once the substantive evidence of the eyewitness before the MACT established that truck trailer had been parked on road at night without any reflectors, there was no reason or justification for MACT to proceed on basis of conjecture in arriving at a finding of contributory negligence.
12. Further, the manner in which the accident has occurred is also corroborated by the documents filed along with the charge-sheet. The site plan clearly indicates that the truck was parked and the manner of accident fully corroborates with the testimony of PW-3.
13. Though the FIR No. 434/2017, under Sections 279/337/304A IPC was registered, but the Final Report/ Closure Report dated 21.06.2015 has been submitted reaffirming that the accident occurred because the motorcycle rammed into the stationed truck.
14. Though the Closure Report may have been filed, but reliance may be placed on the case of Mangla Ram vs. The Oriental Insurance Company Ltd., AIR 2018 SC 1900, wherein the Apex Court has opined that the key-point of negligence of the driver as set up by the Claimants is required to be decided on the touchstone of preponderance of probabilities and not by the standard of proof beyond reasonable doubt. Thus, filing of chargesheet against the driver of the offending vehicle prima facie points towards the complicity in driving the vehicle negligently and rashly. The subsequent acquittal of the accused may be of no effect on the assessment of the liability required in motor vehicle accident cases.
15. The position further stands clarified in the cases of N K V Bros (P) Ltd. vs. M. Karumal Ammal, 1980 LawSuit (SC) 141; Delhi Transport Corporation & Anr. Vs. Navjyot Singh & Ors., 2015 LawSuit (Del) 1750 and National Insurance Company Ltd. vs. Sarbjit Kaur & Ors., 2018 LawSuit (P&H) 1711, that the acquittal of the Driver in a Criminal Case cannot be a ground for dismissal of the Claim before the Accident Tribunal.
16. The learned Tribunal in the impugned Judgment has also concluded that from the testimony of evidence of PW-3, it stands proved that the accident occurred due to parking of the truck in the middle of the Road without any indicator.
17. However, in Paragraph No.25 it has been observed that “it is not clear whether the deceased know how to drive the motorcycle. It is also apparent that he must be I a very high speed and was not able to notice the standing truck and rammed into it. Though there is no medical evidence of alcohol in his body but his being drunk cannot be ruled out. The presence of alcohol could have been detected in the post mortem report which was not done.”
18. From the above observations, it is apparent that there was no indication of the deceased being under the influence of alcohol. The post mortem of the deceased was not done. The observation of the learned Tribunal that the deceased must be under the influence of alcohol is without any basis. Similarly, the observation of the Tribunal that the deceased was riding the motor cycle on a very high speed has no basis for such conclusion. It is evident that such observations have been made by the learned Tribunal without any basis or evidence on record but on conjectures.
19. The plea taken by the Insurance Company was that because the deceased was not wearing a helmet contributed in any manner in the happening of the accident, thus, cannot be considered as a contributory factor in the happening of the accident.
20. Therefore, the learned Tribunal has erroneously concluded that the deceased had contributed 25% towards the accident and the deduction of 25% in calculating the income of the deceased, is incorrect.
21. The Claimants have also sought enhancement of Interest rate to 9%. However, it is an accident of 2014 and the enhancement of interest is not warranted. Relief:
22. The impugned Award dated 04.03.2023 is hereby modified and the computation of the Award is made as under:- Head of claim Amount in Rs. (earlier awarded by Tribunal) Amount in Rs. (Awarded by this Court) Loss of dependency after applying multiplier of 18 Rs.39,43,184/- Rs.39,43,184/- Loss of consortium or Loss of love and affection Rs.44,000/- each to the petitioners amounting to Rs. Rs.1,32,000/- Same Conventional Heads (Funeral Expense and Loss of Estate) Rs.16,500+Rs.16,500= Rs.33,000/- Same Deduction contributory negligence Rs.9,58,796/- Nil Medical Expenses Rs.6,44,023/- Rs.6,44,023 Award Rs.37,66,411/- Rs.47,52,207/-
23. In view of the above, the Claimants are awarded total compensation of Rs. 47,52,207/- along with interest @7% per annum from the date of filing of the petition till realization. The respondent No.3- United India Insurance Company Ltd. is directed to deposit the enhanced Awarded amount within 30 days with the learned Tribunal.
24. With aforesaid directions, the Appeal is accordingly disposed of.
NEENA BANSAL KRISHNA, J NOVEMBER 20, 2024 r