Neelam v. Parmod Kumar Yadav

1. These cross-appeals have been filed by the Insurance Company as also by the Claimants, challenging the Award dated 10.10.2017 (hereinafter referred to as the ‘Impugned Award’) passed by the learned Motor Accidents Claims Tribunal-01, North-West District, Rohini Courts, Delhi (hereinafter referred to as the ‘Tribunal’) in MACT NO. 4292/16, titled Smt. Neelam & Ors. v. Pramod Kumar Yadav & Ors.. Challenge/Submissions of the learned Counsel for Insurance Company:

2. As far as the challenge of the Insurance Company to the Impugned Award is concerned, the learned counsel for the Insurance Company submits that the learned Tribunal, having found that the claimants had been unable to prove that the accident had occurred due to the rash and negligent driving of the offending vehicle, that is, a Tata Dumber bearing no. HR- 46B-3036 (hereinafter referred to as the ‘offending vehicle’), and awarding compensation to the claimants under Section 163A of the Motor Vehicle Act, 1988 (hereinafter referred to as the ‘Act’) as it then stood, could not have awarded compensation in excess to what is provided under the Second Schedule to the Act.

3. The learned counsel for the Insurance Company further challenges the Impugned Award inasmuch as it awards interest at the rate of 9% per annum from the date of filing of the Detailed Accident Report (DAR) under Section 158(6) of the Act, that is, 27.04.2010, till the realisation of the amount, claiming the same to be excessive. Challenge/Submissions of the learned Counsel for the Claimants:

4. On the other hand, the learned counsel for the claimants submits that the learned Tribunal has erred in holding that rashness or negligence cannot be attributed to the offending vehicle, as it was parked on the left side of the road and was not being driven at the time of the accident in question. Placing reliance on the judgment of the Supreme Court in Jumani Begam v. Ram Narayan and Others, (2020) 5 SCC 807, he submits that where the vehicle is parked on the metalled road without proper reflectors, indications, or warning signals, that would also amount to the vehicle being driven in a rash and negligent manner. He submits that, therefore, the claimants were entitled to compensation under Section 166 of the Act as it then stood.

5. On the question of interest, he submits that the same is reasonable and deserves no interference by this Court. Analysis and Findings:

6. I have considered the submissions made by the learned counsels for the parties.

7. The primary question to be determined in the present appeals is whether the learned Tribunal has rightly held that no rashness or negligence can be attributed to the offending vehicle, being parked on a metalled road, and as a consequence thereof, rejecting the claim of the claimants under Section 166 of the Act, however, awarding the same under Section 163A of the Act.

8. To prove their case, the claimants had produced Mr.Virender Singh (PW-2) as an eyewitness to the accident. In his Evidence by way of Affidavit, he stated that on 06.03.2010, when he was standing on the side of his agricultural land near the place of the accident, he saw the offending vehicle being wrongly parked in the middle of the road at main Qutabgarh Road, without parking light on/blinkers or indicators, when the deceased travelling on his motorcycle hit the offending vehicle from the back. In his cross-examination, a doubt was sought to be cast on his presence at the spot of the accident. However, he withstood the same. His presence at the spot of the accident stands estabished. He further reiterated that he had seen the offending vehicle standing in the middle of the road at the time of the accident. He also denied the suggestion that he could not see if the parking lights of the offending vehicle were on.

9. On the other hand, the driver of the offending vehicle examined himself as R1W[1]. In his Evidence by way of Affidavit he stated that on 06.03.2010 at about 7:00 PM, the motorcycle of the deceased had hit his truck which was parked on the left side of the road. He stated that the offending vehicle had broken down on account of a mechanical problem and was properly parked on the extreme left side of the road with the parking lights on. He stated that he has also put up some brickbats upto a distance of 20-25 feet as part of precaution and safety. In his cross-examination, he had admitted that he has been prosecuted for offences punishable under Section 279/304A of the Indian Penal Code, 1860 (in short ‘IPC’). He denied the suggestion that the parking lights were not on at the time of the accident and that there was no defect in his truck/the offending vehicle.

10. Mr.Dinesh Kumar, who was examined as R2W[1], stated that he is the owner of the offending vehicle, though the same stands registered in the name of Mr.Ved Prakash. He stated that on 06.07.2010, that is, the day of the accident, at about 4:30 PM, he had informed the mechanic, namely, Mr.Mahender @Munna, who was also examined as R2W[2], and who runs his workshop at Mangolpuri Phase-II, Delhi, that there is some mechanical problem in the offending vehicle and he shall be sending the vehicle to his workshop for the repair of the same. He stated that at about 5:00 PM, he sent the offending vehicle for repair. At about 6-6:30 PM, he was telephonically informed by the driver of the offending vehicle that the offending vehicle had broken down due to some mechanical problem and one motorcyclist had hit the offending vehicle from the rear side. From his testimony, it is apparent that he was not the eyewitness to the accident and was deposing merely on hearsay.

11. Similarly, Mr.Mahender (R2W[2]), that is, the mechanic, also stated that he later came to know that the offending vehicle had broken down on the way to his workshop and had been hit by one motorcycle on the rear side. His testimony is again not relevant as he was not an eyewitness to the accident in question.

12. The learned counsel for the claimants has also drawn my attention to the site plan prepared by the police. The same is reproduced hereinbelow: -

13. It can be seen from the site plan that there is no marking for any brickbats being placed near the truck as a warning to the other persons regarding the offending vehicle being parked on the metalled road as it had broken down. The testimony of R1W[1] to this extent, therefore, cannot be believed.

14. The same can also be said from the photographs of the site at the time of the accident, which also do not show any brickbats being placed near the offending vehicle as a matter of warning to other motorists. The photographs are reproduced hereinunder: - EX-PW2/DA EX-PW2/DB

15. The photographs also show that the Offending Vehicle was not parked on the left side of the road, as claimed by the driver of the Offending Vehicle, but almost in the middle of the road.