National Ins. Co. Ltd v. Kanta Sharma and Ors

IN T

National Insuran Subhash and Oth

CORAM : HON

Present: Mr

for

Ms

Ms SUDEEPTI SH

1.

The against award d the Motor Vehi Gurgaon (for sh regarding contri FACTS NOT IN

2.

Bri Sharma (since DLF-Phase-III t 0416 with Ume situated on Meh B-6553 came fr and hit at the b

THE HIGH COURT OF PUNJ AT CHANDIGA -.-

FA Da nce Co. Ltd.

VERSUS hers

N'BLE MRS. JUSTICE SUDE r. Manu Loona, Advocate the appellant s. Jyoti Choudhary, Sr. Penal Cou s. Gaganpreet Kaur, Advocate fo -.- HARMA, J. (Oral)

e present appeal has been pref ated 04.12.2006 passed in claim icles Act, 1988, by the learned hort, 'the Tribunal') for setting ibutory negligence. N DISPUTE ief facts of the case are that on 0 deceased) along with his broth to Karan Petrol Pump, when he sh as pillion rider. As the scoo hrauli Road, Gurgaon, a DTC Bu rom behind being driven by resp back of the scooter and as a r

JAB AND HARYANA ARH AO-1784-2007 (O&M) ate of Decision : 20.11.2024

....Appellant

....Respondents EEPTI SHARMA unsel with or respondent No.2 (DTC). ferred by the Inusrance Compa m petition filed under Section 166 Motor Accident Claims Tribun g aside the finding of the Tribu

08.02.2004 at about 2.30 P.M, Y her Umesh were proceeding fr e was driving scooter No.HR-26 ter reached near Chawla Chick-us bearing registeration No.DL-ondent No.2 rashly and negligen result thereof, Yash Sharma (si

any 6 of nal, unal Yash rom 6-E- -Inn 1P-ntly

deceased) was c result of acciden

3.

Up written statemen

4.

Fro issues:-

5.

Aft record, the learn alongwith intere involves contrib offending vehic were awarded c the present appe

crushed under the bus while U nt, Yash Sharma suffered injurie on notice of the claim petition nt denying the factum of acciden om the pleadings of the parties,

¶1Whether the impug respondent No.2 by driving and/or negligently? OPP

¶2If issue No.1 is proved to any amount of compensa whom? OPP

¶3Whether respondent N for the reasons indicated in th

¶4Relief. ter taking into consideration th rned Tribunal awarded compens est @ 7% per annum. Howeve butory negligence, attributing 7 le and 25% liability on the dece ompensation of Rs.1,50,000/-. H eal challenging the finding regard

Umesh jumped and fell aside. A s which proved fatal. n, respondents appeared and fi nt/compensation. the Tribunal framed the follow gned accident was caused g vehicle No.DL-1P-B-6553 ras d whether the petitioner are entit ation. If so, how much and fr No.3 is exonerated from the liabi he preliminary objections? OPR( he pleadings and the evidence sation to the tune of Rs.3,47,47 er, learned Tribunal held that c 75% liability on the driver of eased. Consequently, the claima Hence, the insurance company fi ding contributory negligence.

As a filed wing by shly tled rom ility

(3) on 75/- case ants

SUBMISSIONS

6.

The learned Tribuna negligence. He, the Tribunal qua

7.

Lea the award dated

8.

I h record of this ca

9.

The as under:- "9. PW sha cla Pav

¶10reg PW resp

11.

8.2

S OF LEARNED COUNSELS e learned counsel for the insu al has erred in holding the case therefore, prays that the presen a contributory negligence be set-arned counsel appearing for resp

04.12.2006 and prays that the pr have heard learned counsel for ase. e relevant paragraph of the awa

To prove this issue, claimant W5 who was stated to be pillion r ape of pendency of criminal imants examined Surinder Kum vitar Kumar as PW2.

The evidence of Constable gistration of FIR Ex.P3 against W1 Surinder Kumar is about p pondent no.2.

Umesh Sharma, who was the e scooter of the deceased, depos

2.2004, at about 2.00 PM, he bei

S FOR THE PARTIES urance company contends that e in hand as a case of contribut nt appeal be allowed and finding -aside. pondent No.2 argues on the lines resent appeal be dismissed. the parties and perused the wh ard dated 04.12.2006 is reprodu ts have examined Umesh Sharma rider and to corroborate him in l case against respondent no mar, Ahlmad as PW1 and consta Pavitar Kumar is only regard respondent no.2. The statemen pendency of criminal case aga e eye witness being pillion rider sed that on the date of accident ing pillion rider on scooter no.H

tory g of s of hole uced a as o.2, able ding t of inst r on i.e. HR-

26-Sik Ma no. a r cru they and not acc adm pol RW cam div tha righ he rep bus

-E-0416 being driven by d kanderpur Ghosi to Karan Petr all, Gurgaon, and as they reache DL-1P-B-6553 coming from be result Yash Sharma fell under ri ushed. He further stated that the ey were towards right side of th e witness stated that he had seen d stated its speed to be about 5 t see the bus approaching the sco cident is a crowded place as it i mitted that he learnt the name o lice had arrested him. On the other hand, respond W1 and gave version that he was ida to Gurgaon and that as the b me from behind driving it rash vider and lost balance. On bein at after being hit by the bus, sco ht wheel. Admitting that he has b has been acquitted of the ch presented the Department of his s was in city area, it could not be

deceased were proceeding fr rol Pump situated opposite Sah ed opposite Chawla Chick-inn, ehind hit against the scooter and ight rear wheel of the bus and w ey had to take a right turn as su he road. On being cross-examin n the bus after it had hit the scoo 50 KMPH. He admitted that he ooter. He admitted that the place is close to Sahara Mall. He furt of driver after FIR was lodged a dent no.2, bus driver, appeared driving the bus which was enro bus reached near DLF, a scoote ly and negligently and hit aga ng cross-examined, witness den ooterist was crushed under the r been facing trial, further stated t harge. He further stated that s false implication and that as e at fast speed.

rom ara bus d as was uch ned, oter did e of ther and d as oute erist inst nied rear that

exa on as ove bus hea issu sta sco he of t cam reg sco bet div his issu had

RW3 Ranbir Singh, who amined and deposed that on 8.2. the bus which was enroute Noid the bus reached Chakarpur, sco er take the bus and in the proc s and divider of the road and, ad injuries. He deposed about ued to him and proved certifica e passengers having mentioned th ted about the accident being du ooterist who was all alone. On be was at the rear seat of the bus a the door towards right side and me parallel to the bus. He spok garding incident submitted to the Respondents examined RW4 e bus, who stated that he was ooterist who was trying to over tween the bus and the divider an vider and due to which fell dow writing Ex R1 in the complaint b RW2 Lal Singh, Assistan uance of complaint book to the d d been issued in the name of driv

was Conductor of the bus, w 2004 he was on duty as Conduc da to Gurgaon and in the afterno ooterist coming from behind tried cess entangled himself between thus, fell on the road and suffe the complaint book having b ate Ex.R3, duty slip Ex.R4 and t the sequence of events in Ex.R1. ue to rash and negligent driving eing cross-examined, he stated t and was standing just near entra d had, thus, seen the scooter a ke about the copy of report Ex e Department. Pardeep, one of the passengers travelling in DTC bus and tha rtake the bus from right side ca nd in this process collided with n and suffered injuries. He pro book of the bus. t Traffic Inspector, has pro driver stating that a complaint b ver and not by bus number.

was ctor oon d to ered een that He g of that nce as it x.R1 s in at a ame ved ved

¶12resp Um aga righ aga Cla exa cru men low Scr wer as wer whe driv bro dec turn roa turn see

The death of Yash Sharma pondents. Only the manner has mesh Sharma, who was pillion ri ainst scooter from its backside a ht rear wheel, however, as per ainst divider of the road and aimants examined Dr. Kuldeep amination on the body of deceas ush injury but injury no.1 fou ntioned as a lacerated wound 2 wer abdominal wall and pelvis rotum and penis crushed, urinar e surface. PW5 Umesh Sharma re to turn right. Taking the situa admitted position that bus was re to turn right and the deceas eel, certainly indicates that negl ver and bus driver. PW5 Umesh ought the scooter towards righ ceased had given a signal to turn n, scooterist was supposed to wa ad was clear to take right turn, n. The action on the part of dec eing that the road was clear and

has not been disputed even by s been disputed. While as per P ider on scooter of deceased, bus nd deceased was crushed under r respondents, the deceased str suffered head injury of his o Singh who conducted post mor sed. Though he did not state ab und on the dead body has b 25 x 10 cm. placed obliquely on including scrotum and perineu ry bladder ruptured and visible has specifically deposed that t ation given by PW5 Umesh Shar s coming from their back and t sed was crushed under rear ri ligence was contributory of scoo h Sharma only states that they h t side. He does not state that n right. That besides to take a ri ait and see and be cautious that before he negotiated to take ri ceased of taking right turn with d the traffic following him and

PW5 s hit ruck wn. tem bout een um. e on they rma they ight oter had ight ight

poi Sha pro fron Um inte imp tha was neg bus RW as f ind not acq crim acc be Alth sum acq inte

int of impact being rear right arma that bus had struck the obable, as in that situation the p nt wheels or the front portion o mesh Sharma is real brother of d erested witness. But the fact si pact being the rear right wheel a at they were processing turn tow s required to be cautious and gotiating turn, thus, suggesting s driver both have contributed i W1 Ram Mehar denied the total found on the dead body of dec dicating crush injury, certainly su t possible due to fall. Although quitted vide Judgment dated 15.4 minal case has to be decided cused beyond reasonable shadow decided on probabilities and hough Judgment has not been mmary, can be taken into co quittal is no ground to dismiss e deposition of RW3 Ranbir Sin erested witness being colleagu

t side wheel, statement of Um scooter at back, does not app oint of impact would have been of the bus and not rear side wh deceased and would certainly be ituation that emerges that point and PW5 Umesh Sharma admitt wards right, certainly scooter dri d see that road was clear bef that the scooter driver as well in the causing of accident. Thou involvement of bus but injury n ceased in the post mortem rep uggests involvement of bus and w h respondent no.2 may have b

4.2005 by criminal court, howev d prosecution proving the guilt w of doubt, while claim case has d by preponderance of eviden exhibited but the procedure be onsideration. That besides, m the claim petition. Similarly, e ngh, Conductor, would again be ue of respondent no.2 and R

mesh pear eel. e an t of ting iver fore l as ugh no.1 ort, was een ver, t of s to nce. eing mere even e of RW4

Par Ex. wit inv sha Sin occ ver acc sign of abo disp reli Lim AC [19 and app poi [sup inv

rdeep is a passenger, who made R1. Even his endorsement finds th divider was hit with the b volvement of bus does stand prov ape of self serving admission on ngh has only brought the compla currence. In Andhra Pradesh S rsus Jayalakshmi and others, 2 cident occurred in the process nal unmindful of the traffic from contributory negligence. Depos out pendency of criminal case posed of, therefore, his evidence ied upon Judgments New Majh mited and another versus Surjit 7, Prem Kanwar and others ver CJ 917, Dilip versus Director N 992] ACC 81 and Sukhdev Sing d others, III [2003] ACC 7 plicability as Judgment in New int of motive of false implication upra] was on the point that F volvement of vehicle; Judgment e point that Tribunal while decid

e entry in the complaint book, c s mention that scooter after strik bus. Therefore, in any case ved. Representation Ex.R2 is in behalf of respondent no.2. RW2 aint book and is not witness to State Road Transport Corporat 2006 ACJ 2620, wherein also of bus taking right turn with m the rear, it was held to be a c sition of PW1 Surinder Kumar but since the case already sta e is immaterial. Although claima ha Transport Co-operative Soc t Kaur and another, 1[1984] А rsus Aadam and others, III [20 Nahru Bal Mandir and others, gh and others versus Vinod Kum 710, but none of them has a w Majha's case [supra) was on n; Judgment in Prem Kanwar's c FIR and charge sheet proved in Sukhdev's case [supra] was ding may not go into technicali

opy king Lal tion hout case r is nds ants iety АСС 006] , II mar any case s on

and cro bee red is a issu ANALYSIS OF

11.

Evi and brother of th deceased attemp executing the tu events, reflects account of the b location of the in

12.

Evi the post-mortem including a lace wall and pelvis, injuries are cons of the bus. Th accident being c

13.

Evi (Pardeep), who both asserted th

d mystic maybes. The area w owded area and bus was expecte en in a controllable speed, t duced. Taking all these factors i assessed as 75% of bus driver ue is decided accordingly." F THE RECORD idence by way of affidavit of PW he deceased, testified that the bu pted a right turn. He admitted urn. His testimony, while credib a degree of bias as he is an in bus striking the scooter aligns w njuries. idence by way of affidavit of D m examination, described the in erated wound measuring 25 cm , crushed scrotum and penis, and sistent with a "crush injury," de he nature and extent of injurie caused solely by a fall after hittin idence by way of affidavits o are the conductor and one of th hat the scooter struck the road di

where accident took place was ed to be at a slow speed and ha the impact would have certai into consideration, the contribut and 25% of deceased himself. T

W5 Umesh Sharma, the pillion ri us hit the scooter from behind as d that no signal was given wh ble in establishing the sequence nterested witness. Nevertheless, with the medical evidence and Dr. Kuldeep Singh who conduc njuries sustained by the deceas m x 10 cm on the lower abdomi d a ruptured urinary bladder. Th cisively indicating the involvem es eliminate the possibility of ng the divider. f RW3 (Ranbir Singh) and RW he passengers of the offending b ivider before the bus made cont

s a ad it inly tion The

ider hile e of his cted sed, inal hese ment W4 bus,

Their testimonie and lack indepe that the scooter established fact

14.

Evi denied any invo contradicted by corroborated tes

15.

Fur mentions both While it attempt and other testim

16.

A p right turn, faile

(PW5) admissio point of impact maneuver was a

17.

Per crowded area w controlable spee standard, resulti had the vehicle b

17.

Up Court concurs w

es, while attempting to exonera endent corroboration. RW4's ent struck the divider first; however that the bus ultimately crushed t idence by way of affidavit of R olvement of the bus in the acc y the medical evidence, the stimony of PW5. His testimony, rther documentary evidence i.e. the scooter striking the divider ts to reduce the liability of the b monies substantiate the bus's dire perusal of the record shows tha d to signal or ensure that the r on that no signal was given fu under the rear right wheel of th abrupt and lacked the necessary c rusal of the award further show where the bus driver was exp ed. The evidence indicates that th ing in a collision that could have been operated with due care. on thorough examination of th with the Tribunal's findings that

ate the bus driver, are self-serv try in the complaint book menti r, this assertion does not negate the deceased. RW1 (Ram Mehar), the bus driv cident. However, his denial sta post-mortem findings, and therefore, lacks credibility. the complaint book entry (Ex.R r and the involvement of the b us driver, the post-mortem findi ct involvement in the accident. t the deceased, while negotiatin road was clear. The pillion ride urther corroborates this lapse. T he bus suggests that the decease caution. w that the accident occurred i ected to operate the vehicle a he bus driver failed to adhere to t been mitigated or avoided entire he evidence and circumstances, t t the deceased was partially at fa

ving ons ver, ands R1) bus. ngs ng a er's The ed's n a at a this ely, this

for the accident the turn. Howe negligence, spec The apportionm equitable and su

18.

In v any merit and upheld.

19.

Pen

November 20, 2 tripti

Whethe

Whethe

t due to a failure to signal and e ver, the predominant cause of cifically in operating the vehicle ment of liability 75% to the bus upported by the evidence on reco view of the above, the present a the award dated 04.12.2006 p nding applications, if any, also st 2024

er speaking/non-speaking : Speak er reportable

: Yes/N

exercise due caution while mak the accident was the bus drive e at an excessive and unsafe spe driver and 25% to the deceased ord. appeal is dismissed being devoid passed by the learned Tribunal tand disposed of. (SUDEEPTI SHARMA) JUDGE king

king er's eed. d is d of