The New India Assurance Co. Ltd. vs Nidhi Pandey And 5 Others

1. Heard the counsel for the appellant and Sri Amit Verma holding brief of Sri Manish Tandon the counsel for the respondents.

2. The Insurance Company has preferred an appeal challenging the award dated 03.10.2018 whereby the Claim Petition preferred by the claimant was allowed and the appellant was directed to pay their share of compensation assessed @60% of the contributory negligence. The opposite party has preferred cross objection against the award challenging the part of the award whereby 40% of the negligence was assessed as against the claimant.

4. The facts, in brief, are that the claimant is said to have driving a Maruti Car No. UK 06/S-7745 and as soon as he reached 'Lohiya Chauraha' while trying to save a DCM Vehicle, he met with an accident with a Tanker No.UP 22/T-3995 which was standing on the wrong side of the road, which resulted in the death of the husband of the claimant.

5. After the exchange of the pleadings, as many as five issues were framed by the Tribunal. With regard to the issue no.1, with regard to the negligence and the accident occurred, the Tribunal relied upon the testimony of the PW-2, who had specifically deposed that on the date of the accident, the vehicle being the Tanker was parked on the wrong side and his parking lights were not on, which resulted in the accident by the deceased while trying to save a DCM Vehicle. The Tribunal after analyzing the evidence held that as the Tanker was parked partly on the road, it was the duty of the driver of the car to have slowed down the vehicle and as, the road where the accident took place was turning 90 degree, it was expected that the car owner ought to have slowed in his speed at the spot of the accident. It was also held that as substantial part of the tanker was on the road and the car was being driven fast and negligently, the contributory negligence of the car owner was assessed at 40% and the negligence attributed to the tanker was assessed at 60%. Consequently, the amount was awarded.

6. While arguing the present appeal, the counsel for the appellant argues that the Tribunal has erred in fixing the contributory negligence against the tanker to the extent of 60% placing reliance on the testimony of PW-2, it is argued that he was a planted witness and thus, relying upon his testimony to record the contributory negligence is clearly erroneous. It is further argued that on the quantum of compensation awarded, the Tribunal has erred as the Tribunal has relied upon the average of the Income Tax Returns of the deceased, ignoring the statement of the claimant that the factory in which, the deceased was working had closed and now the premises was let out at a monthly rent. Thus, it is argued that there was no loss of income to the claimants and to that extent, the Tribunal has committed an error.

7. The counsel for the respondents, who has filed cross objection argues that the Tribunal has erred in fixing the liability on the Car to the extent of 40% whereas as per the evidence, it is clear that the Tanker was standing substantially on the road without parking lights on and to that extent the reduction of liability up to the extent of 40% on account of the contributory negligence by the Car is bad in law.

8. Considering the submissions made at the Bar, a perusal of the statement of the PW-2 records clearly demonstrates that the vehicle in question i.e. the Tanker was standing substantially on the road without parking lights on and also the fact that the car owner tried to avoid the accident with DCM and if the Truck was not parked on the road or his parking lights were on, the accident would not have occurred. The cross examination of the said witness, in any way does not discredit his testimony as a planted witness as is being argued by the counsel for the applicant. There is no suggestion by the Insurance Company to the said witness that the vehicle was not parked on the road or its parking lights were on. In view of the same, what emerges is that the tanker was parked partly on the road without the parking lights on.

9. In view of the said analysis, it is clear that the negligence was on account of the Tanker being parked on the road without parking lights being on. Thus, there was no occasion for the Tribunal to have recorded the contributory negligence of the car at 40% merely on the assumption that on a sharp turn, the car should have slowed down. No material evidence is on record to suggest that the car was being driven rashly and negligently or on high speed.

10. In absence of any evidence, the finding to the extent of fixing contributory negligence at the instance of the Car to the extent of 40% is clearly perverse and contrary to the evidence. As regards the quantum of compensation, the Tribunal has relied upon the Income Tax Returns to work out an average of the financial income of the deceased while assessing the quantum of compensation to be awarded. Reliance of the counsel for the appellant on the testimony of the claimant, the wife of the deceased, that the factory was closed and this aspect ought to have been considered by the Tribunal merits rejection for the sole reason that the said point was never argued before the Tribunal as is evident from the award. Even before this court, there is no ground that the said fact was argued but not considered by the Tribunal.

11. In the absence of there being any pleading in the form of any ground in the present appeal, the appellant cannot urge the said point. Thus, on both the counts, the appeal preferred by the appellant deserves to be dismissed and the cross objection preferred by the claimant deserves to be allowed. The entire compensation shall be paid by the appellant Insurance Company, as awarded within a period of three months from today along with the interest as awarded by the Tribunal. The amounts already paid in terms of the award shall be deducted from the amounts to be paid in terms of the present order.

13. With the said observations, the appeal is dismissed.

(Pankaj Bhatia,J.)

May 6, 2026

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