At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE NAJMI WAZIRI
For the Appellant: Pankaj Seth, Advocate. For the Respondents: None.
CM APPL. 44170/2019 (Exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed-of.
MAC.APP. 812/2019, CM APPL. 44169/2019 & CM APPL. 44171/2019
3. This appeal impugns the order dated 9.5.2019 passed by the learned MACT in MACP No. 48/11 (New No. 49977/16), on the ground that contributory negligence of only 20% apportioned on the rider of the scooter bearing No. DL 8S L 7067, which had two pillion riders, is on the lesser side. The learned Counsel for the appellant contends that it should be atleast 50%. The impugned order has dealt with this issue as under:
The copy of criminal case record as part of DAR would show the mechanical inspection reports of the vehicles Nos. DL-1YB-1091 (Tavera) and LML Scooter No. DL-8SL-7067 both showing fresh damages. The seizure memo of both the said vehicles is also part of the DAR. The seizure memo of driving licence R1 and the necessary documents including RC, insurance policy, permit and fitness certificate of the offending vehicle is also part of the DAR. Said documents and copy of driving licence of R1 are also part of DAR. Further, it has not been denied by any respondents that the said two vehicles were not involved in the case accident. It is also an admitted position that the offending vehicle at the relevant time was being driven by R1 and the above said scooter was being driven by deceased Jagdish Sisodia at the time of accident. As discussed above, R1 and R2 have not cross-examined the eye witness/injured persons i.e. PW3 & PW4 and hence, R1 and R2 shall be deemed to admit that the case accident occurred between the offending vehicle being driven by R1 and the above said scooter being driven by the deceased Jagdish Sisodia at the above said date, time and place and that R1 was driving the offending vehicle in a rash and negligent manner.
Learned Counsel for Insurance Co./R3 has argued that deceased Jagdish Sisodia also contributed to the accident as he was driving the said scooter on the wrong-side of the road, whereas, the offending vehicle was coming on its correct side of the road. He also referred to the copy, of MLC of the deceased on record which would show that he was under influence of alcohol at the time of accident. He also referred to the site plan on record as part of DAR and argued that it is evident that the deceased Jagdish Sisodia was driving the scooter on the wrong side of the road. He further argued that the triple riding was being done on the said scooter at the time of accident. He has thus argued that on the facts of the present case, some amount on account of contributory negligence on the part of deceased Jagdish Sisodia should be deducted.
On the other hand, learned Counsel for petitioner has argued that there was no contributory negligence on the part of the deceased as the accident occurred only due to the rash and negligent driving of R1. He also referred to the MLC of R1 which also mentioned the smell of alcohol.
It is evident from the record that the respondents have not lead any evidence in this case to prove the factum of contributory negligence on the part of the deceased Jagdish Sisodia. The record would, however, show that both PW3 and PW4 have admitted in their cross-examination that they were triple riding on the scooter being driven by the deceased. Both PW3 & PW4 have further admitted that the offending vehicle was coming on the correct side of its road i.e. the offending vehicle was being driven on the correct side of the road. PW4 has admitted during cross examination that the deceased took the right turn while coming out of the depot. The site plan as part of the DAR would also show that the offending vehicle was coming on the correct side of its road whereas, the said scooter at the time of accident was being driven on its wrong side of the road. Further, the MLC of the deceased