Smt. Saroj Bala And Anr. vs First Secretary, Ussr Embassy And ...
2003 Latest Caselaw 803 Del

JUDGMENT

S.K. Mahajan, J.

1. This order will dispose of the appeal filed by the appellants against the judgment of the Motor Accident Claims Tribunal dated 16th November, 1987 whereby the claim of the appellants for compensation for the death of Narinder Kumar Malhotra, husband of appellant No.1 and father of appellant No.2 in a road accident alleged to have been caused due to rash and negligent driving of a car belonging to the USSR Embassy by its driver, was dismissed. A few facts giving rise to this appeal are:

The deceased Narinder Kumar Malhotra on December 6, 1980 was going on his motorcycle at about 11.30 pm from Chanakya cinema side on Vinay Marg when a car belonging to the USSR Embassy and bearing registration No.75 CD 12 came from the opposite direction and hit the motorcycle of the said Narinder Kumar Malhotra. The car at the relevant time was allegedly driven in a rash and negligent manner by its driver and accident was alleged to have been caused due to the rash and negligent driving of the embassy vehicle. As a result of the accident, Narinder Kumar Malhotra suffered fatal injuries and died at the spot. The appellants being the wife and son of the deceased filed a claim before the Motor Accident Claims Tribunal for compensation for the death of Narinder Kumar Malhotra in the aforesaid road accident alleged to have been caused due to the rash and negligent driving of embassy vehicle and claiming that the deceased was a young man of 26 years of age and was having a monthly income of Rs.1,000/-, the appellants claimed an appropriate compensation to be paid to them.

2. The claim petition was originally filed against the USSR embassy as well as the First Secretary of the Embassy who was driving the vehicle at the relevant time, however, because of the diplomatic immunity claimed by them, their names were deleted from the array of the respondents and case was contested only by the insurance company. The insurance company in the written statement did not deny the fact of the accident, however, it was stated that the accident was not caused due to the rash and negligent driving of the embassy car by its driver but was caused due to the rash and negligent driving of another car/taxi. It was stated in the written statement that when the embassy car being driven by the First Secretary of the Embassy was coming from Ashoka Hotel side to Yashwant Place side on the left side of the road at a speed of about 45 Kms. per hour, a motor bike coming from Yashwant Place towards Ashoka Hotel suddenly took an unexpected turn to the right side of the road and the driver of the car in order to avoid the head on collusion with the motor bike immediately turned the same to the right because on the left of the car there was a cyclist driving near the pavements. It was further stated that as a result of the car turning towards the right, the motor bike struck the embassy car on the left side door and the driver of the motor bike fell down near the left side pavement of the road. It is submitted that efforts were being made to take the motor bike driver to the hospital for treatment for scratches which he might have received as a result of his fall on the road, however, in the meantime another car probably a taxi came at a high speed and hit the motor bike driver kicking him forward. It was, therefore, submitted in the written statement that the driver of the embassy car was neither negligent nor the accident was caused for his want of care and farsight. On the pleadings of the parties, the Tribunal framed the following issues:-

1. Whether the deceased died due to the injuries sustained in the accident, as alleged in the petition? OPP

2. Whether the accident in question was caused on the date time and place, as alleged in the petition on account of rash and negligent driving of car No.75 CD 12? OPP

3. Whether the Insurance Company is not liable for the preliminary objections taken in its W/s? OPR

4. Whether the petitioners are the only LRs of the deceased? OPP

5. To what amount of compensation, if any, are the petitioners entitled and if so, from whom? OPP

6. Relief.

3. Issue Nos.1, 3 and 4 were decided in favor of the appellants. While discussing Issue No.5, the Tribunal observed that the appellants would be entitled to compensation of Rs.1,08,000/-. However, while deciding issue No.2, it was held by the Tribunal that the appellants had failed to prove that the accident was caused due to rash and negligent driving of the driver of the embassy car and since the embassy car was held not to be responsible for the accident, no compensation was awarded in favor of the appellants. Being aggrieved by the judgment of the Tribunal, the appellants have filed the present appeal.

4. The Tribunal, while holding that the accident was not caused due to the rash and negligent driving of the embassy car, has not believed the statement of two witnesses who had claimed to have allegedly seen the accident. PW-5 Kul Bhushan, in his statement, had stated that on 6th December, 1980 at about 11.15 or 11.30 p.m. he was going from R.K.Puram to Shahdara and a motor cycle was going ahead of him when he saw a car coming from the opposite direction and hit the motor cyclist. He stated that the car was coming at a high speed and had gone to the wrong side and dragged the motor cyclist to some distance. He state d that he left the spot but after about 3-4 days when he was talking about the accident to his fellow driver, he came to know that the deceased was a relative of one of the drivers and thereafter he told the fact of his being an eye witness to the relatives of the deceased. PW-6 Jagdish Chander has also claimed to be an eye witness and he stated that on 6th December, 1980 at about 11.30 p.m. he Along with his brother-in-law was coming from R.K.Puram in a three wheeler when they saw a car bearing registration No.75 CD 12 coming from the side of Ashoka Hotel at a very fast speed and striking against the motorcycle on the wrong side of the road and dragged the motorcyclist and stopped at a distance of about 5-10 paces. He stated that due to the impact, the motorcyclist fell down and received head injuries and after stopping at the spot of the accident for a while along with some other members of the public, they left the spot. It was stated by him that the police did not come at the spot in their presence. He stated that after a few days, brother of the deceased came at his residence along with the scooter driver on whose scooter he was sitting and narrated the whole incident to him. On these statements and on the basis of the record produced before the Tribunal, the Tribunal came to a finding that the statement of these witnesses cannot be believed and the same appear to be highly doubtful. It was held by the Tribunal that there were various material contradictions in the statements of these witnesses which makes their presence at the spot highly doubtful. Referring to the site plan in the police file, the Tribunal was of the view that it was the motorcyclist who had gone on the wrong side and hit against the car and not that the car had gone on the wrong side to hit the motorcyclist.

5. It is contended by learned counsel for the appellants that there was nothing on record to disbelieve the testimony of PW-5 and PW-6 and the Tribunal has based its findings only on the assumptions and presumptions. I have carefully considered the arguments of the parties and I am in agreement with learned counsel for the appellants that the Tribunal has gone wrong in holding that the accident was not caused due to the rash and negligent driving of the embassy vehicle by its driver. Police investigating file was produced before the Tribunal. As per the D.D. entry, a message was received on telephone about the accident that a car after hitting the motorcycle had run away from the spot. Even in the FIR, it is mentioned that when the Investigating Officer reached the spot, the car with which the accident had taken place was not found to be available. It was only subsequently that the First Secretary of the USSR Embassy informed the police about his being involved in the accident. The site plan prepared by the police at the spot does not in any manner indicate that the motorcyclist had gone on the wrong side and had hit the embassy car. Once it is admitted that the embassy car was involved in the accident, it was for the driver of the car to prove as to how the accident had taken place. No witness on behalf of the owner or the driver appeared in the witness box to prove as to how the accident took place and in the absence of any evidence being produced on behalf of the owner or the driver of the car, in my opinion, the Tribunal has clearly erred in holding that the accident was caused because of the motorcyclist having gone on the wrong side. After it was admitted that the accident had taken place between the car and the motorcycle, the burden of proof that the accident was not caused because of the rash and negligent driving by the driver of the car was entirely upon him. Even assuming that PW-5 and PW-6 were not eye witnesses, the only eye witness of the accident was the driver of the embassy car who has admittedly not appeared before the Tribunal. Moreover, the driver of the car after the accident fled away from the spot. If he was not guilty of the accident, there was no reason for him to run away from the spot. The fact that the car had been removed from the scene clearly show that the driver of the car tried to destroy the evidence which might have proved his guilt. In these circumstances, in my opinion, the Tribunal ought to have drawn an adverse inference against the owner and driver of the embassy car and ought to have held that the accident was cause entirely due to the rash and negligent driving by the driver of the car. Taking all this into consideration, I have no hesitation in holding that the accident was caused entirely due to the rash and negligent driving of the embassy car by its driver.

6. Once it is held that the accident was caused entirely due to the rash and negligent driving of the embassy car by its driver, the only other question to be determined is as to what is the compensation to which the appellants would be entitled. As per the evidence on record, the deceased was working as a Cameraman with the Times of India and was getting a monthly salary of Rs.730/-. The deceased was a young man of 26 years of age and had future prospects in life as well. Though there is nothing on record to show as to what would have been his salary had he been alive, however, keeping in view the judgment of the Supreme Court in Sarla Dixit Versus Balwant Yadav, and keeping in view the future prospects which the deceased had in life, it will not be unreasonable to predict that his average gross monthly income would have been at least double than what he was earning at the time of his death. Thus, this Court will not be in error in taking the average monthly income of the deceased at Rs.1,500/-. Deducting 1/3rd towards his personal expenses, the loss of dependency to the family would come to Rs.1,000/- p.m. and the annual loss of dependency would come to Rs.12,000/-. The deceased, as already mentioned above, was a young man of 26 years of age and maximum multiplier of 18 can be applied in this case. Applying the multiplier of 18, the appellants would be entitled to Rs.2,16,000/-. Adding to this a sum of Rs.20,000/- as compensation for loss of consortium and towards funeral expenses, etc., the total compensation to which the appellants would be entitled comes to Rs.2,36,000/-.

7. In view of the foregoing, I allow this appeal, set aside the impugned award and direct respondent No.3 - the insurance company to pay a compensation of Rs.2,36,000/- to the appellants along with interest @ 9% p.a. from the date of the petition till payment.

8.In the facts of this case, however, I leave the parties to bear their own costs.