Delhi High Court

Sushil Kumar vs Prem Lal & Ors. on 6 August, 2008

Author: V.B.Gupta

*      HIGH COURT OF DELHI : NEW DELHI

               MAC APPEAL No.338 of 2008

%                      Judgment reserved on: 24th July, 2008

                       Judgment delivered on:6th August, 2008

Sushil Kumar
S/o. Sh. Raj Kishore,
R/o. CB-52-D, Janta Flats,
Hari Nagar,
New Delhi-110054.                     .....Appellant

                           Through: Pradeep Kumar Arya,
                                    Adv.

                               Versus

1. Prem Pal
   S/o. Sh. Mangal Sain

2. Smt. Ramwati
   W/o. Sh. Prem Pal

    Both R/o. H.No. 634
    Near Sharma Tent House,
    Tajpur Pahari, Badarpur,
    New Delhi

3. Md. Amdadullah
   S/o. Sh. Abdul Kadir
   R/o. I-66, Hari Nagar,
   Saurabh Vihar,
   New Delhi-110044

4. The Oriental Insurance Co. Ltd.
   1893, Chandni Chowk




MAC App. No.338/2008                             Page 1 of 17
      Delhi.                          .....Respondents
                       Through: Mr. Abhinav Ramkrishna for
                                R-4.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        Yes

2. To be referred to Reporter or not?                     Yes

3. Whether the judgment should be reported
   in the Digest?                                         Yes

V.B.Gupta, J.

The present appeal has been filed under Section

173 of the Motor Vehicles Act, 1988 (for short as „Act‟)

against the award dated 23rd August, 2006 and order

dated 24th January, 2008 passed by MACT whereby the

rights of recovery against the insured owner has been

granted to the Insurance Company.

2. The brief facts of this case are that on 4th July,

2002, the deceased Bunti, aged, about 15 years old

was going to take milk from Ram Chand Dairy with his

elder brother Sanjay on scooter No. DL-3S-F-6259.

The deceased was driving the scooter and at about

6.30 p.m. when the scooter reached the Tajpur mines,

NTPC Gate No.3, the offending vehicle RTV bus

Bearing No.DL-1V-8288 came from the front side in a

rash and negligent manner and at a high speed and

struck against the deceased from the front side as a

result of which the deceased fell down on the road and

the offending vehicle ran over the deceased and

dragged his body. The driver of the offending vehicle

ran away from the spot. The brother of the deceased

Sanjay received grievous injuries and FIR regarding

this accident was lodged with the Police Station

Badarpur. It is alleged that the accident was caused

due to the negligence on the part of the bus driver,

Md. Amdadullah, respondent No.3 herein, who was the

driver of the offending vehicle under the employment

of Sh. Sushil Kumar, the appellant herein, and the

vehicle was insured with Oriental Insurance

Company/respondent No.4, herein.

3. Before the trial court, the claim petition was

contested by the driver as well as the Insurance

Company.

4. However, the defence of the driver was struck off

vide order dated 22nd July, 2004 for his omission to file

written statement which was restored on 30th

November, 2004 subject to cost. In the written

statement filed by the driver, the factum of accident

has been denied and he also generally denied the other

contents of the petition.

5. Learned counsel for the owner of the offending

vehicle appeared before the trial court on 13th

November, 2003 and sought time for filing of the

written statement.

6. The Insurance Company in its written statement

admitted the factum of Insurance Company and stated

that the same was issued in the name of the appellant.

Insurance Company contested the claim petition inter-

alia on the ground that the insured i.e. the appellant

has contravened the terms and conditions mentioned

in the Insurance policy and thus it cannot be called

upon to indemnify the insured in case of any award.

7. On 17th December, 2003, the owner of the

offending vehicle appeared in person in the Court and

stated that the driving licence is a valid one. He was

directed to produce a certificate to this effect from the

concerned Transport Authority and was given time to

file written statement.

8. On the next date i.e. on 22nd July, 2004, none

appeared for the owner of the offending vehicle nor

any written statement was filed and accordingly the

owner was proceeded Ex-Parte by the Tribunal.

9. Vide award dated 23rd August, 2006, the trial

court granted a compensation of Rs.2,40,000/- in all to

the claimants i.e. respondents No.1 and 2 herein.

10. After passing of the award, on 21st February,

2007, the appellant moved an application under Order

9 Rule 13 CPC for setting aside the Ex-parte decree

passed by the trial court on 23rd August, 2006. Along

with that, an application under Section 5 of Limitation

Act for condonation of delay was also filed.

11. Vide order dated 24th January, 2008, application

under Order 9 Rule 13 CPC was dismissed by the trial

court.

12. It has been contended by learned counsel for the

appellant that the burden of proof to prove that the

driver of the offending vehicle was not having a valid

driving licence was upon the Insurance Company and

the Insurance Company has failed to discharge this

burden and has failed to establish this fact that the

driver of the alleged offending vehicle was not having a

valid driving licence at the time of the accident.

13. It is further contended that as per statement of

R3W1, who is an official of the Insurance Company, as

per the investigation report, the driver, Md.

Amdadullah was not having driving licence.

14. This report of the investigator was not proved at

all by the Insurance Company in accordance with law,

since the investigator was not examined nor any one

from Firozabad Transport Authority, to prove this fact

that no driving licence was issued in the name of Md.

Amdadullah.

15. It is further contended that no notice under Order

12 Rule 8 CPC for production of the driving licence

was ever issued to the appellant or to the driver by the

Insurance Company, as required under the law.

16. Lastly, it is contended that the appellant has

shown sufficient reason for not participating in the

trial and application under Order 9 Rule 13 CPC was

justified and reasoned application which ought to have

been allowed to do justice between the parties.

17. On the other hand, it has been contended by

learned counsel for respondent No.4 that there is no

infirmity in the order passed by the Tribunal and the

driver in this case was not having a valid driving

licence on the date of accident and as such the present

appeal is not maintainable.

18. It is clearly borne out from the record that the

appellant had been duly served before the trial court

and after service he had put in his appearance through

his counsel and thereafter, he has sought time for

filing the written statement as well as for producing a

certificate to the effect from the concerned Transport

Authority that the driver had a valid driving licence.

19. On 22nd July, 2004, the appellant did not appear

before the trial court and thus was proceeded Ex-

parte.

20. There is nothing on record to show that thereafter

till date when the impugned judgment was passed on

23rd August, 2006, the appellant ever appeared before

the trial court.

21. The driver of the offending vehicle in spite of

various opportunities, did not file the written

statement and as such vide order dated 22nd July, 2004

passed by the trial court, the defence of the driver was

struck off.

22. Application under Order 9 Rule 13 CPC was filed

on 21st February, 2007, i.e. about six months after the

impugned award has been passed by the Tribunal, and

thus this application was hopelessly time barred.

23. The ground taken in this application was that the

appellant had serious health problems and was bed

ridden from April, 2004 to December, 2006 and was

thus not able to participate in the proceedings and for

the same reason could not produce on record the

driving licence of the respondent which had been lying

with him.

24. Dealing with application under Order 9 Rule 13

CPC, the Tribunal vide its order dated 24th January,

2008, held;

"The petitioner has also placed on record a medical certificate purported to have been issued by Dr. Verma Ved P stating that the petitioner remained under his treatment from 1st January, 2004 to 1st December, 2006 for post hepetic neuralgia and was on rest for the above period. It is pertinent to mention here that the doctor has not prescribed any rest in his prescription slips for the period from 1st May, 2004 to 11th October, 2004. The applicant has also not placed on record any treatment papers for period from December, 2004 to December, 2006 to prove the continuity of treatment. In the absence of the documents, the certificate dated 5th December, 2006 does not inspire confidence. Even otherwise from the record it is revealed that the applicant had appeared in the court after receipt of the notice of the claim petition. He was also represented through counsel Shri. Naveen Arya who filed his vakalatnama for respondent No.1 and on 13th November, 2003, and also informed

the court that the driving licence of respondent No.1 was valid. He was also told to produce the certificate to that effect from the concerned transport authority. He was proceeded Ex-parte on 22nd July, 2004 for his non- appearance and failure to file the written statement. There is also no explanation as to why the counsel for respondent No.2 had not been appearing. The personal appearance of respondent No.2 was not required for the purpose of production of valid licence or a certificate from the concerned transport authority. The same could have been produced by the counsel or any other person in the family of the applicant. It is not the case of the applicant that there was no other member in his family to produce the certificate from the transport authority/valid driving licence in the court or he was unrepresented during the proceedings. The applicant has not filed such certificate from the concerned authority or the copy of valid driving licence of respondent No.1 even along with the application.

In view of above discussion, I do not find any merits in the application. The same is hereby dismissed."

25. Moreover, there is no explanation as to why

counsel for the appellant did not appear in the trial

court on 22nd July, 2004, and thereafter, when

admittedly, appellant had engaged the counsel to

defend his case.

26. Under these circumstances, I do not find any

infirmity with the order dated 24th January, 2008 vide

which the learned trial court has dismissed the

application under Order 9 Rule 13 CPC filed by the

appellant and as such the appeal with regard to the

application, under Order 9 Rule 13 CPC is not

maintainable.

27. Now, coming to the merits of the appeal, the

appeal is hopelessly time barred, as the impugned

judgment was passed by the trial court on 23rd August,

2006, while the appeal has been filed on 11th March,

2008. No sufficient cause has been shown by the

appellant for this inordinate delay in filing the appeal.

28. The defence of the appellant is that the driver of

the offending vehicle was having a valid driving licence

which was lying with him i.e. the appellant.

29. The appellant admittedly, did not place or prove

that driving licence before the trial court and further

the driver has not appeared in the witness box to deny

the factum of the accident.

30. In this regard, the relevant findings of the

Tribunal read as under;

"From the record it is also revealed that on 17th December, 2003, respondent No.2 was present in person and stated that driving licence of respondent No.1 was valid and he may also produce a certificate to this effect from the Transport Authority concerned. Respondent No.2, however, did not appear after 17th December, 2003 and was proceeded Ex-parte on 22nd July, 2004.

From the conduct of respondent No.2 also, it can be assumed that he had the knowledge that licence of the driver was fake. Respondent No. 3 however, is not exonerated from its liability, being joint

on the ground of fake licence of the driver. Being the insurer, respondent No.3 is directed to deposit the award amount within a period of one month in favour of the petitioners. Respondent No.3, however, can get the compensation amount indemnified from respondent no.1."

31. Coming to the question of rash and negligent

driving on the part of driver of offending vehicle, the

Tribunal has dealt with it in its judgment in para No.6

and relevant findings read as under;

"PW 2, the eye witness, has testified that on 4th July, 2002 at 6.30 p.m., when he along with his deceased brother was going to take milk from Ram Chander dairy on their scooter, the offending vehicle RTV bus bearing No. DL-IV-8288 came from the front side in the most rash and negligent manner, which was being driven at a high speed and struck against his scooter, as a result, he along with his brother fell down on the road and the offending vehicle ran over the deceased and dragged his body. Although, learned counsel for respondent No.1 has suggested that the deceased was coming from the wrong side which lead to head on collision, the suggestion has been specifically denied by PW- 2. Even otherwise, the defence introduced by learned counsel for respondent No.1 at the stage of

evidence cannot be looked into because in the written statement no such averment has been made. It may also be indicated here that respondent No.1 has not been examined in defence to explain the circumstances in which the accident had occurred."

32. I do not find any ambiguity or error in these

findings of the Tribunal. Moreover, the driver of

offending vehicle has not appeared in the witness box

to rebut the claimant‟s case. As such adverse

inference has to be drawn against the driver of

offending vehicle.

33. As far as the quantum of compensation awarded

in this case is concerned, the deceased was 15 years at

the time of accident and he was not earning anything.

In view of the second schedule of the Act, his notional

income has been assessed as Rs.15,000/- per annum

and a multiplier of 15 has been adopted.