The New India Assurance Co. Ltd. vs Sh. Malkhan Singh & Ors.
2008 Latest Caselaw 1462 Del

*      HIGH COURT OF DELHI : NEW DELHI

                  MAC App. No.373 of 2008

%            Judgment reserved on:19th August, 2008

             Judgment delivered on:28th August, 2008

The New India Assurance Co. Ltd.,
Asaf Ali Road,
New Delhi

Also at:
Jeewan Bharti Bidg.,
Connaught Place,
New Delhi                            ....Appellant
                   Through: Mr. Pankaj Seth, Adv.

                           Versus

1. Sh. Malkhan Singh, S/o Sh. Jamadar

2. Smt. Shanti Devi, W/o. Sh. Malkhan Singh

Respondents No.1 to 2 R/o. Village Udaipur, Distt. Etah
U.P.
3. Shri. Nasruddin, S/o. Sh. Munshi Khan,
R/o. 648/16, West Guru Angad Nagar,
Lakshmi Nagar, Delhi                  ...Respondents.
                    Through:Nemo

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


MAC App. No.373/2008                        Page 1 of 14
 3. Whether the judgment should be reported
   in the Digest?                                         Yes


V.B.Gupta, J.

The present appeal under section 173 of the

Motor Vehicles Act, 1988 (for short as the "Act") has

been filed by the Insurance Company/Appellant against

the award dated 21.01.08 passed by Ms. Sukhvinder

Kaur, Judge, Motor Accident Claims Tribunal (for short

as the "Tribunal").

2. Brief facts of the case are that on 07.09.1992, at

about 11.00 p.m., Sham Singh, deceased was going on

scooter no. DL-5SC-5079 as a pillion rider on S.A.

Road, Okhla Phase-1, New Delhi, which was being

driven by Respondent no.3 in zig-zag manner and at an

uncontrollable speed without caring for traffic rules

and regulations. When they reached near Lalji Chowk,

Okhla Phase-1, New Delhi, Respondent no.3 struck his

scooter against a cow, as a result of which, both of

them fell down on the road and the deceased became

unconscious. The deceased was removed to AIIMS

Hospital, where he succumbed to injuries on the next

day.

3. The claimants filed the claim petition claiming

compensation of Rs. 6 Lacs along with interest @ 24%

per annum against the Respondent no.3 and the

Appellant.

4. Respondent no.3 in its written statement has

admitted the factum of accident. However, he has

denied that he was driving the scooter in a rash and

negligent manner. He has stated that the accident took

place due to wrong activity of the cow at the place of

accident who unnecessarily moved towards the scooter

and hit the scooter. Respondent no.3 was driving the

scooter at a very slow speed and in a gentle manner.

5. Appellant though admitted that offending vehicle

was insured with it in the name of Respondent no.3 at

the time of accident, it has contested the claim inter

alia on the ground that it cannot be asked to indemnify

the Respondent no.3 until and unless the terms and

conditions of the insurance policy are complied with by

the insured and driver of the vehicle was holding the

valid and effective driving licence on the date of

accident and was not disqualified from holding the

same.

6. Vide impugned judgment, the Tribunal awarded

the compensation of Rs.1,20,000/- along with the

interest @ 9% per annum from the date of filing of the

petition till its realization.

7. It has been contended by Ld. Counsel for the

Appellant that in the absence of any evidence of an eye

witness to the accident in question, the tribunal has

erred in holding that the accident had taken place due

to rash and negligent driving of the two wheeler

scooter no. DL-5S-C-5079 by Respondent no.3. The

bare reading of the cross-examination of PW2 shows

that his testimony could not stand on the issue of

negligence. Thus, the Tribunal has erred in coming to

the conclusion that PW2 was the eye witness to the

accident and he was deposing falsely.

8. It is further contended by the Appellant Counsel

that the tribunal has erred in not relying upon the

statement of R2W3 that the FIR no. 262/92 was

cancelled because the accident was not caused due to

rash and negligent driving of the scooter by

Respondent no.3.

9. It is also contended by the Appellant Counsel that

the Tribunal has proceeded with the wrong assumption

that after the decision of Kaushnama Begum & ors.

v. The New India Assurance Co. Ltd., (2001) ACJ

421 SCC, the issue of wrongful act or omission on the

part of driver of motor vehicle involved in the accident

has been left to secondary importance and mere use or

involvement of motor vehicle in causing bodily injury

or death to a human being or damage to property

would make the petition maintainable under section

166 and 140 of the Act while deciding the issue

relating to whether the deceased Sham Singh suffered

fatal injuries in an accident which took place on

07.09.1992 due to rash and negligent driving of two

wheeler scooter owned and driven by Respondent no.3

herein and insured with the Appellant herein.

10. Ld. Counsel for the Appellant has cited Oriental

Insurance Co. Ltd. v. Meena Variyal and others,

(2007) 2 SCC (Cri) 527 and Oriental Insurance

Co. Ltd. v. Sudhakaran K.V. & Ors., 2008 (8)

SCALE 402 in support of its contentions.

11. On 16th November, 2007 the case was fixed before

the Tribunal for final arguments. On that date, counsel

for Respondents 1 & 2 was present while, none

appeared for the Appellant, despite several calls.

Arguments were addressed by the Learned Counsel for

Respondents 1 & 2 and the trial court adjourned the

matter for further arguments and orders on 21st

January, 2008. Liberty was granted to the Appellant to

file written arguments within four weeks.

12. On 21st January, 2008 again none was present on

behalf of the Appellant. No arguments were addressed

on behalf of Appellant nor any written arguments were

filed despite opportunities.

13. In Smt. Kaushnuma Begum & Ors. (supra),

the Apex Court has observed as under;

"It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action.

Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the Rule in Rylands v. Fletcher (1861-73 All ER (Reprint) 1) (supra) can apply in motor accident cases. The said Rule is summarised by Blackburn, J, thus:

"The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."

The Apex Court further has observed as under;

"No Fault Liability" envisaged in Section 140 of the MV Act is distinguishable from the rule of strict liability. In the former the compensation amount is fixed and is payable even if any one of the exceptions to the Rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the MV Act permits that compensation paid under 'no fault liability' can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them."

The Apex Court further referred the decision of Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and anr., AIR 1987

SC 1690, where it was observed as under;

"Today, thanks to the modern civilization, thousands of motor vehicles are put on the road and the largest number of injuries and deaths are taking place on the roads on account of the motor vehicles accidents. In view of the fast and constantly increasing volume of traffic, the motor vehicles upon the roads may be regarded to some extent as coming within the principle of liability defined in Rylands v. Fletcher. From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles highly dangerous. 'Hit and run' cases where the drivers of the motor vehicles who have caused the accidents are not known are increasing in number.

Where a pedestrian without negligence on his part is injured or killed by a motorist whether negligently or not, he or his legal representatives as the case may be should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents there has been a continuous agitation throughout the world to make the liability for damages arising out of motor

vehicles accidents as a liability without fault."

14. Thus in view of above decision, the contention of

the Appellant Counsel that the Tribunal has erred in

holding that the deceased Sham Singh suffered fatal

injuries in an accident which took place on 07.09.1992

due to rash and negligent driving of two wheeler

scooter owned and driven by Respondent no.3 herein

and insured with the Appellant herein is rejected.

15. As regards to the contention of testimony of PW2,

PW2 has testified that he had witnessed the accident.

He deposed the manner of the accident before the

Tribunal. Further, as regards his testimony, the

Tribunal held as under;

"Nothing material has come on record which could shake his testimony."

16. Respondent no.3 in his written statement has

admitted that the accident and involvement of scooter

no. DL 5SC 5079 in the accident. He has contested the

claim only on the ground that the accident has not

occurred due rashness and negligence but due to the

fact that a stray cow had suddenly come on the road

and hit against his scooter.

17. However, Respondent No.3 who was driving the

scooter has not appeared in the witness box and as

such inference has to be drawn against him.

18. The involvement of the offending vehicle is also

established from the certified copy of FIR no. 263/92

Police Station Okhla Industrial Area which is Ex.PW1/1

which is also Exhibited by the Insurance Company as

R3W-1/5.

19. Appellant has examined Rajeev Bakshi AAO and

Rakesh Chaudhary, the Investigator as R2W-1 and

R2W-2 to establish its defence that accident had not

occurred due to rash and negligent driving of

Respondent no.3.

20. In this regard the Tribunal held as under;

"The testimony of R2W2 cannot be believed in the absence of any corroborating evidence. He also failed to tell the name of police official who had informed him about the cancellation of the case. He also admitted that he did not apply for the certified copy of the charge sheet. It is also pertinent to mention here that respondent No.:1 has not appeared in the witness box to establish that there was no rashness or negligence on his part or to establish the manner in which the accident had occurred."

21. After perusal of the record, I find myself in

agreement with the Tribunal on this issue.

22. The decisions cited by the Appellant Counsel are

not applicable to the facts of the present case.

23. Thus, I do not find any infirmity or illegality in the

impugned judgment of the learned Tribunal. The

compensation amount awarded by learned Tribunal is

just and fair.

24. The present appeal is thus not maintainable and

the same is hereby dismissed with costs. Costs are

assessed at Rs.5,000/-.

25. Appellant is directed to deposit the costs within

four weeks from today by way of cheque in the name of

Registrar General of this Court.

26. Trial court record be sent back.

27. List on 30th September, 2008 for compliance.

August 28, 2008                    V.B.GUPTA, J.
Bisht