Delhi High Court

Dharam Pal Singh vs Sonwati & Ors. on 30 July, 2008

Author: V.B.Gupta

*      HIGH COURT OF DELHI : NEW DELHI

                       MAC App. No.494/2007

%                      Judgment reserved on: 17th July, 2008
                       Judgment delivered on: 30th July, 2008

Dharam Pal Singh
S/o Sohanpal Singh
R/o B-72, New Usmanpur,
Delhi.                                          ....Appellant

                       Through: Mr.Anzar Hussain, Adv.

                                 Versus

1.Sonwati, w/o late Sh.Mangat Ram
2.Anita D/o Late Sh.Mangat Ram
3.Jagjeevan Ram, S/o Late Sh.Mangat Ram
4. Suman, D/o Late Sh.Mangat Ram
5.Jaivinder, S/o Late Sh.Mangat Ram.
6.Ram Kumar, S/o Late Sh.Mangat Ram
7.Om Pal, S/o Late Sh.Mangat Ram.
8.Virender Kumar, S/o Late Sh.Mangat Ram
9.Lata, D/o Late Sh.Mangat Ram
10.Lalita, D/o Late Sh.Mangat Ram

All r/o 29, Ambedkar Street No.5,
Maujpur, Delhi-110053.

11. Vinod Kumar, S/o Pati Ram
R/o J-281/39, 3 & Half Pusta Kartar
Nagar, Delhi.                       ...Respondents.

                            Through: Mr.Ramesh Sharma for
                                     R-1 to 4.
                                     Mr.N.S.Dalal for R-11.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA



MAC App. No.494/2007                                  Page 1 of 13
 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 under section 173 of the

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

been filed by the Appellant against the award dated

01.08.06 and the Review Order dated 09.05.07 passed

by Sh. Sanjay Garg, Judge, Motor Accident Claims

Tribunal (for short as the "Tribunal"), Delhi.

2. Brief facts of this case are that Sh. Mangat Ram,

deceased died in a road side accident which took place

on 23rd January, 2003, due to rash and negligent

driving of scooter no. DL-5SL-8964, on the pillion seat

of which deceased was travelling and the motorcycle

no. DL-9SE-3906.

3. The Claimants/Respondents no.1 to 10 herein

claimed compensation of Rs.32,55,000/- from the

Appellant and Respondent no. 11 herein, being driver

and owner of the offending vehicle.

4. The Appellant had put his appearance before the

Tribunal but despite availing number of opportunities,

failed to file written statement. His right to file written

statement was forfeited by the Tribunal vide order

dated 06.11.03.

5. The New India Assurance Co. was deleted from

the array of Respondents vide order dated 25.07.03.

6. Respondent no.11 herein, filed written statement

stating that he was driving the scooter on which

deceased was sitting on the pillion. It is stated that the

offending vehicle is the motorcycle not his scooter

since accident took place due to negligence of the

motor cycle no. DL-9SE-3906 being driven by

Appellant.

7. Vide impugned judgment, the Tribunal awarded

compensation of Rs.6,97,285/- in favour of the

claimants and against the Appellant herein along with

the interest @ 7% from the date of filing of the petition

i.e. 03.04.03 till the date of realization.

8. The Appellant filed an objection/review against

the said award by taking plea that he was unaware

about the proceedings and could not avail Legal Aid

and cross-examine the witnesses. He has also taken

the plea that the accident was not caused due to his

negligence.

9. Vide order dated 09.05.07, the Tribunal dismissed

the application by holding that there was no merit in

this objection application.

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

Appellant that, Respondent no.11 lodged the FIR

against the Appellant with malafide intention to save

himself and implicated the Appellant in the said

accident and as such the testimony of Respondent

no.11 (being R3W1) is not believable which is against

the principle of natural justice that a person cannot be

made witness of the wrong done by him. The criminal

case arising out of FIR no. 26/2003 is pending against

the Appellant and as such till the disposal of this case,

the Appellant cannot be hold guilty of driving the

motor cycle in rash and negligent manner.

11. The Trial Court has failed to appreciate the

deposition of the witnesses, PW-2 Sh. Ganpat and PW-3

Sh. Subhash Kumar, who deposed before the Trial

Court that the accident took place due to the rash and

negligent driving of the Respondent no.11. The Trial

Court discarded the testimony of these witnesses and

passed the impugned award against the Appellant. The

Trial Court has failed to appreciate the fact in

disposing of the review application/ objection vide

Order dated 9.5.07, that the prosecution witnesses PW-

1 to PW-3 have not been cross-examined by the

Appellant and as such the Trial Court should have

given the opportunity to defend the case in the review

application. For the above reasons, the award passed

by the Tribunal is illegal and the same is liable to be

set aside.

12. The Learned Counsel for the Respondents no. 1 to

4 has contended that the Appellant has failed to show

any illegality in the order of the Tribunal. It is further

stated that the Appellant cannot take benefit of his

own wrong.

13. The Learned Counsel for the Respondent no.11

has contended that the accident took place solely due

to the negligence of the Appellant.

14. As regards the contention of pendency of FIR, in P. Swaroopa Rani Vs. M. Hari Narayana @ Hari Babu 2008 (3) SCALE 501, the Apex Court has observed as under;

"It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case."

15. In M. Krishnan v. Vijay Singh & Anr., JT 2001

(8) SC 540, the Apex Court has observed as under;

"Civil proceedings, as distinguished from the criminal action, have to be

adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of."

16. Thus, in view of the above decisions, this

contention of the Appellant is rejected.

17. PW2 Sh. Ganpat, deposed that on 03.01.03 at

about 4 p.m. he was going from Mori Gate to

Shahdara. He was sitting on the pillion seat on two

wheeler scooter. Another two wheeler scooter overtook

them. At the inter-section, the motorcycle tried to take

„U‟ turn while coming from Shahdara side. The two

wheeler scooter which overtook, collided with the

motorcycle. The injured was taken to Hospital by auto

rickshaw.

18. During cross-examination, PW2 stated that he

cannot tell the name of the driver and number of the

scooter from whom he took lift as he is illiterate. He

further stated that accident took place due to

negligence of the scooter being driven by Respondent

No.11 and motor cycle being driven by Appellant

herein.

19. PW3, Sh. Subhash Kumar Gupta, filed affidavit of

his testimony, wherein he stated that on 23.01.03 at

about 4 p.m., he was going to Shahadra by bus. One

scooter no. DL-5SL-8964 was moving ahead of his bus.

The scooter was being driven at a very high speed and

in a rash and negligent manner. A pillion rider was

sitting on the scooter who was wearing white clothes

and carrying black coat. PW3 has further stated that

scooter no. DL-5SL-8964 hit against the motorcycle at

the intersection near Bela Farm. The motorcycle was

also driven in a rash and negligent manner and it was

taking „U‟ turn at the intersection of the road. After

collision of both the two wheelers, the pillion rider hit

his head against the road. He stated that he went to

the spot to help the scooterist in taking the injured

pillion rider to the Hospital in three wheeler. PW3 has

also stated that recently he visited his sister‟s house

and there he recollected that Sh. Mangat Ram

Advocate who was living in the vicinity, had received

fatal injuries in the road accident, which he had

witnessed.

20. During cross-examination by Respondent No.11,

he stated that he is neither the summoned witness nor

a witness in criminal case.

21. Respondent No.11 has examined himself as

R3W1. In his affidavit he stated that Sh. Mangat Ram,

the deceased was his advocate in a civil suit pending in

the Court of Sh. Deepak Garg, Civil Judge, Delhi. The

case was fixed on 23.01.03 and after attending the

case he was going to his residence, the deceased

requested him for lift. He and the deceased, as pillion

rider, were going on scooter. When they reached near

Bela Farm at 4 p.m., a motorcycle driven by Appellant

came from Shahadra side and took „U‟ turn in front of

Bela Farm in a rash and negligent manner and at a

very high speed. The motorcycle hit his scooter, as a

result of which he and the deceased sustained injuries.

22. Respondent No.11 also examined R3W2 Sh.

Radhey shyam, who deposed that he investigated the

FIR no. 26/03 and no witness deposed against Vinod

Kumar. He further stated that during investigation, the

entire evidence came against Dharam Pal.

23. In view of the aforesaid evidence, the Tribunal

held;

"When PW2 and PW3 left the spot after the accident, the question arises how petitioners came to know about them subsequently. PW2 has nowhere stated if deceased Mangat Ram was known to him or he identified the deceased on the spot. Whereas PW3 Sh. Subhash Kumar Gupta has given the explanation that recently he visited his sisters‟ house and there he came to know that Sh. Mangat Ram advocate who lives in the vicinity died in the accident witnessed by him. The accident is dated 03.01.03 whereas PW3 was examined as a witness on 09.07.04. It sounds unbelievable that after lapse of one and half years PW3 recollected this accident and came to know the person who sustained injuries in this accident was Sh. Mangat Ram advocate. Moreover,

PW3 has nowhere given the address of his sister. The witness has also not bothered to explain whether his sister used to live in the same area where deceased was residing."

The Tribunal further held;

"As per PW2 and PW3 the motorcycle took „U‟ turn while the scooter driven by R3, which deceased was sitting on the pillion seat was going straight and accident took place at the intersection on the road opposite Bela Farm. As per the traffic rules a person taken „U‟ turn is supposed to be careful regarding the movement of the traffic on the road to which he is approaching after taking „U‟ turn. Because the vehicle going straight has a first right to cross intersection to the vehicle who is coming on that way after taking „U‟ turn from the other road. Both PW2 and PW3 has stated that even the scooter on which the deceased was sitting on the pillion seat was being driven in a rash and negligent manner. From the manner of accident discussed above, I do not agree with PW2 and PW3 that the impugned accident took place due to composite negligence of scooter driven by R3 and motorcycle driven by R1."

24. As per the findings of learned Tribunal, the

claimants in support of their claim have relied upon

certified copy of the chargesheet of FIR No.26/03 P.S.

Seelampur which is against the Appellant on the

complaint made by Respondent No.11 regarding the

impugned accident showing involvement of the

offending vehicle. Claimants have also relied upon

certified copy of the P/M report Ex.P-3 of

Mangat Ram S/o. Sh. Birbal Singh aged 50 years,

wherein cause of death is opined as shock due to

antemorem brain damage produced by blunt force

impact.