Kesho Ram & Ors. vs Joga Ram & Ors.
2009 Latest Caselaw 1525 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI


                     FAO No. 240/2000

                     Judgment reserved on 17.01.2008

                     Judgment delivered on: 20.4.2009


Kesho Ram & Ors.                           ..... Appellants.

                     Through: Mr. J.S. Kanwar, Adv.

                     Versus

Joga Ram & Ors.                     ..... Respondents

                     Through: Nemo.


CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1.    Whether the Reporters of local papers may
      be allowed to see the judgment?                 No

2.    To be referred to Reporter or not?              No

3.    Whether the judgment should be reported
      in the Digest?                                  No


KAILASH GAMBHIR, J. :




FAO No. 240/2000                                               Page 1 of 6
 1.   The present appeal arises out of the award dated 2/3/2000

of the Motor Accident Claims Tribunal whereby the Tribunal

dismissed the claim petition without awarding any compensation.



2.   The brief conspectus of the facts is as follows:

3.   On 12/9/1988 at about 4.55pm, the deceased Sh. Rajeev

Kumar Sharma, aged about 25 years boarded the bus bearing

registration no. DEP 4391 plying on route no. 320 from Shahdara

bus stand and he was to alight at Kanti Nagar bus stand near

Swarn talkies. As the bus started, a bomb blast occurred inside

the bus as a result of which, Sh. Rajeev Kumar received grevious

injuries on his person, which resulted in his death. A claim

petition was filed on 10/3/1989 and an award was made on

2/3/2000. Aggrieved with the said award enhancement is claimed

by way of the present appeal.



4.   The sole ground on which the claim petition was dismissed

was that the appellant claimant failed to prove the negligence of

the driver.




FAO No. 240/2000                                              Page 2 of 6
 5.   The counsel for the appellants contended that the tribunal

dismissed the claim petition in ignorance of the judgment of the

Hon'ble Apex Court in Samir Chand Vs. Managing Director,

Assam State Transport Corporation - 1998 ACJ 1351. The

counsel also urged that the tribunal erred in holding that the

appellant was unable to prove negligence of the driver of the bus.



6.   Nobody has been appearing for the respondents.



7.   I have heard counsel for the appellant and perused the

record and the aforesaid judgment.


8.   In the present case the accident took place when a bomb

exploded inside the bus when the bus moved from Shahdara bus

stand. At the relevant time Delhi was also under the sway of Sikh-

related violence, which was in full swing in northern India and the

same was a matter of judicial notice. It is a celebrated rule of

evidence that a fact, of which the court will take judicial notice,

need not be proved and the said principle is enshrined in Section

56 of The Indian Evidence Act, 1872. Thus, it was not necessary

for the appellants claimants to prove the negligence of the driver

and the conductor. In such a situation, where the Sikh militant

FAO No. 240/2000                                                Page 3 of 6
 activities were daily in newspaper, it was necessary for the Court

to take judicial notice of the same. It was equally necessary for

the bus conductors and drivers to take extra care, so that no

mishappening occurs in the bus. The degree of diligence and

vigilance expected of the bus conductor and driver was found

lacking in the instant case, but the learned tribunal while

deciding the matter ignored this aspect.



9.   In the present case, the claim petition was preferred under

Section 166 of the Act, the petitioner would have to satisfy the

Tribunal (a) that an accident arose out of the use of a motor

vehicle, (b) which resulted in the death or bodily injury of a

person or damages to any property of a third party so arising, or

both, (c) due to the negligence of the driver and that (d) the

claim is made against the owner and insurer of the motor vehicle

involved in the accident. Therefore, it is essential for the

maintainability of a claim under section 166 that the accident

arose out of the 'use' of a motor vehicle. The expression "use of a

motor vehicle" in Section 165 covers accidents which occur both

when the vehicle is in motion and when it is stationary.




FAO No. 240/2000                                                Page 4 of 6
 10.   In the instant case all the ingredients necessary for

maintainability of the claim under section 166 was existent, but

still the tribunal erred in not awarding compensation. In the

present case a young lad of 25 years has expired and death of a

child, of whatever age, leaves the parents in great agony and

sufferings, the tribunal ought to have taken care in decision-

making.


11.   The Motor Vehicles Act indisputably is in the nature of social

welfare legislation. The relevant provisions of the Act are

beneficial in nature. It is settled law that to prevent injustice or to

promote justice and to effectuate the object and purpose of the

welfare legislation, broad interpretation should be given, even if it

requires a departure from literal construction.


12.   In cases of fatal accidents the entire family of the deceased

is affected and the loss suffered by the entire family cannot be

restored, the courts should give technicalities a go bye and

concentrate on fair play. The approach in awarding compensation

has to be broadly based on the principles of justice, equity and

good conscience and technicalities in the decision-making should

be avoided.



FAO No. 240/2000                                                    Page 5 of 6
 13.   In view of the above discussion the matter is remanded

back to the tribunal for deciding the present petition within six

months from the date of this order.




20.4.2009                             KAILASH GAMBHIR, J.