Delhi High Court
Smt. Saroj Gupta vs Shri Inderjeet Gupta & Anr. on 4 May, 2009
Author: Kailash Gambhir
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 341/2002
Judgment reserved on: 29.2.2008
% Judgment delivered on: 04.05.2009
Smt. Saroj Gupta ...... Appellant
Through: Mr. O.P. Goyal, Advocate
versus
Shri Inderjeet Gupta & Anr. ..... Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
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 YES
in the Digest?
KAILASH GAMBHIR, J.
1. The present appeal arises out of the award of compensation
passed by the Learned Motor Accident Claim Tribunal on 11/3/2002 for
awarding of compensation. The learned Tribunal dismissed the petition
filed by the claimant appellant.
2. The brief conspectus of facts is as under:
3. That on 15.12.1988 the appellant was going sitting on the pillioin
seat of the motor cycle No. DEE-9788, from her office towards their
residence. The motor cycle was being driven by her husabdn,
respondent No. 1 at a very high speed and near Safdarjung Hospital,
when a DTC bus also driven rashly and at a very high speed by its
driver, overtook from the right side of the motor cycle and the bus
driver turned to his left side suddenly, without giving any signal and
respondent No. 1 who was also moving at a very high speed had to
apply full brake in order to avoid the bus, causing the motor cycle to
slip as a result thereof the appellant fell down on the road along with
respondent No. 1 and sustained injuries.
4. A claim petition was filed on 3/7/89 and an award was passed on
11/3/2002. Aggrieved with the said award enhancement is claimed by
way of the present appeal.
5. Sh. O.P. Goyal counsel for the appellant claimant urged that the
tribunal erred in dismissing the claim petition. The counsel submitted
that the appellant had fully proved that the respondent driver of the
bus was rash and negligent in driving the vehicle.
6. Nobody appeared for the respondents.
7. I have heard the counsel for the appellant and perused the
award.
8. In a plethora of cases the Hon'ble Apex Court and various High
Courts have held that the emphasis of the courts in personal injury
cases should be on awarding substantial, just and fair damages and
not mere token amount. In cases of personal injuries the general
principle is that such sum of compensation should be awarded which
puts the injured in the same position as he would have been had
accident not taken place. But at the same time, it is also well settled
that when a claim petition is filed under S. 166 of the MV Act then the
burden to prove that the respondent was rash and negligent falls on
the claimant. In this regard in Oriental Insurance Co. Ltd. v. Meena
Variyal,(2007) 5 SCC 428, the Hon'ble Apex Court observed as
under:
27. We think that the law laid down in Minu B. Mehta v.
Balkrishna Ramchandra Nayan 10 was accepted by the
legislature while enacting the Motor Vehicles Act, 1988 by
introducing Section 163-A of the Act providing for payment
of compensation notwithstanding anything contained in the
Act or in any other law for the time being in force that the
owner of a motor vehicle or the authorised insurer shall be
liable to pay in the case of death or permanent
disablement due to accident arising out of the use of the
motor vehicle, compensation, as indicated in the Second
Schedule, to the legal heirs or the victim, as the case may
be, and in a claim made under sub-section (1) of Section
163-A of the Act, the claimant shall not be required to
plead or establish that the death or permanent
disablement in respect of which the claim has been made
was due to any wrongful act or neglect or default of the
owner of the vehicle concerned. Therefore, the victim of
an accident or his dependants have an option either
to proceed under Section 166 of the Act or under
Section 163-A of the Act. Once they approach the
Tribunal under Section 166 of the Act, they have
necessarily to take upon themselves the burden of
establishing the negligence of the driver or owner of
the vehicle concerned. But if they proceed under
Section 163-A of the Act, the compensation will be
awarded in terms of the Schedule without calling
upon the victim or his dependants to establish any
negligence or default on the part of the owner of the
vehicle or the driver of the vehicle.
9. In the instant case, the appellant Mrs. Saroj Gupta deposed as PW
2 that on 15/12/1988 at about 5:30 pm her husband went from Delhi
University to her office to pick her up on his motorcycle bearing
registration no. DEE 9778. They started from her office and when they
reached in front of Safdarjung Hospital after crossing the bus stop near
it, all of a sudden a DTC bus overtook from the right side and swerved
towards left and in that process her husband applied brakes and
therefore, the motorcycle skidded. She deposed that her husband was
also to swerve towards left in order to save themselves. Clearly, from
the testimony of the appellant it is manifest that the husband of the
appellant instead of swerving the said vehicle applied brakes when he
was at a high speed, due to which the motorcycle skidded and she
sustained injuries.
10 Also, no document such as FIR against the said bus driver, seizure
or the supardarinama of the bus, site plan etc. were brought on record
to prove the rash and negligent driving of the respondent.
11. Further, no eyewitness to the accident was called upon for
examination by the appellant to prove that the respondent was
negligent.
12. In view of the above discussion, I do not feel that the tribunal
committed any error in dismissing the claim petition, therefore, no
interference is made in this regard.
13. In view of the foregoing, the present appeal is disposed of.
04th May, 2009 KAILASH GAMBHIR, J.
