Master Naveen vs Sikander & Anr.
2009 Latest Caselaw 3653 Del

13
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       MAC.APP.No.552/2008

%                                 Date of decision: 9th September, 2009


      MASTER NAVEEN                        ..... Appellant
                   Through : Ms. Manjusha Wadhwa, Adv.

                      versus

      SIKANDER & ANR.                             ..... Respondents
                    Through : None.


CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?

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

                               JUDGMENT (Oral)

1. The appellant has challenged the award of the learned

Tribunal whereby his claim petition has been dismissed by the

learned Tribunal.

2. The appellant was aged 11 years at the time of the

accident. The appellant was a student of sixth standard at that

time. On 1st June, 2004, the appellant was sitting on the pillion of

motorcycle bearing No.DL-5SN-9647 when the said motor cycle

hit against the pavement due to which the appellant fell down

and sustained grievous injuries. The appellant appeared in the

witness box as PW-1 and deposed that he was sitting on the

pillion of the motorcycle which was driven at a very high speed of

about 80 Km/hr. He further deposed that driver was in a drunken

position and the motorcycle hit against the divider due to which

the appellant became unconscious and sustained fracture in right

leg which was operated upon and a steel rod was inserted. The

appellant spent about Rs.50,000/- on his treatment which

continued for seven months.

3. The learned Tribunal dismissed the claim petition of the

appellant on two grounds. The first ground is that the appellant

has not cross-examined the driver of the motorcycle who

appeared in the witness box as R1W1. The second ground is that

the driver was in drunken condition and the appellant knew the

same and, therefore, cannot claim compensation.

4. The learned Tribunal has not conducted any inquiry as

contemplated under Sections 168 and 169 of the Motor Vehicles

Act. The findings of the learned Tribunal are not based on the

evidence on record. The appellant appeared in the witness box

and clearly deposed that the driver was in a drunken condition

and was driving the motorcycle at a very high speed of about 80

km/hr. and hit against the pavement. The appellant also clearly

stated in his cross-examination that he was not aware at the time

of sitting on the motorcycle that the driver was drunk and it is

only when the accident occurred that the appellant came to know

about the fact of driver being drunk.

5. There is sufficient material on record to infer negligence of

the driver of the motorcycle and the findings of the learned

Tribunal in this regard are not sustainable. However, since the

learned Tribunal has not given any finding on the quantum of

compensation, this case needs to be remanded back to the

learned Tribunal.

6. The appeal is allowed and the impugned award is set aside.

The driver of the motorcycle is held to be rash and negligent.

With respect to the quantum of compensation, the case is

remanded back to the learned Tribunal to conduct an appropriate

inquiry under Sections 168 and 169 of the Motor Vehicles Act.

7. The parties are directed to appear before the learned

Tribunal on 24th September, 2009.

8. The LCR be returned back forthwith.

9. Copy of this order be given 'Dasti' to learned counsel for

both the parties under the signature of Court Master.

J.R. MIDHA, J

SEPTEMBER 09, 2009 mk