Kiran Mohini Kumar & Ors. vs Anil Kumar Bhalla & Ors.
2010 Latest Caselaw 2871 Del

       * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                           Date of Reserve: 20.05.2010
                                                       Date of Order:    June 01, 2010

+FAO 278/1997 with CM Appl. 4097/1999
%                                                                                  01.06.2010

         KIRAN MOHINI KUMAR & ORS ..... Appellant
                      Through: Mr. O.P. Mannie, Adv.

                             Versus

         ANIL KUMAR BHALLA & ORS                                       ..... Respondent
                      Through: None.


JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the
         judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?

JUDGMENT

1. This appeal has been preferred by the claimants against the

award dated 13th May, 1997 whereby the Tribunal assessed the

compensation payable to the claimants as Rs. 1,43,000/- but held that

the deceased was equally liable for the accident and it was a case of

contributory negligence.

2. Brief facts relevant for the purpose of deciding this appeal are

that the Tempo bearing registration No. DHL 6254 was going on

main ring road near Punjabi Bagh whereas the deceased emerged

from ESI colony within the jurisdiction of Police Station Punjabi

Bagh on the ring road and this accident took place. It was alleged

that the tempo was being driven by its driver at a fast speed and in

rash and negligent manner and hit the scooter.

3. The claim petition was initially contested by owner, driver and

insurance company but the claim petition was dismissed due to non

prosecution and default of the claimants on 6th October, 1989. It was

later on restored on 18th October, 1995 on an application made by the

claimants but the efforts to serve driver and owner did not succeed

and they were proceeded ex-parte on 17th November, 1995.

4. The learned Tribunal on the basis of evidence adduced before

it, came to following conclusion regarding how the accident took

place.

"The speed of the tempo given by PW-1 is too vague to be acted upon. She mentioned it to be anything between 50 and 80 km P.H. What emerged from her statements is a scenario where the tempo was moving on Main Road which is almost straight for considerable distance. The scooter came out of ESI Colony and intended merging with traffic in direction opposite to the one taken by the Tempo. For this right

turn, the scooterist had to cut across the path of tempo and go to other side through central verge. As there was no traffic signal, it was primarily his duty to be on the lookout of any vehicle that may be coming before negotiating the turn. Thus also because the scooter was coming from a side lane. The fact that the impact against the scooter was from right side of stepney shows the scooterist had tried to hurriedly cross the road from in front of fast approaching tempo. This was a rash effort as it being a straight road it cannot be said that he could not have seen the oncoming tempo moving on main road.

But then the above does not absolve the tempo driven, Respondent No. 1, as categorically named by PW-1, of all responsibility of the mishap. He also must have been in a position to see the scooterist coming from side road and could have avoided collusion. As he could not so avoid, necessary inference is, he was moving at speed over which he did not have proper control and so was equally negligent."

5. In view of above findings, the Tribunal observed that both,

scooter driver and tempo driver, were equally negligent and fixed

liability of both as 50:50.

6. It is submitted by counsel for the appellant that since the

insurance company had not raised an issue of contributory

negligence, the Tribunal on its own could not have set up a defence

in favour of the Corporation. The appellant relied on Vidya Prakash

Johai Vs Ram Mehar Singh & Ors., III (2002) ACC 152.

7. I consider that this argument is fallacious. Compensation

under M.V. Act, 1939 would be granted only if the driver/owner of a

vehicle, due to the negligent act caused death or injuries to a person.

The compensation and damages are claimed by the dependents of

deceased on the basis of tort or negligence committed by the driver

of the vehicle. It is incumbent upon the claimant to prove the

negligence of the driver of the vehicle, whether or not any defense in

this respect has been taken by the insurance company, more so when

driver/owner are ex-parte. If the negligence of the driver is not

proved by the claimant or the claimant says that the driver of the

insured vehicle was not negligent, the claim of the claimant shall fail.

Unless the tort is committed by the driver, no compensation can be

claimed by the claimant. I, therefore, consider that the claimant's

plea that no negligence was required to be proved or the court could

not have held as to who was negligent is not a tenable.

I therefore, find no force in the plea. The appeal stands

dismissed.

June 01, 2010                                    SHIV NARAYAN DHINGRA, J.
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