Ashok Kumar Khurana vs Lokeshwar Nath Gulati & Ors.
2010 Latest Caselaw 2879 Del

 *                      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                    Mac. App. No.233 of 2008
%                                                                             01.06.2010

         ASHOK KUMAR KHURANA                           ...... Appellant
                           Through: Mr. Manu Sishodia & Mr. Awadhesh
                                    Bhakta, Advocates.

                                          Versus

         LOKESHWER NATH GULATI & ORS.                  ......Respondents
                           Through: Ms. Manjusha Wadhwa & Ms. Harshlata,
                                    Advocates for respondent No.3.

                                                             Reserved on: 16th April, 2010
                                                           Pronounced on: June 01, 2010
         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 owner of a car bearing No.DL-1C/D-7676,

involved in an accident and causing injuries to a two-wheeler driver. The main

contention of the appellant is that he had given his car for repairing to a garage owner.

He was not in control of the car at the time of accident and the garage owner had sent one

of his boys for trial of the car, who was driving the car at the time of accident. The

appellant was not aware if the car had been taken for trial. The Tribunal wrongly

disbelieved the plea of the appellant on the ground that no bill for repairs was proved and

the garage owner was not examined.

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

18th September, 2004 at about 11:30 a.m., the aforesaid car owned by the appellant being

driven by one Sh. Umesh Kumar, respondent No.2 herein, caused accident at Burari Road

in front of Om Mandir, Dhaka Village resulting into injuries to the claimant who was

removed to hospital. The claimant filed claim petition making Sh. Umesh Kumar, driver

of the car as respondent No.1, present appellant as respondent No.2 and insurance

company as respondent No.3. In the written statement, the appellant did take a stand that

he had left his car with the garage for repair and respondent No.2 herein was not his

driver. No application was made by the appellant before the Tribunal for impleadment of

garage owner as a necessary party. Neither any bill of repairs was proved nor was garage

owner summoned in the witness box to support the case of the appellant.

3. Section 106 of the Evidence Act lays down in categorical terms that a fact in the

special knowledge of a person is to be proved by him. The fact that the car was handed

over by the appellant to the garage owner was to be proved by him and not by the

claimant or insurance company. No fault can be found with the award of the Tribunal in

view of the fact that the appellant, except making a self-serving statement of leaving the

car to garage made no effort to prove that the car was under the control of the garage

owner. It was for the appellant to prove that not he but the garage owner was the

tortfeasor and liable to pay the compensation or that the insurance company was to

discharge the liability in terms of the award without a qualification.

4. The contention of counsel for the appellant is that the driver, respondent No.2,

admitted in his testimony that he was not engaged by the appellant and he was not the

driver of the appellant. This statement of the driver coupled with the statement made by

the garage owner before the police wherein he had admitted that the offending vehicle

was in garage for repair, the Tribunal should have held that the tortfeasor was the garage

owner and liability to recover the amount by insurance company should be from the

garage owner.

5. I consider this argument is not tenable. The contract of insurance was between

insurance company and the appellant. The garage owner was a stranger to this contract. The

insurance company, since had no contract with the garage owner, could not be told to recover

the amount from the garage owner. The insurance company had undertaken to indemnify the

registered owner of the car and not the garage owner. Secondly, garage owner was not before

the Tribunal as a party. The Tribunal could not have held garage owner as a tortfeasor

without garage owner being a party before the Tribunal. Thirdly, even if the car was left in

the garage for repairs, the garage owner was an agent of the registered owner who had

authorized him to repair the car. The liability is always of the principal and not of the agent.

If it is considered that garage owner was service provider and not an agent even then, the

contract of service is between the owner of the car and the garage owner and if due to an act

of garage owner, owner suffers any loss, it is liability of the owner to recover the amount

from the garage owner. The claimant cannot be made to recover the amount from the garage

owner nor can the insurance company be made to run behind garage owner for recovery since

garage owner is stranger to the insurance company.

6. I, therefore, consider that under no circumstances, the Tribunal could have held the

liability of the garage owner to pay the damages. However, since the appellant had left the car

with garage owner for repair and due to negligence of the garage owner, the appellant is to

pay to the insurance company, the appellant would have right to recover the amount from the

garage owner by initiating independent proceedings.

7. I find no force in this appeal. The appeal is hereby dismissed.

SHIV NARAYAN DHINGRA J.

June 01, 2010 'AA'