The New India Assurance Co. Ltd. vs Kiran Devi & Ors.
2011 Latest Caselaw 4156 Del

               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                   MAC APP. 74 OF 2006
                                            &
                                    MAC APP. 403/2011


%                                      JUDGMENT DELIVERED ON:26.08.2011


THE NEW INDIA ASSURANCE CO. LTD.                        ....APPELLANT
                        Through:                  Mr. Joy Basu, Advocate

                               VERSUS

KIRAN DEVI & ORS.                                          ....RESPONDENT
                                             Through: Mr. Sanjeev Mehta
                                                 for R-1 to R-5.

CORAM:

        HON'BLE MR. JUSTICE A.K. SIKRI

        1.     Whether Reporters of Local newspapers 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?

A.K. SIKRI,J. (ORAL)

MAC APP. 74 OF 2006

1. Respondents no. 1 to 5 are the legal heirs of the deceased

Sh. Lal Chaudhary who died in an accident on 23rd April, 2001. The

deceased, on the fateful night, was returning back to his home

alongwith one Sh. Sushil Kumar in a TSR bearing no. DL-IRD-4940

which was driven by Sh. Shiv Mohan @ Pappu. As per the version

of the respondents no.1 to 5 (claimants before the MACT), Sh. Lal.

Chaudhary and Sh. Sushil Kumar had hired the aforesaid TSR from

Ajmeri Gate for going to Jahangir Puri, resident of the deceased.

When they reached Libra Petrol Pump, Jahangir Puri, it was about

1.45 a.m. A quarrel took place over the fare with Sh. Shiv Mohan,

driver of the TSR. According to the claimants, the fare was settled

at Rs. 70/- and to give this fare, the deceased had given 100

rupee note to the driver but the driver did not return the balance

amount, instead he accelerated the said three wheeler at a fast

speed with the intention to ran away without returning the

balance amount of Rs. 30/- The deceased tried to stop the said

three wheeler by catching the iron rod on the roof of the TSR. In

the process, the three wheeler which was at fast speed, over-

turned and deceased was pressed under it. He was taken to

BGRM Hospital where he was declared as "brought dead". It is not

in dispute that the said TSR was insured by the appellant herein. In

these circumstances, the claimants filed the claim in the Court of

MACT impleading Sh. Shiv Mohan as respondent no.1, Sh. Khushi

Ram, (owner of the TSR) as respondent no.2 and the appellant

Insurance Company as respondent no.3.

2. The claim of the claimants was contested by the

respondent. However, after certain few hearings, the

respondent no.6 and 7 herein i.e. driver and owner of TSR stopped

appearing and were proceeded ex-parte. The appellant,

accordingly was the sole contestant.

3. On the basis of the pleadings, following three issues were

framed:-

(i) Whether Lal Chaudhary died after fatal injuries in the road accident caused due to rash and negligent driving of three wheeler scooter no. DL1RD-4940 by R1 on 23/4/2001 at about 1.45 AM at in front of Libra Petrol Pump, GTK Road, Jahangir Puri?.

(ii) To what amount of compensation the petitioners are entitled, if so, from whom?

(iii) Relief.

4. Insofar as issue no.(i) is concerned, Sh. Sushil Kumar, who

was accompanying the deceased appeared as PW-1. He was the

eye witness to the accident and deposed the manner in which the

accident took place, as noted above. His deposition was

corroborated by the chargesheet Ex. P-1 which mentions PW-1 as

the complainant and the eye witness to the accident. On the basis

of his testimony and testimony of other witnesses, the learned

MACT returned the finding on issue no.1 in favour of the claimants

holding that the deceased died after receiving fatal injuries in the

road accident because of the rash and negligent driving of the TSR

driver. The defence of the appellant herein was that facts as

established on record would show that it was a case of culpable

homicide or murder of the deceased than the road traffic accident

and as such petition filed by the claimant was not maintainable

under the provisions of the Motor Vehicle Act. This contention was

rejected, and rightly so, by the learned MACT relying upon the

judgment of the Apex Court in Rita Devi and others Vs. New India

Assurance Co. Ltd. and another, 2000 ACJ 801.

5. On the second issue, the learned MACT held that the

claimants would be entitled to compensation of Rs. 5,92,360/-.

The MACT awarded that compensation alongwith interest @ 7.5

per annum.

6. This appeal is filed challenging the aforesaid award dated

28th September, 2005 rendered by the learned MACT awarding the

compensation in the manner stated above. Two grounds are

raised to challenge the award of the Tribunal. In the first place, it

is argued that Sh. Shiv Mohan @ Pappu, driver of TSR was not

holding a proper and valid driving licence and, therefore, the

Insurance Company cannot be fastened with any liability. Second

ground which is raised pertains to the contributory negligence on

the part of the deceased.

7. Insofar as first ground is concerned, in order to prove that

the driver was not holding a valid licence and in fact the licence

had expired on the date of accident, the Insurance Company had

produced photocopy of Form-6 (under Rule 16 (1)) which was the

form of Driving Licence purportedly issued tot eh driver. It bears

the date as 12th March, 1998. The second document which was

produced was photocopy of Form-54. The accident information

report as per which the licence was renewed further w.e.f. 4th

December, 2001. Learned counsel, referring to Section 14 of the

Motor Vehicle Act submitted that the validity of such licence issued

to drive a passenger vehicle is three years and when the licence

was issued on 12th March, 1998 which was expired on 11th

March, 1998, thereafter renewal was took place on 4th

December, 2001 for another period of three years i.e.upto 3rd

December, 2004. On this basis, it was sought to argue that on 23rd

April, 2001 namely the date of accident, the licence had expired

and had not been renewed. However, the appellant cannot rely

upon the aforesaid documents which have not been proved on

record at all. As stated above, only photocopies were filed and no

witness from the Transport Authority was produced by the

appellant to prove the said documents. These documents were,

thus, rightly rejected by the learned Tribunal.

8. Coming to the second argument raised by the learned

counsel for the appellant, as already noted above, the only

defence which was taken by the appellant was that it was a case

of murder/homicide and petition under the Motor Vehicle Act was

not maintainable The appellant did not set up a case of

contributory negligent at all. In the absence of any such defence

raised before the Tribunal it is not open to the appellant to set up

all together new case for the first time in this appeal.

9. I thus did not find any merit in this appeal which is

accordingly dismissed.

10. All pending applications also stand disposed of.

MAC APP. 403/2011

11. Dismissed as not pressed.

(A.K. SIKRI) JUDGE

AUGUST 26, 2011 skb