Surinder Kumar Sehgal & Ors vs M/S. New India Assurance Co. Ltd. & ...
2011 Latest Caselaw 2621 Del

                                     UNREPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+     FAO No. 283/2000

      SURINDER KUMAR SEHGAL & ORS                   ..... Appellants
                   Through:  None.

                   versus

      M/S. NEW INDIA ASSURANCE CO. LTD. & ORS. . Respondents
                      Through: None.

%                           Date of Decision : MAY 16, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

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?

                            O R D E R (ORAL)

: REVA KHETRAPAL, J.

This appeal is directed against the judgment dated 29.03.2000

passed by the Motor Accident Claims Tribunal, whereby and

whereunder the Claim Petition filed by the appellants claiming

compensation for the death of the deceased - Rajiv Sehgal in a motor

vehicular accident was dismissed.

2. At the time of hearing, the appellants were unrepresented as

also the respondents. This court, therefore, had no option except to

peruse the records of the Motor Accident Claims Tribunal and the

appeal paper book. On scrutinizing the aforesaid, the facts of the case

emerge as follows:

In the night intervening 12/13.06.1993 at about 1:15 a.m., the

deceased - Rajiv Sehgal was going from the J.M.C. Factory,

Karawal Raod to his house at Shahdara. When he had reached

near Gatta Factory Raghunath Temple, Karawal Nagar Raod,

his motorcycle bearing No. DBX-7850 dashed against a

stationary truck bearing No. DLL-2852. The said truck was

standing on the road without any parking lights

indicators/reflectors on its back side. Neither any lantern nor

red cloth was tied to the truck indicating its presence on the

road.

3. The appellants, who are the legal representatives of the

deceased being his father, his mother, his wife and two minor

daughters filed a petition under Section 166 read with Section 140 of

the Motor Vehicles Act, 1988 claiming compensation in the sum of

` 6,00,000/- for his untimely death. The summons of the claim

petition were served on all the respondents but the owner as well as

the driver (the respondents No.2 and 3 herein) did not care to contest

the petition and were accordingly proceeded ex-parte in default of

appearance. The petition was, thus, contested only by the respondent

No. 1-Insurance Company, which emphatically denied its liability to

pay compensation.

4. On the issue of rashness and negligence of the driver of the

alleged offending truck, the learned Claims Tribunal held that the

appellants had not examined any witness and so it had not been

proved on record as to how the accident took place, with which

vehicle the accident took place and who was responsible for causing

the said accident, which resulted in the death of the deceased. The

Claims Tribunal, then, held that since the appellants had failed to

prove on record the aforesaid facts, the appellants were not entitled to

any compensation from the respondents and the petition was,

therefore, liable to be dismissed.

5. Aggrieved by the aforesaid findings of the learned Tribunal, the

present appeal has been preferred on the ground that the Claims

Tribunal had ignored material evidence on record including the

evidence by way of affidavit filed on behalf of the claimants

alongwith the certified copies of the First Information Report, charge-

sheet, the site plan, the inspection report of the vehicle, the MLC

report/post mortem report of the deceased. It was also urged that the

Claims Tribunal had failed to apply the doctrine of res ipsa loquitor,

which doctrine clearly applied to the facts of the present case.

6. Having scrutinized the documentary evidence on record, I am

of the view that the Claims Tribunal was not justified in throwing out

the petition on the ground that the appellant had failed to establish

that the respondent No.2 - driver was guilty of rashness and

negligence. The Claims Tribunal lost sight of the fact that a criminal

case under Sections 279/304-A IPC had been registered against the

respondent No.2/driver in which case a charge-sheet had been filed

against him charging him for offences punishable under the aforesaid

sections. The Claims Tribunal also lost sight of the fact that the

notice of the filing of the Claim Petition was duly served on the

respondent No.2 - driver and the respondent No.3 - owner, but they

did not care to appear in order to put in their defence and to rebut the

allegations of rash and negligent parking of the truck in the middle of

the night which, owing to the fact that there were no indicators or

reflectors to show that the truck was stationary on the road, led to the

accident, resulting in the death of the deceased. The learned Claims

Tribunal also completely ignored the site plan and the mechanical

inspection report, which clearly show the manner in which the

motorcycle of the deceased had rammed into the truck standing on the

road and the damage caused to the said motorcycle thereby. All the

aforesaid documents were proved on record by the widow of the

deceased, which conclusively show that doctrine of res ipsa loquitor

was attracted to the facts of the present case.

7. Even otherwise, it is a well known fact that direct evidence of

negligence is not always available particularly in accident cases and

where this is so, the court has to consider the indirect and

circumstantial evidence available on record. Negligence in such

cases may be inferred by the court from the facts and circumstances

of the case. It is also a settled law that it is for the driver of the

alleged offending vehicle to examine himself and state on oath as to

the manner in which the accident occurred, and for the owner to rebut

the presumption of negligence and to prove that he exercised all care

and caution to avoid the accident, but it could not be avoided despite

the care and caution exercised by him. In case the driver of the

alleged offending vehicle keeps away from the witness box, the

version of the claimants with regard to the manner in which the

accident occurred, as corroborated by the version recorded by the

police, must prevail and negligence may be inferred therefrom.

8. It is equally well settled that even assuming that the Claims

Tribunal had come to the conclusion that the accident was not the

outcome of the rash and negligent manner in which the alleged

offending truck was parked, the Claims Tribunal, nevertheless, could

have awarded compensation to the claimants on the basis of no-fault

liability of the driver and the owner of the alleged offending vehicle

treating the petition to be one under Section 163-A of the Motor

Vehicles Act, 1988. The present case, however, stands on a better

footing, in as much as it stands established on record that the death of

the bread winner of the appellants was the outcome of the negligence

on the part of the driver of the offending vehicle.

9. For all the aforesaid reasons, the findings of the Claims

Tribunal on issue No.1 cannot be sustained and are accordingly set

aside. The case is remanded back to the Claims Tribunal for fresh

adjudication on the remaining issues after considering the evidence on

record. In view of the fact that the accident occurred as far back as on

12/13.06.1993, and a period of 18 years has elapsed from the date of

the institution of the petition, the Claims Tribunal is requested to

dispose of the Claim Petition as expeditiously as possible after

issuance of notice to all concerned.

10. The appeal stands disposed of accordingly. Records be sent

back to the Claims Tribunal forthwith.

REVA KHETRAPAL (JUDGE) MAY 16, 2011 ak