Delhi High Court
Lalit Mohan Pandey vs Vinod Kumar Kandpal & Anr on 24 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24th August, 2012
+ MAC.APP. 1022/2011
LALIT MOHAN PANDEY ..... Appellant
Through: Mr.M.L.Sharma, Advocate
versus
VINOD KUMAR KANDPAL & ANR ..... Respondents
Through: Ms.Manjusha Wadhwa and Ms.Arpan
Wadhwa, Advocates for R-2
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant Lalit Mohan Pandey impugns a judgment dated
19.08.2011 passed by the Motor Accident Claims Tribunal (the Claims
Tribunal) whereby a Claim Petition filed u/s 166 of the Motor Vehicle
Act was dismissed on the ground that the Appellant failed to establish the
negligence.
2. It is urged by the learned counsel for the Appellant that the Claims
Tribunal fell into error in returning the finding on the issue of negligence
merely on the ground that the FIR was not registered against the driver of
Wagon R bearing No.DL-2C AC5068 involved in the accident.
3. The learned counsel for the Insurance Company supports the judgment.
4. The Claims Tribunal dealt with the issue of negligence as under:-
MAC. APP. No.1022/2011
"15. As regards the claim petition filed under Section 166 M.V. Act
it is incumbent upon the petitioner to prove negligence of the
driver or the owner of the offending vehicle before owner of motor
vehicle or insurer can be held liable for payment of compensation
in claim petition.
16. In this regard it has been held in (2007) 5 Supreme Court
Cases 428 follows as under:-
B. Motor Vehicle Act, 1988-Ss. 166 and 163-A-Nature of
relief under-power of claimants to opt between the two,
reiterated-Held, S. 166 provides for fault based liability
and negligence of the driver or the owner has to be
proved before owner of motor vehicle or insurance
company can be held liable for payment of compensation
in a motor accident claim case-S.163-A on the other
hand provides for strict liability in which case negligence
or default on part of the owner of vehicle or the driver
does not have to be proved and compensation is payable
strictly as per the Second Schedule to 1988 Act-Tort law.
17. PW-1 stated that a complaint was lodged with the police at PP
Bajpur dated 07.06.2008 regarding the accident but no action was
taken by the Police. PW-1 stated in his cross-examination that he
had not taken any action against respondent no. 1 even though no
FIR was registered against respondent no. 1. He also stated that
he did not file a complaint U/s 156(3) Cr.P.C. against respondent
no. 1. Thus in view of the above judgment the absence of proof of
the negligence of the driver of the offending vehicle, the claim
petition U/s 166 of the Act is not maintainable.
18. As regards the negligence of the driver it has also been held in
2009 ACJ 289 National Insurance Ltd. Vs. Pushpa Rana and Ors.
as follows:
"Negligence evidence admissibility of document certified
copy of criminal court, such as FIR recovery memo and
mechanical inspection report of vehicle are documents of
sufficient prove to reach the conclusion that driver was
negligent. Proceedings under Motor Vehicles Act are not
akin to proceedings in a civil and hence strict rules of
evidence are not required to be followed in this
MAC. APP. No.1022/2011
regard."
5. It is very unfortunate that instead of appreciating the evidence adduced by
the Appellant on the issue of negligence, the Claims Tribunal reached the
conclusion that the negligence on the part of the driver was not proved
simply on the ground that the FIR was not registered against the driver.
6. The Appellant produced Smt. Chanderkala Kandpal, an eye-witness to
the accident. In her affidavit Ex.P-2 she testified that on 31.05.2008 at
about 5:45 AM they were travelling from Delhi to Haldwani. When they
reached near Barhone Petrol Pump, a 'Neel Gai' came in front of the
Wagon R. The car was being driven rashly and negligently by its driver
(Respondent No.1 before the Claims Tribunal). She testified that due to
rash and negligent driving of the car it collided against a tractor trolley
which was parked on the left side of the road. In cross-examination just a
suggestion was given to this witness that she had deposed falsely. No
reason was assigned to this witness as to why she would make a false
statement. Complaint vide G.D.No.29 dated 07.06.2008 was recorded
with P.S. Bajpur, Distt. Udham Singh Nagar (U.K.) by Vinod Kandpal,
that is, the first Respondent and the driver of the offending vehicle
supports this version. The Claims Tribunal erred in opining that the
Appellant failed to establish culpable negligence on the part of First
Respondent.
7. The Claims Tribunal ought to have kept in mind that in a Claim Petition
u/s 166 of the Act, negligence is required to be proved only on the
touchstone of preponderance of probability.
MAC. APP. No.1022/2011
8. The Hon'ble Supreme Court in Bimla Devi and Ors. v. Himachal Road
Transport Corporation and Ors., (2009) 13 SC 530, held that in a Claim
Petition under Section 166 of the Act for award of compensation, the
negligence has to be proved on the touchstone of preponderance of
probability. In para 15, it was observed as under:-
"15. In a situation of this nature, the Tribunal has rightly taken a
holistic view of the matter. It was necessary to be borne in mind
that strict proof of an accident caused by a particular bus in a
particular manner may not be possible to be done by the claimants.
The claimants were merely to establish their case on the
touchstone of preponderance of probability. The standard of proof
beyond reasonable doubt could not have been applied. For the
said purpose, the High Court should have taken into consideration
the respective stories set forth by both the parties."
9. The finding on negligence reached by the Tribunal is reversed and it is
held that the accident was caused on account of rash and negligent
driving of Wagon R by the First Respondent.
10. The case is remanded back to the Claims Tribunal to determine the
compensation payable to the Appellant.
11. Parties are directed to appear before the Claims Tribunal on 28.09.2012.
(G.P. MITTAL)
JUDGE
AUGUST 24, 2012
mr
MAC. APP. No.1022/2011
