Delhi High Court
The Oriental Insurance Company ... vs Sanjay Rathi & Ors. on 11 December, 2012
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP.No.554/2004 & CM No.7490/2007
% Date of decision : 11th December, 2012
THE ORIENTAL INSURANCE
COMPANY LTD. ..... Appellant
Through : Ms. Manjusha Wadhwa, Adv.
versus
SANJAY RATHI & ORS. ..... Respondents
Through : None.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT(ORAL)
1. The appellant has challenged the award of the Claims
Tribunal whereby compensation of `50,000/- has been awarded to
the claimant/respondent no.1.
2. The accident dated 24th April, 1993 resulted in grievous
injuries to the claimant/respondent no.1 - Sanjay Rathi.
Respondent no.1 was sitting on the front seat of Maruti Car
No.DL-4C-A 2801 which was being driven by respondent no.3 -
Vikas Aggarwal at a very high speed. The driver of the vehicle lost
control and the car climbed over the central divider and turned up
side down resulting in grievous injuries to the claimant/respondent
no.1.
3. Learned counsel for the appellant has urged at the time of
hearing of this appeal that the alleged accident has not been proved.
It is further submitted that no FIR has been registered in this
matter. It is further submitted that the negligence of respondent
no.3 has also not been proved by the claimant/respondent no.1.
4. The claimant/respondent no.1 examined four witnesses
before the Claims Tribunal. The claimant/respondent no.1 himself
appeared in the witness box as PW-2 and deposed that he was
travelling in Maruti Car No.DL-4C-A 2801 on 24th April, 1993 at
about 11.45 pm. The car was being driven by his friend Vikas
Aggarwal at a very high speed and he lost control over the car
which crossed the middle divider of the road and turned turtle
resulting in grievous injuries. The claimant was admitted to
Sunder Lal Jain Hospital, Ashok Vihar where he remained till 29 th
April, 1993. The claimant has given the particulars of his injuries
and treatment.
5. The Record Clerk from Sunder Lal Jain Hospital appeared as
PW-1 and proved the record of the medical treatment of the
claimant as Ex.PW-1/1 to Ex.PW-1/6. Another Record Clerk of
Sunder Lal Jain Hospital appeared as PW-4 and proved the MLC
of the claimant as Ex.PW-4/1. Respondent No.3 also appeared in
the witness box as PW-3. He admitted in cross-examination that
the accident was not reported to the police.
6. This Court is of the view that the claimant has proved the
accident dated 24th April, 1993. The non-registration of the FIR
does not cast any doubt over testimonies of the witnesses. The
MLC of the claimant has been proved by the PW-4. So far as the
negligence is concerned, this case is governed by the principles of
res ipsa loquitur. Reference in this regard is made to the recent
judgment of this Court in National Insurance Co. Ltd. v. Gita
Bindal, MANU/DE/5041/2012. The relevant portion of the said
judgment is reproduced hereunder:
"12. The principle of res ipsa loquitur laid down in the
aforesaid four judgments is summarized as under:
i. Res ipsa loquitur means that the accident speaks
for itself. In such cases, it is sufficient for the plaintiff
to prove the accident and nothing more.
ii. Where the thing is shown to be under the
management of the defendant or his servants, and the
accident is such as in the ordinary course of things
does not happen if those who have the management
use proper care, it affords reasonable evidence in the
absence of explanation by the defendants, that the
accident arose from want of care.
iii. There are two requirements to attract res ipsa
loquitur, (i) that the "thing" causing the damage be
under the control of the defendant and (ii) that the
accident must be such as would not in the ordinary
course of things have happened without negligence.
iv. Res ipsa loquitur is an exception to the
normal rule that mere happening of an accident is no
evidence of negligence on the part of the driver.
This maxim means the mere proof of accident raises
the presumption of negligence unless rebutted by the
wrongdoer.
v. In some cases considerable hardship is caused
to the plaintiff as the true cause of the accident is not
known to him, but is solely within the knowledge of
the defendant who caused it, the plaintiff can prove
the accident, but cannot prove how it happened to
establish negligence. This hardship is to be avoided
by applying the principle of res ipsa loquitur is that
the accident speaks for itself or tells its own story.
There are cases in which the accident speaks for
itself so that it is sufficient for the plaintiff to prove
the accident and nothing more.
vi. The effect of doctrine of 'res ipsa loquitur' is
to shift the onus to the defendant in the sense that
the doctrine continues to operate unless the
defendant calls credible evidence which explains
how the accident or mishap may have occurred
without negligence, and it seems that the operation
of the rule is not displaced merely by expert
evidence showing, theoretically, possible ways in
which the accident might have happened without the
defendant's negligence. The doctrine of 'res ipsa
loquitur', therefore, plays a very significant role in
the law of tort and it is not the relic of the past, but
the living force of the day in determining the
tortuous liability.
vii. The principal function of the maxim is to
prevent injustice which would result if a plaintiff were
invariably compelled to prove the precise cause of the
accident and the defendant responsible for it, even
when the facts bearing in the matter are at the outset
unknown to him and often within the knowledge of
the defendant.
viii. The doctrine of res ipsa loquitur has been
applied by the Courts in the following cases:-
Where victim was sleeping on a cot placed in
front of his house by the side of the road when
the offending vehicle dashed against the cot and
injured the claimant.
Where a bus had dashed against a tree, causing
death of a passenger.
Where a vehicle negotiating a sharp "U" turn
dashed against a tree, moved away to a distance
of 150 feet from the road and then overturned.
Where a vehicle went-off the road, hit against the
tree and rolled down killing a passenger.
Where a truck dashed against the victim standing
by roadside.
Where a truck came at breakneck speed without
blowing horn and dashed against a 9 years old
boy, who was walking on the extreme left side of
the road, from behind resulting in instantaneous
death."
7. For the reasons as aforesaid, the appeal is dismissed.
Learned counsel for the appellant submits that the principal award
amount was deposited by the appellant with the Claims Tribunal
vide cheque dated 1st March, 2005 and the same was withdrawn by
the claimant/respondent no.1. Let the interest on the award amount
upto the date of the deposit be deposited by the appellant with the
UCO Bank A/c Sanjay Rathi within 30 days. Upon deposit of the
said amount, UCO Bank shall keep the said amount in fixed
deposit till the same is withdrawn by the claimant/ respondent no.1.
The claimant/respondent no.1 is permitted to withdraw the said
amount from UCO Bank.
8. All pending applications are disposed of.
9. Copy of this order be sent to claimant/respondent no.1 as
well as his counsel.
J.R. MIDHA, J
DECEMBER 11, 2012/dk
