Delhi High Court
Anil Kumar Sharma vs Virender Kumar Sharma & Ors. on 16 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 22nd February, 2012
Pronounced on: 16th March, 2012
+ FAO. NO.133/2000
ANIL KUMAR SHARMA ..... Appellant
Through: Mr. Sanjay Choudhary, Adv.
versus
VIRENDER KUMAR SHARMA & ORS. ..... Respondents
Through: Ms. Garima Prashad, Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant impugns a judgment dated 01.03.2000 passed by
the Motor Accident Claims Tribunal (Claims Tribunal) in Suit
No.152/1987 whereby the Claim Petition under Section 110-A
of the Motor Vehicles Act, 1939 preferred by the Appellant was
dismissed on the ground that the Appellant failed to establish
negligence on the part of the driver of U.P. Roadways
Corporation Bus No.UME-9807 which was allegedly involved
in the accident.
2. If the Appellant succeeds in proving the negligence on the part
of the First Respondent, this Court will be required to determine
the amount of compensation payable to the Appellant.
3. It is well-settled that in a Claim Petition for grant of
compensation under the Motor Vehicles Act, negligence is
required to be proved on the touchstone of preponderance of
probability.
4. In Oriental Insurance Company Limited v. Meena Variyal &
Ors., (2007) 5 SCC 428, the three Judges Bench decision in
Menu B. Mehta (supra) was relied. It was held that to claim
compensation under Section 166 of the Motor Vehicle Act (the
Act), the proof of negligence on the part of the driver of the
vehicle was a sine qua non. The owner becomes vicariously
liable for the act of his servant and the Insurer on account of the
contract of insurance to indemnify the owner. It was observed
that in a Petition under Section 163-A of the Act, negligence or
default on the part of the owner or driver of the vehicle was not
required to be proved. At the same time, it has to be kept in
mind that proof of negligence as required in a Claim Petition
under Section 166 of the Act, is not the same as in a criminal
case i.e. "beyond reasonable doubt", but "the preponderance of
probability".
5. In Bimla Devi and Ors. v. Himachal Road Transport
Corporation and Ors., (2009) 13 SC 530, while holding that in
a petition 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."
6. The observations of the Supreme Court in Bimla Devi (supra)
were referred with approval in later judgment in Parmeshwari
Devi v. Amir Chand and Ors., (2011) 11 SCC 635.
7. First of all, I would refer to the averments made in the Claim
Petition. In para 23, the Appellant averred that on 12.02.1987 at
about 4:15 p.m. he was proceeding on his two-wheeler scooter
No.DHV-6986 from ISBT to his house via Ring Road. The
Appellant stopped his two-wheeler at Raj Ghat on account of
the red light signal. A Jeep bearing No.DBB-4265 also stopped
behind his scooter. Thereafter, the bus bearing No.UME-9807
owned by the Second Respondent and driven by the First
Respondent rashly and negligently hit the Jeep on its back. The
Jeep in turn pushed the Appellant's scooter up to 10-12 feet.
The Appellant fell down and suffered injuries. It is averred that
the Appellant was removed to LNJP Hospital by the driver of
the Jeep and the traffic sergeant present on the spot.
8. In reply to these averments, the Respondents denied the manner
of the accident. It was stated that the accident was caused by
the Jeep no. DBB-4265 which hit against the scooterist. It was
pleaded that after hitting the scooter, the Jeep reversed and
banged against the bus bearing No.UME-9807 which was
standing stationary behind the Jeep. The Jeep driver fled from
the scene after causing the accident. Since the scooterist was
lying injured near the bus, the bus driver was falsely implicated
in the criminal case.
9. In the Replication, the Appellant controverted the averments
made by the Respondents.
10. It is important to note that a specific plea was taken by the
Respondents that the Jeep after causing the accident reversed
and in that process banged against the bus.
11. An FIR being No.102/1987 (Ex.PW2/1) was registered in
Police Station Darya Ganj, in respect of the accident, at 6:25
pm. The manner of accident that the bus hit the Jeep and the
Jeep in turn hit the scooter was mentioned in the FIR.
12. The Appellant examined himself as PW3 and deposed about the
manner of the accident. In cross-examination, the Appellant
admitted that when he was standing at the red light signal, he
was not aware if the Jeep was present behind his scooter. He
added that it was only after the accident, when the bus hit him,
that he came to know that the Jeep was behind his vehicle. The
witness admitted that he did not see the accident as it was
caused by the bus which had hit from behind. The Appellant
denied the suggestion that the Jeep hit against the scooter and
fled from the spot. No suggestion was given to the Appellant
that the Jeep after causing the accident had reversed and in that
process banged against the bus.
13. Virender Kumar Sharma (the First Respondent), the driver of
bus bearing No.UME-9807 of UP State Roadways Corporation
entered the witness box as RW1. He testified that he stopped
his bus at the red light signal. A two-wheeler was waiting for
the signal to turn green. A Jeep was standing behind the two-
wheeler. He stopped his bus behind the Jeep. He testified that
the Jeep struck against the scooter and fled away after causing
the accident. Here again, the driver of the offending vehicle
was completely silent if the Jeep struck against the bus.
14. RW2 Abhay Ram who was the conductor of the bus No.UME-
9807 also stated that the accident was caused by the scooter and
the bus was not involved. He stated that the bus was caught just
after crossing the Raj Ghat (traffic signal). From the pleadings
of the parties, particularly the written statement, it was evident
that there were damages in the front portion of the bus as
according to the Respondents, the Jeep after causing the
accident had reversed and banged into the bus. This plea was
abandoned by the Respondents during the course of inquiry i.e.
at the time of cross-examination of the Appellant and the
evidence of the Respondents. It is also evident that the Jeep
driver did not try to flee, rather as stated by the Appellant he
(Jeep driver) removed him to the Hospital. It is true that the
Appellant could have examined the police official who was on
duty at the traffic signal as also the driver of the Jeep to prove
the negligence. It seems that the Appellant for the reasons best
known to him preferred not to examine them as witnesses. Can
the claim of a Claimant in a motor accident case be dismissed
for non-examination of such witnesses? The Supreme Court in
Ibrahim v. Raju, (2011) 10 SCC 634, echoed the sentiments that
the Claims Tribunal should adopt a pro-active approach to
ensure that the claim filed under the Motor Vehicles Act are
disposed with required urgency and compensation is awarded to
the victims in adequate measures. The Supreme Court held as
under:
"......A very large number of people involved in motor
accidents are pedestrians, children and women and, on
account of sheer ignorance, poverty and other
disabilities, majority of them are unable to engage
competent lawyers for putting their cause before the
Tribunals and the courts. The insurance companies, with
whom the vehicles involved in the accidents are insured
always have the advantage of assistance of legally
trained mind (law officers and panel lawyers). They
contest the claim petitions by raising all possible
technical objections for ensuring that their clients are
either completely absolved or their liability is minimized
and in the process, adjudication of the claims filed by the
victims and/or their legal representatives is delayed for
years together. At times, the delay in disposal of the
claim cases and litigation expenses make the award of
compensation meaningless for survivors of the accidents
and/or families of the victims. The Supreme Court has
time and again emphasized that the officers, who preside
over the Tribunals adopt a proactive approach and
ensure that the claims filed under the Act are disposed of
with required urgency and compensation is awarded to
the victims of the accident and/or their legal
representatives in adequate measure keeping in view the
relevant factors....."
15. In this case, the accident took place on 12.02.1987. The Claim
Petition was filed within six months i.e. on 06.08.1987. For
one reason or the other, the Petition remained pending and
came to be decided only in the year 2000. Perusal of the order
dated 16.02.1993 shows that the IO of the criminal case was
present, but he was not examined as he had not brought the
summoned record. Dr. Sudhir Kapoor who had examined the
Appellant had been served, but was not present. While holding
an inquiry under Section 168 of the Act, it was the duty of the
Claims Tribunal to have summoned relevant evidence to form
an opinion as to the manner of the accident instead of
dismissing the Claim Petition on the hyper-technical ground.
16. The Appellant was a truthful witness when he deposed that he
did not see the Jeep and the bus before the accident. The plea
taken in the written statement that the Jeep banged while
reversing was an afterthought and was not pursued during the
course of evidence before the Claims Tribunal. If the Jeep
struck against the two-wheeler, there was no occasion for the
Jeep driver to have reversed the Jeep and then escape. A two-
wheeler being a smaller vehicle, the Jeep driver could have
escaped simply by swerving and driving away the vehicle. The
Respondent in the written statement took the plea that since the
scooterist was lying injured near the bus, the bus driver was
falsely implicated. If there was a Jeep in between the scooter
and the bus, there was no question of the scooterist lying near
the bus. Moreover, as stated above, the bus driver had been
caught only after he had crossed the traffic signal. Thus, there
was no question of the scooterist lying near the bus. All these
facts taken together do indicate that the accident was caused on
account of the rash and negligent driving of the First
Respondent who hit the Jeep No. DBB-4265 while it was
stationary on a red light signal which in turn struck against the
Appellant's two-wheeler. The culpable negligence on the part
of the First Respondent thus stands established.
QUANTUM OF COMPENSATION:
17. In the Claim Petition, the Appellant claimed compensation of
`15,000/- on account of loss of salary, `10,000/- as he could
not move with normal strength, `50,000/- towards pain and
suffering, `4,000/- towards repair of the two-wheeler, `5,000/-
on account of loss of leave, `1 lakh on account of loss of future
prospects and amenities in life. The Appellant in his
examination as PW3 tried to enhance this claim to `10 lakhs.
The Appellant examined Ramesh Kumar, an Accounts Officer
in Electronics Ltd. (the Appellant's employer). He testified
that the Appellant remained on leave from 13.02.1987 to
09.05.1987 because of the injuries suffered by him in the
accident. He was getting a salary of `1546/- per month in the
year 1987 which was increased to `1686/- in the year 1988. He
deposed that the Appellant would get a commission of `50/-
per machine, besides the salary. He testified that in the year
1987 the Appellant got a commission of `13,075/- and in the
year 1988 he got commission of `15,340/-. A salary certificate
Ex.PW3/2 was also proved on record. In cross-examination,
the witness deposed that the Appellant was covered under ESI.
He testified that the Appellant must have got the amount of
loss of leave from the ESI.
18. The Appellant suffered fracture of left clavicle and fracture of
left knee apart from various other injuries. He remained
confined to bed for about three months. There is no evidence
of any permanent disability having been suffered by him.
There was no loss of income on account of taking leave as the
Appellant was compensated by the ESI for the said leaves (as
admitted by PW1). Although the Appellant claimed that his
earning capacity was reduced, but PW1 speaks to the contrary.
He deposed that the Appellant's salary increased from `1546/-
per month in the year of the accident to `1686/- in the next
year. In these circumstances, the Appellant is entitled to
following compensation:
i) Pain and Suffering `15000/-
ii) Loss of Commission/Bonus paid per machine `4500/-
iii) Treatment and Medicine(No Bills) `2000/-
iv) Conveyance and Special Diet (No evidence) `2000/-
v) Loss of Income on account of leave (Compensated by
the ESI)
-------------------
Total ` 23,500/-
-------------------
19. The accident occurred in the year 1987 when the interest rates
were very high. The Appellant would be entitled to interest @
12% per annum from the date of filing of the Petition till the
date of impugned judgment i.e. 01.03.2000 and @ 7.5% per
annum from the date of judgment till 31.12.2009. Since the
interest rates started climbing up in the year 2009 and have
further affirmed up, the Appellant would be entitled to interest
@ 9% per annum from 01.01.2010 up to the date of deposit of
the award amount with the Registrar General of this Court.
20. The Respondent No.1 being the driver of the offending bus and
the Respondent No.2 being its owner and also employer of the
driver are jointly and severally liable to pay the compensation.
The Second Respondent, the U.P. Roadways Corporation,
Idgah, Agra, U.P. are directed to deposit the compensation
along with interest within a period of 30 days with the Registrar
General of this Court.
21. The Appeal is allowed in above terms.
22. No costs.
(G.P. MITTAL)
JUDGE
MARCH 16, 2012
pst
