Ravi Shanker Chaubey vs Krishan Kumar Yadav & Ors.
2012 Latest Caselaw 5512 Del

$~10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 13th September, 2012

+        MAC. APP. No.53/2011

         RAVI SHANKER CHAUBEY                  ..... Appellant
                      Through: Mr. S.M. Hussain, Mr. Pawan Kumar
                               Poddar & Ms. Tamanna Khan,
                               Advocates.

                       Versus

         KRISHAN KUMAR YADAV & ORS.      ..... Respondents
                     Through: Mr. Galib Kabir with Mr. Ranjan Kumar
                              Pandey, Advocate for the Respondent
                              No.2.

         CORAM:
                            HON'BLE MR. JUSTICE G.P.MITTAL

                                   JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant Ravi Shanker Chaubey impugns a judgment dated 24.05.2010 passed by the Motor Accident Claims Tribunal(the Claims Tribunal) whereby a compensation of Rs.16,000/- was awarded in favour of the Appellant for having suffered injuries in a motor vehicle accident which occurred on 09.11.2003.

2. On appreciation of the evidence, the Claims Tribunal found that although the accident was proved, but negligence on the part of the First Respondent was not proved. Relevant portion of the impugned judgment is extracted hereunder:

"The evidence of claimant and respondent driver is on record. I have carefully weighed the two versions of the accident and heard the counsel for the parties. The fact of accident is not in dispute. The claimant in his cross- examination of the respondent driver has not seriously challenged his version of the accident that he suddenly moved on the road to catch bus from the opposite side of the road. He has not challenged the evidence to the effect that he got puzzled and started moving back and could not escape hit. This evidence goes to suggest that the driver of the bike was in clear sight of all the happenings in his front, and did all to control the scooter on seeing the forward and backward movement of claimant and had no chance to avoid the hit. The straightforward case of driver cannot be ignored, as he has clearly tried to stop the scooter and in the process himself fell. The version put forth by the respondent driver is a common sight on the busy roads of Delhi during peak hours when everyone is in a hurry. The time of the accident is of peak hours in a area where all the roads are choked by office going traffic in area around the place of accident. The simple alleging of rash and negligent driving or the registration of case by police on these allegations are not sufficient to hold the driver was negligent, when his version of accident has not been questioned substantially in evidence.

In this view of the matter, when accident is not in dispute, though negligence is not proved, the claimant is entitled to compensation under provisions of Sec.163A of the M.V. Act treating it as a claim under that Section. The claimant has remained in hospital for 15 days and had produced bill of medicine amounting to Rs.11,000/-."

3. The Claims Tribunal thus converted the Petition under Section 166 of the Motor Vehicle Act, 1988(the Act) to one under Section 163-A of the Act to award a compensation of Rs.11,000/- in accordance with Second Schedule as per the expenditure incurred by the Appellant and a sum of Rs.5,000/- on account of the grievous injuries suffered by him.

4. It is urged by the learned counsel for the Appellant that the compensation awarded is too meagre and inadequate in view of the fact that the Appellant suffered 40% disability in respect of his right lower limb on account of post traumatic stiffness.

5. Since the Appellant's income was more than Rs.40,000/- per annum and particularly in the absence of any request from the Appellant, the Claims Tribunal was not entitled to convert the Petition under Section 166 of the Act to one under Section 163-A of the Act.

6. In any case, the finding on negligence reached by the Claims Tribunal, that is, that the Appellant was unable to establish negligence on the part of the First Respondent, driver of two-wheeler No.DL-9SJ-1078 has attained finality. Thus, this Court cannot enhance the compensation granted under Section 163-A to the Appellant.

7. The Appeal is devoid of any merit; the same is accordingly dismissed.

8. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE SEPTEMBER 13, 2012 pst