Yashpaul Devgan vs Rajender Kumar & Ors.
2013 Latest Caselaw 5243 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 18th November, 2013
+                               RFA 516/2003

      YASHPAUL DEVGAN                                        ..... Appellant
                  Through:             Mr. K.K. Jha, Adv. along with
                                       appellant.
                                      versus
    RAJENDER KUMAR & ORS.              ..... Respondents
                 Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

CM No.18163/2013 (for restoration of the appeal dismissed in default on 23rd January, 2013) and CM No.18164/2013 (for condonation of 270 days delay in applying therefor).

1. The appeal was on 23rd January, 2013 dismissed in default of

appearance of the appellant. This application for restoration has been filed

with an application for condonation of delay of 270 days in applying

therefor.

2. There is absolutely no reason stated as to why the appellant/his

counsel did not watch the matter in the cause list of this Court where it was

admittedly listed at item no.29. There is also no reason stated as to why the

appellant/his counsel did not watch the list from 23rd January, 2013 till now.

An application for restoration cannot be filed whenever the appellant/his

counsel may choose to check the list.

3. Moreover the appeal was earlier also on several occasions dismissed

in default of appearance of the appellant and the appellant has even

otherwise been lax in prosecuting the appeal and the file is full of

applications for taking steps for service of the respondent each time.

4. To check the seriousness of the appellant to pursue the appeal now,

the counsel for the appellant was asked to argue on the merits of the appeal.

5. As expected he said that his is not ready. The same demonstrates the

state of readiness of the appeal. The counsel for the appellant/plaintff at that

stage stated that the matter may be passed over and he will address on the

merits of the appeal. The matter was accordingly passed over and the

counsel for the appellant/plaintiff has been heard on the merits of the appeal.

Even though the appeal has been pending for the more than ten years and

was entertained, being a first appeal, but after hearing the counsel for the

appellant/plaintiff, no merit is found in the appeal. No purpose would thus

be served in issuing notice of this application to the respondents/defendants,

whose service on earlier occasions has also been effected with considerable

difficulty. To avoid further delays and since this Court is already hearing

appeals of the year 2005, and to enable dismissal on merits of the appeal, the

applications are allowed; for the reasons stated, the delay in applying for

restoration is condoned and the appeal restored to its original position.

RFA 516/2003.

6. The appeal impugns the judgment and decree dated 12th May, 2003 of

the Court of the Addl. District Judge of dismissal as not maintainable of Suit

No.585/2001 filed by the appellant/plaintiff.

7. The said suit was filed by the appellant for recovery of Rs.5 lacs

jointly and severally from the four respondents/defendants, pleading that:-

(a). that the appellant/plaintiff was a Government servant; on 26th

May, 1998 while returning to his home after office hours he

boarded bus of route No.680 (Blue Line) which was registered

as DL 1P 8557 and owned by the respondent/defendant no.1;

(b). that the said bus was driven by the respondent/defendant no.2

Shri Kundan Kumar Jha and the respondent/defendant no.3 Shri

Ajay Singh was its bus conductor; the bus was insured with

the respondent no.4 Oriental Insurance Co. Ltd.;

(c). that Shri Nirmal Singh who was travelling with the

appellant/plaintiff paid Rs.5 to the respondent no.3 Conductor

for purchasing two tickets i.e. for Shri Nirmal Singh and the

appellant/plaintiff; that even though the fare was Rs.2 per

ticket but the respondent no.3 Conductor demanded Rs.3 per

ticket; that the appellant/plaintiff and the said Shri Nirmal

Singh told the respondent no.3 Conductor that he was charging

more than due;

(d). at this the respondent no.3 Conductor abused Shri Nirmal Singh

and on which the appellant/plaintiff along with other passengers

intervened and hot words were exchanged between the said Shri

Nirmal Singh and the respondent no.3 Conductor;

(e). that the respondent/defendant no.2 who was driving the bus

also spoke loudly and gave abuses and was driving the bus

rashly and negligently;

(f). that the moment the bus was turning to the crossing near Rail

Museum Circle, Shanti Path, Chanakya Puri, the respondent

no.3 Conductor held the arm of the appellant/plaintiff and

pushed the appellant/plaintiff out from the front gate of the

running bus;

(g). that the respondent/defendant no.2 however continued to drive

the bus at a high speed;

(h). that the passengers however forced the respondent/defendant

no.2 to stop the bus at a distance of about 100 yards from the

place where the appellant/plaintiff had fallen and the

respondent/defendant No.2 ran away from the spot;

(i). that the appellant/plaintiff had suffered serious injuries and was

taken to hospital; and,

(j). that the respondents/defendants no.2&3 driver and conductor

were arrested and a case under Section 279 /337 of the IPC was

registered against them which was later on converted into

Section 308 IPC.

Accordingly, the suit for recovery of compensation/damages jointly

and severally from the respondent/defendants was filed.

8. The suit was inter alia contested by the respondents/defendants

no.2,3&4 by filing separate written statements contending that the

appellant/plaintiff had concealed having filed a similar claim before the

Motor Accident Claims Tribunal (MACT) and the suit from which this

appeal arises being thus barred under Section 175 of the Motor Vehicles Act,

1988. The respondent/defendant no.3 Conductor in addition pleaded that he

was neither the conductor nor the employee of the owner of the bus and was

running a shop in the name and style of Chanakya General Store at 21,

Yashwant Place Market, Chanakya Puri, New Delhi and was just a

passenger in the bus and a mere spectator of the quarrel between the

appellant/plaintiff and the conductor.

9. The impugned judgment records that it was informed to the Court on

17th October, 2002 that the respondent no.3 Conductor Shri Ajay Singh had

been convicted under Section 308 of the IPC and the appeal preferred by

him had also been dismissed by this Court and the respondent

no.3/defendant Conductor had been sentenced to undergo rigorous

imprisonment for a period of four years.

10. The impugned judgment further records that the following preliminary

issue was framed in the suit:-

"Whether the suit is maintainable in the Civil Court?"

11. The learned Addl. District Judge has decided the said preliminary

issue against the appellant/plaintiff and dismissed the suit

finding/observing/holding:-

(i). that the judgment of conviction of the respondent no.3

Conductor under Section 308 of the IPC and dismissal of

appeal thereagainst clinches the issue as to the nature of the

incident, showing that the respondent/defendant no.3 Conductor

had attempted to commit culpable homicide for which he had

been convicted;

(ii). thus the question of rash and negligent driving on the part of the

respondent/defendant no.2 Driver stood ruled out and therefore

he was not a necessary party to the suit;

(iii). similarly the respondent/defendant no.1 owner of the bus could

also not be a necessary or proper party as no role had been

assigned to him in the incident and he was also thus not a

necessary or proper party to the suit;

(iv). that the respondent/defendant no.4 Insurance Company was

also not a necessary or a proper party as it had not and could

not have insured the criminal act of any person;

(v). that the contention of the appellant/plaintiff that the

respondent/defendant no.1 owner was vicariously liable for the

acts of his employees respondents/defendants no.2&3 Driver

and Conductor had no merit as the concept of vicarious liability

is in the domain of tort and does not extend to crime; liability

for a criminal act cannot be fastened vicariously;

(vi). that in fact the respondents/defendants no.1,2&4 were not even

made accused or challaned under Section 308 of the IPC and

therefore cannot be a party in a Civil Court for that offence;

(vii). the suit against the respondent/defendants no.1,2&4 was thus

not maintainable;

(viii). for a criminal offence the compensation could have been

awarded to the appellant/plaintiff under Section 357 of the

Cr.PC by the Court trying the accused under Section 308 IPC

and there is no power with the Civil Court to grant such

compensation as offence under Section 308 IPC is not a civil

wrong;

(ix). the Civil Court can grant compensation or damages for a civil

wrong and not for the criminal act;

(x). Section 308 IPC is alien to the domain of tort and therefore no

claim can be based on that in a Civil Court; and,

(xi). thus the suit was not maintainable against the

respondent/defendant no.3 Conductor also because the

aggrieved party in a criminal case is the State and not the

individual who may have set the machinery of the State into

motion.

the suit was accordingly held to be misconceived and dismissed.

12. The appeal came up first before this Court on 8th July, 2003 when

none appeared for the appellant/plaintiff and the appeal was dismissed in

default. The appellant/plaintiff applied for restoration which was allowed.

Notice of the appeal was issued. The respondent/defendant no.1 owner failed

to appear before this Court also despite service. The order dated 5th October,

2006 records that the respondent/defendant no.3 Conductor was reported to

have been released from the jail on 24th February, 2005. The

respondent/defendant no.3 Conductor was permitted to be served by

publication and failed to appear. The appeal was on 13th November, 2007

admitted for hearing. On 28th April, 2010 the appellant/plaintiff failed to

appear and the appeal was dismissed for non-prosecution. The

appellant/plaintiff applied for restoration but none appeared and the

application was dismissed. Yet another application was filed for restoration

and which was allowed on 28th March, 2011. The appeal was again on 23rd

January, 2013 as aforesaid dismissed in default.

13. It was in the light of the aforesaid conduct of the appellant/plaintiff

that instead of mechanically issuing notice of the application for restoration,

it was felt that it should at least be ascertained whether there was any merit

in the appeal.

14. The learned Addl. District Judge has in the impugned judgment

certainly misdirected himself.

15. The preliminary issue was framed to adjudicate the maintainability of

the suit in the Civil Court in the light of the plea in the written statement of

the respondents/defendants no.2 to 4, of the claim therein being barred by

Section 175 of the Motor Vehicles Act and which question the learned Addl.

District Judge has failed to address. However the counsel for the

appellant/plaintiff is also unable to say anything in this respect. He is unable

to even tell the outcome of the claim filed by the appellant/plaintiff before

the MACT.

16. In my view, the question is no longer res integra.

17. Section 165 of the Motor Vehicles Act provides for the constitution of

the MACTs for the purpose of adjudicating upon claims for compensation in

respect of accidents involving death of or bodily injury to persons, arising

out of the use of motor vehicles. Section 166 enables an application for

compensation arising out of an accident of the nature specified in Section

165 to be made inter alia by the person who has sustained the injury. Section

175 provides that where any Claims Tribunal has been constituted for any

area, no Civil Court shall have jurisdiction to entertain any question relating

to any claim for compensation which may be adjudicated upon by the

Claims Tribunal for that area. The legislative scheme thus is that the claims

of the nature specified in Section 165 are to be adjudicated by the Claims

Tribunal only and the jurisdiction of the Civil Court to entertain such claims

has been barred. It is not in dispute that a Claim Tribunal has been

constituted for the subject area; in fact the appellant/plaintiff is informed to

have simultaneously with the filing of the suit from which this appeal arises,

also invoked the jurisdiction of the MACT of the area.

18. The only question for adjudication thus is, whether the claim of the

appellant/plaintiff for compensation for injuries suffered on account of being

thrown/pushed out from the moving bus by the conductor thereof, is within

the domain of Section 165 of the Motor Vehicles Act.

19. The Supreme Court in Shivaji Dayanu Patil Vs. Vatschala Uttam

More (1991) 3 SCC 530 held that the word "use" in the context of motor

vehicles has a wider connotation than the expression "caused by" and that

the causal relationship between the use of the motor vehicle and the accident

resulting in injury is not required to be direct and proximate and it can be

less immediate. It was yet further held that as long as the accident is

connected with the use of the motor vehicle, the MACT would have

jurisdiction. Accordingly the Tribunal was held to have jurisdiction, where

the petrol tanker went off the road and fell from the highway leading to

leakage of petrol which caused an explosion, for entertaining the claims for

injury to the persons who had sustained injuries on account of being at a

place where the explosion had occurred.

20. A claim for compensation by the heirs of an auto rickshaw driver who

was murdered by the passengers he was ferrying, was also in Rita Devi Vs.

New India Assurance Co. Ltd. (2000) 5 SCC 113, held to be within the

jurisdiction of the MACT. It was held that though murder is felonious act

but since the murder caused in the incident was related to the use of a motor

vehicle, the Claims Tribunal would have jurisdiction.

21. Similarly in Samir Chanda Vs. Managing Director, Assam State

Transport Corporation (1998) 6 SCC 605 the claims for compensation in

respect of injuries suffered due to bomb blast inside the vehicle were held to

be falling within the jurisdiction of MACT.

22. In Kaushnuma Begum Vs. New India Assurance Co. Ltd. (2001) 2

SCC 9, the Supreme Court further clarified that even if there were to be no

negligence on the part of the driver or owner of the motor vehicle but

accident happened while the vehicle was in use, the injured would be

entitled to get compensation from the MACT.

23. The Jammu & Kashmir High Court in National Insurance Co. Ltd.

Vs. Shiv Dutt Sharma 2004 ACJ 2049 held the claims for compensation on

account of the terrorists gunning down passengers in a bus to be

entertainable by the MACT.

24. This Court also in DTC Vs. Meena Kumari III (2010) ACC 72 held

the claims for compensation on account of a bomb blast in a DTC bus to be

within the jurisdiction of the MACT.

25. Recently also this Court in National Insurance Co. Ltd. Vs. Munesh

Devi (2012) 189 DLT 725 after noticing all the aforesaid held a claim for

compensation on account of death due to electrocution by coming in the

contact with an overhead electric wire while standing on a parked vehicle, to

be entertainable by MACT.

26. Applying the aforesaid principles, even though the injury claimed to

have been suffered by the appellant/plaintiff is not caused by any vehicle,

since the claim is of injury on being pushed/thrown out of the motor vehicle,

the claim would be arising out of the use of the motor vehicle under within

the meaning of Section 165 of the Motor Vehicles Act and the jurisdiction of

the Civil Court would be barred.

27. Thus the result reached by the learned Addl. District Judge in the

impugned judgment, of the Civil Court having no jurisdiction to entertain

the claim of the appellant/plaintiff for compensation, though for wrong

reasons, has but to be upheld.

28. Resultantly the appeal is dismissed.

29. No order as to costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 18, 2013 pp