Agricultural Produce Market vs Ms Hadisa Khatun And Ors.
2014 Latest Caselaw 6336 Del

$~R-4A
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Date of Decision:01.12.2014
+     MAC.APP. 211/2005

      AGRICULTURAL PRODUCE MARKET CO.       ..... Appellant
                  Through  Ms.Avnish Ahlawat and Ms.Latika
                           Chaudhry, Advocates.

                         Versus

      MS HADISA KHATUN AND ORS.           .... Respondents
                   Through Ms.Manjusha Wadhwa and Mr.Arpan
                           Wadhwan, Advocates.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH,J. (ORAL)

1. The present appeal is filed by the appellant, the owner of the JCB loader which is said to have caused an accident on 23.06.2000. One Sh. Akhtar met with an accident at the outer gate of New Sabji Mandi, Azad Pur, New Delhi. He was said to have been hit by the JCB Loader driven by respondent No.3 said to be driven at a very high speed rashly and negligently.

2. Based on the evidence on record, the Tribunal concluded that the accident took place due to rash and negligent driving of respondent No.3.

3. On compensation a total compensation of Rs.2,96,000/- was awarded. The insurance company, respondent No.4 was directed to pay the claimants but was granted recovery rights against the Appellants as the driver of the offending vehicle JCB Loader was not having a driving license to drive the

offending vehicle.

4. The controversy revolves around as to whether the JCB Loader was involved in the accident and if it was, whether Sh.Madan Lal, Respondent No.3 was driving the same at that moment.

5. The Tribunal concluded that the accident took place due to the rash and negligent driving of respondent No.3. The Tribunal relied upon the evidence of PW-1 Mohd. Illyas, an eye witness who was said to be present on the spot and to which as per the Tribunal, there is no dispute that he was an eye witness. The Tribunal also relied upon the FIR and noted that the criminal case has been filed against the accused i.e. respondent No.3, Madan Lal. It did not accept the evidence of R1W1 Madan Lal inasmuch as he was apprehended by the public present at the spot and he was badly thrashed. The Tribunal further held that the offending vehicle appears to have been left unattended by its driver Sh.K.S. Kohli and respondent No.3 who was not a trained driver appears to have operated the vehicle and this resulted in the accident and consequent death of the deceased.

6. Learned counsel appearing for the appellant, who is the owner of the JCB Loader, submits that the conclusions of the Tribunal are erroneous. She submits that no accident took place with the JCB Loader and that the accident took place with a Maruti Car which was coming from nearby. She relies upon the evidence of Sh. Madan Lal-R1W1, the alleged driver of the offending vehicle and of Sh.Dinesh Sharma, RW-1, Assistant Engineer of APMC to contend that the accident took place with the Maruti Van and further that Sh.Madan Lal, respondent No.3 was only a sanitary guide and not a driver and that the vehicle can be driven only by a trained driver and cannot be driven by all and sundry. Learned counsel further submits that

Mohd. Illyas, PW-1 was not mentioned as an eye witness in the chargesheet that was filed or in the FIR. He did not appear in the criminal trial. Hence, his evidence is very suspicious and cannot be believed. She further submits that the driver, Respondent No.3 was acquitted in the criminal trial and hence the award dated 11.1.2005 is erroneous.

7. I may look at the evidence on record. Sh. Dinesh Sharma, RW1 states that the vehicle was entrusted to the driver K.S.Kohli and he drove the loader machine. He further states that a loader machine cannot be operated by any person as it requires specialised knowledge and skills. In his cross- examination he says that a loader is supposed to move around the entire Azad Pur Sabzi Mandi to collect garbage from specified points. It is further said that on verbal enquiry from the driver Sh. K.S. Kohli, he learnt that the loader machine was left by him to bring the voucher for more diesel. He does not know what occurred in his absence.

8. A perusal of the evidence of Sh.Madan Lal, R1W1 shows that he confirms that after the accident he was beaten by the public. He however states that the public apprehended him as he was wearing a uniform similar to that of a driver of the loader. He also confirms that when the police arrived at the spot he was being beaten by the public and was arrested by the police. He confirms that a criminal case is pending against him.

9. PW-1 Mohd. Illyas in his evidence states that he and the deceased were returning after Namaz and the deceased was walking ahead of him. The JCB Loader came in back gear and hit the deceased i.e. Mohd. Akhtar, then a handcart and thereafter hit a Maruti Car. The deceased Akhtar is said to have fallen down and died on the spot. In his cross-examination he accepts that he knew the deceased for the last 15 to 20 years. They were

members of the same Mazdoor Union. He confirms that the police had recorded his statement. He reiterated that Maruti Car was stationary and denied that the accident took place due to the Maruti Car.

10. The FIR is based on the statement of Munna who is also an injured who was driving the handcart which was also hit by the JCB Loader. In his statement before the police he has also said that the JCB Loader came from behind and hit him at a very high speed. He further states that another person who was coming from front was also hit by the offending vehicle and he came between the offending vehicle and the Maruti Car and died on the spot. The FIR confirms that the driver was Sh.Madan Lal.

11. There are no reasons to disbelieve the evidence of PW-1. In view of the above evidence of PW-1, the statement in the FIR and the fact that the driver of the offending vehicle was apprehended by the public at the spot and was beaten up and arrested by the police, in my opinion there is sufficient evidence on record to show that the offending vehicle was being driven by Sh.Madan Lal on the said date. The fact that he was not even trained to drive such a vehicle ipso facto is indicative of the fact that he was grossly negligent, having chosen to drive the vehicle in the absence of the driver Sh. K.S. Kohli. There is no reason to differ with the view taken by the Tribunal.

12. There is no merit in the contention of the learned counsel for the appellant that in the criminal trial Sh.Madan Lal has been acquitted. In this context reference may be had to the judgment of the Supreme Court in the case of NKV Bros Pvt. Ltd v. M. Karumani Amali, 1980 ACJ 435 wherein para 2 reads as follows:-

"2. The plea that the criminal case had ended in acquittal

and that, therefore, the civil suit must follow suit, was rejected and rightly. The requirement of culpable rashness Under Section 304A I.P.C. is more drastic than negligence sufficient under the law of tort to create liability. The quantum of compensation was moderately fixed and although there was, perhaps a case for enhancement, the High Court dismissed the cross-claims also. Being questions of fact, we are obviously unwilling to reopen the holdings on culpability and compensation."

13. In the light of the above, there is no merit in the present appeal and the same is accordingly dismissed. All the interim orders stand vacated.

14. As per interim order dated 25.10.2005, the appellant had already deposited the award amount which was kept in a fixed deposit. As per the award respondent No.4 Insurance Company had recovery rights against the appellant. In case respondent No. 4 has complied with the award and made the payment to the claimants, the money lying deposited in court be released to respondent No. 4 with up to date interest.

JAYANT NATH, J DECEMBER 01, 2014 rb