Delhi High Court
Ram Lal & Ors. vs Ramkesh Gupta And Ors. on 20 March, 2014
Author: Suresh Kait
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 20th March, 2014
+ MAC.APP. No.860/2011
RAM LAL & ORS. ..... Appellants
Represented by: Mr. Amit Kr. Pandey and Mr. K.K.
Singh, Advs.
Versus
RAMKESH GUPTA AND ORS. ..... Respondents
Represented by: Mr. Nishant Kumar Srivastava, Adv.
for R1.
Ms. Suman Bagga, Adv. for R3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Vide the present appeal, appellants / claimants have assailed the
award dated 23.07.2011 passed by the Ld. Tribunal, whereby their Claim
Petition was dismissed.
2. The brief facts of the case are that on 13.01.2009, at about 4.30AM,
deceased Ajit Kumar hired an auto rickshaw bearing no. DL-1RK-4202 for
dropping his friend Sh. Munkeer Sheikh at Old Delhi Railway Station.
When they reached at 'T' Point of Mathura Road and Sher Shah Road, New
Delhi, the above noted TSR had collided with an unknown dumper. Due to
which, all the occupants of the TSR were severely injured and became
unconscious. The driver of the dumper ran away from the spot. The PCR
van came there and took all the injured persons to Dr. Ram Manohar Lohia
Hospital, where deceased Ajit Kumar died during his treatment.
3. Mr. Amit Kumar Pandey, Ld. Counsel appearing on behalf of the
appellant submits that the appellants examined four witnesses to prove their
case. Sh. Munkeer Sheikh, an eye witness of the accident in his statement
categorically deposed that the accident occurred due to the negligence of the
driver of the TSR. The said witness further deposed that the TSR was being
driven by its driver in a rash and negligent manner at a high speed.
4. Moreover, respondent no. 1, owner of the offending vehicle appeared
as R1W1, who in his evidence by way of affidavit did not dispute the factum
of the accident and involvement of the TSR in the accident in question.
5. Mr. Pandey further submits that respondent no. 2, the driver of the
offending vehicle neither appeared on the service of the notice, nor chose to
depose in rebuttal. Respondent no. 1, owner of the offending vehicle also
did not choose to examine any witness in support of their plea taken in the
written statement.
6. It is submitted that, PW1, Sh. Munkeer Sheikh stated in his affidavit
Ex.PW1/A that on 13.01.2009 at about 4.30AM, deceased Ajit Kumar at his
request hired an auto-rickshaw, bearing No. DL-1RK-4202 to drop him at
Old Delhi Railway Station from where he had to board a train for his
hometown at Birbhum, West Bengal. The TSR was being driven by its
driver at fast speed and in a rash and negligent manner. When they reached
near 'T' Point of Mathura Road and Sher Shah Road, the said TSR was
collided with some unknown dumper, which resulted in severe accident and
the driver of the said dumper ran away from the place of accident. To this
effect an FIR no. 6/2009 Ex.PW1/1 was registered at PS-Tilak Marg against
the unknown driver of the dumper.
7. Mr. Pandey further stated that in the said FIR, PW1 had wrongly
mentioned the name of Ajit Kumar as Sajid due to confused state of mind
and when he realized, he informed the IO Sh. Inderpal Singh about this
mistake who accordingly recorded his statement Ex.PW1/2. At his pointing
out, site plan Ex.PW1/3 was prepared by the IO. MLC of the deceased is
proved as Ex.PW1/4. In cross-examination, PW1 denied the suggestion that
the accident was caused due to the rash and negligent driver of the dumper
only. However, he admitted that he did not get the FIR corrected regarding
the negligence of the driver of the TSR as he had gone to his native village.
8. Mr. Nishant Kumar Srivatava, Ld. Counsel appearing on behalf of the
respondent no. 1 / owner of the TSR mentioned above submits that accident
had taken place on 13.01.2009. Accordingly, FIR was lodged against the
unknown driver of the dumper. None of the witnesses alleged the
negligence of the driver of the TSR in their statement recorded Under
Section 161 Cr.P.C. or in the complaint made to the police whereupon the
FIR No. 6/2009 was registered at PS-Tilak Marg.
9. Ld. Counsel further submits, Respondent no. 1 examined himself as
R1W1 and tendered his evidence by way of affidavit reiterating therein the
contents of the written statement. He deposed that on the date of accident,
one Parvat Singh was driving the TSR and he had a valid driving licence
issued from the Transport Authority, Mainpuri, which was valid from
26.12.2007 to 25.12.2010. The licence was proved as Ex.RW1/A. He also
proved the verification report of the driver issued by the licensing authority,
Mainpuri, same is proved as Ex.RW1/B. He proved the insurance of the
vehicle Ex.RW1/C with respondent no. 3.
10. Ld. Counsel further submits that his testimony had got unchallenged.
Respondent no. 2 was proceeded ex-parte as no-one appeared on his behalf
after filing of written statement, whereas respondent no. 3 did not examine
any witness.
11. I have heard Ld. Counsels for the parties.
12. On perusal of the statement of PW1, the contents of the FIR and the
site plan as discussed above, reveals that it is not denied that the above noted
TSR was not involved in the accident. There was a confusion on the
negligence whether the driver of the dumper or the driver of the TSR was
negligent. Thus the appellants moved an application before the Ld. Tribunal
to convert their Claim Petition to 163-A of Motor Vehicles Act, 1988.
However, the same was dismissed vide order dated 14.03.2011.
13. While dismissing the Claim Petition, the Ld. Tribunal observed that
number of the dumper could not be noted down and after the completion of
the investigation final untraced report under Section 173 Cr.P.C. Ex.PW4/B
was filed as it was hit and run case. Moreover, PW1 in his cross-
examination by respondent no. 3/ Insurance Company stated that he did not
get the FIR corrected regarding the negligence of the driver of the TSR.
14. Accordingly, Ld. Tribunal opined that in the absence of satisfactory
evidence it is difficult to hold that respondent no. 2, the driver of the TSR
was responsible for the accident or that he had caused the accident due to
rash and negligent driving of the TSR.
15. The fact remains that the TSR no. DL-1RK-4202 was involved in the
accident, wherein deceased Ajit Kumar died. The settled law is that if two
vehicles are involved in the accident, claimants are at liberty to claim the
compensation from either of the vehicles.
16. Undisputedly, the deceased was travelling in the TSR noted above,
which met with an accident with dumper and the compensation was sought
against the TSR.
17. It is trite, Under Section 163-A of Motor Vehicles Act, claimants have
to establish the factum of the accident not the factum of negligence.
18. Admittedly, the deceased died in the accident in which TSR no. DL-
1RK-4202 was involved. Accordingly, appellants are entitled for the
compensation under Section 163-A of Motor Vehicles Act.
19. In view of above discussion, I am of the considered opinion that Ld.
Tribunal has wrongly rejected the plea of the claimants to convert the Claim
Petition to 163-A of Motor Vehicles Act, 1988 and further dismissed the
claim petition.
20. Consequently, the compensation comes as under:
Sl. No. Heads of Compensation granted by this
Compensation Court
1. Loss of dependency Rs.4,80,006/-
2. Loss of consortium Rs.5,000/-
3. Loss of Estate Rs. 2,500/-
4. Towards funeral Rs. 2,000/-
expenses
TOTAL Rs.4,89,506
21. The compensation amount shall carry interest @ 7.5% per annum
from the date of filing of the appeal till realization of the amount.
22. Accordingly, the respondent No.3 is directed to deposit the
compensation amount with up-to-date interest accrued thereon with the
Registrar General of this Court within a period of five weeks from today,
failing which, appellants / claimants shall be entitled for penal interest @
12% per annum on account of delayed payment.
23. On deposit, the Registrar General is directed to release the 50% of the
compensation amount in favour of appellant no. 2, wife of the deceased and
10% in favour of appellant no. 1, father of the deceased on taking steps by
them. Out of the remaining 40% of the award amount, 20% each shall be
kept in the form of FDRs in favour of appellant nos. 3 & 4 initially for a
period of three years to be renewed further for a period of three years.
24. In view of the above, the appeal is allowed.
SURESH KAIT, J.
MARCH 20, 2014/jg
