United India Isurance Company Ltd vs Jagwati @ Savitri And Ors
2014 Latest Caselaw 5206 Del

$~A-12 to 23
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision : October 16, 2014

+     MAC.APP. 784/2012

      UNITED INDIA ISURANCE COMPANY LTD                      ..... Appellant

                         versus

      JAGWATI @ SAVITRI AND ORS                           ..... Respondents

+     MAC.APP. 801/2012

      UNITED INDIA ISURANCE COMPANY LTD                      ..... Appellant

                         versus

      NATHI AND ORS                                       ..... Respondents

+     MAC.APP. 803/2012

      UNITED INDIA INSURANCE COMPANY LTD                    ..... Appellant

                         versus

      SANJAY AND ORS                                     ..... Respondents

+     MAC.APP. 804/2012

      UNITED INDIA INSURANCE COMPANY LTD                    ..... Appellant

                         versus

      TRILOKI AND ORS                                   ..... Respondents

+     MAC.APP. 809/2012




MAC.APP. 784/2012 & connected matters                          page 1 of 10
       UNITED INDIA INSURANCE COMPANY LTD      ..... Appellant

                         versus

      AMRAWATI AND ORS                      ..... Respondent

+     MAC.APP. 810/2012

      UNITED INDIA INSURANCE COMPANY LTD      ..... Appellant

                         versus

      JAI SINGH AND ORS                    ..... Respondents

+     MAC.APP. 815/2012

      UNITED INDIA INSURANCE COMPANY LTD      ..... Appellant

                         versus

      RAJ PAL AND ORS                      ..... Respondents

+     MAC.APP. 816/2012

      UNITED INDIA INSURANCE COMPANY LTD      ..... Appellant

                         versus

      DARVESH AND ORS                      ..... Respondents

+     MAC.APP. 817/2012

      UNITED INDIA INSURANCE COMPANY LTD      ..... Appellant

                         versus

      NATHO AND ORS                        ..... Respondents




MAC.APP. 784/2012 & connected matters            page 2 of 10
 +     MAC.APP. 818/2012
      UNITED INDIA ISURANCE COMPANY LTD                  ..... Appellant

                         versus

      AMRAWATI AND ORS                                 ..... Respondents

+     MAC.APP. 821/2012

      UNITED INDIA INSURANCE COMPANY LTD                 ..... Appellant

                         versus

      PAPPU AND ORS                                    ..... Respondents

+     MAC.APP. 823/2012

      UNITED INDIA INSURANCE COMPANY LTD                 ..... Appellant

                         versus

      SHEETAL AND ORS                                  ..... Respondents

Counsel for the appellant/Insurance Company:

Mr.Vijay Singh, Mr.Abhishek Kumar, Mr.Amit Wahi and Mr.Vishal Ranjan, Advocates.

Counsel for the respondents:

Mr.Ramesh Chander, Advocate for the claimants.

Ms.Rashmit Priya and Mr.Nishant Shokeen, Advocates for Mr.J.S.Bhasin, Advocate for Sh.Mahender Singh, Driver and DTC.

Mr.L.N.Jha, Advocate for Mohd.Nadeem Mr.Sunik Kapoor and Mr.Shrey Mehta, Advocates for HDFC Ergo General Insurance Co. Ltd.

MAC.APP. 784/2012 & connected matters page 3 of 10 CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J(Oral):

1. These are 12 appeals filed by the appellant Insurance Company seeking to impugn the various awards passed arising out of the same accident which took place on 03.11.2008.

2. The brief facts of the case are that several passengers were travelling from village Gadha, Post Office and Police Station Dhanari, Distt. Badaun in a canter/tempo. They were going to Jhajjar, Haryana. In the morning on 03.11.2008 when the tempo reached at "Y" point, a DTC bus said to be driven at a very high speed in a rash and negligent manner hit the tempo on the front side. As a result of the accident several passengers got injured and four of them are stated to have died.

3. Based on the evidence on record the Tribunal concluded that the accident took place due to the rash and negligent driving of the driver of the DTC bus.

4. The present appeals are filed by the appellant Insurance Company seeking to impugn the said findings of the Awards. Learned counsel appearing for the appellant/Insurance Company strenuously urges that the findings recorded about the accident having taken place due to the rash and negligent driving of the driver of the DTC bus, which was insured with the appellant Company, is erroneous. He points out that the findings have been recorded by the Tribunal based on the evidence of an alleged eye witness PW-2 Sh.Rajbir. He submits that the testimony of Sh. Rajbir cannot be believed. He states that the Tribunal has wrongly relied on the said

MAC.APP. 784/2012 & connected matters page 4 of 10 statement. He submits that the Tribunal notes that the said Rajbir has filed a separate police complaint which has not been investigated by the police in which complaint it was pointed out that the accident took place due to the acts of the DTC driver. He further submits that the said complaint cannot also be relied upon as it was filed five months after the accident. He further submits that the said witness was an interested witness inasmuch as his father had died in the accident and he was one of the claimants. He also submits that as per the cross-examination of Sh.Rajbir he admits that his affidavit by way of evidence has been typed by the advocate and it is not his own wordings. He lastly submits that Sh.Rajbir did not attempt to file any criminal case inasmuch as the police was not paying attention to his criminal complaint. He also submits that the FIR registered by the police was against the driver of the tempo. No criminal proceedings were initiated as the driver of the tempo had died and police filed a closure report. He also relies upon the site plan, photographs and the testimony of Mahender Singh, the driver of the DTC bus to contend that the accident took place due to the rash and negligent driving of the driver of the tempo.

5. Learned counsel appearing for HDFC ERGO General Insurance Company Ltd., the insurer of the tempo and learned counsel for the claimants have strongly defended the findings recorded by the Tribunal. Learned counsels point out that there were in all 35 claim petitions filed. Three of these cases pertaining to fatal injuries rest pertain to injuries sustained by the passengers of the tempo. All the cases have been filed by the passengers of the tempo as there were about 40-45 passengers on the tempo who were travelling with their own goods. They submit that from all these cases appeals have been filed in only 12 cases whereas in 23 cases no

MAC.APP. 784/2012 & connected matters page 5 of 10 appeals have been filed meaning thereby that the appellant Insurance Company has accepted the findings of the Tribunal in those cases that the accident took place due to the rash and negligent driving of the driver of the DTC bus. They submit that the appellant cannot now turn around and seek to challenge the said findings in the present appeals.

6. In response to this averment in rejoinder the learned counsel for the appellant submits that in the said 23 cases nominal compensation of Rs.5,000/- was awarded to the claimants on account of injuries suffered in the accident. Hence, he submits that the appellant Insurance Company did not deem it worthwhile to take steps to impugn the said awards as the legal costs would have been much higher than the compensation amount.

7. A perusal of the Awards shows that the Tribunal has accepted the version of PW-2 Rajbir. The Tribunal notes that as per the evidence of Sh.Rajbir/ PW-2, the DTC bus was being driven in a rash and negligent manner at a very high speed. He further states that in order to save himself the tempo driver turned the tempo and took evasive steps but the tempo lost its balance. The Tribunal also notes that the sequence of circumstances shows that the statement of PW-2 is correct. The police have not initiated criminal proceedings against the DTC driver. The Tribunal notes that the statement of PW-2 is corroborated by the photographs produced by the driver of the DTC bus. The statement made by the driver of DTC under Section 161 Cr.P.C. was also noted to be contrary to the contents of FIR. The Tribunal also notes that the IO while conducting investigation has not recorded the statements of the injured who were passengers of the tempo. There is no explanation as to why the IO has sent the case as closed. Even the statement of PW-2 was not recorded despite the fact that he was present

MAC.APP. 784/2012 & connected matters page 6 of 10 on the spot. The Tribunal also notes that as per the earlier orders of the Tribunal a report was called for from the DCP about the action taken on the basis of the complaint lodged by Rajbir/PW9. No explanation was given by the concerned police. Hence, the Tribunal concluded that the accident took place due to the rash and negligent driving of the driver of the DTC bus. I will now look at the evidence. PW-2 deposes about the accident as follows:-

"2. That on 03.11.2008 the deponent, his family members and other villagers-relatives along with their hosehold goods were coming for doing their labour work at Qutubgarh Bhatta from Badaiyun, U.P. in a tempo when they reach near about Jaunti more kanjhawala Delhi a DTC bus came in a high speed and negligent manner then our tempo driver turn to save both vehicles and passengers in the same item the DTC driver wrongly overtake and hopelessly stop the bus suddenly in front of running tempo due to the said reason the tempo driver loss their balance during turning the tempo resulting to that the both vehicles were clubs with each other and got damaged."

8. He also points out that despite having made a complaint to the police officials and other senior officers, they have not recorded the statement and registered an FIR without listening to the true facts of the case against the driver of the tempo. He has also pointed out that on 02.04.2009, he has sent a complaint to the SHO and DCP. He was subject to a detailed cross- examination. In this detailed cross-examination, he has not in any way been shaken. He has reiterated in his cross-examination that the police did not record his statement though he visited the police station several times. He states that the IO avoided to take his statement on one pretext or the other.

9. In contrast, the FIR is based on the statement of one Subhash. He was a passenger of the DTC bus. This FIR only states that the accident took place due to the rash and negligent driving of the tempo driver. No details

MAC.APP. 784/2012 & connected matters page 7 of 10 are given.

10. A perusal of the site plan prepared by the police shows that it is not contrary to the version as given by PW-2.

11. The Tribunal has also noted that the police has failed to record the statements of various injured including the occupants of the tempo. There is no basis as to why the police have not proceeded properly to investigate the case but has filed a closure report.

12. Learned counsel appearing for the appellant has not been able to point out any other evidence which would show that the findings recorded by the Tribunal are incorrect.

13. Regarding the issue of the police having filed an FIR against the tempo driver and having filed thereafter the closure report reference may be had to the judgment of the Supreme Court in the case of Iqbal Singh Marwah & Anr vs Meenakshi Marwah & Anr (2005) 4SCC 370 para 32 of which reads as follows:-

"32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."

14. We may also look at the judgment of the Supreme Court in the case of N.K.V. Bros. (P) Ltd. vs. M. Karumai Ammal and Ors., AIR 1980 SC 1354 wherein in Para 3, the Court held as follows:-

MAC.APP. 784/2012 & connected matters page 8 of 10 "3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their 'neighbour'. Indeed, the State must seriously consider no fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for state relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The states must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many states are unjustly indifferent in this regard."

15. There are no reasons on record to reverse the findings recorded by the Tribunal on the issue of the accident having taken place due to the rash and negligent driving of the driver of the DTC bus. There is no merit in the appeals and the same are dismissed.

16. As per the interim order of this court dated 25.07.2012 in MAC.A.784/2012, 27.07.2012 in 13 to 15, 30.07.2012 in 16 to 23, 50% of the award amount with up-to-date interest was directed to be deposited in

MAC.APP. 784/2012 & connected matters page 9 of 10 court and kept in fixed deposit. 50% was to be released to the claimants. In view of the above order, the entire balance award amount along with accumulated interest be released to the claimants as per the directions in the Award.

17. The statutory amount, if any, deposited by the appellant at the time of filing of the appeals may be refunded.

JAYANT NATH, J OCTOBER 16, 2014 rb

MAC.APP. 784/2012 & connected matters page 10 of 10