National Insurance Company vs Devender Sotre & Ors.
2014 Latest Caselaw 5263 Del

$~A-6 & A-7
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Date of decision: October 27, 2014
+     MAC.APP. 384/2007

      NATIONAL INSURANCE COMPANY               ..... Appellant
                      Through Mr.Kamaldeep, Advocate
               versus
      DEVENDER SOTRE & ORS.                    ..... Respondents

Through Mr.Prakash Gautam,Advocate for R-1 Mr.K.P.Toms, Advocate for R-2 to R-4 + MAC.APP. 1084/2012

K.G.CHANDRIKA & ORS ..... Appellants Through Mr.K.P.Toms, Advocate versus NATIONAL INSURANCE CO. LTD. & ANR. .... Respondents Through Mr.Kamaldeep, Advocate for R-1 Mr.Prakash Gautam,Advocate for R-2

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(ORAL)

1. MAC.APP.384/2007 is filed by the insurance company seeking to impugn the Award dated 9.4.2007. MAC.APP.1084/2012 is filed by the claimant seeking enhancement of the compensation awarded by the Tribunal.

2. The brief facts which led to filing of the claim petition are that one

Shri M.K.Damodaran who was a Constable in Delhi Police met with a road accident on 24.7.1992. The said deceased was performing his duty at Vijay Chowk, New Delhi. Since it was a rainy day a two wheeler slipped and the driver fell on the road. The deceased M.K.Damodaran alongwith his colleague Constable Rajiv Verma sought to help the scooterist. It was argued that while helping the scooterist, the offending vehicle driven by Shri Joginder Singh in a rash and negligent manner came and hit the deceased and the said Rajiv Verma. The deceased later on succumbed to his injuries on 3.8.1992.

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

4. On compensation the Tribunal awarded a total compensation of Rs.4,29,000/-.

5. Learned counsel appearing for the appellant/insurance company has strenuously urged that the findings recorded by the Tribunal that the accident took place due to the rash and negligent driving of the driver of the offending vehicle is erroneous and misplaced. He submits that the accident took place on 24.7.1992. The deceased had some injuries on his legs and was discharged thereafter on 25.7.1992 itself. Later on he was readmitted on 26.7.1992 and is said to have died on 3.8.1992. Reliance is placed on the judgment of the Court of Ms.Shalinder Kaur, Metropolitan Magistrate where a criminal case was filed under section 279/337/304A IPC against Shri Joginder Singh the driver of the offending vehicle. The Metropolitan Magistrate in a detailed judgment noted that immediately after the accident both the injured, namely, the deceased Constable M.K.Damodaran and

Constable Rajiv in a statement under section 161 Cr.PC clearly pointed out that it was a rainy day and though they were hit by the offending vehicle but the accident did not take place on account of fault and negligence of the offending vehicle and no criminal case could be set out against the said driver of the said vehicle. The Criminal court also noted that as per the MLC the deceased was admitted in RML Hospital. There was no head injury mentioned. He is said to have been discharged from the hospital and rejoined his duty thereafter. In the MLC only injuries on the legs are mentioned and hence as per the post mortem report, there is no connection between the death of the deceased and the said accident. Based on the evidence and other evidence on record, the criminal court discharged Shri Joginder Singh, the driver of the offending vehicle. Learned counsel also pointed out that the Tribunal has concluded about the rash and negligent driving of the offending vehicle based on the testimony of PW-2 Head Constable Yashpal whereas the statement of HC Yashpal was recorded in October 1992, three months after the accident. He submits that he was not an eye witness and that the entire exercise of registering the FIR and trying to start the criminal case against Joginder Singh took place as the deceased Constable Damodaran had died and it was an attempt to help him by the police department.

6. Learned counsel appearing for the claimant has on the other hand strenuously urged that as per the evidence of PW-2 Head Constable Yashpal and also statement under section 161 Cr.PC of the deceased Shri Damodaran and of Constable Rajiv Verma the accident took place with the offending vehicle. He submits that the fact that the accident took place with the offending vehicle per se implies that it was a case of rash and negligent

driving.

7. Reference may first be had to the evidence of PW-2 HC Yashpal. He states that he was posted in the 5th Battalion DAO. He was temporarily said to be posted at Vijay Chowk on that date when the accident took place and was on duty on behalf of the local police. He confirms that the deceased was hit by the Fiat car driven by one old sikh man, namely, Shri Joginder Singh. However, he add that "I do not remember whether the vehicle was driven at a fast speed since it was a rainy day". Apart from this, there is nothing else in the evidence to show that the offending vehicle was being driven in a rash and negligent manner.

8. Reference may also be had to the statements of the deceased Constable Damodaran and the other co-witness and the co-injured Constable Rajiv Verma.

9. The relevant portion of the statement of Shri M.K.Damodaran under section 161 Cr.PC reads as follows:-

"At that time 1 car no. DHE 2251 which was going towards Vijay Chowk, hit us from behind. It was raining and dark there. Though driver of the car applied brakes forcefully even then this accident occurred. There is nobody's fault in this and I don't want to take any police action against the driver of the car as this incident occurred by chance. Statement heard and is correct."

10. The statement is attested by ASI Dharam Singh. Similar statement is there of Constable Rajiv Verma.

11. Reference may also be had to the evidence of R1W2 Mandeep Singh Bhatia, Record Clerk, Patiala House Courts. He had brought the summoned file pertaining to FIR No.231/1992 and has placed on record certified copies

of various ordersheets and also the opinion report of the prosecution dated 13.1.1993. The report of the prosecution which is a translated copy relevant portion of which reads as follows:-

"But so far as the case file reveal it seems that the whole case has been framed either because injured M.K. Damodaran has died subsequently so the case is a result of sympathy towards fellow police personnel or to get compensation from the court of MACT otherwise I do not see any justification in registration of this case charge sheeting the accused Joginder Singh s/o Shri Ujjagar Singh the driver of the ill fated Car No. DHE 2251."

12. Regarding MLC it further states as follows:-

"MLC of M.K. Damodaran dt. 24-7-92 nowhere states or suggests that accused has suffered any head injury on the day of accident whereas post mortem of the deceased on 3-8-92 says that there was an abrasion on the scalp/ temporal region and death is due to brain hammeorage. Hence it seems that deceased did not suffer such fatal injury on the day of accident and thus accident in question cannot be connected with death of the Ct. M.K. Damodaran."

13. The Metropolitan Magistrate in her judgment dated 1.2.1999 also based on the statement of M.K.Damodaran, Mr.Raju Chouhan and HC Rajiv Verma which was made on 24.7.1992 the date of the accident and other evidence on record including the MLC concluded that the subsequent statements are concocted and only an attempt to help the deceased and the family. The Magistrate also on the ground that the challan is barred by limitation cancelled the challan and discharged the accused.

14. Clearly PW-2 in his evidence does not state that the accident took place due to the rash and negligent driving of Shri Joginder Singh.

Constable Damodaran (the deceased) and Constable Rajiv Verma both confirmed that they were hit by the offending vehicle but confirmed that the accident did not take place due to the rash and negligent driving of the driver of the offending vehicle. PW-2 also states that though the deceased was hit by the offending vehicle, but he does not prove that the accident took place due to the rash and negligent driving of the offending vehicle.

15. In my opinion there is no evidence on record to show that the deceased died due to the rash and negligent driving of the offending vehicle driven by Shri Joginder Singh. Hence to that extent there is merit in the contention of learned counsel for the appellant/insurance company.

16. However, based on the evidence of PW-2 and also the statements recorded of Shri Damodaran and Constable Rajiv Verma which statements were recorded on 24.7.1992, in my opinion there is enough evidence on record to show that Constable Damodaran was hit by the offending vehicle. However, the vehicle was being driven properly and not in a rash and negligent manner. The accident took place more due to unavoidable circumstances as it was raining heavily and it may not have been possible for the driver of the offending vehicle despite care and caution, to see that an accident had already taken place earlier and two constables were only helping the scooterist who had fallen due to skidding of the two wheeler. In my opinion no case under section 166 of the M.V.Act is made out. However, the appellant insurance company cannot escape liability under section 163A of the M.V.Act.

17. Reference may be had to the judgment of this Court in the case of Smt. Rukmani Devi vs.The New India Assurance Co. Ltd. and Anr. MANU/DE/0769/2008 where in para 14 the Court held as follows:

"14. Another question which is of the vital importance is whether the petition filed under Section 166 of the Motor Vehicles Act or visa-versa can be allowed to be converted into a petition under Section 163-A of the Motor Vehicles Act and if the answer is yes, then what should be the stage for allowing such a petition. There cannot be any dispute that Motor Vehicles Act is a beneficial piece of legislation and Therefore, endeavor has to be as to how best the intention of the legislation can be achieved so as to safeguard the interest of the victims of the accident rather than defeating the same. The statute has to be construed according to the intent of the makers and it is the duty of the courts to interpret the statute to see that true intention of legislature is achieved. Taking a purposive interpretation of Section 163-A of the Motor Vehicles Act the clear intendment of the legislation was to come to the rescue of all those who in the absence of an evidence are not in a position to file a claim petition under Section 166 of the Motor Vehicles Act where death of the victim or permanent disablement of the victim is required to be proved by establishing the factum of negligence involving the offending vehicle resulting in to causing the accident but under Section 163-A, the requirement of proving the negligence has been dispensed with."

18. Accordingly, I convert the present case as one under section 163A of the M.V.Act.

19. The deceased had an income on the date of the accident of Rs.2,300/- per month. The total compensation under section 163 A of the M.V.Act would come to Rs.2,81,500/-[(Rs.4,08,000 - 1/3rd) + 2,000/- + 5,000/- + 2,500/-].

20. The appellant will also pay interest @ 12% per annum from the date of filing of the claim petition till the date the award amount was deposited in Court.

21. This Court on 8.4.2013 directed the appellant to deposit the entire award amount with the Registrar General of this Court, 70% of which was to be released to the claimant. The Registrar General shall now release the balance amount, if any, as per this order proportionately to the claimants as per directions in the Award. After compliance of the order of this court the balance amount lying deposited in the Court alongwith proportionate accumulated interest may be refunded to the appellant.

22. Statutory amount, if any, deposited by the appellant at the time of filing the appeal be refunded to the appellant.

23. At this stage, a question was posed to learned counsel for the claimants that as the deceased Constable Damodaran died while on duty, the police would have treated him as died on duty and he would have been given compensation accordingly by the Delhi Police.

24. I am informed by the learned counsel appearing for the claimants that they have not received any compensation as they stay in a far off place in Kerala.

25. Let the Delhi police place on record an affidavit giving details of the compensation provided to the family of Constable M.K.Damodaran, 1181/ND (PIS 28870711) who has died on 3.8.1992. Let the affidavit be filed by the concerned Deputy Commissioner of Police.

26. Copy of this order be sent to the Standing Counsel of Delhi Police. The affidavit be filed by the Delhi Police within four weeks from today. This matter be listed on 12.12.2014 only to peruse the affidavit of Delhi Police. One copy be given dasti to learned counsel for the claimant who will serve the Delhi Police dasti also. In case Delhi Police does not file the affidavit within three weeks from today the concerned Deputy

Commissioner shall remain present in Court.

27. At this stage, learned counsel appearing for the appellant also states that the driver of the offending vehicle Shri Joginder Singh did not have a valid driving license on the date of the accident.

28. On the issue of driving license learned counsel appearing for Shri Joginder Singh states that the license was duly proved by the MLO Inspector Rajesh Kumar, Sheikh Sarai Authority as Ex.P1. There are no reasons to interfere with the conclusions drawn by the Tribunal MAC.APP.1084/2012

29. Now coming to MAC.App.1084/2012. This is an appeal filed by the claimant seeking enhancement of the compensation. As I have already held that there was no rash and negligent driving on the part of the offending vehicle, the present appeal is without merits and is dismissed.

JAYANT NATH, J OCTOBER 27, 2014/n