Moni Arora & Ors vs Yashpal Sehgal & Ors
2014 Latest Caselaw 5361 Del

$~A-45
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Date of Decision: 30.10.2014

+     MAC.APP. 78/2010

      MONI ARORA & ORS                                   ..... Appellants
                   Through              Mr.S.K.Rai, Advocate.

                           versus

      YASHPAL SEHGAL & ORS                 ..... Respondents
                  Through  Ms.Manjusha Wadhwa and Ms.Arpan
                           Wadhawan, Advocate for R-
                           2/Insurance Co.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. By the present appeal the appellants seeks to impugn the Award dated 23.04.2009.

2. The brief facts are that as per the claim petition the deceased Vikas Arora lost his life in a traffic accident on the night of 20.01.2006. The details are that the deceased was sleeping. At around 3.30 am he was woken up by his father and informed that a theft was being committed in the godown where the goods of the deceased were stored and the goods were being loaded in a tempo by the thieves. The deceased along with his brother reached the godown which was near the house. They saw that the tempo driver fleeing away with goods. The deceased with his brother tried to chase the tempo. The tempo driver, namely, respondent No.3 was driving the

vehicle in a zig-zag manner and in the process, hit the deceased. The deceased fell down and sustained serious/grievous injuries. He later succumbed to his injuries.

3. Based on the pleadings of the parties the Tribunal framed the following issues:-

"1. Whether Vikas Arora received fatal injuries due to rash and negligent driving of tempo No.DL-1M-1696?

2. Whether petitioners are entitled to any compensation if so, from whom and of what amount?

3. Relief."

4. The Tribunal noted that claimant No.1 gave her evidence as PW-1 and the brother of the deceased Naveen Arora was examined as PW-2.

5. On issue No.1 the Tribunal noted that a perusal of the evidence of PW-2 shows that he does not in any way mention that the vehicle in question was being driven by respondent No.3. The Tribunal also noted that PW-2 mentions that the driver of the truck, respondent No.3 has been held guilty by the criminal court concerned but noted that no documents to this effect have been placed on record by the claimant. The Tribunal also noted that pursuant to the accident/death of the deceased an FIR No.48/2006 was registered on 21.01.2006 on the basis of the statement of PW-2. The Tribunal further noted that in the FIR the driver of the offending vehicle has been referred to as an unknown person. The Tribunal also noted that the claimants failed to examine IO of the criminal case. The Tribunal also noted that the FIR is registered under Sections 457/380/304/34 IPC and not under Section 304A IPC. The Tribunal also noted that copy of the chargesheet has also not been brought on record. However, at another place it notes that copy of the chargeshet placed on record is a mere photocopy which has not been

proved by filing a certified copy. The Tribunal also noted that no arrest memo is on record to show that respondent No.3 was arrested. Based on these observations, the Tribunal concluded that the appellants have failed to prove that the deceased Vikas Arora died on account of injuries sustained in the road accident and the accident was caused by the rash and negligent driving of the offending vehicle. The Tribunal also concluded that the involvement of respondent No.3 with the offending vehicle is not established. Hence issue No.1 was decided against the appellants and in favour of respondent No.3.

6. A perusal of the trial court record shows that a photocopy of the chargesheet showing respondent No.3 as accused is on record. Further certified copy of the judgment passed by the court of Dr.R.K.Yadav, Additional Sessions Judge, Karkardooma Courts pursuant to FIR No. 48/2006 is also on record which judgment dated 04.01.2007 held respondent No.3 guilty beyond the shadow of reasonable doubt for offences punishable under Section 454/392/304 of the Penal Code. The order passing a sentence against respondent No.3 dated 10.01.2007 is also on record.

7. There is no reason to doubt the authenticity or validity of these photocopies. In case any doubt was there in the mind of the Tribunal it ought to have summoned the criminal court file especially considering that the tribunal was based in Karkardooma Courts and the conviction has been passed by Sessions Judge, Karkardooma Court itself.

8. Accordingly, in my opinion the matter needs to be considered afresh by the Tribunal in the facts and circumstances considering the evidence on record. The Award dated 23.04.2009 passed by the Tribunal is set aside and the matter is remanded back to the Tribunal to consider the matter afresh. I

may add that the claimants shall be given one opportunity to lead additional evidence that they may wish to lead in this regard. The Tribunal considering the fact that the accident took place in 2006 would endeavour to expeditiously complete the trial and pass an award preferably within a period of six months from today. The Tribunal shall pass its award uninfluenced by any observation made herein.

9. I may however add that the Tribunal may take into account the judgment of this court dated 21.01.2014 passed in MAC.876/2012 titled as New India Insurance Co. Ltd. vs. Shehzadi Yasmeen & Ors. where this court relying upon various judgments including Rita Devi & Ors. vs. New India Assurance Company Ltd. & Anr., AIR 2000 SC 1930 noted the relevant portion of the judgment of the Supreme Court as follows:-

"10. The question, therefore, is can a murder be an accident in any given case? There is no doubt that 'murder', as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The differences between a 'murder' which is not an accident and a 'murder' which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killings is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder. .....

14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto rickshaw, was duty bound to have accepted

the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw then it cannot but be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the auto rickshaw."

10. In view of the above the present appeal stands disposed of.

11. The parties to appear before the Tribunal on 26.11.2014.

12. Trial court record be sent back.

JAYANT NATH, J OCTOBER 30, 2014 rb