National Insurance Co Ltd vs Shreejay Kumar Sinha & Ors
2014 Latest Caselaw 4364 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of Decision: 11.09.2014

+     MAC.APP. 124/2010 and CM No.3950/2010

      NATIONAL INSURANCE CO LTD           ..... Appellant
                   Through Ms.Manjusha Wadhwa and Ms.Arpan
                           Wadhawan, Advocates.

                          versus

      SHREEJAY KUMAR SINHA & ORS             ..... Respondents

Through Mr.Alka Chujar and Mr.Yuvan Gandhi, Advocates for Mr.Harvinder Singh, Advocate for R-1.

Mr.J.N.Aggarwal, Advocate for R-

3/DTC.

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(ORAL)

1. The present appeal is filed seeking to impugn the Award dated 01.12.2009. The claim petition was filed by respondent No.1 pursuant to injuries received in an accident on 30.11.2003.

2. The background facts are that while waiting for a bus at Najafgarh Road, Janak Puri, when a DTC bus reached, respondent No.1 was boarding the bus when all of a sudden the driver respondent No.2 started the bus said to be in a rash and negligent manner at a high speed with a jerk without seeking or waiting for respondent No.1/passenger to enter the bus properly. It is said that on account of the said act of respondent No.2, respondent No.1 was thrown out from the bus and dragged with the bus for a long distance.

3. Based on the evidence on record, the Tribunal concluded that

respondent No.1 sustained grievous injuries due to the rash and negligent driving of respondent No.2.

4. On compensation, the Tribunal awarded the following compensation:-

1.Compensation for medical expenses Rs.3,67,251/-

2.Compensation for conveyance & special Rs.20,000/- diet charges

3.Compensation for loss of academic year Rs.30,000/-

4.Compensation for pain and suffering Rs.30,000/-

5.Compensation for loss of amenities of life Rs.30,000/-

Rs.4,77,251/-

5. Learned counsel appearing for the appellant has strenuously urged that the conclusion recorded by the Tribunal holding that the accident took place due to the rash and negligent driving of respondent No.2 is an erroneous conclusion and not based on actual facts on record. She submits that in various statements made before the police including the statement made in front of friends on the date of the accident, namely, 30.11.2003 and statement made on 30.01.2004, respondent No.1 has categorically stated that while he was trying to get on the DTC bus, he collided with another bus which was already standing on the road and fell down and got hurt. In the said statement he has also said that he does not want to initiate any legal action against the DTC bus. She further points out that in another statement dated 16.02.2004 which is attached to the final report of the police he has said that he tried to board the DTC bus from the back gate when the driver speeded up the bus and respondent No.1 states that he could not board the bus properly and fell down and was dragged along. She further submits that after investigation the police have filed a closure report stating that no offence is made out against the driver/respondent No.2 of the DTC bus. Hence, she submits that the findings of the Tribunal to that extent are erroneous and no compensation is liable to be paid by the

appellant/Insurance Company.

6. A perusal of the Award would show that the Tribunal noted that the outcome of the final report has not been placed on record. It is not known as to whether the concerned Magistrate accepted the report or rejected the report and made any further directions in that behalf. The Tribunal also noted that the version of respondent No. 2 and of the conductor of the DTC bus made to the investigating agency are in contradiction with each other. The conductor gave a statement that the injured struck with the right rear portion of a private bus and fell down while he was trying to board the moving bus driven by respondent No.2. However, respondent No.1 has received no injuries in his arm/hand and hence the statement of the conductor was discarded. The Tribunal also noted that no details of the bus or driver or conductor of the second bus which was said to be the cause of the accident have been placed on record. Accordingly, the Tribunal concluded that accident took place due to the rash and negligent driving of respondent No.2.

7. Reference may be had to the statement of respondent No.1 made before the Tribunal as PW-1 in his affidavit by way of evidence. Regarding the accident. He has said in his affidavit as follows:-

"4. That when the petitioner was just about to board the bus from the rear gate, the respondent No.1 i.e. the driver of the alleged offending vehicle without caring whether the petitioner has boarded the bus or not started the bus in a very rash and negligent manner and with a sudden jerk.

5. That as result of this negligent act of the respondent No.1, the deponent was thrown out of the offending vehicle and was dragged with the said vehicle for a long distance."

8. On the statement signed on 30.11.2013, he said as follow:-

"9. That the deponent did not lodge the complaint with the

police at the hospital as he was under tremendous pain and was more concerned about his treatment and safety. Also there was mounting pressure from the respondent No.1 (before the Tribunal) and police personnel not to lodge complaint against the driver, however the police managed to get his signatures on various blank papers in which it was later inserted that the deponent does not want to file any police action/criminal case against the driver."

9. The counsel for the appellant has shown him his statement made on 16.02.2014 Ex.DW-1/DA and statement dated 30.11.2003 Ex.PW-1/DB. He has denied that the accident has been caused by some other vehicle or due to his own negligence. He has accepted his signatures on the statement.

10. The driver of the DTC bus who is respondent No.2 here entered the witness box as R1W1. In his affidavit by way of evidence, he has said as follows:-

"4. That the accident alleged in the case was not occurred with my bus. It is submitted that the bus No.DL-1PB-0718 was not involved in the accident and the petitioner/injured was not even touched with my bus. On 30.11.2003, I was driving the bus No.DL-1PB-0718 with carefully and also with due care with blowing horn and also in a slow speed and at about 1.45 P.M. when the bus which was driven by me reached at Vikash Puri More and also reached at the Vikash Puri bus stand, I stopped the bus at the stopped in order to alight and boarded the passengers in bus and I just started the bus after boarded the passengers from the bus stand after taking the passengers and bus was moving at a very slow speed, all of sudden the petitioner/injured came to the left side of the bus from the behind/from the bus stand side and trying to catch the running bus, However in the mean time one private bus came from the behind and touched the body of the petitioner/injured and petitioner fell down on the road. and thus the accident in question was not occurred with by bus and thus question of rash and negligent driving by me does not arise at all."

11. In his cross-examination done by respondent No.1, he has said as

follows:-

"It is correct to suggest that I was driving the vehicle in a rash and negligent manner. It is also incorrect that without caring whether the petitioner had boarded the bus or not, I started the bus in a rash and negligent manner. It is correct to suggest that this accident took place due to my negligent.

12. In my view there is no reason to differ with the view of the Tribunal, namely, that the conclusions by the IO as filed in the closure report would not be binding or cannot be trustworthy. There is nothing on record to show as to the outcome of the final report and what judicial orders were passed by the concerned Magistrate. In fact even today, a question was asked to learned counsel for the parties as to what was the outcome of the final report filed before the Magistrate. None of the counsel had any instructions on this issue.

13. Reference may be had to the judgment of the Supreme Court in the case of Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr., AIR 2005 SCC 2119. The relevant portion of para 24 reads as under:-

"24. 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. Reference may also be had to the judgment of the Supreme Court in the case of N.K.V.BROS.(P)Ltd. vs. M.Karumai Ammal and Ors., (1980) 3 SCC 457 ; MANU/SC/0321/1980 where in paragraph 2 the Supreme Court

held as under:-

"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"

15. Hence, even assuming that the criminal court had accepted the closure report filed by the police, there are no reasons for this Court to mechanically accept the said findings that may have been recorded by the criminal court. The Tribunal has rightly given a decision based on evidence as available on record with the Tribunal.

16. Coming to the evidence. As far as the evidence of the driver R1W1 is concerned, he states that respondent No.1 was trying to board the bus from the rear after he had already started the bus and respondent No.1 was hit by one private bus. He further states that his bus never touched respondent No.1. It is not clear how he has been able to make this statement inasmuch as if he was driving the bus he would be looking towards the front side. What was happening in rear entry would not be really visible or known to him in such graphic detail. In case he was aware that respondent No.1 was trying to board the bus and yet he ignored the same, then his negligence is writ large on the face of it. His version cannot be accepted.

17. In my view there is no reason to not believe the testimony of PW-1 (i.e. the complainant). The statements which are relied upon by learned counsel for the appellant dated 30.11.2003 and 16.02.2004 which were made by the complainant before the police are contradictory to each other. One statement says that respondent No.1 was hit by the second bus, second statement says that he fell down and was dragged due to his own negligence and got injured from the DTC bus. It is apparent that the statements were

not made voluntarily and appear to be procured.

18. Accordingly there is no reason to differ with the findings recorded by the Tribunal that the accident took place due to the rash and negligent driving of respondent No. 2. There is no other submission urged.

19. The appeal is without merit and is dismissed.

20. The statutory amount paid by the appellant be refunded to the appellant.

21. As per the interim order dated 03.03.2010, the appellant were directed to deposited a sum of Rs.4,00,000/-. The amount so deposited with accumulated interest be released to the claimant/respondent No.1. In case there is any shortfall, the same shall be made good by the appellant.

JAYANT NATH, J SEPTEMBER 11, 2014 rb