U.P. State Road Transport ... vs Prema Devi & Anr.
2015 Latest Caselaw 2255 Del

$-17
*       IN THE HIGH COURT OF DELHI AT NEW DELHI


                                          Decided on: 17th March, 2015
+       MAC.APP. 626/2013

        U.P. STATE ROAD TRANSPORT CORPORATION
                                            ..... Appellant
                      Through: Mr.Shadab Khan, Advocate

                    versus

        PREMA DEVI & ANR.                           ..... Respondents
                     Through:           Mr. B.K. Mishra, Advocate.



        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                             JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The appeal is directed against the judgment dated 17.04.2013

passed by the Motor Accident Claims Tribunal (the Claims

Tribunal) whereby compensation of Rs.22,28,493/- was

awarded in favour of Respondents no.1 and 2 for the death of

Vikas, who suffered fatal injuries in a motor vehicular accident

which occurred on 31.12.2009.

2. The Appellant U.P. State Road Transport Corporation

(U.P.S.R.T.C.) challenges the judgment on the aspect of

negligence attributed to the driver of the bus no.UP-80-VJ-9676

as also the quantum of compensation awarded by the Claims

Tribunal.

3. During the course of arguments, it was pointed out by the

learned counsel for the Appellant that the driver, who was

facing criminal prosecution under Sections 279/304-A IPC was

acquitted in the criminal case and there was no evidence to

prove negligence on the part of the Appellant's driver. On the

other hand, it has been pointed by the learned counsel for

Respondents no.1 and 2 that an application dated 05.05.2011

was moved by Respondents no.1 and 2 to examine Sanmati

Kumar and Sagar Kumar, the two eye witnesses. However, the

Claims Tribunal without passing any order on the application

proceeded to decide the claim petition.

4. I have the Trial Court record before me. It is true that an

application was moved for examining Sanmati Kumar and

Sagar Kumar on 05.05.2011. The record discloses that the case

was ordered to be put up on 07.05.2011. The application for

summoning the witnesses was allowed by an order dated

07.05.2011. Subsequently, by an order dated 01.06.2011, after

recording the statement of PW1 Kaushal Kishore, the Claims

Tribunal posted the matter for recording statement of the

employer of the deceased. But the eye witnesses had not been

given up. Also, there was no statement by the counsel for

Respondents no.1 and 2 stating that he did not want to examine

the eye witnesses.

5. In Minu B. Mehta and Anr. v. Balkrishna Ramchandra Nayan and Anr., 1977 (2) SCC 441, it was held that proof of negligence is essential before a person or his master can be held liable to pay the compensation. A plea was raised before the Supreme Court that use of a motor vehicle is enough to make the owner liable to pay the compensation. The contention was repelled and it was held as under:-

"23. The Indian Law introduced provisions relating to compulsory insurance in respect of third party insurance by introducing Chapter VIII of the Act. These provisions almost wholly adopted the provisions of the English law. The relevant sections found in the three English Acts Road Traffic Act, 1930. the Third Parties (Rights against Insurers) Act, 1930 and "the Road Traffic Act, 1934 were incorporated in Chapter VIII. Before a person can be

made liable to pay compensation for any injuries and damage which have been caused by his action it is necessary that the person damaged or injured should be able to establish that he has some cause of action against the party responsible. Causes of action may arise out of actions for wrongs under the common law or for breaches of duties laid down by statutes. In order to succeed in an action for negligence the plaintiff must prove (1) that the defendant had in the circumstances a duty to take care and that duty was owed by him to the plaintiff, and that (2) there was a breach of that duty and that as a result of the breach damage was suffered by the plaintiff. The master also becomes liable for the conduct of the servant when the servant is proved to have acted negligently in the course of his employment. Apart from it in common law the master is not liable for as it is often said that owner of a motor car does not become liable because of his owning a motor car.

x x x x x x x x x x

27. This plea ignores the basic requirements of the owner's liability and the claimant's right to receive compensation. The owners' liability arises out of his failure to discharge a duty cast on him by law. The right to receive compensation can only be against a person who is bound to compensate due to the failure to perform a legal obligation. If a person is not liable legally he is under no duty to compensate anyone else. The Claims Tribunal is a tribunal constituted by the State Government for expeditious disposal of the motor claims. The general law applicable is only common law and the law of torts. If under the law a person becomes legally liable then the person suffering the injuries is entitled to be compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just. The plea that the Claims Tribunal is entitled to award compensation which appears to be just when it is satisfied on proof of injury to a third party arising out of

the use of a vehicle on a public place without proof of negligence if accepted would lead to strange results.

28. Section 110(1) of the Act empowers the State Government to constitute one or more Motor Accidents Claims Tribunals for such area as may be specified for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death or bodily injury to persons. The power is optional and the State Government may not constitute a Claims Tribunal for certain areas. When a claim includes a claim for compensation the claimant has an option to make his claim before the Civil Court. Regarding claims for compensation therefore in certain cases Civil Courts also have a jurisdiction. If the contention put forward is accepted so far as the Civil Court is concerned it would have to determine the liability of the owner on the basis of common law or torts while the Claims Tribunal can award compensation without reference to common law or torts and without coming to the conclusion that the owner is liable. The concept of owner's liability without any negligence is opposed to the basic principles of law. The mere fact that a party received an injury arising out of the use of a vehicle in a public place cannot justify fastening liability on the owner. It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself killed. We cannot perceive by what reasoning the owner of the car could be made liable. The proof of negligence remains the linch pin to recover compensation. The various enactments have attempted to mitigate a possible injury to the claimant by providing for payment of the claims by insurance.

x x x x x x x x x x

30. A person is not liable unless he contravenes any of the duties imposed on him by common law or by the statute. In the case of a motor accident the owner is only liable for negligence and on proof of vicarious liability for the acts of his servant The necessity to provide

effective means for compensating the victims in motor accidents should not blind us in determining the state of law as it exists today."

6. Again, in Oriental Insurance Company Limited v. Meena

Variyal & Ors., (2007) 5 SCC 428, the three Judges Bench

decision in Minu B. Mehta (supra) was relied upon. It was held

that to claim compensation under Section 166 of the Motor

Vehicles Act, 1988 (the Act), the proof of negligence on the

part of the driver of the vehicle was a sine qua non. The owner

becomes vicariously liable for the act of his servant and the

Insurer on account of the contract of insurance to indemnify the

owner. It was observed that on the other hand, in a petition

under Section 163-A of the Act, negligence or default on the

part of the owner or driver of the vehicle was not required to be

proved. At the same time, it has to be kept in mind that the

standard proof of negligence as required in a Claim Petition

under Section 166 of the Act is not the same as in a criminal

case i.e. "beyond reasonable doubt", but only "the

preponderance of probability".

7. It is evident that the Claims Tribunal acted hot-haste and

followed a shortcut method in proceeding to decide the claim

petition without giving ample opportunity to Respondents no.1

and 2 to examine their witnesses on an important aspect.

8. The impugned judgment therefore, cannot be sustained; the

same is accordingly set aside.

9. The case is remanded back to the Claims Tribunal with

direction to give an opportunity to Respondents no.1 and 2 to

produce the eye witnesses or any other evidence which may be

available with Respondents no.1 and 2 to prove negligence.

10. It goes without saying that the Appellant who was Respondent

no.2 before the Claims Tribunal shall be entitled to lead

evidence in rebuttal.

11. The Claims Tribunal shall be entitled to deal with all the issues

afresh including the quantum of compensation.

12. The amount of compensation lying deposited shall be released

to the Appellant forthwith. The amount of compensation, if

any, released to Respondents no.1 and 2 shall be subject to the

final orders that may be passed by the Claims Tribunal.

13. Parties are directed to appear before the Claims Tribunal on

07.04.2015.

14. The Claims Tribunal shall endeavour to complete the evidence

and decide the claim petition within a period of three months

from the first date of hearing before the Claims Tribunal.

(G.P. MITTAL) JUDGE MARCH 17, 2015 pst