Khazan Singh vs Chaman Rani & Ors
2016 Latest Caselaw 1317 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of Decision: 19th February, 2016

+                      MAC.APP. 17/2010 & CM No.928/2010

       KHAZAN SINGH                                         ..... Appellant

                            Through:      Mr. Rakesh Tiku, Senior Advocate
                                          with Mr. Prakash Guautam, Adv.
                            versus

       CHAMAN RANI & ORS                                    ..... Respondents

                            Through:      Mr. Nagendra Kasana, Adv. for R-1
                                          to 4.


CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                            JUDGMENT

R.K.GAUBA, J (ORAL):

1. Kishori Lal, a Sub-Inspector in Delhi Police, died on account of injuries suffered at about 10:00 PM on 03.12.1988 in a motor vehicular accident. His widow and children (collectively, the claimants), respondent nos. 1 to 4 herein, brought a claim petition under Section 110-A of Motor Vehicles Act, 1939 (the MV Act), seeking compensation alleging that the accident had been caused due to rash/negligent driving of jeep bearing no.MPA-4629 (hereinafter referred to as "the jeep") by the appellant herein, also stating that the jeep was owned by Baldev son of Pal Singh (fifth

respondent in appeal), since deceased and substituted by his legal heirs. The appellant and the said Baldev were impleaded as first and second respondents respectively in the claim petition.

2. The petition registered as suit no.66/1984 was inquired into and resulted in exparte judgment dated 01.05.2006 holding both the said respondents including the appellant herein jointly and severally liable to pay the compensation awarded in the sum of `6,50,000/- with interest at the rate of nine (9) percent from the date of filing of the petition till realization. The appellant moved an application under Order 9 Rule-13 of the Code of Civil Procedure, 1908 (CPC) and Section 5 of the Limitation Act, 1963 seeking condonation of delay against the said judgment and award, which was allowed by the tribunal, by order dated 21.04.2008, and the proceedings reopened for further inquiry.

3. It is noted that by way of his written statement, the appellant had taken the position that he was neither the driver of the jeep nor was responsible for any rash/negligent act concerning it so as to be made liable to pay compensation.

4. During inquiry before the tribunal leading to judgment 01.05.2006, the claimants had examined Chaman Rani, the first claimant (PW2) besides one Babu Lal (PW1). In addition, they submitted copy of the report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) that had been submitted by the police on conclusion of investigation into the first information report (FIR) that had been registered vide no.428/1988 in police station R. K. Puram respecting the accident. It may be mentioned here that

in the said chargesheet the police had referred to the eye witness account of Atul Sobati and Inspector Bhom Singh, as recorded in the form of their respective statements under Section 161 Cr.P.C.

5. On the basis of pleadings submitted before the tribunal, in the course of renewed inquiry in the wake of order dated 21.04.2008, the tribunal framed issues including one concerning the stated death allegedly on account rash or negligent driving of the jeep by the appellant. The claimant (PW2) called upon to adduce evidence afresh, submitted her fresh affidavit and was cross-examined on its basis. She examined Babu Lal (PW1) on the basis of his affidavit also tendering him for further cross-examination. The claimants did not adduce any further evidence and rather relied on the copy of the report under Section 173 Cr.P.C that had already been submitted. From the side of the respondents in the claim case, one Rajesh Khatri was examined as RW1, his deposition indicating that the deceased was driving the jeep immediately prior to accident, he conceding under cross- examination that he had alighted from the vehicle prior to stage when it met with an accident and, thus, not be in a position to vondsafe as to who was at the wheel at the crucial point of time.

6. It is necessary to take note as to how the tribunal dealt with the contentions, and the evidence, on the above subject. It may be added here that in the said narration, the appellant has been referred to as "R1" and Baldev, the person statedly the owner of the vehicle, has been referred to as "R2". The relevant portion of the impugned judgment reads as under:-

"In her petition, petitioner has attributed rashness and negligence to R1 who was driving the offending vehicle (jeep). R2

has been shown as owner of the offending vehicle. In his WS R1 Khazan Singh has claimed that he was not driving the offending vehicle on the alleged date and time of the accident and that is why he has no connection with the accident. R2 Baldev in his WS has also asserted that he has no concern with the accident and that he became the owner of the vehicle in question i.e. DED-9437, previously known as MPA-4629 which vehicle was transferred in his name by the Registering Authority on 21.04.1989. As per R2 previously the owner of the vehicle in question was one B. K. Rasid s/o R.C. Rasid, Chhatarpur (M.P.) from whom the vehicle was purchased by him through R1 and as such R2 is not liable. In para 14 of his WS R2 stated that he has purchased the offending vehicle through R1 in the month of December 1988 and he being illiterate, the entire deal was done under the supervision and control of R1. In her replication to the WS of R2 petitioner submitted that the R2 did not file the sale letter, possession letter, receipt, transfer letter to authority along with his WS and that, it is not the date of registration of vehicle which matters but it is the date on which the consideration was paid and possession of vehicle was taken is material. In this case date of accident is 03.12.1988, the copy of RC on record, receipt RW1/A reflects that vehicle No. DED-9437 was transferred in the name of R2 on 21.04.1989. However, in his WS Baldev has himself admitted that the vehicle was purchased somewhere in December, 1988. He has not given the specific date on which same was purchased by him. The accident took place on 03.12.1988. Transferrer of the vehicle B. K. Rasid is/residing Chhatarpur (M. P.). Offending vehicle was seized from the spot on 03.12.1988. R2 has admitted that deal was struck through R1. The certified copy of the criminal record of State Case FIR No. 428/88 PS R. K. Puram has been adverted to wherein, in the brief facts by the IO recorded on that dated i.e. 03.12.88 it is mentioned that on receipt of DD57B, IO reached at the accidental spot where he found Jeep No. MPA-4629 in turtled conditions (tapsi turbi); that no eye witness was found, that under neath the Jeep. Inspector K. L. Meena and Inspector Bhom Singh were found who were taken out from under neath, the jeep, whereas Inspector Khazan Singh was found stuck up against steering of the vehicle who was also extricated. They were sent to Safdarjung Hospital in Ambulance and by that time ASl Mahavir and PGR had also reached; that K. L Meena

was declared as brought death. Inspector Bhom Singh was declared as unfit for statement and Inspector Khazan Singh was reported as under the effect of alcohol. Certified copy of the statement recorded under Section 161 Cr.P.C. of eye witness Atul Sokti R/o Kothi No. 7, Aradhana Enclave, Sector-13, R. K. Puram and one Ramesh Chand who was waiting for bus at bus stand of Sector-13, R.K. Puram and injured Bhom Singh an eye witness are there on record. They have supported the petitioner's version as mentioned in the petition. Inspector Bhom Singh in his 161 Cr.P.C. statement recorded on 07.12.1988 mentioned that he alongwith deceased K. L. Meena was travelling in offending jeep which was driven by Inspector Khazan Singh; that trio had consumed liquor at Moti Bagh Chowk and thereafter the jeep was further driven by the Inspector Khazan Singh for dropping them at their home and he drove with very fast speed despite his request and request of K. L. Meena not to drive fast. As per Bhom Singh due to the fast speed, the jeep turned turtle in front of Kothi No. 7, Sector-13, R. K. Puram thereby causing the accident.

This is a petition under Section 166/140 MV Act, 1988 and as such Petitioner is required to prove the rash and negligent driving by the driver of the offending vehicle. However, the degree of proof in MACT case is not as stringent as in criminal trial and criteria of proof beyond all shadow of reasonable doubt is not invokable. Mere use of vehicle in causing the accident is sufficient which evidence can be led even through the certified copies of relevant documents of the criminal case arising out of the accident. Moreover, this is a case of res ipsa loquiter as R1 was found stuck up against the steering of the vehicle thereby implying that it was he who was driving the offending vehicle at the time of accident. Moreover, in Kaushnamma Begum and others Vs New India Assurance Company Limited, it was held by Hon'ble Supreme Court that the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would made the petitioner maintainable under section 166 and 140 of the Motor Vehicle Act. R2 has also admitted that the deal was struck under the supervision and control of R1. R1 is the Police Officer whereas R2 as per his own witness was running a Motor Workshop. It seems that for all purposes the vehicle was under

the control of R1. Moreover, there is one copy of sale letter dated 17.11.1988 (Receipt PW1/H) on record wherein it has been shown that offending vehicle has been sold by B. K. Rasid to Baldev Singh. Since the possession of the vehicle came with Baldev Singh on 17.11.88 and accident took place on 03.12.88, the formal transfer vehicle through RC, subsequently in April 1989 is of no consequence qua the involvement of Baldev since for all practical purposes vehicle came in custody of Baldev R2. RW1 Rajesh Khatri has sought to impeach the petitioner's version by claiming that it was the deceased who had obtained the vehicle from R2 and drove just before the accident. His testimony reflects that he got down at Narayana at 9.30 PM at which time K. L. Meena was driving the jeep. The accident took place on 03.12.1988. The testimony of this witness Rajesh Khatri is of no consequence is view of the contemporaneous documents prepared as referred above i.e. brief facts which was prepared by police in connection with his official duty and the same needs to be believed. Moreover, date of birth of RW1 is 26.06.1969. At the time of accident, therefore, he was 19 years in age and while giving the testimony, he was 41 years in age. How could he remember the name of the driver of the jeep as K. L. Meena whereas the WS of R2 reflects that R2 was more in interaction with R1. Moreover, if we believe for a moment that K. L. Meena was driving the offending vehicle, but it can be held so only till Naraina where RW1 was dropped since thereafter, as per statement of Bhom Singh, trio had got down at Moti Bagh Crossing and consumed liquor. So testimony of RW1 is of no help to the respondents and as such issue No.1 is decided in favour of petitioner and against the respondents."

7. Having heard learned counsel on both sides, this court agrees that the tribunal did not have available to it any evidence whatsoever to affirm that the appellant was the driver of the jeep at the time when it met with an accident. The tribunal fell into grave error by drawing conclusions on the basis of version of two aforementioned witnesses recorded by the investigating police in the course of investigation into the FIR under Section 161 Cr.P.C. It is trite that a statement under Section 161 Cr.P.C. cannot be

assumed to be evidence, leave alone clinching material on which the conclusions could be drawn. There being no evidence whatsoever before the tribunal to show that it was the appellant who was at the steering wheel of the jeep after the accident or that he having been extricated from out of the jeep which had turned turtle. It is pertinent to mention here that neither Chaman Rani, (PW2) nor Babu Lal (PW1) are in position to affirm the complicity of the appellant in the accident. The former was admittedly not present at the scene while the latter having claimed to be at the scene would not even mention a whisper as to the role or status of the appellant. The principle of res ipsa loquitor could not have been invoked.

8. It was argued on behalf of the appellant that the corresponding criminal case against the appellant on the charge for offences punishable under Sections 279/304-A of Indian Penal Code, 1860 (IPC) had resulted in acquittal by judgment dated 28.09.1994 of the metropolitan magistrate. A copy of the said final order in the criminal case has been submitted on record. But, as pointed out by the counsel for the claimants that only one eye witness Atul Sobati though examined on 16.09.1994 having turned hostile, the said order turned on account of prosecution not being able to muster the presence of the other eye witness.

9. Against the above backdrop, the learned counsel for the claimants fairly conceded that no evidence was presented to the tribunal to return the finding that the appellant was the driver of the jeep at the relevant point of time or that he was guilty of rash or negligent act(s) concerning it leading to the fatal accident. At the same time, however, he submitted that there was lapse on the part of the counsel who had been engaged to prosecute the case

and, for some reasons which cannot be comprehended, the eye witness who was available, was not examined. He submitted that the matter may be remitted for further inquiry with liberty to the claimants to adduce further evidence. The learned counsel for the appellant, in response, submitted that he has nothing to say on the prayer now made.

10. In above facts and circumstances, the appeal is allowed. The impugned judgment of the tribunal holding the appellant liable to pay compensation is set aside. The matter concerning allegations made against the appellant is remitted for further inquiry to the tribunal which shall grant fresh opportunity to the claimants for additional evidence to be adduced. Needless to add, the appellant as respondent in the said proceedings will also be entitled to participate including by way of cross-examination of the witnesses proposed to be examined and by leading evidence in rebuttal.

11. The accident had occurred in the area of police station R. K. Puram. The claim petition was filed before the tribunal at Patiala House Courts, New Delhi where it was finally decided by the tribunal holding jurisdiction over South District of Delhi. In this view, it is directed that the parties shall appear for further proceedings in accordance with law before the tribunal holding jurisdiction over South District at Saket Courts on 04th March, 2016.

12. For removal of doubts, it is clarified that Baldev, the second respondent in the claim petition, who was also held liable to pay compensation does not appear to have challenged the impugned judgment. In this view, in terms of this order, the liability fastened on the said party will not get disturbed and claimants are at liberty to take out appropriate execution proceedings against him.

13. The appeal is disposed of in above terms.

R.K. GAUBA (JUDGE) FEBRUARY 19, 2016 ssc