Delhi High Court
Taradai & Ors. vs Raman Grover & Ors. on 26 February, 2016
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 26th February, 2016
+ FAO 506/2003
TARADAI & ORS. ..... Appellants
Through: Mr. J. S. Kanwar, Adv.
versus
RAMAN GROVER & ORS. ..... Respondents
Through: Mr. Kanwal Chaudhary, Adv. for R-6.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Mahendra Kumar aged 21 years working as helper-cum-conductor on
bus bearing registration no.DEP-6563 became untraceable to his parents on
08.08.1988. His father Tika Dass lodged a missing report vide DD no.41-B
at 11:15 PM on 09.08.1988 with police station Kalyanpuri, Delhi. On
10.08.1988 at the instance of his father Tika Dass, first information report
(FIR) no.173/1988 was registered in police station Kalyanpuri for
investigation into the offence under Section 365 of Indian Penal Code, 1860
(IPC) on the basis of suspicion that he had been possibly abducted. In the
course of investigation into the said FIR by the police, it came to be revealed
that Mahendra Kumar had died in circumstances that seemingly indicated
death suffered due to injuries in road traffic accident. His dead body having
been found on 11.08.1988 in the jurisdictional area of Sector-20, Noida,
Ghaziabad, Uttar Pradesh, it was sent for post-mortem examination.
2. Tika Dass filed a claim petition before the motor accident claims
tribunal (the tribunal) seeking compensation under Section 110-A of the
Motor Vehicles Act, 1939 (the MV Act, 1939), inter-alia, stating that the
death had occurred due to involvement of two buses one bearing registration
no.DEP-6563 and the other bearing registration no.DEP-7226. According to
the case set up, Mahendra Kumar was employed as helper-cum-conductor of
bus registration no.DEP-6563 of Raman Grover (first respondent in the
appeal) and that it was involved in a collision against the other bus no.DEP-
7226. It was submitted that the collision had taken place on account of
negligent driving on the part of Mahesh Kumar and Jagat Singh, drivers
(fourth & fifth respondent herein) who were respective drivers of the two
buses. It was stated that bus no.DEP-7226 was owned by Ranvir Singh
(second respondent herein) and was insured with New India Insurance
Company Ltd. (sixth respondent herein).
3. Upon notices being issued, sixth respondent (the insurer) of bus
no.DEP-7226 appeared to admit that there was an insurance cover taken
against the third party risk in respect of the said vehicle. The third
respondent (owner of bus DEP-7226) appeared and filed written statement
only to say that the vehicle was subject to insurance cover. The other parties
impleaded as respondents, however, chose to suffer the proceedings exparte.
4. The tribunal having registered the case as suit no.256/2002 (old
no.806/1988) held inquiry by framing issues, prime one being as to whether
the death had occurred on account of rash/negligent driving of bus bearing
no.DEP-6563 by its driver.
5. While the inquiry was under way, the original claimant Tika Dass
died. His legal heirs including his widow Tara Dai and son Anand Tika
Dass Ramtake were substituted in his place and prosecuted the matter
further. During the inquiry, the son of the original claimant appeared as
solitary witness (PW1). The insurance company (sixth respondent),
however, subsequently suffered the proceedings exparte.
6. The tribunal by judgment dated 04.03.2003 held that the allegations of
rash/negligent driving on the part of the drivers of two vehicles had not been
proved as the sole witness (PW1) was not an eye witness and was not in a
position to vouchsafe sequence of events that had led to the alleged
collision. It was further held that no other documentary proof had been
adduced from which negligence on the part of the drivers of either of two
vehicles could be inferred. With such finding returned, the tribunal
proceeded to grant award in the sum of `25,000/- on the principle of no fault
liability under Section 92-A of the MV Act, 1939 and directed the sixth
respondent (the insurer) to pay with interest the said amount within the
period specified apportioning the same amongst the two claimants who had
taken over the proceedings on being substituted upon the death of the
original claimant Tika Dass.
7. The appeal at hand was filed to question the above result of the claim
petition mainly contending that the tribunal should have applied the
principle of 'res ipsa loquitor' and on that basis held that the accident had
occurred due to fault on the part of the drivers of the two buses and
calculated the compensation payable in accordance with law on fault
liability rather than restricting it to the award on principle of no fault
liability.
8. During the pendency of this appeal, Tara Dai, widow of original
claimant Tika Dass also died. The appeal has been prosecuted further by the
legal heirs.
9. At the hearing, the learned counsel for the appellant fairly conceded
that the claimants do not know or have access to any clear evidence as to the
negligence on the part of drivers of any of the two buses mentioned in the
claim petition. He submitted that no eye witness could be brought out since
the police had not been able to unearth the entire set of circumstances in
which Mahendra Kumar had suffered the fatal injuries. He pointed out with
reference to DD no.41-B dated 09.08.1988 and the FIR that was registered
later and the police proceedings relating to the discovery of the dead body to
submit that the claimants till date have not been able to find out the entire
truth nor have come across any relevant witness.
10. In above facts and circumstances, the view taken by the tribunal
cannot be faulted. In absence of any material showing negligent driving on
the part of any of the drivers compensation on the principle of fault liability
could not have been awarded.
11. The appeal is dismissed.
R.K. GAUBA
(JUDGE)
FEBRUARY 26, 2016
ssc
