Delhi High Court
Smt. Nirmala Devi & Ors. vs Gurpal Singh Passi & Ors. on 1 February, 2016
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 1st February, 2016
+ FAO 345/2000
SMT. NIRMALA DEVI & ORS.
..... Appellants
Through Mr. J S Kanwar, Adv.
versus
GURPAL SINGH PASSI & ORS.
..... Respondents
Through Mr. A K Soni, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 08.08.1990, at about 11.15 PM, an accident occurred on
bridge over Yamuna river involving two motor vehicles, viz., scooter
No.DAM-6983 ("the scooter") and Maruti van No.DHN-8757 ("the
Maruti van"). The scooter rider Sri Kishan suffered injuries as a result
of fall upon collision between the two said vehicles. He was shifted to
hospital by the van of Police Control Room ("PCR") where MLC
bearing No.517/90 dated 08.08.1990 was recorded initially indicating
him to be a person whose particulars were not known. He slipped into
coma and died in hospital at 2.55 AM on 09.08.1990. On the
observations of ASI Bhoop Singh of the local police station, who had
been deputed to inquire into the accident, pursuant to the receipt of
intimation about the accident vide DD No.25A, the FIR No.38/1990 was
registered initially under Sections 279/337 of Indian Penal Code, 1860
(IPC). According to the FIR there was no eye-witness found by the
Investigating Officer on his arrival at the scene.
2. On 06.02.1991, claim petition under Sections 166 read with
Section 140 of Motor Vehicles Act, 1988 ("MV Act") was presented by
the appellants before the Motor Accident Claims Tribunal ("the
Tribunal") seeking compensation on account of death of Sri Kishan in
the said motor vehicular accident from the first respondent herein,
described as the owner and driver of the Maruti van, also impleading the
second respondent herein, it being the insurer of the said vehicle for the
period in question. The claim petition was registered by the Tribunal as
suit No.313/1998. Upon notice, both the respondents appeared and
contested the case. After inquiry, the Tribunal passed the judgment
dated 17.05.2000 holding that the claimants had failed to prove that the
accident had occurred due to rash or negligent driving of the Maruti van
by its driver, thereby disbelieving the testimony of Suresh Kumar (PW-
5), concededly the solitary witness produced by the claimants in support
of contentions to such effect.
3. The appeal at hand was presented in August, 2000 to challenge
the said finding and result of the claim case. It has remained hanging
fire for over 15 years in this Court for reasons wholly and solely of the
appellants/claimants and their counsel. Effective steps were not taken
for proper prosecution. The appeal was dismissed in default on
20.07.2011, but restored on application by order dated 18.07.2013.
Thereafter, on 08.08.2013 again none appeared for the appellants
resulting in the appeal being dismissed in default and for non-
prosecution. The application for restoration was filed but once again
suffered to be dismissed in default and for non-prosecution on
09.09.2013. Once again, the appeal was restored by order dated
10.07.2014 and, yet, in the wake of the said order, the counsel for the
appellants failed to appear on the very next date.
4. Be that as it may, arguments have been finally heard today and in
the course of the hearing, the learned counsel has presented the certified
copy of the charge-sheet with accompanying documents including the
certified copy of the site plan prepared by ASI Bhoop Singh, on
09.08.1990 at the scene of accident. It only needs to be observed that
though the certified copy of this all important document had been
available to the counsel for the appellant since 14.08.1996, he has
retained it on his file and not shared it with the Tribunal or the Court for
the last so many years. So much for the vigilant prosecution or
assistance by an advocate at bar! This Court can only empathize with
those who had relied upon the counsel for effective prosecution of their
legitimate interests.
5. The oral testimony of Suresh Kumar (PW-5) was disbelieved by
the Tribunal for the reason his name was not mentioned in the MLC or
in the FIR. From these two omissions, he was disbelieved on the
reasoning that he could not possibly have been moving on his separate
scooter alongside that of the deceased scooterist at the time of the
accident. Even if the reasoning given by the Tribunal to disbelieve the
oral evidence of PW-5 were to be upheld, it cannot be ignored that the
FIR, as already presented before the Tribunal during the inquiry, and the
charge-sheet certified copy of which has now been submitted before this
Court clearly show the involvement of the Maruti van of the first
respondent in the collision against the scooter of the deceased. The fact
that the said collision took place on account of rash driving on the part
of the driver of the Maruti van is eventually brought out by the site plan
prepared by ASI Bhoop Singh at the scene of accident. It shows, as was
also stated by PW-5, that the scooterist was moving towards ISBT i.e.
from the direction of east to west across Yamuna river. The evidence
also shows that the Maruti van had approached the scene from the
opposite side i.e. west to east. When ASI Bhoop Singh reached the spot
he found the Maruti van extreme left side pavement of the carriage way
from east to west. This, coupled with the skid marks of the tyres of the
Maruti van, also noticed by the Investigating Officer, confirming the
approach of the said vehicle from the opposite direction, leaves no room
for doubt as to the fact that the collision occurred because the Maruti
van had come in the wrong lane. Applying the principle of res ipsa
loquitur, the negligent driving on the part of the driver of the Maruti van
is writ large on the facts and circumstances of the case.
6. Since sufficient material was not placed before the Tribunal, it
went solely by the word of PW-5. None the less, since the corroborating
material has now been submitted before this Court, justice demands that
the appeal be allowed and the finding against the claim that the accident
had occurred due to rash or negligent driving on the part of the
respondent be upturned.
7. Ordered accordingly.
8. The learned counsel on both sides fairly agrees that since the
Tribunal did not apply its mind to the computation of compensation, it is
just and proper that the matter to that extent is remanded. Thus, the
issue of computation of compensation is remitted to the Tribunal for
adjudication. The counsel for the appellants (claimants) submits that
evidence on this issue has already been adduced and no further evidence
is required to be furnished. The counsel for the insurance company
submits that he would check if any evidence in rebuttal has to be
adduced. The Tribunal shall inquire from both sides afresh as to
whether any further evidence is to be brought on the above noted
subject.
9. The parties are directed to appear before the District and Sessions
Judge, North-East on 30.03.2016. The learned District and Sessions
Judge, North-East is requested to assign this claim case for
aforementioned short inquiry and fresh adjudication to the Tribunal with
appropriate jurisdiction. Having regard to the very old pendency of this
claim case, the Tribunal is requested to complete the proceedings and
pass a final judgment (award) as early as possible, not later than four
months from the date now fixed for first appearance.
10. The neglect on the part of the claimants and counsel has been
noted at length above. Needless to say that this shall have a bearing on
the claim towards interest. For facilitating its proceedings, and
completeness of its record, the certified copy of the charge-sheet
presented before this Court, along with copy of the proceedings
recorded in this appeal till date, shall be sent to the Tribunal with its
record. A copy of the charge-sheet, however, shall be retained on the
file of the appeal.
11. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
FEBRUARY 01, 2016
VLD
