Ali Mohmmad Khan vs Pinki & Ors
2016 Latest Caselaw 3688 Del

$~7

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Date of Decision: 17.05.2016
+             MAC.APP.942/2014 & CM no.17332/2014

       ALI MOHMMAD KHAN                         .... Appellant
                   Through:Mr. Kartickay Mathur, Advocate

                         versus

       PINKI & ORS                                    ..... Respondents
                         Through: Mr. Navneet Goyal, Advocate for R-1 to
                         3

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

R.K.GAUBA, J (ORAL):

1. Ravinder, aged 24 years, suffered injuries seemingly in a motor vehicular accident that had occurred on 02.11.2008 in the area of Dharam Kanta, Nahri Village, District Sonepat, Haryana and died in the consequence. His widow, two children and father, first to fourth respondents herein (claimants) instituted an accident claim case (MACT 108/2009) on 20.01.2009 seeking compensation under Sections 166 and 140 of the Motor Vehicles Act, 1988 (M.V. Act). In the said case, it was alleged that the accident had been caused by a tractor trolley bearing registration no.HR- 10K-1195 (tractor) which had hit against the motor cycle bearing registration no.DL-8S- AA 5986 driven by the deceased at the relevant point of time. The said tractor is admittedly registered in the name of the

appellant, Ali Mohmmad. Khan (owner). It appears it was financed by M/s. Mahindra and Mahindra Financial Services Ltd., a party which was additionally shown in the array before the tribunal. The claimants‟ averment in the case before the tribunal was that the tractor had been driven at the relevant point of time by one, Rajuddin (impleaded as first respondent before the tribunal) in a negligent manner and that the accident had been seen by Narender (PW-2).

2. The appellant and Rajuddin (who is his son) filed a joint written statement before the tribunal denying involvement of the tractor in the accident or negligent driving thereof being the cause for the fatality. The claimants led evidence by examining Narender (PW-2). The tribunal‟s record shows that though the said witness described the sequence of events wherein an accident had occurred involving the motor cycle and the tractor trolley loaded with bricks, he conceded during his cross-examination that there was no registration number displayed on the said vehicle. Instead, the description depicted was „555D1-AF‟, thereby indicating that the registration certificate had still not been received, the number having been "applied for". PW-2 also contradicted the case of the claimants by deposing that the tractor driver which had been caught after some time had disclosed his identity as one Nishad.

3. The tribunal seemed to be in doubt as to whether the tractor was driven by Rajuddin or not but it proceeded on the assumption that "indisputably" the death had occurred in an accident involving the tractor in question. It appears this assumption was made on the basis of certified

copies of the record of the corresponding criminal case which also had been submitted.

4. The contention of the appellant, who has been held liable to pay compensation by the tribunal by judgment dated 20.08.2014 is that the finding recorded by the tribunal as to the involvement of the tractor and negligence on the part of its driver is perverse. It is argued that the evidence of PW-2 instead showed that the tractor owned by the appellant could not have been involved in the accident. Reliance is also placed on the judgment of the majestrial court whereby Rajuddin who was prosecuted on the charge of having caused death due to negligent driving of the tractor was acquitted, the evidence of Narender (PW-2) having been disbelieved.

5. Whilst this court agrees with the submission of the counsel for the claimants that the judgment of the criminal court cannot clinch the issue or govern the fate of the proceedings at hand in as much as the test here is not of proof beyond all reasonable doubts but of preponderance of probabilities, the fact remains that proper evidence as to the involvement of the tractor has not been mustered on record. The counsel for the claimants fairly conceded that, in the given facts and circumstances, where the evidence of PW-2 was not clear enough about the identity of the vehicle which had caused the accident, the proper course would have been to examine the investigating police officer of the corresponding criminal case to bring on record the sequence of the probe whereby involvement of the tractor in question had been confirmed. With this concession, the learned counsel for the claimants submitted that the appeal may be allowed and another opportunity may be granted to the claimants to examine the investigation police officer to prove

their case. On being asked, the counsel for the appellant responded by submitting that he has nothing to say on the request for the inquiry to be remitted.

6. Thus, the appeal is allowed. The impugned judgment is set aside. The matter is remitted to the tribunal for further inquiry. During the further inquiry, the claimants shall be granted an opportunity to lead additional evidence. Needless to add, the parties which contest shall be entitled to cross-examine the witnesses of the claimants and also lead evidence in rebuttal, if any.

7. It is noted that in terms of order dated 17.10.2014, the appellant had deposited `4 Lakh which was released to the claimants as per the impugned judgment. The counsel for the appellant submits that he also paid `50,000/- towards the interim award under Section 140 of the M.V. Act. The amounts thus paid by the appellant to the claimants shall be subject to the adjustment or necessary directions in accordance with the fresh adjudication.

8. The parties shall appear before the tribunal on 11.07.2016. Given the old pendency, the tribunal is requested to conclude further proceedings expeditiously preferably within six months of the date of first appearance fixed as above.

9. The statutory deposit, if made, shall be refunded.

10. The appeal and the pending application are disposed of in above terms.

R.K. GAUBA (JUDGE) May 17, 2016/yg