Delhi High Court
Usha Devi And Anr vs Shishu Pal Singh And Ors on 23 August, 2017
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23rd August, 2017
+ MAC.APP. 499/2017
USHA DEVI AND ANR ..... Appellants
Through: Mr. S.N. Parashar & Ms.
Pankaj Kumari, Advs.
versus
SHISHU PAL SINGH AND ORS ..... Respondents
Through: Ms. Shipra Garg for Mr.
Gaurang Kanth, Adv. for R-2.
Mr. J.P.N. Shahi, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Vijay Bahadur Yadav, described as 17 years old youth, riding
on motorcycle bearing registration no. DL 8S BG 5706 (the
motorcycle) was involved in a motor vehicular accident that occurred
on 7.30 p.m. 26.04.2015 and died in the consequence. The appellants,
being his parents, instituted accident claim case (suit no. 57347/2016)
on 21.08.2015 on the averments that the accident had been caused due
to negligent driving of bus bearing registration no. DL 1PC 6638 by
the first respondent, it being registered in the name of the second
respondent and admittedly insured against third party risk with the
third respondent for the period in question, each of whom were
impleaded as respondents. The first respondent contested by filing
written statement not denying the collision between the two vehicles
but stating that the accident had occurred because the deceased
himself was negligent, he having suddenly stopped the motorcycle,
without warning, on which account the bus had struck his vehicle from
behind. The third respondent, by its written statement, set up its usual
defences. No written statement was filed by the second respondent
inspite of due notice and opportunity.
2. The tribunal framed issues on 30.11.2015 and thereafter called
upon the claimants to adduce evidence. Two witnesses were examined
by the claimants, they including the first appellant Usha Devi (PW-1)
and Vishal Yadav (PW-2), the latter being the brother of the deceased
and described as an eye witness. Noticeably, the accident was also
subject matter of investigation by the police through FIR No.
518/2015 registered with police station Burari. The police had also
submitted detailed accident report (DAR) based on the evidence
collected in the course of investigation into the said FIR, it being
(Ex.PW-1/5 collectively).
3. The tribunal, however, dismissed the claim petition, by the
impugned judgment dated 28.01.2017, declining to grant any
compensation holding that the accident had occurred because the
deceased himself had violated the law, he being not legally competent
to drive a motorcycle and, thus, being the sole person guilty of
negligence.
4. It is the above view which is assailed by the appeal at hand.
5. It is necessary to extract the reasons set out by the tribunal in
the impugned judgment to comprehend their import:-
"This being a petition u/s 166 M.V. Act, the
primary duty is of the petitioner to prove negligence on
the part of the respondent.
As far as the negligence on the part of the
Respondent No.1 is concerned, though nothing has been
claimed but it is pertinent to mention that as per the
narration of the accident as given by the eye witness PW-
2 on whose statement the FIR was registered and as per
the claim petition itself, the deceased was a minor child
of 16 years.
The deceased being a minor was not legally
competent to drive a motorcycle but still driving the
same.
Accordingly, it is very clear that the deceased who
was not even competent to obtain a driving licence being
a minor, by driving the motorcycle on a public road had
violated the law and was accordingly guilty of not
contributory negligence but guilty of sole negligence on
his part. Though no evidence has been led by the
Respondents but the Court is of the opinion that what
was the need of any evidence from their side in view of
the clear cut fact of the case.
Though the Court's sympathy is totally with the
claimants as they have lost their minor son but in view of
the facts and circumstances of the case when they have
allowed their minor son to drive a motorcycle on the
public road despite not legally entitled to do the same,
granting them any compensation under the Motor
Vehicle Act merely on the sympathy ground will
tantamount to encouraging such parents and such minors
to drive the vehicle without having legal age or
qualification encouraging not only their life but life of
other Road users and as a result of which accident
happen on account of their own incompetence, the Court
will itself be guilty of breaking the law and encouraging
the law breakers."
6. The approach of the tribunal was wholly misdirected. The
tribunal has not cared to examine the testimony of PW-2 to find out
whether there was any negligence on the part of bus driver. There is
no basis to the conclusion that the deceased was solely responsible for
the accident, this against the backdrop of facts that the bus had hit
against the motorcycle from behind. It may be that the deceased was
yet to come of age to have the capacity and competence to drive a
motorcycle on public roads. But then, from this fact alone, the other
evidence available in the form of report of the police reflecting
negligence primarily of bus driver could not have been sidelined.
Pertinent to add here that the bus driver, inspite of opportunity, did not
enter the witness box to affirm that the motorcycle moving ahead had
suddenly applied breaks resulting in the collision. There being no
basis to accept the pleadings to such effect, it was unfair to dismiss the
claim case with the observation to the effect that the claimants had
improperly "allowed the minor son" to go out on public road on the
motorcycle.
7. For the foregoing reasons, this Court holds that the evidence led
by the claimants has proved the negligence of the bus driver thereby
justifying their claim for compensation under Section 166 of Motor
Vehicles Act. The finding returned by the tribunal to the contrary is,
thus, set aside.
8. Since the tribunal did not undertake the necessary exercise in
such regard, the claim case is remitted to it for determining the
compensation payable to the claimants. Since both sides have led
evidence even on that issue, the tribunal shall pass the necessary order
after affording a hearing to the parties. Needless to add, such exercise
should not take long time and, therefore, it is expected that the tribunal
will render the award at an early date.
9. The parties shall appear before the tribunal on 22nd September,
2017.
10. The appeal is disposed of in above terms.
R.K.GAUBA, J.
AUGUST 23, 2017
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