Mahesh vs Sawitar Kaur & Ors
2017 Latest Caselaw 4418 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Decided on: 24th August, 2017
+     MAC.APP. 462/2015 and CM APPL.10244/2015 (stay)
      MAHESH                                       ..... Appellant
                    Through:      Mr. Roshan Santhalia, Advocate

                         versus

      SAWITAR KAUR & ORS                 ..... Respondents
              Through: Ms. Kiran Jai, Advocate with
                       Ms. Kajal Bhati, Advocate for R-1.
                       Mr. Prashant Kumar, Adv. for
                       Mr. M.M. Singh, Adv. for R-2.

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

                    JUDGMENT (ORAL)

1. The first respondent (claimant), then about 75 years old, was crossing road as a pedestrian when she was concededly hit by a car bearing registration No.DL-2CB-4706, which was admittedly registered on the relevant date in the name of the second respondent (owner), and suffered injuries on 16.12.2009. The accident claim case (Suit No.258/2010) was instituted by her seeking compensation under Sections 166 and 140 of the Motor Vehicles Act, 1988 impleading the appellant (as the first respondent) with the averments that he was the driver of the car on the relevant date and time, the accident having occurred due to negligence on his part. The owner of the vehicle

(second respondent herein) was impleaded on account of the case of the claimant about he being vicariously liable. The third respondent was also added to the fray with the averments that she was travelling with the appellant in the car at the relevant point of time.

2. The case was contested by all the party respondents. The second and third respondents filed joint written statement disowning any liability, taking the position that the accident had occurred due to negligence on the part of the claimant herself with clear averments to the effect that the third respondent had no connection, she neither being owner nor the driver of the car.

3. The appellant in his contest by way of written statement pleaded that he was employed with a private entity (jeweler) where the third respondent was also employed at a higher position. It was his case that the third respondent did hold only a learner's licence and since he was in possession of a valid licence giving him competence to drive, he would accompany her in the car, his case being that on the relevant date and time he was travelling as a passenger sitting next to the driver seat, vehicle being driven by the third respondent.

4. The case was put to inquiry by the tribunal. Midway the proceedings, the second respondent opted to suffer the case ex parte. After having filed the written statement he would not appear or participate in any of the proceedings. The third respondent remained present for some time but at the stage of evidence she also chose to stay absent from the proceedings and, despite opportunity, no evidence was led on her behalf.

5. The claimant led evidence including by examining herself as PW-1 on the strength of her affidavit (Ex.PW-1/1) in which she affirmed on oath that the car was driven at the relevant point of time by the appellant herein and further that he was negligent in the said driving which had resulted in the accident. During cross-examination, however, she showed some hesitation by stating that she had not seen the driver of the offending vehicle which had come from behind. She was, however, very sure that the appellant and the third respondent were travelling in the car at the time of the accident. She was categorical in stating that it was the appellant who had driven the vehicle taking her to the hospital. She was unable to state whether the third respondent was the driver at the relevant point of time.

6. The appellant examined himself as R1W1 on the strength of his affidavit (Ex.R1W1/1) in which he reiterated the pleadings in the written statement as noted above. Noticeably, it was put to him during cross-examination on behalf of the claimant that it was he who was driving the vehicle at the time of the accident.

7. The accident was also subject-matter of investigation by police which had registered FIR No.190/2009 under Sections 279/338 of the Indian Penal Code, 1860 and also for offences under Section 146 and 196 of the Motor Vehicles Act, 1988 at Police Station Parliament Street. It appears that the evidence gathered by the appellant during the investigation had pointed finger at the appellant as the driver of the vehicle, the accident having occurred and the claimant having been injured due to his negligence. This was part of the gravamen of the

accusations on which he was put to trial for the said offences in the case registered as criminal case No.192/2002 of 2011. The said case resulted in a trial but ended in a judgment of acquittal dated 26.03.2014. The appellant relies on the said judgment of the acquittal of the Magisterial Court, its copy having been submitted as Annexure- 6 of the appeal.

8. It is noted that prosecution in the aforesaid case was unable to have the summons served on the claimant and it is on account of such failure, in spite of the repeated opportunities being given, that the criminal court felt constrained to close the evidence by order dated 14.03.2014. It is against the said backdrop that the Magistrate held that without the evidence of the claimant (complainant in the said case), the finding about the role or manner of driving on the part of the accused (the appellant herein) could not be returned and thus he was given the benefit of doubts arising and acquitted.

9. The tribunal, however, was not impressed with the defence taken by the appellant. It accepted the evidence of the claimant and returned a finding that the accident had occurred due to negligent driving on the part of the appellant holding him to be the principle tort-feasor and the second respondent or the registered owner of the vehicle vicariously liable. The tribunal awarded compensation in the sum of Rs.1,30,794/- and by the impugned judgment dated 07.03.2014 directed the appellant and the second respondent herein to be jointly and severally liable, each being called upon to pay the compensation.

10. In terms of the orders passed during the pendency of this appeal, the second respondent has paid fifty per cent (50%) of his liability in terms of the impugned award to the claimant (the first respondent). The learned counsel for the claimant at the hearing, submitted that even the appellant has substantially discharged his liability, the balance outstanding payable by him being Rs.12,993/- only, some portion deposited by the appellant held in the form of fixed deposit receipt taken out with UCO Bank, Delhi High Court.

11. Having heard the learned counsel for the appellant and the counsel representing the claimant on the question of fact as to who was at the driving wheel of the car on the crucial time, this court finds the conclusions reached by the tribunal do not call for any interference. There is abundant material on record to substantiate the word of the claimant in her examination-in-chief stating that it was the appellant who was the driver at the relevant point of time, he also being the driver of the car when it was used to take her to the hospital after the accident. The acquittal in the corresponding criminal case is inconsequential, the test in both jurisdictions being entirely distinct. On the criminal charge, it was the burden of the prosecution (i.e. the State) to prove the guilt of the appellant (accused in those proceedings) beyond reasonable doubts. It is not a case where the claimant had appeared as a witness in those proceedings and had deposed facts contrary to the case set up by her in the jurisdiction of motor accident claim. The prosecution was unable to even locate her

and secure her presence. She cannot be disbelieved on account of failure of the State to examine her as a witness for the prosecution.

12. It does appear that during her cross-examination the claimant had some hesitation in reaffirming that it was the appellant who was the driver at the relevant point of time. But then, due regard has to be given to the fact that she was a octogenarian and, therefore, her faculties, particularly, mental faculties would have got eroded by the time her turn came to testify. The initial inputs given by her had led to the appellant being arrested and sent up for trial. The test of preponderance of probabilities justifies the conclusions returned by the tribunal.

13. In above view, the appeal must fail. It is dismissed.

14. The registry shall calculate the balance liability of the appellant and avail the statutory deposit of Rs.25,000/- made by the appellant to satisfy balance of the claim of the claimant qua him, refunding the excess to the appellant.

15. The appeal along with accompanying application stands disposed of in above terms.

R.K.GAUBA, J.

AUGUST 24, 2017 vk