Delhi High Court
The General Manager Karnataka ... vs Rishi Pal Saini And Ors on 31 August, 2017
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 31st August, 2017
+ MAC.APP. 853/2013
THE GENERAL MANAGER KARNATAKA STATE
TRANSPORT ..... Appellant
Through: Mr. Radhakrishna S. Hegde, Advocate
with Mr. Rakesh Saini, Advocate
versus
RISHI PAL SAINI AND ORS ..... Respondents
Through: Mr. Zakir Hussain, Advocate for R-1
& R-2
Mr. K.N. Bhargavan, Advocate for
R-6.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Hemant Kumar Saini, a bachelor, son of the first and second
respondents (collectively, the claimants), was travelling in a car make
Indica bearing registration No.GA-01-E-3751 (the car) on 10.08.2008
from Panaji to Old Goa. When the car had reached at bypass road in
the area of Baiginim, Goa at about 03:00 hours, it was involved in a
collision against bus bearing registration No.KA-34-F-626 (the bus)
and as a result of injuries suffered in the process Hemant Kumar Saini
expired. The claimants instituted accident claim case (MACT
No.349/10/2009) on 21.02.2009 before the Motor Accident Claims
Tribunal (the tribunal) at New Delhi, in as much as they are residents
of Delhi. In the said claim petition, the appellant herein was
impleaded as second respondent, it concededly being the owner of the
bus. The driver of the bus was also impleaded as first respondent in
the claim petition. In addition, the claimants also impleaded the owner
and insurer of the car, they being sixth and seventh respondents in the
appeal, this, besides two persons described as driver of the car, they
being Subhojit Ghatak and Sita Ram Jadhav (fourth and fifth
respondents respectively). The averments in the claim case clearly
were that the drivers of both the vehicles were rash or negligent,
giving rise to the cause of action.
2. In the inquiry, the claimants examined the first respondent
(father of the deceased) as witness (PW-1) to bring home the
necessary facts concerning the loss of dependency and also to prove
on record the corresponding documents relating to the criminal case
registered and investigated by the police, besides one Gopi Nathan
(PW-2), an official from the office of employer of the deceased. On
the other hand, on the part of the appellant, its driver (third respondent
herein) appeared as witness in defence (R1W1) on the strength of his
affidavit (Ex.R1W1/A). The fourth respondent (Subhojit Ghatak),
who was described in the claim petition as "alleged driver" of the car,
appeared in evidence (R3W1) on the basis of his affidavit
(Ex.R3W1/A) denying that he was the driver of the car at the relevant
point of time, his claim being that he was travelling as a passenger on
the rear seat. The other person described in the claim petition as the
driver, i.e., Sita Ram Jadhav (the fifth respondent), and the registered
owner of the car (the sixth respondent), also appeared as witnesses
(R4W1 and R5W1) on the strength of their respective affidavits
(Ex.RW4/A and RW5/A) respectively. The effect of the evidence of
the said last two witnesses essentially is that the car was driven by the
said Sita Ram Jadhav (fifth respondent), though his version being that
the accident had occurred solely due to negligence on the part of bus
driver. For completion of narration, it may be mentioned that the
insurer of the car also examined a witness Ramnique Sachar (R6W1)
to bring on record the omission on the part of the registered owner of
the car to respond to a notice under Order XII Rule 8 of the Code of
Civil Procedure, 1908 (CPC) requiring certain documents to be
brought out.
3. By judgment dated 04.09.2012, the tribunal held the bus driver
guilty of negligence leading to the fatal accident. It awarded
compensation in the sum of Rs.55,71,000/- (Rupees Fifty Five Lakhs
Seventy One Thousand only) and fastened the liability on the driver
and owner of the bus, jointly and severally, requiring the said
compensation to be paid with interest @ nine per cent (9%) per
annum.
4. The grievance of the appellant (owner of the bus) is that its
contention about there being no negligence on the part of bus driver or
the case of the claimants about it being a case of negligence on the
part of drivers of both the vehicles has not even been considered nor
adjudicated upon, the liability having been fastened wholly on the bus
driver unfairly.
5. After some arguments, the learned counsel for the claimants
fairly conceded that the judgment impugned by the appeal at hand is
conspicuously silent on the above two crucial issues from which the
liability would flow. His request is that the matter may be remitted to
the tribunal for a clear decision after considering the evidence led in
entirety.
6. In the foregoing facts and circumstances, the appeal is allowed.
The impugned judgment is set aside.
7. The tribunal is called upon to render a fresh decision after
taking into account the evidence in entirety, addressing the issue of
negligence from the perspective not only of the case as set up by the
claimants in the claim petition but also the defences that were raised
and which were sought to be substantiated by the evidence of the
aforementioned witnesses.
8. In the appeal, the computation of the compensation was also
assailed on various grounds. The contentions in such regard are
reserved and may be agitated before the tribunal for appropriate
decision.
9. By order dated 20.09.2013, the appellant had been directed to
deposit sixty per cent (60%) of the awarded amount with upto-date
interest with the Registrar General of this court which was allowed to
be released to the claimants in terms of the impugned judgment. It
appears that after some deficiency, the appellant complied with the
said directions by depositing an amount of Rs.47,21,588/-, as noted in
the proceedings recorded on 24.02.2014. However, on the application
made by the claimants, by order passed on the said date
Rs.37,00,000/- (Rupees Thirty Seven Lakhs), was allowed to be
released from such deposit. The balance lying in deposit shall be
presently refunded to the appellant with interest that would have
accrued thereupon. The amount already received by the claimants
would be liable to be adjusted as and when the tribunal renders a fresh
decision. If any excess has been paid to the claimants over and above
the liability that is determined by the tribunal in the fresh judgment to
be passed appropriate directions shall be issued in such regard by the
tribunal.
10. The parties are directed to appear before the tribunal for further
proceedings in above light on 10th October, 2017. Needless to add, the
tribunal will hold expeditious proceedings so as to render its fresh
decision at an early date.
11. The statutory deposit shall also be refunded to the appellant.
12. The appeal stands disposed of in above terms. Dasti.
R.K.GAUBA, J.
AUGUST 31, 2017
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