Delhi High Court
Vandana Sharma vs Sarva Priya Parashar on 2 November, 2017
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 2nd November, 2017
+ MAC APPEAL No. 1090/2016
VANDANA SHARMA ..... Appellant
Through: Mr. Vishal Sharma, Mr. Anish
Shreshtha, Mr. Sagar Mukherjee
& Mr. Nishchal Joshi, Advs.
versus
SARVA PRIYA PARASHAR ..... Respondent
Through: Respondent in person.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appeal is directed against the judgment dated 06.08.2016 of
the Tribunal whereby the claim petition (petition no. 194/2014) of the
appellant was dismissed.
2. The appellant claims to have suffered injuries in a motor
vehicular accident that occurred on 02.02.2014 at about 7.30 p.m. near
Qutub Minar Metro Station, Mehrauli, New Delhi on Gurgaon-
Mehrauli Road. As per her case, she was hit by motorcycle bearing
registration no. DL 1SN 6065 driven in a rash or negligent manner by
the respondent. The police had registered a criminal case vide first
information report (FIR) No. 170/2014 at Police Station Mehrauli, for
investigation into offences allegedly committed under Sections
279/337 of Indian Penal Code, 1860 (IPC). The investigating police
officer submitted a detailed accident report (DAR) before the motor
accident claims tribunal of South District on 19.03.2014. Alongside
the said submission of DAR, the respondent was also produced in
person, the appellant having appeared through counsel. The tribunal
adjourned the matter awaiting the result of efforts for amicable
settlement.
3. On 27.03.2014, to which the matter was adjourned, no effective
proceedings could take place as the appellant was absent. The matter
was adjourned to 29.04.2014 when the counsel for the appellant was
present besides the respondents appearing in person. The tribunal
adjourned the matter to 26.05.2014 requiring written statement to be
filed by the respondents. The proceedings recorded on 26.05.2014 are
mostly illegible, though giving the impression that copy of the petition
was supplied. From this, it is assumed that the appellant had filed the
formal application under Section 166 of Motor Vehicles Act, 1988,
such application being available on record of the Tribunal (pages 53-
65), it bearing the date 26.05.2014, supported by a affidavit sworn on
the said date. The matter was adjourned for filing written statement on
14.07.2014.
4. On 14.07.2014, the Tribunal noted, inter alia that "WS (was) not
filed by the respondents despite opportunity" and having recorded this,
proceeded to strike off the defence of the respondents.
5. Thereafter, issues were framed and the matter was adjourned for
claimant's evidence. The claimant examined herself (as PW-1) on the
strength of her affidavit (Ex.PW-1/A) on 29.08.2014. She then
examined two more witnesses on 30.10.2014, such further evidence
relating to her medical examination and treatment. She closed her
evidence on 08.01.2015.
6. The matter was adjourned on several dates thereafter for various
reasons including the non-availability of the presiding officer of the
Tribunal. On 22.12.2015, the Tribunal closed the opportunity for the
respondents to lead evidence observing that "enough opportunities"
had already been given. It may be mentioned here that on all the
preceding dates there was no occasion or opportunity for the
respondent to actually lead any evidence. Be that as it may, it may
further be added that on subsequent dates, the petitioner sought
opportunity to lead additional evidence but then did not produce any
further witness. The petition was dismissed by judgment dated
06.08.2016, the prime reasons set out in the judgment being as under:-
"To prove rash and negligent on the part of the driver,
petitioner examined herself as PW-1 and filed her affidavit
and deposed stating that on 02.02.2014 at about 7.30 p.m.,
she was coming back from parental home to in-laws house
and when she reached at Qutub Minar Metro Station Bus
Stand and when was about to cross the road towards Qutub
Minar Metro Station on foot, in the meantime a motor cycle
bearing No. DL 1SN 6065 (Black Yamaha Fazer) came from
Gurgaon Side in a rash and negligent manner by its driver
and hit the deponent with great force and due to this
forceful impact, she fell down on the road and sustained
multiple grievous injuries on whole over body of the
deponent and also received a head injuries and leg. The
witness was cross-examined by Respondent wherein the
defence was raised that the accident took place due to the
mistake of the injured as she was not crossing the road from
Zebra crossing.
I have heard the arguments and have perused the record.
It is an admitted position from the site plan that at the place
of the accident there was no zebra crossing. It is also an
admitted position that the accident has taken place while the
injured was crossing the road. From the testimony of PW-1
it cannot be made out as to whether the accident due to the
fault of respondent or the petitioner herself. Needless to say
that it is the duty of pedestrians to be cautious while
crossing the road and they should see the condition of
traffic before coming on the road. The victim was along
with her sister and the possibility that both of them would
have been talking while crossing the road or coming on the
road from footpath cannot be ruled out. It is also pertinent
to mention here that the accident has taken place just close
to the Qutub Minar Metro Station Bus Stand and it is quite
possible that the victim would have stepped on the road to
cross the road without noticing the traffic on the road and
the respondent would not have been able to apprehend such
situation that someone would come on the road from the bus
stand and accident took place. It is an admitted position
that respondent was going straight on the road on the
motorcycle and if someone comes on the road without
noticing the traffic, then the motorcycle driver cannot be
held liable for negligence as no evidence has come on
record as to how he was negligent, merely by using the
expression that the vehicle was driven rashly and
negligently, does not serve the purpose and it is not
sufficient to hold anyone negligent on its own unless some
evidence comes with respect to manner of driving. Hence,
this issue stands decided against petitioner."
7. To say the least, the approach of the Tribunal to the inquiry
leaves much to be desired. The respondent actually did not have any
effective opportunity to represent his side of story. Though he has been
insisting on appearing in person at the hearing on the appeal, he
submitted that his request for legal aid was declined orally. There was
no occasion for his defence to be struck off as it was wrong to assume
that enough opportunities had been given for the purpose. The
adjournments were all along for reasons attributable to the appellant
herself. Even the right to lead evidence by the respondents was short-
shrifted.
8. But then, the question also is as to whether the Tribunal has
appreciated the evidence of the claimant properly or not. It is not clear
as to from where the Tribunal assumed that the appellant was
accompanied by her sister and that they would have been talking to
each other and, therefore, she was negligent while crossing the road
from one side to the other of a busy road. The Tribunal seems to have
gone more by assumptions and conjectures than material on record
which is most inappropriate, unjust and unfair.
9. Against the above backdrop, during the hearing, the appellant's
counsel submitted that the claim case may be remitted to the Tribunal
for further inquiry as the appellant would like to lead further evidence.
Having regard to the slip-shod manner in which the claim case has
been proceeded with by the Tribunal, this request appears to be just and
proper.
10. Thus, the appeal is allowed. The impugned judgment is set
aside. The claim case is remitted to the tribunal for further inquiry.
Before proceeding further, the Tribunal shall examine if the respondent
is entitled to services of the legal aid counsel and, if so, make
appropriate arrangements in such regard. If the respondent is not
entitled to legal aid at State expense, he shall be given proper
opportunity to engage counsel on his own and to file a formal reply to
the claim petition. Needless to add, the tribunal shall begin the further
proceedings from the stage of pleadings thereafter giving opportunity
to both sides to lead evidence.
11. The parties are directed to appear before the tribunal on 1st
December, 2017.
12. The appeal is disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 02, 2017
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