Delhi High Court
V.K. Sharma vs Rajwati & Ors. on 13 October, 2017
$~R-325 to R-327
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 13th October, 2017
+ MAC APPEAL 384/2011
V.K. SHARMA .... Appellant
Through: Mr. S.M. Suri, Advocate
versus
RAJWATI & ORS. ..... Respondents
Through: Mr. Priyadarsi Acharya for Mr.
K.L. Nandwani, Advocate for
R-8
+ MAC APPEAL 388/2011
V.K. SHARMA .... Appellant
Through: Mr. S.M. Suri, Advocate
versus
UMA SHANKAR & ORS. ..... Respondents
Through: Mr. Priyadarsi Acharya for Mr.
K.L. Nandwani, Advocate for
R-3
+ MAC APPEAL 392/2011
V.K. SHARMA .... Appellant
Through: Mr. S.M. Suri, Advocate
versus
SUMAN SHARMA & ORS ..... Respondents
Through: Mr. Priyadarsi Acharya for Mr.
K.L. Nandwani, Advocate for
R-3
MAC Appeal No.384/11, 388/11, 392/11 Page 1 of 5
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 10.07.2005, a motor vehicular accident took place involving
two vehicles, one being Maruti Van bearing registration no.DL-2CR-
9406 (van) and, the other, a stationary bus bearing registration no.DL-
1PB-3966 (bus) in the area opposite of Maurya Sheraton Hotel at
Sardar Patel Marg, Chanakya Puri, New Delhi. At least three persons,
all of them travelling in the van, suffered injuries, they including (Raj
Kumar Sharma), Uma Shankar and Virender, the former Raj Kumar
Sharma dying in the consequence. Three accident claim cases were
filed, they including one (suit no.55/2010) on account of death of Raj
Kumar Sharma and, the others (suit nos.53 and 58/2010), for injuries
suffered by Uma Shankar and Virender. The said three cases under
Section 166 of the Motor Vehicles Act, 1988 were clubbed for
inquiry and decided by common judgment dated 07.02.2011. In each
of the said cases, besides Pradeep Kumar, the driver of the van, its
registered owner, V.K. Sharma (the appellant in these matters) were
impleaded as respondents in addition to New India Assurance Co. Ltd.
(insurer) which had issued an insurance policy against third party risk.
2. Pertinent to add here that the insurer during inquiry took the
plea that there was breach of the terms and conditions of the insurance
policy particularly on the ground that the vehicle was a private car but
was being used for commercial purposes, it carrying persons who had
taken the van for hire. This plea was accepted by the tribunal and
while the insurer was directed to pay the compensation determined by
judgment in favour of the respective claimants in the three cases, it
was granted recovery rights against the appellant. These appeals
challenge the grant of recovery rights in the aforesaid three cases.
3. Having heard the learned counsel for the appellant and having
gone through the record of the inquiry of the three claim cases which
was decided by a common judgment, this court holds that the findings
returned by the tribunal are based on sound reasons and borne out by
the evidence which was led.
4. It is pertinent to note that in their claim petition Rajwati and
others members of the family dependent on the deceased Raj Kumar
Sharma, (respondents in MACA 384/2011) had specifically pleaded
that the van had been taken "on hire". This is a fact which was
substantiated by her appearing in evidence (as PW1) on the basis of
her own affidavit (Ex. PW1/1). During the cross-examination, it was
admitted by her that the vehicle had been taken on hire by Virender,
one of the other claimants (injured), for which reason she was not
aware as to what were the hire charges settled. She clarified that the
van was owned by some known person.
5. Virender, one of the persons injured in the same accident also
appeared as a witness (PW-3), his examination-in-chief having been
recorded on 03.12.2007 on the strength of his affidavit (Ex. PW3/A),
the said witness having been cross-examined by the counsel for the
insurer on that very date and by counsel representing the driver on the
next date i.e. 11.08.2008. It is relevant to mention here that at that
stage the appellant had chosen to suffer the proceedings ex parte as he
would not appear inspite of having due notice of the pending inquiry.
During cross-examination, the said Virender (PW-3) appearing in the
course of inquiry into the claim case on account of death of Raj
Kumar Sharma under cross-examination on 03.12.2007, on being
pointedly asked, stated that he had no document to show that the van
had been hired by him (though explaining that the document in such
regard was available with him in the pocket of the dress he was
wearing at the time of the accident, which had been misplaced)
reiterating that the van had been taken on hire from Brij Vihar. Under
continued cross-examination on 11.08.2008, he stuck to the position
that the van had been taken on hire by him.
6. It is interesting to note that Virender, the said very person, who
had appeared as a witness at the instance of Rajwati on account of
death of her husband, Raj Kumar Sharma in his own case appeared as
witness (RW-3) and was cross-examined for such purpose on
16.12.2009. At the said stage, he changed his version by testifying
that the vehicle had been "borrowed" from one Mr. Rakesh Sahni
who, in turn, had also "borrowed" it from the appellant herein. He
would deny at that stage that the vehicle had been taken on hire basis.
There was no effort made by the appellant to confront the said witness
with his earlier statement made at the instance of Rajwati.
7. Pertinent to add here that the appellant herein being the owner
of the vehicle made no effort to lead any evidence to explain the
circumstances in which the vehicle was sent out for the fateful
journey, driven by the aforementioned person and carrying the victims
as its passengers. Though it has been vaguely claimed that the vehicle
had been handed over on account of friendly terms to the victims for
the particular journey, there is nothing brought on record to
substantiate such to be the position. In these circumstances, the
evidence of Rajwati supported by the evidence of Virender (PW-3)
given on 03.12.2007 and 11.08.2008 has remained undisturbed.
8. For the foregoing facts and circumstances, the conclusions
reached by the tribunal in the impugned judgment do not call for any
interference. The appeals are devoid of substance and are dismissed.
9. The statutory amounts deposited by the appellant in these
appeals shall be made over to the insurance company towards part
satisfaction of the recovery rights.
R.K.GAUBA, J.
OCTOBER 13, 2017
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