Delhi High Court
Vidya Pandey vs Mohd. Noor Hassan & Ors. on 6 September, 2017
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 6th September, 2017
+ MAC APPEAL No. 794/2016 & CM Nos. 36535-36/2016
VIDYA PANDEY ..... Appellant
Through: Mr. Amit Sharma, Adv.
versus
MOHD. NOOR HASSAN & ORS. ..... Respondents
Through: Mr. N.K. Jha, Adv. for R-2.
Mr. Pankaj Seth &
Mr. Shoumik Mazumdar, Advs.
for R-4.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 11.09.2011, Mohd. Kalam was travelling in a motor vehicle
described as Gramin Sewa bearing registration no. DL 2W 0479
(described in the proceedings as offending vehicle) when it met with
an accident at about 10.45 a.m. resulting in he falling off on the road
sustaining head injuries which resulted in his death. A criminal case
vide first information report 224/2011 for offences under Sections
279/304A of Indian Penal Code, 1860 (IPC) was registered by police
station Begumpur in this regard on the statement of constable Vijay
Chaudhary who was present at the scene on beat duty. The first and
second respondents (collectively, the claimants), being the parents of
the deceased, instituted accident claim case (MACT case no.
520/13/11) in the wake of detailed accident report (DAR) that was
submitted by the local police. In the said proceedings, besides
Dhirendra Kumar Mishra (first respondent), he being the driver of the
offending vehicle, the appellant herein was also impleaded, she
concededly and correctly described as the registered owner of the
vehicle, this in addition to United India Insurance Company Ltd.
(fourth respondent), it admittedly having issued an insurance policy
covering third party risk for the period in question.
2. On the conclusion of the inquiry, the tribunal, by judgment
dated 08.07.2015, upheld the case for compensation on the basis of
finding returned, on the basis of evidence of Constable Vijay
Chaudhary (PW-2), about the accident having been caused due to
negligent driving of the offending vehicle by the third respondent
(driver). The insurance company had taken the plea that it was not
liable since the deceased was on board the offending vehicle as a
conductor. The pleadings on record and the testimony of PW-2
confirm this fact and on such basis the insurance company was
exonerated of any responsibility. The liability to pay compensation
has been fastened jointly and severally against the third respondent
(the driver) and the appellant (the registered owner).
3. The appellant assails the judgment of the tribunal by the appeal
at hand primarily raising the issue that she was denied the opportunity
to participate in the proceedings before the tribunal and, therefore, the
judgment has been passed ex-parte. It is the contention of the
appellant that the deceased was in the offending vehicle at the relevant
point of time not as a conductor or employee but as a passenger and
that the finding contrary to this position returned by the tribunal is
unfounded.
4. The tribunal's record would show that the appellant had
appeared before the tribunal on 13.12.2011 by which date the claim
petition had already been submitted in the wake of the DAR that had
been presented earlier by the police. The proceedings recorded by the
tribunal from 13.12.2011 onwards would show that the appellant
continued to be represented before the tribunal through counsel jointly
engaged by her with the driver, both having filed joint written
statement dated 24.01.2012. On the basis of pleadings, issues were
framed by the tribunal on 28.01.2013 and the matter was adjourned for
the evidence of the claimants to be recorded on 26.08.2013. On the
said date, i.e. 26.08.2013, the presiding officer of the tribunal was on
leave and the Reader, pursuant to administrative orders issued by this
Court on 15.04.2013 followed by administrative orders issued by
District and Sessions Judge (North) on 25.04.2013, made over the
claim case to another tribunal for the said date itself. The proceedings
dated 26.08.2013, confirm that the parties were duly represented
through their respective counsel and that they had been instructed to
appear before the transferee court at 2.00 p.m. on the same date. The
proceedings recorded on 26.08.2013 later by the transferee court,
however, show that neither the appellant nor the driver appeared there.
The subsequent proceedings right till the impugned judgment being
passed confirm that post the transfer of the case, the appellant would
not appear or participate.
5. It is the contention of the appellant that while making over the
case to another forum, the transferor should have fixed another
specific date for appearance and that since this was not done, there
being no court notice issued, the procedure applied was in breach of
para 6 of the instructions contained in Chapter 13 of Part C of Volume
I of High Court Rules and Orders, there has been denial of effective
opportunity.
6. The above contention must be rejected for the simple reason
that in the proceedings whereby the case was made over, the parties
had been instructed to appear before the transferee tribunal on the
same date, even time having been specified for such appearance as
2.00 p.m. The fact that the other parties did appear before the
transferee tribunal in terms of the said instructions confirms that there
was due notice of the transfer and the instructions for the parties to
appear had been properly communicated. The default on the part of
the appellant cannot be availed of to have the case relegated to the
same stage. The contention is, thus, rejected.
7. As regards the other plea, it is noted that the claimants in their
petition had specifically pleaded (against volume 9 in part I) that the
deceased was on duty as a conductor/helper on the offending vehicle.
In the written statement, jointly filed by the appellant with the driver,
this plea was not denied, the only denial being of the case of the
claimants that the accident had been due to negligent driving. By
implication, the case of the appellants that the deceased was on board
the offending vehicle at the crucial point of time as a conductor was,
thus, admitted. The eye witness (PW-2), the local police official only
confirmed and reinforced this fact by his statement to such effect in
during the cross-examination.
8. In above facts and circumstances, the contention of the
appellant now pleading facts to the contrary cannot be accepted.
9. For the foregoing reasons, the appeal is found devoid of
substance and it with accompanying applications is dismissed.
10. The appellant is bound to satisfy the award which she must do
by requisite deposit with the tribunal forthwith.
11. The statutory amount deposited shall be released to the
claimants towards part satisfaction of their claim.
R.K.GAUBA, J.
SEPTEMBER 06, 2017
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