Delhi High Court
Union Of India & Ors. vs Anand Prasad on 19 September, 2017
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 19th September, 2017
+ MAC.APP. 631/2017 and CM APPL.25758/2017
UNION OF INDIA & ORS. ..... Appellants
Through: Mr. Vijay Joshi, Senior Panel Counsel
Versus
ANAND PRASAD ..... Respondent
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The tribunal's record has been perused.
2. Heard.
3. The appellants not only raise the issue of absence of proper
proof of negligence, but also question the computation of
compensation, it being pointed out that the accident having occurred
on 18.02.2010, the claimant had been certified to be fit for duty on
30.05.2010 and yet, he has been granted loss of income for four
months due to absence of leave.
4. A perusal of the tribunal's record reveals that as per the
claimant's case he was moving on his motorcycle bearing registration
No.BR-08B-1655 on 18.02.2010 and when he was approaching
Rajghat from the junction of Shanti Van, at about 8:30 p.m., his
motorcycle was hit from behind by the motor vehicle of the appellants,
it having been described as Tata 407 bearing registration No.DL-1LM-
2490. The claim case was filed attributing negligent driving on the
part of the third appellant, he being an employee of the first and
second appellants, the owner of the said offending vehicle. It is noted
that, by their pleadings, the appellants had not disputed the factum of
collision of the two vehicles but had denied negligent driving of the
offending vehicle being the cause of the accident.
5. During the inquiry, the claimant (respondent) and the third
appellant, driver of the offending vehicle appeared as witnesses, each
attributing blame on to the other, claimant's evidence being based on
his affidavit (Ex.PW-1/A) and that of the third appellant by his
affidavit (Ex.R1W1/A). The testimony of the claimant (PW-1) was
primarily to the effect that the offending vehicle had come and hit
from behind, it having been driven at high speed in violation of the
traffic rules. During his cross-examination, it was attributed to (but
denied by) him that the accident had occurred since he was trying to
overtake the offending vehicle from the left side in contravention of
traffic rules, though indicator lights had been used by the offending
vehicle.
6. A perusal of the written statement particularly, of the third
respondent would show that there were no pleadings set out to above
effect as the defence, it having been vaguely stated that the claimant
himself was responsible for the accident since he had "hitted himself
his (sic) bike in the mail van on the running road without caring for
any traffic rules or speed zig-zag manner" which is also the effect and
import of the testimony of the third respondent (R1W1).
7. It does appear that the third respondent had been prosecuted on
the criminal charge for offence punishable under Section 279/338 of
Indian Penal Code, 1860 (IPC) in the criminal case arising out of
report under Section 173 of the Code of Criminal Procedure, 1973
(CrPC), submitted on conclusion of investigation into the FIR
No.41/2010 and that the court of Metropolitan Magistrate by judgment
dated 22.09.2015 had acquitted him. It is stated that in the course of
the said criminal prosecution, statement made by the claimant as first
informant was at some variance from the one made in the inquiry
before the tribunal, respecting sequence of events. But then, it has to
be borne in mind that the test applicable to the inquiry before the
accident claims tribunal is not the same as the one applied by the
criminal court where proof beyond reasonable doubt as to the
culpability has to be adduced. It is noted that the claimant was cross-
examined by the appellants on 28.09.2015. But he was not confronted
with the statement made by him before the criminal court assumably
given before the said date. Without such exercise having been
undertaken, the appellants cannot be allowed to argue that there has
been a contradictory position taken by the claimants in the two cases.
8. In the case of the fact that the evidence of the claimant (PW-1)
about the offending vehicle having hit his motorcycle from behind has
gone unimpeached, the finding on the issue of negligence returned by
the tribunal cannot be faulted.
9. The other contention touching upon the computation of
compensation also is found to be devoid of substance. Being fit for
discharge, as per medical opinion, is not same as actually joining duty.
The evidence of the claimant rather showed that he had remained
immobile due to continued treatment for as many as seven months.
10. For the foregoing facts and circumstances, the appeal with
accompanying application is dismissed in limine. The stay against the
execution of the award is vacated.
11. The amount of compensation deposited by the appellants shall
be released to the claimant.
12. The statutory amount shall be refunded to the appellant.
R.K.GAUBA, J.
SEPTEMBER 19, 2017
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