Delhi High Court
Jaspal Singh vs Geeta Devi & Ors. on 26 September, 2017
$~R-274
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 26th September, 2017
+ MAC APPEAL No.831/2010
JASPAL SINGH ..... Appellant
Through: None.
versus
GEETA DEVI & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Shailender Tanti @ Shailender Prashad indisputably suffered
injuries in a motor vehicular accident that occurred at about 10.00 a.m.
on 23.07.2007 and died in the consequence. The accident claim case
(suit no 369/2007) instituted on 27.11.2007 by his wife and other
members of the family dependent on him, they being first to fifth
respondents (collectively, the claimants), sought compensation under
Section 166 of Motor Vehicles Act, 1988, on the averments that the
accident had been caused due to negligent driving of Tata Indica car
bearing registration no. DL 1Y 8866 (the car) by the appellant, he
having been impleaded in the said case as first respondent, in addition
to other parties, they being described as the registered owner and
insurer, shown in the array before the tribunal as second and third
respondents. It may be added here that it came to be admitted before
the tribunal during the inquiry that there was no insurance policy taken
out in respect of the car for the relevant period, this fact having been
mentioned in (para 5 of) the judgment dated 05.06.2010 by which the
claim was decided holding the appellant and the owner of the car
(Ruchi Solanki) liable to pay compensation to the claimants, jointly
and severally, in the total sum of Rs. 4,71,000/-. It may further be
added here that in (para 12 of) the judgment of the tribunal, it came to
be erroneously recorded that the compensation was to be paid by the
insurance company, such error having later been corrected in terms of
subsequent order dated 17.07.2010.
2. The appellant felt aggrieved with the above-mentioned finding
returned by the tribunal holding him responsible for the accident and
came up with the appeal at hand contending that the accident had
involved negligent driving of motorcycle bearing registration no. DL
6SAA 2626 (the motorcycle) driven by one Abhishek Sachdeva (sixth
respondent in appeal) and that the conclusions reached by the tribunal
against him are erroneous.
3. The appeal was admitted and directed to be put in the list of
„regular matters‟ as per order dated 5th September, 2012. When taken
up for hearing there is no appearance on either side.
4. The record of the tribunal has been perused and the contentions
raised in the appeal have been considered.
5. It is noted that during the inquiry before the tribunal, the
claimants had relied upon the evidence particularly of Rinku Bahadur
(PW-2) and Abhishek (PW-3) to bring home the involvement of the
car and the negligence on the part of the appellant as its driver. The
appellant had also appeared as a witness (R1W1) testifying on the
strength of his affidavit (Ex.R1W1/A). It may also be mentioned here
that the tribunal‟s record reveals that the appellant had moved an
application before the tribunal invoking Order 1 Rule 10 of the Code
of Civil Procedure, 1908 (CPC) seeking impleadment of Abhishek
Sachdeva (sixth respondent in appeal) as a party respondent to the
claim petition. The said application, however, was dismissed by the
tribunal by order dated 15.07.2009, the claimants having opposed the
same, insisting on proving their contention that the fatal accident had
occurred due to negligence on the part of car driver. The appellant
had challenged the said order dismissing his application under Order 1
Rule 10 CPC by a petition - CM (M) 1112/2009 - before this Court.
The record shows, as is also confirmed by the pleadings in the appeal,
that the said petition assailing the dismissal of the application for
impleadment of Abhishek Sachdeva as a party respondent was
withdrawn by the appellant and dismissed accordingly on 13 th April,
2010.
6. Thus, it is clear Abhishek Sachdeva (sixth respondent) shown in
the array of parties in the appeal at hand was not a party to the claim
petition before the tribunal leading to the judgment from which the
present appeal arises. On the contrary, the claimants had relied on his
evidence having appeared as witness (PW-3) on their behalf. In this
view, the issue as to whether there was negligence on the part of sixth
respondent was not the core issue to be addressed by the tribunal.
Instead, the fate of the claim petition hinged on the decision on the
issue as to whether the claimants‟ evidence showed negligence on the
part of the appellant, he admittedly being the driver of the car.
7. The evidence of Rinku Bahadur (PW-2), a water vendor present
at the scene, is to be read alongside the version of Abhishek (PW-3)
and the sequence of events narrated by the appellant, he having
appeared as his own witness (R1W1). The testimony of all the three,
read together, clearly brought out that the deceased was in the process
of crossing road when he was hit by the motorcycle and, as a
consequence, he fell down and came under the wheels of the car
which had dragged him for quite a distance. Though the appellant, in
his testimony (as R1W1), would claim that being a responsible citizen
he had stopped the car in the middle of the road so as to "give cover"
to the deceased and the motorcyclist who were lying on the road and
that he had later rendered help, the evidence of PW-2 confirming that
the car had also come to be involved and that it had dragged the
deceased for a distance has gone unchallenged.
8. The very fact that the car had also hit the deceased and had
dragged him for quite a distance reflects that it was moving at an
uncontrollable speed. In this view of the matter, the finding returned
by the tribunal holding the appellant negligent cannot be faulted.
9. Even if one were to assume that the first impact being by the
motorcyclist, there was negligence on the part of said other person, it
would turn out to be a case of composite negligence. In the context of
a claim of a third party, this fact cannot come to the aid of the
appellant, in the given facts and circumstances his negligence also
having been brought home.
10. The appeal is devoid of substance and is dismissed.
11. The claimants are at liberty to enforce the award by appropriate
proceedings before the tribunal.
R.K.GAUBA, J.
SEPTEMBER 26, 2017
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