Delhi High Court
Salma & Ors vs Suresh Kumar & Ors on 18 February, 2020
$~50
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 18.02.2020
+ MAC.APP. 64/2019
SALMA & ORS ..... Appellants
Through: Mr. Idresh Ahemad, Adv.
versus
SURESH KUMAR & ORS ..... Respondents
Through: Mr. C.S. Parashar, Adv. for NIC.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. This appeal impugns the award of compensation dated 28.09.2018
passed by the learned MACT in MACP No. 57/18. The appellants claim for
compensation under sections 166 and 140 of the Motor Vehicles Act, 1988
was not granted for the reason that the rash and negligent driving of the
alleged offending vehicle was never proven. Therefore, the compensation
under section 163A of the Act i.e. Rs. 5 lacs was granted by the learned
Tribunal. The impugned order has reasoned as under:-
"8. To succeed in the claim petition, it is for the claimant
to prove that which caused the accident was being driven
rashly and negligently by its driver / respondent. No. 1. PW
1/wife of deceased deposed about the facts of the case but
the testimony of witness is not sufficient to prove the rash
and negligent driving by the respondent No. 1. The PW-1 is
not an eyewitness of the accident. Petitioner has examined
the witness is not sufficient to prove the rash and negligently
driving of the driver. PW-2 during cross examination
deposed that he did not call the police after the accident
nor he taken the injured to the hospital; no site plan was
prepared by the police on his instruction nor he signed on
any of the documents of the police. Witness Noor Mohd. is
not the complainant and FIR has been registered by one
Abdul Gaffar. The name of said witness is also not reflected
as eye-witness of the accident. Moreover, the testimony of
PW-2 during cross examination itself shows that his
statement is based on the hearsay. In nut shell, the testimony
of PW-2 is not trustworthy. The complainant has not been
examined or produced at all.
Ld. Counsel for respondents vehemently argued that
the petitioners are not entitled for compensation as rash and
negligent driving of respondent No. 2 is not proved at all
and relied upon the judgements reported as The Oriental
Insurance Company V/s Meena Variyal & Ors. Minu B.
Mehta & Ors V/s Balkrishna Ramchandra Nayan & Ors.
Surender Kumar Arora & Ors. V/s Dr. Manoj Bisla & Ors.
& Oriental Insurance Company Ltd. vs Premlata Shukla &
Ors. in support of contentions.
After perusal of the records and testimony of the
witness, it appears that the negligence of the respondent No.
2 is not proved therefore the claim petition filed by
petitioners U/s 166/140 MV Act for grant of compensation
is treated as petition U/s 163 A MV for grant of
compensation. Issue No. 1 is disposed off accordingly."
2. The facts of the case are that the deceased was standing near the gate
of institute of Ayush Medical Science, Bhagu Khada, Lucknow alongwith
motorcycle bearing registration no. DL 53 AV 0584, at a distance of two
meter away from the road; he was hit fatally by the offending vehicle
bearing registration no. UP 32 CZ 5618, while it was being driven in a rash
and negligent manner, it was coming from the wrong direction i.e. it was
being driven on the wrong side of the road. He was rushed to a hospital
where he was declared brought dead. The said offending vehicle was
registered with respondent no. 1. An FIR was registered in terms of the
narration of the motor vehicular accident. After completion of investigation
a Chargesheet was filed.
3. The learned counsel for respondents submits that the name of the eye-
witness is not mentioned in the FIR or in the Chargesheet. Be that as it may,
there is no denial of the fact that the name of the deceased is mentioned in
the FIR and in the Chargesheet and the reason for his demise was the rash
and negligent driving of the offending vehicle by its driver. Therefore in
terms of the dicta of the dicta of the Supreme Court in Bimla Devi and Ors.
v. Himachal Road Transport Corporation and Ors. (2009) 13 SCC 530,
nothing more was required to be seen by the learned Tribunal. It has held:
"11. While dealing with a claim petition in terms of Section
166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu
is not bound by the pleadings of the parties; its function
being to determine the amount of fair compensation in the
event an accident has taken place by reason of negligence of
that driver of a motor vehicle. It is true that occurrence of
an accident having regard to the provisions contained in
Section 166 of the Act is a sine qua non for entertaining a
claim petition but that would not mean that despite evidence
to the effect that death of the claimant's predecessor had
taken place by reason of an accident caused by a motor
vehicle, the same would be ignored only on the basis of a
post-mortem report vis-à-vis the averments made in a claim
petition.
.....
15. In a situation of this nature, the Tribunal has rightly
taken a holistic view of the matter. It was necessary to be
borne in mind that strict proof of an accident caused by a
particular bus in a particular manner may not be possible to
be done by the claimants. The claimants were merely to
establish their case on the touchstone of preponderance of
probability. The standard of proof beyond reasonable doubt
could not have been applied. For the said purpose, the High
Court should have taken into consideration the respective
stories set forth by both the parties."
4. The rash and negligent driving is the presumed premise and cause of
death in terms of the above. Therefore as a logical corollary, compensation
ought to be granted and paid to the claimant.
5. In view of the above, the impugned order is set aside. The case is
remanded to the learned Tribunal for computation of compensation for
which the parties shall appear before the learned MACT on 18.03.2020.
6. The learned Tribunal is requested to endeavour to dispose-off the case
within a period of six months from the date when the case is next listed
before it. The learned counsels for the parties assure the Court that they
shall assist the learned Tribunal on every date and shall not seek any
adjournment whatsoever.
7. The appeal is disposed-off in the above terms.
NAJMI WAZIRI, J
FEBRUARY 18, 2020
RW
