Delhi High Court
Nazira & Ors vs Safiq & Ors on 27 January, 2020
$~A-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 27h January, 2020
+ MAC.APP. 964/2017
NAZIRA & ORS ..... Appellants
Through: Mr.O.P. Mannie, Adv.
versus
SAFIQ & ORS ..... Respondents
Through: Mr.Nazma Akhtar, Adv. for R-1.
Mr.A.K. Soni, Adv. with Mr.Pavan
Kumar, Adv. for R-3/ICICI Lombard.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
J U D G M E N T (ORAL)
1. The appellants have challenged the Award dated 3 rd August, 2017 of
the Claims Tribunal whereby their claim petition was dismissed.
2. On 17th July, 2012 at about 4:00 AM, Late Mohammad Hussain was
travelling in bus no.UP-22T-2086 which met with an accident in which the
head of the deceased was hit by a truck coming from the opposite direction
which resulted in his death on the spot.
3. The police registered FIR No.69 of 2012 under Sections 279/304-A of
the Indian Penal Code at Police Station Bania Dhhar, District Bheen Nagar,
Uttar Pradesh, which resulted into chargesheet against the driver of the bus.
4. The Claims Tribunal held that the appellants have not proved the rash
and negligent driving of the driver.
5. Learned counsel for the appellants submits that the appellants placed
on record certified copies of all the documents relating to the criminal case.
It is further submitted that the Claims Tribunal vide order dated 1 st
September, 2012 directed the Investigating Officer of FIR No.225/12 to
produce the entire record of the criminal case. It is further submitted that the
father and the younger brother of the deceased appeared in the witness box
as PW- 2 and PW - 3 but the Claims Tribunal disbelieved them without any
basis. It is further submitted that if the Claims Tribunal had any doubt on
the veracity of PW- 2 and PW - 3, the Claims Tribunal could have examined
the Investigating Officer which was not done.
6. There is merit in the contentions raised by the learned counsel for the
appellants. The proceedings before the Claims Tribunal are in the nature of
an inquiry which is different from trial. Reference is made to Mayur Arora
v. Amit, 2011 (1) TAC 878, in which this Court held that the Inquiry
contemplated in Section 168 of the Motor Vehicles Act, 1988 is different
from a trial. This Court laid down the principles applicable to an Inquiry
under Sections 168 and 169 of the Motor Vehicles Act. The relevant
portions of the judgment are as under:-
"10. THE „INQUIRY‟ CONTEMPLATED UNDER
SECTION 168 of MOTOR VEHICLES ACT, 1988
10.1. The inquiry contemplated under Section 168 of the
Motor Vehicles Act, 1988 is different from a trial. The
inquiry contemplated under Section 168 of the Motor
Vehicles Act arises out of a complaint filed by a victim of
the road accident or an AIR filed by the police
under Section 158(6) of the Motor Vehicles Act which is
treated as a claim petition under Section 166(4) of the
Motor Vehicles Act. These provisions are in the nature of
social welfare legislation. Most of the victims of the road
accident belong to the lowest strata of the society and,
therefore, duty has been cast upon the police to report
the accident to the Claims Tribunal and the Claims
Tribunal is required by law to treat the Accident
Information Report filed by Police as a claim petition.
Upon receipt of report from the police or a claim petition
from the victim, the Claims Tribunal has to ascertain the
facts which are necessary for passing the award. To
illustrate, in the case of death of a victim in a road
accident, the Tribunal has to ascertain the factum of the
accident; accident having being caused due to rash and
negligent driving; age, occupation and income of the
deceased; number of legal representatives and their age.
If the claimants have not produced copies of the record
of the criminal case before the Claims Tribunal, the
Claims Tribunal is not absolved from the duty to
ascertain the truth to do justice and the Claims Tribunal
can summon the investigating officer along with the
police record"
xxx xxx xxx
"13.1. On a fair reading of the statute, the wide power
given to the Tribunal, the absence of "onus‟ upon the
claimant, the general position of the claimants and their
wherewithal with the social obligation of the welfare
State, all indicate that the procedure of the Claims
Tribunal has to be Inquisitorial though keeping in view
that most other procedures in the country are
Adversarial, it would be proper to conceive and put in
practice something which is a mix of the two.
13.2. To explain the difference, the Claims Tribunal
would not be simply passive, give both the parties
sufficient opportunity to adduce evidence, and at the end
of the "trial‟ announce who has won. At the same time,
he will not assume the role of investigator and of the
prosecutor apart from being the Judge in the
Inquisitorial system.
13.3. Even in the pure Adversarial (where, in the past,
the Judge remained passive and even in civil and
criminal litigation), there has been a slow and steady
move towards more active participation of the Judge.
There have been two factors. The first is to do greater
justice by removing imbalance between the two parties
(and their lawyers); and the second is to more efficiently
manage the cases and bring about efficiency.
13.4. The proceedings before the Claims Tribunal are
more of an Inquiry rather than an Adversarial trial. In
other words, it is not that the claimant has to allege
everything which the insurance can (without bothering to
ascertain the facts) deny everything and then the Court
expects proof of one and every allegation made in the
claim petition.
13.5. Keeping in view the wording of the statute, the use
of the phrase "hold an inquiry‟ as also particularly the
absence of the word "trial‟ and; the larger purpose of
the statute as demonstrated by the Statement of Objects
and Reasons; observation into what has gone on; the
type of the claimants; the type of the issues; and the need
to bring about efficiency, procedure as are tailored to the
subject has to be evolved by the Claims Tribunal."
xxx xxx xxx
"14.45. Many Tribunals instead of holding an inquiry
into the claim by following suitable summary procedure,
as mandated by Sections 168 and 169 of the Act, tend to
conduct motor accident cases like regular civil suits. This
should be avoided. The Tribunal shall take an active role
in deciding and expeditious disposal of the applications
for compensation and make effective use of Section
165 of the Evidence Act, 1872, to determine the just
compensation."
(Emphasis Supplied)
7. The appeal is allowed and the matter is remanded back to the Claims
Tribunal for conducting a fresh inquiry in accordance with law. The Claims
Tribunal is at liberty to summon and examine the Investigating Officer in
exercise of its powers under Section 165 of the Indian Evidence Act, 1872,
if considered necessary.
8. The Claims Tribunal shall expedite the matter and endeavour to
decide the same within six months. The parties shall appear before the
Claims Tribunal on 14th February, 2020.
9. The record of the Claims Tribunal be returned back forthwith.
10. Copy of this judgment be given dasti to learned counsel for the parties
under signatures of Court Master.
J.R. MIDHA, J.
JANUARY 27, 2020/aa
