Delhi High Court
Shakuntala Devi & Ors. vs Vijay on 29 April, 2024
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 12 March 2024
Judgment pronounced on : 29 April 2024
+ MAC. APP. 382/2013 & CM APPL. 6893/2013
SHAKUNTALA DEVI & ORS ..... Appellants
Through: Mr. Ravindra Narayan, Adv.
with appellant no. 2 in person
versus
SUNIL ..... Respondent
Through: None
+ MAC. APP. 384/2013 & CM APPL. 6900/2013
SHAKUNTALA DEVI & ORS. .....Appellants
Through: Mr. Ravindra Narayan, Adv.
with appellant No.2 in person.
versus
VIJAY .....Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
JUDGMENT
1. This common judgement shall decide the above noted two
appeals preferred by the appellant No. 1/respondent No.
3firm/registered owner of the offending vehicle in terms of Section
173 of the Motor Vehicle Sct, 19881 assailing the impugned common
judgement-cum-award dated 12.10.2012 passed by the learned
Presiding Officer, Motor Accident Claims Tribunal-02, South District,
1 M.V. Act
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New Delhi2 in Suit No. 115/2010 and Suit No. 454/2010, whereby the
claim petitions of the two claimants were allowed and the liability to
pay the compensation was fastened upon the shoulders of the
appellants since the offending vehicle was not insured for third party
risks.
FACTUAL BACKGROUND:
2. Briefly stated, it was the case of claimants that on 14.01.2007 at
about 09.00 PM, the claimants i.e., Sunil and Vijay3, were travelling
on a motorcycle bearing registration No. DL-3S-T-2773. Vijay was
driving the motorcycle while Sunil and one Prakash were the pillion
riders. Upon reaching near the 21st Milestone, Shiv Murti on the
National Highway No. 8, the offending vehicle (Mahindra Marshal)
bearing registration No. DL-1L-E-7350, driven in a rash and negligent
manner, collided with the motorcycle, causing the claimants to fall
and sustain injuries. The offending vehicle was owned by the
appellant No. 1/respondent No. 3, but it was not insured at the time of
the accident.
3. The claimants were taken to the Hospital and their MLCs were
prepared. The information regarding the accident was given by an eye-
witness by calling on No. 100 and an FIR bearing No. 35/2007 was
registered at the PS Vasant Kunj.
4. At the time of the accident, Sunil was of 31 years of age and
was doing a private job and earning a salary of Rs. 20,000/- p.m.,
whereas Vijay was 32 years of age and was doing a private service
2 Tribunal
Sunil (Claimant) in MAC. APP. 382/2013
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with the CHS Company and earning a salary of Rs. 5,000/- p.m. Due
to the accident, it was pleaded that both the claimants suffered pain
and sufferings and various handicaps in life besides not able to work
for a period of eight months.
PROCEEDINGS BEFORE THE TRIBUNAL AND THE
IMPUGNED JUDGMENT-CUM-AWARD:
5. The claimants filed their respective claim petition petitions
before the learned Tribunal. Sunil filed a claim petition bearing
MACP No. 115/2010 titled as "Sh. Sunil v. Bijendra Kumar Giri @
Vijender and Ors." and Vijay filed claimed petition bearing MACP
No. 454/2010 titled as "Sh. Vijay v. Bijendra Kumar Giri @ Vijender
and Ors.". Notice of the petitions were served upon the Appellants
herein, wherein the appellants appeared and filed their written
statements, denying the averments made in the petition and stating
that no accident took place. The appellants stated that the eye-witness
named was an interested eye-witness, and that the petitions were filed
to harass the appellant.
6. Based on the pleadings of the parties, following issues were
framed on 30.09.2009: -
"1.Whether the petitioners Vijay and Sunil received injuries due to
an accident on 14.01.2007 at about 9.00 PM at National Highway
No. 8, near Shiv Murti Mahipal Pur, New Delhi which was caused
due to rash and negligent driving of vehicle no. DL 1L E 7350 by
R-1, by the vehicle owned by R-2? Opp.
2.The amount of compensation, petitioners are entitled to?
3. Relief."
Vijay (Claimant) in MAC. APP. 383/2013
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7. Learned Tribunal vide order dated 31.08.2010 consolidated
both the claim petitions for a joint trial. Learned counsel for appellant
no.2 argued that the MLC of injured Sunil Ex. PW1/R1 revealed
alcohol consumption, highlighting material difference between the
petition/affidavit and investigation findings. It was also put forth that
the FIR did not disclose the offending vehicle's number, and the
police failed to seize its bumper and number plate, allegedly fallen
post-accident. The appellants submitted that it was a case of
contributory negligence, citing three occupants on the motorcycle and
Sunil's intoxicated state as factors.
8. On being prodded in the cross-examination, PW Sunil testified
that only the two claimants were on the motorcycle and both were
wearing helmets. He denied that he was under the influence of
alcohol. When confronted with his police statement, he acknowledged
that the details about the bumper and the number plates were not
mentioned and was unsure if they were seized. He refuted the
presence of a third person (Prakash) on the motorcycle, stating
Prakash was standing aside during the accident. However, when
confronted with his statement under Section 161 of the Cr.P.C4, he
admitted to driving the ill-fated motorcycle with two pillion riders
when the accident occurred and denied the influence of alcohol,
whereas the doctor's MLC (Ex. PW1/R1) of Sunil noted the smell of
alcohol.
9. On being cross examined, Vijay reiterated the same facts as
Sunil. He also mentioned that Ravi had written down the number of
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the offending vehicle on a piece of paper and handed it to their
advocate. Appellant No. 3 tendered his affidavit as Ex. R1W1/A,
stating that he worked as a driver for appellant no. 1 and was off duty
on the day of the accident i.e., 14.01.2007. He claimed false
implication in the case and asserted that he did not file any complaint
to any authority in regards to his false implication. Additionally, the
appellant no. 3 acknowledged facing criminal proceedings in the Saket
District Court.
10. In regards to Issue No. 1, it was decided partly in favour of the
claimants and partly in favour of the appellants. The appellants submit
that the claimants mis-characterized the location and nature of the
accident, which was central to their case. They contend that the
determination of contributory negligence contradicts the evidence on
record and against the well-settled principles of law. Additionally,
they have assailed the impugned judgement-cum-award on the basis
that the learned Tribunal failed to recognize Sunil's intoxication at the
time of the accident and the presence of three individuals on the
motorcycle. The relevant portion of the judgement is reproduced
below: -
"15. Testimony of PW Vijay shows that Sunil was driving the
motorcycle at the time of accident and he had taken alcohol. On his
MLC the doctor also noticed smell of alcohol. Although, both the
petitioners stated that they were two in numbers on the motorcycle
and Prakash was standing by their side but the facts stated in the
Charge Sheet and other documents and the MLCs on record shows
that they were three persons on the motorcycle at the time of
accident when they were hit. Although in this case no urine / blood
test conforming the presence of alcohol is on record but the record
and testimony of Vijay indicate that there were three persons on the
4 Code of Criminal Procedure, 1973
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motorcycle at the time of accident and the driver Sunil had
consumed alcohol. Keeping these facts into consideration, I am of
the view that the petitioners had also contributed to the accident
and I hold them responsible for a contributory negligence to the
extent of 30%.
16. It has come on record that respondent no.3 was the registered
owner of the offending vehicle a and respondent no.2 was
managing the affairs on behalf of respondent no.1. It has also come
on record that the vehicle was not insured at the time of accident.
17. Issue no.1 is accordingly decided partly in favour of the
petitioners and partly in favour of the respondents."
11. As regards decision on Issue No. 2 is concerned, the learned
Tribunal awarded the compensation as follows: -
(Sunil) (Vijay)
Medical Expenses Rs. 41,000/- Rs. 21,000/-
Pain and Sufferings Rs. 25,000/- Rs. 25,000/-
and Enjoyment of
Life
Special Diet, Rs. 15,000/- Rs. 15,000/-
Attendant &
Conveyance
Charges
Loss of Income Rs. 37,000/- Rs. 10,600/-
TOTAL Rs. 1,18,000/- Rs. 71,600/-
12. Reverting to the aspect of fixing the liability to pay
compensation, since the offending vehicle was being driven by
appellant no. 3, the learned Tribunal held that the primary liability to
compensate the claimants rested with appellant no. 3. It was further
held that given the fact that the offending vehicle belonged to
appellant no. 1, and appellant no. 2 was the authorised representative
of appellant no.1, they became vicariously liable to compensate the
claimants, as the offending vehicle was not insured. The relevant part
of the judgement is reproduced below: -
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"29. As regards the liability, the offending vehicle was being
driven by respondent no.1, therefore primary liability to
compensate the petitioners is that of respondent no.1. The
offending vehicle was owned respondent no.3 and respondent no.2
was the authorised representative of the respondent no.3.
Therefore, they becomes vicariously liable to compensate the
petitioners. It is an admitted position on record that the offending
vehicle was not insured. Being a case of contributory negligence,
the respondent no. 3 through her AR respondent no.2 is liable in
proportion of 70%."
GROUNDS FOR THE APPEAL:
13. The appellants have assailed the impugned judgement-cum-
award on the ground that the learned Tribunal failed to appreciate that
the claimants were required to establish the rash and negligent driving
of the appellant no. 3, which the claimants miserable failed to do.
Additionally, the appellants contend that the award passed should be
set aside since the claimants were unable to substantiate their case in
accordance with the account provided to the police.
14. The appellants rely on their written statements before the
learned Tribunal and highlight the contradictory stand taken by the
claimants and it would be apposite to reproduce the same below: -
"A. According to the case of the petitioner the accident had taken
place while the petitioner was coming from the Gurgaon to Delhi
which was contradicted by the statement of the alleged eye witness
(not produced in court) and the PCR Form. It is submitted that as
per the PCR form the alleged accident had taken place on the
service road going from Delhi to Gurgaon.
B. The offending vehicle having been hit from behind contradicted
by the statements of witnesses so recorded by the police under
section 161 Cr. P.C. and the Mechanical inspection report of the
motorcycle.
C. The petitioner in his statement had deposed that the bumper
along with the number plate had fallen down and thus were able to
note the number of the offending vehicle which was contradicted
by the fact that no seizure of the bumper and the number plate was
made by the police. Also it is impossible for a person to run away
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from the spot with his vehicle even when the bumper falls in front
of him.
D. The driver of the motorcycle was drunk as was established by
the MLC and the statement of the petitioner before the Ld.
Tribunal but the driver of the motorcycle categorically told lies
about being not drunk.
E. The petitioner and the other petitioner/ injured had stated that
they were standing and the third person was standing besides them
again making the case of the petitioner absolutely false as in the
petition the petitioner had not spoken even a single word about the
third person also it was stated that they were coming from Gurgaon
to Mahipal Pur and had not state that they were standing. All these
lies as told by the petitioner and the other injured witness goes to
the root of the case making them ineligible to grant of
compensation."
ANALYSIS & DECISION:
15. Having given my thoughtful consideration to the submissions
advanced by learned counsels for the rival parties at the Bar and on
perusal of the record, at the outset, this court unhesitatingly finds that
the impugned judgment-cum-award passed by the learned Tribunal
requires interference insofar as the issue of contributory negligence on
the part of the claimants is concerned.
16. First things first, the findings of the learned Tribunal with
regard to involvement of the offending vehicle, i.e., a Mahindra
Marshal bearing registration No. DL-1L-E-7350, are beyond any
challenge. Although as deposed by PW-1 Sunil, the bumper and
number plate of the offending vehicle had fallen after the accident,
there is no seizure memo of the same by the police, and no such fact
was disclosed to the Investigating Officer during the recording of the
statement under Section 161 Cr.P.C during the course of investigation
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in the instant motor accident vide of FIR5 No. 35/2007 with the Police
Station, Vasant Kunj.
17. Be that as it may, learned Tribunal has given correct findings to
the effect that the involvement of the vehicle was given to the PCR6
on 14.01.2007 Ex.PW-1/2 wherein information was recorded that
vehicle bearing registration No. DL-1L-E-7350 had been involved in a
motor accident with motorcycle bearing registration No. DL-3S-T-
2773. This aspect coming from the official account soon after the
motor accident is unassailable.
18. Secondly, while PW-1 Sunil, as well as Vijay, denied that Sunil,
who was evidently driving the ill-fated motorcycle, was drunk at the
time of accident, there is no reliable report as to the extent of alcohol
in his blood. At the same time, PW-1 Sunil cut a sorry figure in his
cross-examination, when he acknowledged that there were three
persons on the motorcycle, i.e., besides himself, the other injured
Vijay, and one Prakash. There is no reason why the Investigating
Officer recorded such information with regard to triple riding on the
motorbike by the claimants at the time of the accident. There is no
merit in the plea by the learned counsel for the appellants that the
registration number of the offending vehicle i.e., Mahindra Marshal
was not recorded in the FIR, which was evidently lodged at 9.45 p.m.
Apparently, there was no delay in lodging the FIR but a bare reading
of the same would show that the police reached at the spot/place of
occurrence on its own and commenced the investigation.
First Information Report
Police Control Room
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19. Without further ado, the aspect of triple riding by itself is
sufficient to attribute contributory negligence upon both the claimants
in the aforesaid two appeals. It appears that the claimants were out on
a joy ride in flagrant violation of laws.
20. It would be apposite to refer to the Statutory provisions in
the M.V. Act that also prohibits riding of more than one
passenger on a motorcycle. It reads as follows-
"Section 128. Safety measures for drivers and pillion
riders. - (1) No driver of a two-wheeled motor cycle shall
carry more than one person in addition to himself on the
motor cycle and no such person shall be carried otherwise
than sitting on a proper seat securely fixed to the motor
cycle behind the drivers seat with appropriate safety
measures.
(2)In addition to the safety measures mentioned in sub-
section (1), the Central Government may, prescribe other
safety measures for the drivers of two-wheeled motor
cycles and pillion riders thereon.
[129. Wearing of protective headgear. - Every person,
above four years of age, driving or riding or being carried
on a motorcycle of any class or description shall, while in
a public place, wear protective headgear conforming to
such standards as may be prescribed by the Central
Government:
Provided that the provisions of this section shall not apply
to a person who is a Sikh, if, while driving or riding on the
motorcycle, in a public place, he is wearing a turban:
Provided further that the Central Government may by
rules provide for measures for the safety of children below
four years of age riding or being carried on a motorcycle.
Explanation. - "Protective headgear" means a helmet
which, -
(a)by virtue of its shape, material and construction, could
reasonably be expected to afford to the person driving or
riding on a motorcycle a degree of protection from injury
in the event of an accident; and
(b)is securely fastened to the head of the wearer by means
of straps or other fastenings provided on the headgear.]"
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21. This Court in an earlier matter in Reliance General Insurance
Company Limited v. Jagdish7 had an occasion to observe as under: -
"The legislative purpose of prohibiting triple riding on a
motorcycle is evident that triple or more riding on a motorbike
introduces challenges in navigating the vehicle through the crowd,
causes issues as to acceleration of speed and even hampers the
application of brakes when necessary due to vehicle's momentum.
Reference can be invited to the decision by the Punjab and Haryana
High Court in the case of Roshan Lal v. Mahabir Singh, FAO
6546/2016 (O&M) decided on 26.04.2023, where the learned
Tribunal on appraisal of facts, pleadings and evidence on record
held that the deceased had died due to injuries suffered by him in
motor vehicular accident that took place on 05.09.2011 due to rash
and negligent driving of Swift car bearing registration No. HR-26-
BK-4221 being driven by respondent No.1, owned by respondent
no.2 and insured by respondent No.3. The Tribunal awarded
compensation as above along with interest @ 8% per annum from
the date of filing of the claim petition till realization. Liability to
pay the compensation was joint and several. However, the ld.
Tribunal held the deceased guilty of contributory negligence to the
extent of 30% in view of the fact that admittedly, at the time of
accident the deceased was triple-riding on the motorcycle bearing
registration No. HR-26-AG-2006 along with his father Roshan Lal
and brother Ombir.
8. In view of the foregoing discussion, I find that the deceased was
guilty of contributory negligence in causing the accident. Although
unfortunately, a young life at the age of 20 years was lost, resulting
in great loss and discomfort for the parents, but then it was their
responsibility alone to teach their son and instil in him respect for
the laws of the land. Unfortunately, they suffer irreparable pain and
anguish on the death of their young son, but this Court cannot
allow any premium to be given for such kind of audacious actions
violating the traffic laws. It is in evidence that the victim was not
even wearing helmet either. Therefore, the deceased was guilty of
contributory negligence, and the amount of compensation is
required to be reduced to 50%. As per the order dated 26.05.2016,
40% amount of compensation with interest has already been
released to the claimants/parents of the deceased. Let the
remaining 10% of the amount of compensation be also released to
them with interest as directed by the learned Tribunal within four
weeks from today, failing which, appellant/insurance company
7 2024 SCC OnLine Del 1751
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shall be liable to pay interest @ 12% from the date of this
judgment till realization."
22. Reverting back to the instant matter, the culpability of the
respondent No.1/driver/appellant No. 3 surely arises from the fact that
after causing the accident, he fled away from the spot. The testimonies
of PW-Vijay and PW-1 Sunil in both the cases remained
uncontroverted and unrebutted with regard to the manner in which the
accident occurred and the respondent No.1/driver/appellant No. 3 did
not even elect to come in the witness box to refute the evidence on the
record.
23. Therefore, in the light of the criminal proceedings slapped upon
respondent No.1/driver and on a holistic appreciation of the facts and
circumstances of the case, the appellant No.1 cannot wriggle out of the
fact of tortuous act of negligence on the part of its driver i.e.
respondent No.1(appellant No. 3 herein), and therefore, she shall
remain vicariously responsible for the acts done by its driver during
the course of performance of his duties as a driver.
24. Having said that the culpability of the claimants/injured should
be fixed to the extent of 50% and in view of the fact that the quantum
of compensation has been assessed on moderate scales, the
claimants/injured persons shall be entitled to compensation of Rs.
59,000/- and Rs. 35,800/- i.e. Sunil and Vijay respectively in the
aforesaid two appeals with interest @ 6% per annum from the date of
filing of the petition till realization.
25. Although, the appellants are succeeding partly in the present
matters, the amount of statutory deposit of Rs. 25,000/- in each case is
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hereby forfeited, and the same shall be paid over to the claimants.
Further, in terms of order dated 01.05.2013, this Court directed a stay
of the operation of the impugned award subject to the appellants
depositing a sum of Rs. 50,000/- with upto date interest. The said
amount with accrued interest be released to the claimants forthwith. If
there is any balance amount left to be paid, the same be deposited
within four weeks from today with the learned Tribunal, failing which
the appellant No. 1 shall be liable to pay penal interest @ 9% per
annum till realisation. If any amount is to be reimbursed by any of the
claimant, presumably claimant injured Vijay, that shall be paid by the
concerned claimant within four weeks too, failing which, the same
shall be claimable by the appellant with interest @ 9% per annum. If
there is left any balance amount after payment of compensation to the
two claimants, the same shall be returned to the appellant.
26. Both the above noted two appeals along with the pending
applications stand disposed of.
DHARMESH SHARMA, J.
APRIL 29, 2024
Sadiq
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