Saroj & Ors. Vs Het
Lal & Ors.
J U D G M E N T
V.S. SIRPURKAR, J.
1.
Leave
granted.
2.
In
this appeal, the judgment of the High Court affirming the judgment of the Motor
Accident Claims Tribunal, Gurgaon (hereinafter referred to as `the Tribunal') dismissing
the claim of the claimants-appellants has been challenged. Shortly stated, the factual
conspectus is as under:- Claimants-appellants are the legal representatives of
one Joginder Singh who was a young man of 34 years. An accident took place on 16.09.2005
while deceased Joginder Singh was driving a motorcycle bearing registration No.HR-26-P/9413
while going to village Nimot from village Mandavar. As per the claim, the motorcycle
met with an accident as it was hit by a vehicle, Tata 207 bearing registration
No. HR-38-L/6592which was being driven in a rash and negligent manner. It is
claimed that in that accident Joginder Singh died on the spot. He was claimed
to be a registered medical practioner and that his monthly earning was
Rs.25,000/-approximately. Therefore, a claim was filed under Section 166 of the
Motor Vehicles Act wherein the driver Het Lal, owner of the vehicle Pramod
Kumar and the Oriental Insurance Company were joined as party respondents. The
claim was opposed by the driver and he took the plea that no such accident ever
took place though he admitted that he was the driver of aforementioned vehicle.
In his statement, however, the owner i.e. respondent No.2, while opposing the
claim, admitted that his vehicle was engaged in the accident in paragraph three
of his written statement. The part of paragraph 3 of the written statement of
respondentNo.2 is as under: "The present claim petition is not maintainable
against the answering respondent in view of the facts mentioned in preliminary objection
No.1 above and especially when the deceased was driving motorcycle No.HR-26-P-9413
rashly, negligently at a reckless speed without wearing helmet, without holding
effective and valid licence, hit Tata 207 bearing No.HR-38-L-6592 of respondent
No.2 from behind as he could not control his speed and thus, the deceased
himself was the author of the alleged accident and there was no fault on the
part of respondent No.1 who was driving the Tata 207 with moderate speed, adopting
traffic regulations and with valid, effective driving licence. Hence this petition
is liable to be dismissed on this ground alone."
3.
The
same plea is repeated in the written statement while replying to paragraphs 1 to
13 of the claim petition practically in the same words as stated above. The
owner of the vehicle also went on to oppose the petition on the ground that the
claimants-appellants were not the only legal heirs of the deceased nor were the
sufferers or dependent upon him and that they had filed the petition only to extract
huge amount by way of compensation. The claims made by the claimants-appellants
in their petition about the age and income of the deceased were also denied.
4.
Thus,
it was clear that at least the owner of the vehicle admitted the claim made in
the claim petition to the effect that the vehicle was engaged in an accident with
the vehicle of the deceased and that it was being driven by respondent No.1 who
was his driver. In support of their claim of the appellants, following issues
were framed by the Tribunal, they being:-
a. whether the accident
took place due to rash and negligent driving of vehicle No. HR-38- L/6592 by
respondent No.1?
b. whether the
petitioners are entitled to compensation on account of death of Joginder Singh
in the accident and, if so, to what amount and from whom?
c. whether respondent
No.1 was not holding a valid and effective driving licence at the time of the
accident?
d. Relief.
5.
While
respondent Nos.1 and 2 did not contest the claim and they were proceeded ex
parte, it was only the insurance company, the third respondent who took part in
the proceedings and tendered some documents to support their claim.
6.
One
Virender Singh was examined as PW-11 who was an eye-witness to the accident. He
supported the fact of accident which took place near a bridge. He also asserted
that the Tata 207 vehicle was being driven at a very high speed and in a rash
and negligent manner and it hit a motorcyclist from behind. He also gave the
correct registration number of the motorcycle. The only suggestion made to him
was that he was not present at the time of the accident and he was a procured
witness. The appellants also led the evidence that the driver respondent No.1
was facing trial for causing accident in the Court of Smt. Ranjana Agrawal,
Judicial Magistrate 1stClass, Gurgaon for offences under Sections 279 and
304A,Indian Penal Code (IPC). The Tribunal took the note that the First
Information Report was filed after 18 hours of the accident by the brother of
the deceased wherein it was claimed that his elder brother Joginder Singh who
was riding the motorcycle No.HR-26-P/9413 was hit by some unknown vehicle and
he died on the spot. The Tribunal also noted that this witness had done the further
formalities of removing the dead body etc. The Tribunal then posed a question
to itself as to how and under what circumstances the police came to know that
accident was caused by the Tata 207 vehicle belonging to respondentNo.2 and
that at the time of the accident, it was being driven by respondent No.1. The
Tribunal noted that one Dhani Ram of village Sanpla was present at his house
when the first respondent, who was the son of his brother-in-law, came to him
and asked him to produce him before the police saying that the accident in
question was caused by him. Dhani Ram, on this, asked him to bring the offending
vehicle which he brought. That is how Het Lal produced himself on 18.9.2005 to
the police along with the vehicle. The Tribunal questioned this and doubtedthis
story of Dhani Ram. According to the Tribunal there was no reason for
respondent No.1 to go to Dhani Ram and make the request, as he did. The Tribunal
also drew an adverse inference on account of non-examination of Dhani Ram. The
Tribunal also noted the fact that in the charge-sheet, Exhibit P-9, Virender Singh
was initially not cited as a witness. The Tribunal, therefore, deduced that the
alleged confession by respondent No.1 to Dhani Ram was a weak type of evidence.
Virender Singh was introduced as eye-witness and his name was added with
different ink in the report in last at serial No.11. The Tribunal did not
accept his evidence on the ground that Virender Singh did not take any step to
go to the police after having seen the accident and his statement was recorded
as late as after 20 days. The Tribunal also refused to comment on the fact that
respondent No.1 was facing a trial for the offence under Sections 279 and 304A,
IPC. Lastly, the Tribunal wrote a finding that it was apparent that it is a
case of hit and run by some unknown vehicle and the alleged unknown vehicle was
a introduced vehicle to claim compensation.
7.
In
view of this, the claim was dismissed.
8.
The
claimants-appellants came to the High Court and the High Court virtually
confirmed the order repeating the findings given by the Tribunal including a
finding that the offending vehicle owned by respondent No.2 and allegedly
driven by respondent No.1 was not involved in the accident at all.
9.
Shri
Balakrishnan, learned senior Counsel appearing on behalf of the appellants
pointed out firstly that boththe Courts below have totally failed to apply
their mind to the pleadings and that has resulted in grave mis carriage of justice.
He pointed out that the involvement of the Tata 207 vehicle owned by
respondentNo.2 in this very accident was an admitted fact which was admitted in
pleadings and as such both the Courts below were wholly unjustified in holding
that the said vehicle was not involved in the accident and that it was a hit and
run case. The learned Counsel urged that the finding that this was a hit and
run case where the vehicle, Tata207 was not involved was a mere imagination on
the part of the Tribunal which even the High Court failed to note. The learned
Counsel urged that in fact it was an admitted position that respondent No.1 was
being prosecuted for causing the accident and death while he was driving the very
same vehicle. The learned Counsel further urged that there was nothing unnatural
in the evidence of Virender Singh and merely because his statement was recorded
later on, that by itself was no reason to dis-believe the evidence as he was a
totally dis-interested witness. The learned Counsel also pointed out that
non-examination of Dhani Ram was also of no consequence for the simple reason that
police indeed found that the accident had taken place wherein the said vehicle,
Tata207 was involved on the one hand and the motorcycle driven by Joginder Singh
on the other. The learned Counsel, therefore, pointed out that the judgments of
the Courts below could not be sustained.
10.
On
the other hand, Shri S.L.Gupta, learned Counsel appearing on behalf of
respondent No.3, Insurance Company tried to support the findings and also
admitted that even if this was a case of hit and run accident, even then the appellants
were liable to be paid the no-fault liability under Section 161 of the Motor Vehicles
Act which admittedly was not paid to them.
11.
Shri
Gagan Gupta, learned Counsel appearing on behalf of respondent No.1, driver,
however, denied that any accident had ever taken place or that the driver was involved
in any accident. Respondent No.2, however, did not choose to come before us.
12.
On
considering the rival arguments, it must be said that the petition could not have
been dismissed in totality. Presuming it to be a hit and run case, the appellants
were entitled to at least Rs.25,000/- as per the provisions of Section 161 (3) (a)
of the Motor Vehicles Act. Therefore, both the Courts below have obviously
failed to note this provision. But that is not the end of the matter. In our
opinion, both the Courts below have completely erred in giving the finding that
it was a hit and run case and that the concerned vehicle belonging to respondent
No.2 was not involved in the accident. Insofar as that finding is concerned, it
was an admitted position in the pleadings of respondent No.2that firstly, the
Tata 207 vehicle bearing registration No. HR-38-L/6592 was involved in an
accident with the motorcycle bearing registration No.HR-26-P/9413 which took
place on 16.9.2005 at 3.30 p.m. and secondly, the said vehicle was being driven
by respondent No.1. This admission in the pleadings which we have quoted in the
order was itself sufficient to hold that the concerned vehicle belonging to
respondent No.2 was involved in the accident. This admission was never traversed
by respondent No.2 and, thus, there was no occasion to hold that the said
vehicle was not involved and that it was a hit and run case. It is surprising
that not only the Tribunal but the High Court also should have ignored the vital
admission on the part of respondent No.2. It was nobody's case that this
admission of respondent No.2 was in collusion between respondent No.2 and appellants.
Once this position is clear, there is no occasion for holding that the vehicle
was not involved in the accident and on that count exonerating the three
respondents.
13.
In
strict sense, this admission may not be binding vis respondent No.1, the
driver, who continued to take a stand that vehicle being driven by him was not involved
in the accident. This defence of respondentNo.1 is understandable as admittedly
he is facing the prosecution for causing the accident and the death thereby of
deceased Joginder Singh on 16.9.2005 at 3.30p.m.
14.
Shri
Gupta, learned Counsel could not dispute the written statement, copy of which
is filed before us and the fact that there was an admission by respondent No.2 that
the vehicle belonging to him was involved in an accident.
15.
It
is obvious that both the Courts below have failed to note this fact. The
judgments, therefore, would have to be set aside and the matter would have to
be remitted back to the Tribunal to decide the liability of the respondents on
account of the accident caused by Tata vehicle No.207 bearing registration No.
HR-38-L/6592 with motor cycle bearing registration No.HR-26-P/9413 and the death
of Joginder Singh in the same. It was tried to be feebly argued that under any circumstances,
the negligence was only on the part of the motorcyclist and there will be no
question of any compensation on that count. We are afraid, we cannot appreciate
this. The Tribunal has not considered the matter from this angle. It is for
this reason that we are inclined to remand the matter back to the Tribunal only
on the question of liability for compensation on the part of respondent Nos.1,
2 and 3. The matter is pending for the last five years. It is an admitted
position that the appellants have not received any compensation up till now. Therefore,
the Tribunal shall be well advised to dispose of the matter within six months
from the date on which this order is received by the Tribunal. The Tribunal shall
hear the parties again and shall dispose of the matter in the light of the
observations we have made above regarding questions like no-fault compensation along
with other necessary questions. The appeal is allowed in these terms. The costs
are assessed at Rs. 25,000/-.
.............................J.
[V.S. Sirpurkar]
.............................J.
[T.S. Thakur]
New
Delhi;
December
7, 2010
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