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Punjab-Haryana High Court

Vikesh Kumar @ Vikey vs Satish Kumar And Anr on 23 January, 2014

           FAO NO. 43 of 1997                                                     1


                    IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                           CHANDIGARH

                                                FAO NO. 43 of 1997
                                                DECIDED ON : 23.01.2014


           Vikesh Kumar @ Vikey
                                                                 ...Appellant-Claimant
                                     versus

           Satish Kumar and anr.
                                                                 ...Respondents



           CORAM :             HON'BLE MR. JUSTICE AJAY TEWARI

           Present :           Mr.Sanjiv Gupta, Advocate for the appellant.

                               Mr.Krishan Singh, Advocate for respondent No.1.

                               Mr. Namit Kumar, Advocate for respondent No.2.


                                                   *****

                1.             Whether Reporters of Local Newspapers may be allowed to
                               see the judgment?
                2.             To be referred to the Reporters or not?
                3.             Whether the judgment should be reported in the Digest?


           AJAY TEWARI, J. (ORAL)

This appeal has been filed by the unsuccessful claimant against the Award of the Tribunal dated 26.03.1996, passed by Motor Accidents Claims Tribunal, Karnal.

The brief facts of this case are that on 01.09.1992 the claimant was trying his new moped on road. At about 4 P.M. when he reached in front of M/s Beri Udyog, G.T. Road, Karnal and started towards Namastey Chowk, Karnal a maruti car bearing No.DL-2C/8288 came from the side of Namastey Chowk being driven by its driver-

respondent No.1 at a very high spped in a rash and negligent manner and without observing the traffic rules struck the same against the moped of the claimant by coming on the wrong side of the road. Due to that impact the claimant received multiple grievous injuries and he was shifted to hospital, where he remained admitted for many days.

The Tribunal has held that in the present case the negligence of the other driver has not been proved in view of the fact that the testimony of the claimant was contradicted by the driver of the other car and that despite having admitted that the road in question was a busy road, no other witness had been produced by the claimant.

The only argument raised by learned counsel for the appellant is that the Tribunal erred in dismissing the claim petition, even though the claimant himself appeared as PW1 and had placed on record copy of the FIR which was lodged. He has placed reliance upon a decision of this Court in Gurdeep Kaur Vs. Tarsem Singh (P&H) 2008 (2) RCR (Civil) 774, wherein this Court while relying upon an earlier decision in Girdhari Lal Vs. Radhey Sham and others 1994 (1) ACJ 168 held that where a driver is facing trial in a criminal Court for rash and negligent driving, that fact coupled with the statement of the complainant would enable him to prove that the accident took place on account of rash and negligent driving by the driver.

Counsel for respondent No.2 has however, countered this by relying upon the decision of the Hon'ble Supreme Court in National Insurance Company Limited Vs. Sinitha and others 2012 (1) RCR (Civil) 205 where the Hon'ble Supreme Court has held Manoj Kumar 2014.03.18 09:07 I attest to the accuracy and integrity of this document FAO NO. 43 of 1997 3 us as follows:-

"17. Having recorded our conclusions herein above, it is essential for us to determine whether or not the compensation awarded to the claimants/respondents in the present controversy, by the Tribunal, as also, by the High Court, is liable to be set aside on the plea of "negligence" raised at the hands of the petitioner. The award rendered by the Tribunal, as also, the decision of the High Court in favour of the claimants/respondents is, therefore, liable to be reappraised keeping in mind the conclusions recorded by us. In case, the petitioner can establish having pleaded and proved negligence at the hands of the rider Shijo, the petitioner would succeed. The pleadings filed before the Tribunal at the hands of the petitioner, are not before us. What is before us, is the award of the Tribunal dated 19.4.2005. We shall endeavour to determine the plea of negligence advanced at the hands of the learned counsel for the petitioner from the award. The Tribunal framed the following issues for consideration:

"1) Who are responsible for the accident?

2) What, if any is the compensation due and who are liable?

3) What is the annual income of the deceased?

4) Whether the OP (2280/00) is maintainable under Section 168A of the N.V. Act?"

It is difficult to understand the true purport of the first issue framed by the Tribunal. A person may be "responsible" for an act, yet he may not be "negligent". Illustratively, a child who suddenly runs onto a road may be "responsible" for an accident. But was the child negligent? The answer to this question would emerge by unraveling the factual position. A child incapable of fending for himself would certainly not be negligent, even if he suddenly runs onto a road. The person in whose care the child was, at the relevant juncture, would be negligent, in such an eventuality. The driver at the wheels at the time of the accident is responsible for the accident, just because he was driving the vehicle, which was involved in the accident. But considering the limited facts disclosed in the illustration can it be said that he was negligent? Applying the limited facts depicted in the illustration, it would emerge that he may not have been negligent. Negligence is a factual issue and can only be established through cogent evidence.

Now the case in hand. In the present case also, the negligence of Shijo shall have to be determined from the factual position emerging from the evidence on record. Issue no.(1) framed by the Tribunal therefore, may not provide an appropriate answer to the issue in hand. Besides there being no issue framed by the Tribunal for adjudicating "negligence" in the accident under reference, it is also clear that the petitioner-Insurance Company did not seek the courts intervention on such a plea. It is also relevant to mention, that no witness was produced by the petitioner-Insurance Company before the Tribunal. During the course of hearing, learned counsel for the petitioner only relied upon the conclusions drawn by the Tribunal on issue no.(1). For this, our attention was drawn to paragraph 8 of the award rendered by the Tribunal which is being extracted hereunder :

"8. Issue No.1 : This issue arises now only in O.P. 2281/2000. PW1 admitted that she has seen the accident. Exhibits A1 to A5 and Exhibit A10 are records from the connected criminal case charge sheeted under Sections 279, 337 and 304A, IPC as against the deceased Shijo. They are the copies of the FIR, post mortem certificate, scene mahazor, report of inspection of the vehicle, final report and the inquest report, respectively. In the absence of contra evidence I find that the deceased Shijo was responsible for the accident." The Tribunal in holding, that the rider Shijo was responsible for the accident, had placed reliance on copies of the first information report, post mortem certificate, scene mahazor, report of inspection of vehicle, inquest report and final report. Neither of these in our considered view, can constitute proof of "negligence"

at the hands of Shijo. Even if he was responsible for the accident, because the motorcycle being ridden by Shijo had admittedly struck against a large laterite stone lying on the tar road. But then, it cannot be overlooked that the solitary witness who had appeared before the Tribunal had deposed, that this has happened because the rider of the motorcycle had given way to a bus coming from the opposite side. Had he not done so there may have been a head-on collusion. Or it may well be, that the bus coming from the opposite side was being driven on the wrong side. This or such other similar considerations would fall in the realm of conjectural determination. In the absence of concrete evidence this factual jumble will remain an unresolved tangle. It has already been concluded hereinabove, that in a Manoj Kumar claim raised under Section 163A of the Act, the 2014.03.18 09:07 I attest to the accuracy and integrity of this document FAO NO. 43 of 1997 5 claimants have neither to plead nor to establish negligence. We have also held, that negligence (as also, "wrongful act" and "default") can be established by the owner or the insurance company (as the case may be) to defeat a claim under Section 163A of the Act. It was therefore imperative for the petitioner- Insurance Company to have pleaded negligence, and to have established the same through cogent evidence. This procedure would have afforded an opportunity to the claimants to repudiate the same. Has the petitioner discharged this onus? In the present case, only one witness was produced before the Tribunal. The aforesaid witness appeared for the claimants. The witness asserted, that while giving way to a bus coming from opposite side, the motorcycle being ridden by Shijo, hit a large laterite stone lying on the tar road, whereupon, the motorcycle overturned, and the rider and the pillion- rider suffered injuries. The petitioner insurance- company herein did not produce any witness before the Tribunal. In the absence of evidence to contradict the aforesaid factual position, it is not possible for us to conclude, that Shijo was "negligent" at the time when the accident occurred. Since no pleading or evidence has been brought to our notice (at the hands of the learned counsel for the petitioner), it is not possible for us to conclude, that the inverse onus which has been placed on the shoulders of the petitioner under Section 163A of the Act to establish negligence, has been discharged by it. We, therefore, find no merit in the first contention advanced at the hands of the learned counsel for the appellant". On fact I see no reason to take a different view and in view of the binding precedent of the Hon'ble Supreme Court mentioned above, I find no reason to take a different view as taken by the Tribunal. Consequently the appeal stands dismissed.

           JANUARY 23, 2014                                         (AJAY TEWARI)
           Manoj Bhutani                                                JUDGE




Manoj Kumar
2014.03.18 09:07
I attest to the accuracy and
integrity of this document