Delhi District Court
Dar-Kush Mishra vs Padam Prakash Gautam on 23 July, 2024
IN THE COURT OF VIJAY KUMAR JHA
PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL-01, SHAHDARA
KARKARDOOMA COURTS, DELHI
____________________________________________________________
In the matter of :
MACT no.119/2024
Kush Mishra v. Padam Prakash Gautam & Anr.
Kush Mishra (Injured)
S/o Sh. Parshu Ram Mishra
R/o 630, Gali no.28, C-3 Block, Harsh Vihar, Delhi. ............Petitioner
Versus
1). Padam Prakash Gautam (Driver-cum-Owner)
S/o Sh. Bhim Sen
R/o B-2/767, Gali no.29, Harsh Vihar, Delhi.
2). The New India Assurance Co. Ltd. (Insurer)
RG City Centre, LSC, Block-B,
Lawrence Road, New Delhi. ....... Respondents
ORDER
1. By this order I shall decide whether the DAR (Detailed Accident Report) filed by the Investigating Officer (IO) Inspector Vinit Kumar, which vide order dated 22/02/2023, has been treated as claim petition under section 164(4) of Motor Vehicles Act, is maintainable before this Tribunal.
2. The brief description of the accident as per column no. 47 of DAR is that on 02/11/2020 after the receipt of DD no. 66A, the IO went to ______________________________________________________________________ MACT no.119/2024; Kush Mishra v. Padam Prakash Gautam & Anr. 1 of 9 Pages Dr. Hedgewar Hospital and from the MLC no. 2967/20, the IO came to know that the patient was referred to a higher centre and as the information regarding the injured could not be found the DD was kept pending.
3. On 05/11/2020, the IO was present in the Police Station and one Nanhi Mishra wife of Kush Mishra came to the Police Station and informed the IO that her husband Kush Mishra on 02/11/2020 at about 08:00 PM in the night had met with an accident while riding on his motorcycle with a tyre which was kept on the road because of which her husband had received injuries and was being treated in Jeevan Jyoti Hospital.
4. The IO went to Jeevan Jyoti Hospital and with the permission of the doctor recorded the statement of the injured Kush Mishra who made the statement that at about 08:00 PM, he was on his motorcycle bearing registration no. DL5SBL 3982 and was going for work from his home and was wearing a helmet. When he reached Sunday Bazar Road after crossing PS Harsh Vihar about a hundred metres, he suddenly saw that one Tempo was standing on the side of the road and one person was unfastening its tyre and one tyre was kept on the middle of the road in the dark. As soon as he saw the tyre, he applied the brakes of his motorcycle but his motorcycle could not come to a standstill and hit the tyre which was on the road and he was thrown out of his motorcycle and fell on the road because of which his helmet came out and thereafter, he did not remember what happened. As per the complainant, the accident had occurred because of the ______________________________________________________________________ MACT no.119/2024; Kush Mishra v. Padam Prakash Gautam & Anr. 2 of 9 Pages negligence in keeping the tyre in the middle of the road without taking any precaution.
5. One eyewitness namely Devender Kumar Shukla whose statement was recorded by the Investigating Officer gave the similar statement as that of the complainant Kush Mishra regarding the manner the accident had happened.
6. In the criminal case which was registered regarding the accident, the Investigating Officer after completing the investigation has filed the charge-sheet under sections 283/337/338 IPC.
7. I have heard the arguments and perused the record of the case.
8. This Tribunal has been established under section 165 of Motor Vehicles Act, 1988 for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of third party so arising, or both.
9. In a way, section 160 of Motor Vehicles Act defines the jurisdiction of this Tribunal and before this Tribunal assumes jurisdiction in any matter for compensation, the claimant has to satisfy that the matter/petition of the petitioner states all the jurisdictional facts on the basis of which this Tribunal could assume the jurisdiction. The jurisdictional facts would be first, there should be an accident involving death or bodily injury to a person or damages to any property of the third party. Second, the death or bodily injury to the person should have arisen because of the use of motor vehicles. ______________________________________________________________________ MACT no.119/2024; Kush Mishra v. Padam Prakash Gautam & Anr. 3 of 9 Pages
10. The claim for compensation which is preferred under the provisions of Chapter 12 of Motor Vehicles Act is based on the tortious liability of the motor vehicle driver and on that basis on the principle of vicarious liability, against the owners of such motor vehicles and the insurance company steps into the picture regarding the claim of compensation on the basis of the contract of indemnity and also on account of the statutory liability as laid down by Motor Vehicles Act.
11. The element of rashness and/or negligence for the claim preferred under the provisions of Motor Vehicles Act is the linchpin which has to be there for successfully getting the compensation. It is not as if the claim for compensation would lie even in cases of accidents caused by use of motor vehicles in the accident of which the driver was neither rash nor negligent. [Ref. Minu B. Mehta v. Balkrishna, AIR 1977 SC 1248]
12. The words 'injury caused by or arising out of the use of the vehicle' postulates a cause-and-effect relationship between the use of the vehicle and the injury, 'caused by' connotes a 'direct' or 'proximate' relationship of cause and effect. "Arising out of," extends this to a result that is less immediate; it still carries a sense of consequence. It excludes cases of bodily injury in which the use of the vehicle is a merely casual concomitant, not considered to be, in a relevant causal sense, a contributing factor". [Ref. Gujarat State Road Transport Corporation, Ahmedabad v. Union of India, 1986 SCC OnLine Guj 136] ______________________________________________________________________ MACT no.119/2024; Kush Mishra v. Padam Prakash Gautam & Anr. 4 of 9 Pages
13. Use of a motor vehicle does not imply that the vehicle at the time of accident should have been on the road or being driven by the driver or even should have been in a working condition. No matter in what manner the motor vehicle was being used (or even miused) which resulted in an accident but the fact which could not be lost sight of is that the cause of the accident for preferring claim under the provisions of Motor Vehicles Act should be the 'Use of the Motor Vehicle', no matter how the vehicle is used; the actively or passively. However, in all the cases for the Claims Tribunal to have the jurisdiction with respect to the petition preferred under the section 166 of Motor Vehicles Act, there must be a causal connection by way of whole or part contribution of the offending motor vehicle towards the accident causing death, injury or damage to the property.
14. It is the admitted case of the petitioner/injured that the accident in which the petitioner received injuries were not caused by the Tempo which was parked on the side of the road. Therefore, in the accident in which the petitioner received injuries, a motor vehicle was not involved actively and the manner in which the accident occurred it could not be said that the Tempo was passively involved or resulted in the accident.
15. It is also not the case of the petitioner that the Tempo had met with some accident and the tyre of the Tempo had come upon the road with which the petitioner met with an accident and received injuries. Had it been so then in such circumstances it could have been said ______________________________________________________________________ MACT no.119/2024; Kush Mishra v. Padam Prakash Gautam & Anr. 5 of 9 Pages that Tempo was passively involved in an accident in which the petitioner received injuries.
16. As per the case of the petitioner, when the petitioner, at about 08:00 PM, in the night was riding his motorcycle and coming to his home, he suddenly saw that the Tempo was parked over the side of the road and one person was unfastening the tyre and one of the tyres was kept in the middle-of-the-road which because of the darkness, the petitioner could not see and had an accident.
17. On the admitted facts and the manner as has been stated in the DAR/petition which led to the accident in which the petitioner received injuries, it cannot be said that between the accident and the Tempo there was any direct or proximate relationship of cause and effect resulting in the accident of the petitioner. The case would have been different if the respondent no.1 had parked his Tempo negligently over the road and the result would have been caused because of such negligence. But the negligence which is apparent or which could be discerned from the DAR leading to the accident, is the negligence of the respondent no.1 in keeping the tyre in the middle of the road which the petitioner could not see in the darkness of the night. The negligence of the respondent no.1 by no process of ratiocination cannot be held to be the rash or negligent use of the Tempo leading to the alleged accident and it cannot be held that in the case of the petitioner, whatever injury he received because of the accident involving the tier in the middle-of-the-road and that his ______________________________________________________________________ MACT no.119/2024; Kush Mishra v. Padam Prakash Gautam & Anr. 6 of 9 Pages accident was caused by or arising out of the use of motor vehicle/ Tempo by the respondent no.1.
18. The Ld. Counsel for the petitioner to contend that the DAR/petition for compensation is maintainable has relied upon the judgments passed in Premlata Nilamchand Sharma v. Hirabhai Ranchhodbhai Patel, 1982 SCC OnLine Guj 23; Pushpa Rani Chopra v. Anokha Singh, 1975 SCC OnLine Del 93; and The Claim Manager v. Pushpa of Hon'ble Karnataka High Court in Miscellaneous First Appeal No. 1378/2017.
19. Before analysing the judgments relied upon by the Ld. Counsel for the petitioner, it may be stated that with respect to the judgments of the Superior Court, it is the ratio decidendi which is binding. The ratio decidendi of any decision must be understood in the background facts of that case. Even a single material fact, if different, makes the ratio for a particular decision inapplicable. For the applicability of ratios, similarity in the material facts is very paramount. The Hon'ble Supreme Court in ICICI Bank Ltd v. Municipal Corporation of Greater Bombay; 2005 AIR (SC) 3315, in para 8 of the judgment has observed:
"The ratio of the judgment or the principle upon which the question before the Court is decided is alone binding as a precedent. The decision of the Supreme Court upon a question of law is considered to be a binding precedent, and this must be ascertained and determined by analysing all the material facts and issues involved in the case."
______________________________________________________________________ MACT no.119/2024; Kush Mishra v. Padam Prakash Gautam & Anr. 7 of 9 Pages
20. The Hon'ble Supreme Court in Union of India and others v.
Dhanwanti Devi and others, (1996) 6 SCC 44, has held:
"10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents......".
21. In all three of the judgments on which reliance have been placed upon by the Ld. Counsel for the petitioner, the accident was caused by the vehicle and not by any part/tyre of the vehicle present in the middle-of-the-road.
22. In Premlata Nilamchand Sharma (supra), the accident occurred when the scooter collided with the trailer attached to the tractor. In Pushpa Rani Chopra (supra), the motorcycle of the deceased had dashed against the rear portion of the stationary truck. In The Claim Manager (supra), the accident had happened because the driver of the lorry had negligently parked it on the side of the road without any indication and the driver of the motorcycle could not notice the lorry and dashed against the stationed lorry and had a fatal accident.
23. In all the three judgments which have been relied upon by the Ld. Counsel for the petitioner, the motor vehicle and the accident were inexorably connected with cause-and-effect relationship and the motor vehicle in all the three cases had either direct or approximate ______________________________________________________________________ MACT no.119/2024; Kush Mishra v. Padam Prakash Gautam & Anr. 8 of 9 Pages relation with accident which had been caused. All three judgments as relied upon are of no help in furthering the case of the petitioner.
24. In the light of discussion herein above, this Tribunal is of the opinion that the accident in which the petitioner received injuries were not caused by or arisen out of the use of the motor vehicle i.e., the Tempo and therefore, this Tribunal does not have the jurisdiction to entertain the DAR which has been treated as the claim petition. The petitioner shall be at liberty to seek compensation against the respondent no.1 before appropriate forum, in accordance with law.
Announced in the open (VIJAY KUMAR JHA)
Court on 23.07.2024 Presiding Officer-MACT-01 (Shahdara)
Karkardooma Courts, Delhi
______________________________________________________________________ MACT no.119/2024; Kush Mishra v. Padam Prakash Gautam & Anr. 9 of 9 Pages