Delhi District Court
Pooja Yadav & Ors. vs . Lekh Raj & Ors. on 29 November, 2017
IN THE COURT OF SH. M. K. NAGPAL PRESIDING
OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL PATIALA
HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
POOJA YADAV & ORS. VS. LEKH RAJ & ORS.
MACP NO. 53/15
1. Pooja Yadav,
W/o Late Sh. Manoj Kumar,
aged 23 years (wife)
2. Lavanya
D/o Late Sh. Manoj Kumar,
aged 01 years, (daughter)
3. Smt. Anar Shri
W/o Sh. Shiv Lahari Yadav
aged 51 years, (Mother)
4. Sh. Shiv Lahari
S/o Sh. Banvari,
aged 64 years, (Father)
All residents of House No. 18, MCD Girls School
Wali Gali, Samalkha Village, New Delhi.
Also at :-
H. No-60, Village Gurah, Tehsil:
Shikohabad, Distt. Firojabad, UP. ......Petitioners/Claimants
Versus
1. Lekh Raj .......(Driver)
S/o Sh. Basant Ram
R/o J-1912-13, Jahangir Puri,
Delhi-110033.
Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15
Page no.1 of 16
2. Vikram Singh .......(Owner)
S/o Sh. Om Prakash Singh
R/o D-271, B-Rajeev Nagar, Delhi-110041
3. HDFC ERGO General Insurance Co. Ltd. ..... (Insurer)
Pitam Pura, Delhi.
.....Respondents
Date of filing of DAR : 14.05.2015
Date of filing of claim petition : 14.05.2015
Date of framing of issues : 21.08.2015
Date of concluding arguments : 28.11.2017
Date of decision : 29.11.2017
AWARD/JUDGMENT
1. The claim for compensation raised in the present claim petition relates to the death of one Sh. Manoj Kumar in an accident that took place on 29.12.2014 at about 08.30 am, at NH-8, infront of crematorium, Mahipalpur, New Delhi, regarding which one FIR No. 1213/14, under sections 279/337/304A IPC was registered at PS Vasant Kunj, North. The offending vehicle involved in this case is one bus bearing registration no. DL-1PB-3899, which at the relevant time of accident was being driven by R-1, owned by R-2 and insured with R-3. The DAR in respect of the above accident was filed before this tribunal on 14.05.2015 and on the same date, this claim petition was also filed and the DAR was directed to be clubbed with the claim petition for further proceedings.
2. Facts of the case, briefly stated, are that on the above date Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.2 of 16 and time, the deceased was going to his office at INA from his residence on his motorcycle bearing registration no. UP-83AB-6736 when his motorcycle was hit by the above offending bus and as a result thereof, he suffered injuries and was taken to Subroto Park hospital of Airforce, from where he was shifted to Safdarjung hospital and his MLC was prepared there. The above victim subsequently expired in the said hospital on 01.01.2015 and his postmortem was conducted on 02.01.2015. Though, notice of the DAR, as well as of the petition, was duly given to the respondents, but R-1 and R-2 have not filed any reply to the DAR or to the petition, though a legal offer of Rs. 12,58,992/- for settlement was filed on behalf of R-3, which was not accepted by the petitioners.
3. I have heard the arguments advanced by Sh. A.K. Jha, Ld. counsel for petitioner, Sh. Y.K. Sengar, Ld. Counsel for R-1 & R-2 and Sh. Sanjeev Srivastava, Ld. counsel for R-3 and have also carefully perused the entire material available on record.
4. My issue-wise findings are as under:-
ISSUE NO.1 Whether the deceased sustained injuries in the accident which occurred on 29.12.2014 at about 08.30 hrs. at infront of Shamshan Land, NH-8, Mahilpalpur, New Delhi caused by rash and negligent driving of vehicle No. DL-1PB-3899 driven and owned by respondent no. 1, owned by respondent no. 2 and insured with respondent no.3 ? OPP.
5. The petitioners in support of their case have examined on record total four witnesses and their details and purpose of Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.3 of 16 examination is as under :-
PW1 Sh. Shashank Shekhar Rai is an official from the office of employer of the deceased, i.e. M/s Pratibha Industries Pvt. Ltd., New Delhi and he has brought on record the attested copies of pay slips of the deceased for the months of June, 2014 to December, 2014 as Ex. PW1/1 (colly), attested copy of service agreement of the deceased as Ex. PW1/2 (colly) and a letter of authority in his own favour to depose in the matter as Ex. PW1/3.
PW2 Smt. Pooja Yadav is widow of the deceased and petitioner no. 1 in the present proceedings and she has tendered on record her examination in chief by way of an affidavit Ex. PW2/A and further relied upon the documents consisting of copies of death certificate, driving license, 10th certificate, passport and salary certificate of her deceased husband as Ex. PW2/1 to Ex. PW2/5 respectively, copy of her election card as Ex. PW2/6, copy of birth certificate of petitioner no. 2 as Ex. PW2/7, copy of election card of petitioner no. 3 as Ex. PW2/8 and copy of election card of petitioner no. 4 as Ex. PW2/9.
PW3 Sh. Sunil Kumar is also a witness from the office of another employer of the deceased, i.e. M/s Gopal Priya Constructions Pvt. Ltd., Noida UP and he has also brought on record the salary vouchers of his company in respect of the deceased for the months of May, 2014 to November, 2014 as Ex. PW3/1 (colly). It is necessary to mention her that as per the case of the petitioners, the deceased was working as Assistant Storekeeper Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.4 of 16 with M/s Pratibha Industries Pvt. Ltd. on a salary of Rs. 15,450/- per month and he was also working as a part time accountant with M/s Gopal Priya Constructions Pvt. Ltd., Noida, UP and getting Rs. 5,000/- per month from this company.
PW4 SI Subhash Chand is the IO of the above criminal case and he has deposed about his conclusions drawn after investigation of the said case.
6. As is clear from the above, admittedly none of the above four witnesses examined on record is an eye witness of the accident or was competent to depose with regard to the manner in which the above accident took place. Though, standards of proof required in proceedings before an accident claim tribunal or in a civil courts are not the same as those required in a criminal case where the facts are required to be proved beyond reasonable doubts, but it is well settled that in proceedings U/S 166 of the M.V Act some substantive evidence is required to be led to prove rash and negligent driving of the offending vehicle on the part of driver thereof. The petitioners were duty bound to bring on record some evidence to show, even by preponderance of probabilities, that the above accident resulting into death of Sh. Manoj Kumar took place due to the rash and negligent driving of the above offending bus driven by R-1. It is only when this fact is established on record by some satisfactory evidence that R-2 being the owner of the said vehicle can be vicariously held liable to compensate the petitioners for the consequences of the acts or omissions of R-1 and the liability of R-3 Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.5 of 16 to indemnify R-2 as per the terms of the insurance policy can come into picture.
7. In case of Minu B. Mehta and another V. Balkrishna Ramchandra Nayan and Another, 1977 A. C. J. 118, the Hon'ble Supreme Court has held:
"22. The liability of the owner of the cars to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort. Regarding the negligence of the servant the owner is made liable on the basis of vicarious liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of employment and that he was negligent."
8. Further in case of Oriental Insurance Co. Ltd. V. Meena Variyal and others, 2007 ACJ 1284, the Hon'ble Supreme Court has also held:
"23...................On a careful understanding of the decision in Gujarat State Road Transport Corporation (supra) we cannot understand it as having held that in all claims under the Act proof of negligence as the basis of a claim is jettisoned by the scheme of the Act. In the context of Sections 166 and 163A of the Act of 1988, we are persuaded to think that the so called obiter observations in Minu B. Mehta's case (supra) govern a claim under Section 166 of the Act and they are inapplicable only Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.6 of 16 when a claim is made under Section 163A of the Act. Obviously, it is for the claimant to choose under which provision he should approach the Tribunal and if he chooses to approach the Tribunal under Section 166 of the Act, we cannot see why the principle stated in Minu B. Mehta's case should not apply to him. We are, therefore, not in a position to accept the argument of learned counsel for the respondents that the observations in Minu B. Mehta's case deserve to be ignored.
24. We think that the law laid down in Minu B. Mehta & Anr. Vs. Balkrishna Ramchandra Nayan & Anr. (supra) was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by introducing Section 163A of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of a motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under sub-section (1) of Section 163A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.7 of 16 respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned. Therefore, the victim of an accident or his dependents have an option either to proceed under Section 166 of the Act or under Section 163A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle."
9. Further in case of Lachoo Ram and Others V. Himachal road Transport Corporation, (2014) 13 Supreme Court Cases 254, the Hon'ble Supreme Court has also held:
"10. But simply the involvement of the bus in the accident cannot make the respondent liable to pay compensation unless it can be held on the basis of materials on record that the accident was caused by rash and negligent act of the driver-respondent no.2. On this issue, on comparing the reasons given by the Tribunal while discussing the issue no.1 and those given by the High Court on pages 10 and 11 of the paper book, we find the reasons given by Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.8 of 16 the High Court to be much more cogent and acceptable in coming to the conclusion noted above. Since the bus was standing at the red light and on being asked, soon after starting from the traffic signal it stopped within 100 to 150 yards, it has rightly been reasoned that the bus could not have started on a high speed. The road at the place of the accident was admittedly very narrow and PW.2, who has been found reliable by the Tribunal as well as by the High Court and was present on the spot, has not claimed that the bus driver had given a signal to the deceased motor cyclist to overtake him. This witness could not see the actual accident because at that time the motorcyclist, in an effort to overtake the bus had gone on its right side and was not visible and therefore he could only hear the sound of crash. It is not the case of any witnesses that the bus driver took any sudden turn while proceeding forward from the traffic signal or that he swerved the bus to the right side.
11. In the facts of the case it is not found possible to accept the contention on behalf of the appellants/claimants that the accident was on account of rash or negligent driving by the driver-the respondent no.2. In that view of the matter it is not found possible to give any relief to the appellants."
10. While discussing the propositions of law laid down by the Hon'ble Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.9 of 16 Supreme Court in the above said cases, the Hon'ble Delhi High Court in case of New India Assurance Company Limited vs. Devki & Ors., MAC App. 165/2013 decided on 29.02.2016 has made the following observations :-
"5. It is well settled that in proceedings arising out of a claim petition under Section 166 of MV Act based on fault liability principle, a person cannot be held liable unless he contravenes any of the duties imposed on him by the common law or by the statute. In the case of a motor accident it is imperative that the claimants show by some evidence that the driver of the motor vehicle had been negligent in relation to the said vehicle and thereby had caused an accident resulting in bodily injuries or death or damage to the property so as to be held liable as the principal tort-feasor. The owner's liability arises out of his failure to discharge a duty cast on him by the law, on the principle of vicarious liability. Proof of negligence is necessary before the owner or the insurance company may be held liable for payment of compensation in a motor accident claim case brought under Section 166 MV Act.
6. The law to above effect declared in Minu B Mehta v. Balkrishna Ramchanra Nayan (1977) 2 SCC 441 was reiterated by Supreme Court in Oriental Insurance Company Ltd. v. Meena Variyal 2007 (5) SCC 428. It Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.10 of 16 appears there was some confusion raised with regard to these principles on account of view taken in the case of Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai (1987) 3 SCC 234. In Meena Variyal (supra) the Supreme Court clarified as under :
"On a careful understanding of the decision in Gujarat State Road Transport Corporation (supra) we cannot understand it as having held that in all claims under the Act proof of negligence as the basis of a claim is jettisoned by the scheme of the Act. In the context of Sections 166 and 163A of the Act of 1988, we are persuaded to think that the so called obiter observations in Minu B. Mehta's case (supra) govern a claim under Section 166 of the Act and they are inapplicable only when a claim is made under Section 163A of the Act. Obviously, it is for the claimant to choose under which provision he should approach the Tribunal and if he chooses to approach the Tribunal under Section 166 of the Act, we cannot see why the principle stated in Minu B. Mehta's case should not apply to him. We are, therefore, not in a position to accept the argument of learned counsel for the respondents that the observations in Minu B. Mehta's case deserve to be ignored."
7. In Pushpa Rana (supra), the learned Single Judge of this Court holding the case of the claimant as duly proved Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.11 of 16 on the basis of the certified copies of the record of the corresponding criminal case, while dealing with identical contention took note of the judgment in Meena Variyal (supra) but proceeded to observe thus:
"13. The last contention of the appellant insurance company is that the respondents claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the Judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (i) certified copy of the criminal record of criminal case in FIR No. 955/2004, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304-A, IPC against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.12 of 16 also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
8. In the facts and circumstances, this Court finds it difficult to follow the view taken in Pushpa Rana (supra). Since the law declared by the Supreme Court in Meena Variyal (supra) is binding, there is no escape from the conclusion that it is the burden of the claimants in a petition under section 166 of MV Act to prove negligence. Should they find it difficult to prove evidence with regard to negligence, the option to have resort to no- fault liability on the structured formula under Section 163A of MV Act is always available to seek just compensation. The case of Bimla Devi (supra) cannot be an illustration to hold otherwise inasmuch as it is clear from the narration of facts noted therein that an eye witness was available and the conclusion on facts had been reached on the basis of his testimony."
11. The above legal propositions have also been reiterated by the Hon'ble Delhi High Court in subsequent cases titled as UOI & Ors. v. Annu Jindal & Ors., MAC App. No. 562/2008, decided on 10.07.2017 and Reliance General Insurance Company Ltd. v. Nirmala Devi & Ors., MAC App. No. 20/2017, decided on 05.07.2017.
12. It is necessary to mention here that sufficient opportunities were given to the petitioners to bring on record their evidence on the Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.13 of 16 above aspect and the matter was also fixed repeatedly for furnishing clarifications on the said aspect, but Ld. Counsel for the petitioner has stated that he has no further evidence to lead in the matter.
13. It is the contention of Ld. Counsel for the petitioners that evidence of any eye witness of the accident is not required in this case in view of the fact that R-1 already stands chargesheeted in the above criminal case for offences under Sections 279/337/304A IPC and this fact stands established on record from the depositions made by the IO/PW4 as well as the documents of the above criminal case filed on record as a part of the DAR. He has also referred to the depositions made by the IO/PW4 to the effect that after conducting investigation, it was concluded by him that the accident was caused on account of rash and negligent driving of R-1, who was driving the above offending bus and also that neither the driver nor the owner of the offending vehicle ever complained that they have been falsely implicated in the said case. Besides the above evidence, reliance is also placed upon by Ld. Counsel for the petitioners upon the factum of filing of a legal offer for settlement on behalf of R-3 and it is also his contention that once the insurance company has filed a legal offer for settlement, it stands admitted by them that they have no defence to make and they admit the factum of accident as well as rash and negligent driving of the insured vehicle involved in the accident by R-1.
14. However, this tribunal is not in agreement with the above arguments advanced by Ld. Counsel for the petitioners and the above depositions made by the IO, even if he was not cross examined on Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.14 of 16 behalf of the respondents, are not sufficient to prove the fact that the offending bus was being driven in a rash and negligent manner by R-1 at the relevant time of accident as this fact was required to be proved by the petitioners by some substantive piece of evidence. Even giving of a legal offer by the insurance company was in accordance with the Modified Claims Tribunal Agreed Procedure and this legal offer was given at a time when the mere filing of a chargesheet in the criminal case and placing reliance upon the documents of the said case was being considered to be sufficient enough for discharging this onus of proof in view of the judgment of the Hon'ble Delhi High Court in the case of Pushpa Rana (supra).
15. However, the propositions of law as laid down by the Hon'ble Supreme Court in the above said cases of Minu B. Mehta, Meena Variyal & Lachoo Ram etc. and that followed by the Hon'ble Delhi High Court in cases of Annu Jindal & Nirmala Devi etc. clearly hold that the rash and negligence driving on the part of driver of an offending vehicle is required to be proved by some substantive evidence in proceedings under Section 166 MV Act and hence, the law laid down in the case of Pushpa Rana (supra) by the Hon'ble High Court no longer holds good and cannot be made basis for allowing a claim for compensation in proceedings under Section 166 of the MV Act simply on basis of records of the criminal case or on the basis of a legal offer made by the Insurance Company, as has been argued by the Ld. Counsel for the petitioners.
16. Therefore, in view of the above factual and legal Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.15 of 16 discussion, since no substantive evidence has been led on record by the petitioners to discharge the onus placed upon them for proving the above issue, it is held that they have failed to prove the above issue or the fact that the above accident resulting into death of the deceased Sh. Manoj Kumar took place due to the rash and negligent driving on the part of R-1 in driving the above offending bus owned by R-2 and insured with R-3. Hence, this issue is decided against the petitioners and in favour of the respondents.
ISSUE NO. 2Whether the petitioner is entitled for compensation ? If so, to what amount and from whom ?
17. Since the issue no. 1 has been decided against the petitioners, they are held not entitled to any compensation from the respondents in the present claim petition and this issue is also accordingly decided against them.
18. In view of the above discussions, this claim petition has been dismissed. File be consigned to record room after necessary formalities.
Announced in the open court. (M.K.Nagpal)
on 29.11.2017 PO/MACT, New Delhi
Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15
Page no.16 of 16
MACP No. 53/15
Pooja Yadav & Ors. Vs. Lekh Raj & Ors.
29.11.2017
Present: None.
Vide separate order the claim petition has been dismissed. File be consigned to record room after due compliance.
(M.K. Nagpal) Judge/MACT, New Delhi 29.11.2017 Pooja Yadav & Ors. Vs. Lekh Raj & Ors. MACP No. 53/15 Page no.17 of 16