Delhi District Court
Additional Sessions Judge/Special ... vs Surender Kumar on 26 February, 2010
1
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE: NDPS:
TIS HAZARI COURTS:(WEST) DELHI
Suit No. 4/09/07
Date of filing of the Petition : 25.1.2007
Date reserve for Judgment : 09.02.2010
Date of Final Award : 26.02.2010
1 Smt. Hemlata
W/o Late Shri Narender Kumar, aged about 36 years
2 Kumari Simran
D/o Late Shri Narender Kumar aged about 9 years
(Minor Daughter)
3 Km. Shivani D/o Late Sh. Narender Kumar ,aged about 8 years
(Minor Daughter)
4 Master Jatin S/o Late Shri Narender kumar, aged about 6 years
(Minor Son)
Petitioner no. 2 to 4 being minor are represented through their
mother /Natural guardian//petitioner no. 1
All resident of F3/312, Sultanpuri, Delhi 41 ............ Petitioners
Versus
1 Surender Kumar
S/o Sh. Jagdish Rai
R/o D394 Peeragarhi Camp
Delhi
2 M/s Bagai Construction Co.
through its proprietor/partner
Plot no. 1 , 10516 /A, Uday Park, New Delhi 49
3 Smt. Kailashwati
W/o Late Shri Banarsi Dass
R/o F3/312, Sultanpuri
2
Delhi 41 .......... Respondents
Judgment/ Award The brief resume of the facts of the case is that on 14.11.2006 at about 3.00 p.m deceased Narender Kumar was sitting as a pillion rider on Bajaj Chetak Scooter bearing registration number DL 3SQ 5913 being driven by Surender Kumar /respondent no. 1 and met with an accident at under pass , Punjabi Bagh, Div5, Punjabi Bagh, Delhi . The deceased was removed to Sanjay Gandhi Memorial Hospital from where he was referred to Sushruta Trauma Centre and remain admitted there from 14.11.2006 to 20.11.2006 and died on 20.11.2006 2 The petitioner no. 1 Smt. Hemlata (widow of the deceased) has claimed compensation of Rs. 10,00,000/for the fatal injuries sustained by deceased Narender S/o Late Shri Banarsi Dass.
3 Summons were sent to all the respondents who were duly served. The respondents no. 1 and 2 have filed written statement. 4 The respondent no. 1 in his written statement has stated that respondent no. 1 was not driving the scooter bearing no. DL 3S Q5913, rather the deceased was driving the same at the time of accident and respondent no. 1 i.e Surender Kumar was the pillion rider of the scooter and hence respondent no. 1 was not responsible for the said accident occurred on 14.11.2006. The respondent no.1 has denied the liability to pay the compensation on the ground that he was neither 3 the registered owner nor the driver of the scooter bearing registration no. DL 3SQ 5913.
5 The respondent no. 2 M/s Bagai Construction Co. in its written statement has taken the preliminary objection that the present claim petition has been filed with an ulterior motive only to extract money from respondent no. 2 . It is further stated that respondent no. 2 has no relation or link to the vehicle in question because the respondent no. 2 had already sold the vehicle/Bajaj Chetak scooter bearing no. DL 3SQ 5913 to Shri Surender Kumar (respondent no. 1) on August 1, 2006 whereas the accident occurred on 14.11.2006. It is further submitted that respondent no. 2 has been wrongly arrayed as a party and the documents showing the sale of the scooter, cash receipt, delivery receipt, Form 29 and Form 30 to respondent no. 1 had already been placed on record and thus the respondent no. 2 after the sale of the vehicle has no concern with the scooter. All other averments in the petition have been controverted and denied.
6 On 13.12.2007, the Ld. Predecessor has framed the following issues :
1 Whether the deceased Shri Narender Kumar had sustained fatal injuries on 14.11.2006 at about 3.00 p.m , Under Pass, Punjabi Bagh, Delhi due to the use of vehicle i.e Bajaj Chetak Scooter bearing registration no. DL 3SQ 5913?
2 Whether the petitioners are entitled to compensation ? If so, to what amount and from whom ?4
3 Relief
7 Smt. Hemlata, wife of the deceased has been examined as PW1 , ASI Lallan Parsad has been examined as PW2 and Parveen Kumar Gupta , Record Clerk Sanjay Gandhi Memorial Hospital has been examined as PW3. RW1 Surender Kumar has been examined on behalf of respondent no.1 , Shri Manoj Kumar Sharma RW2 has been examined on behalf of M/S Bagai Constructions respondent no.2 , Shri Sanjiv Kumar has been examined himself as RW3 and Sanjiv Kumar Sharma has been examined as RW4 by the respondent no. 2. 8 I have heard Ld. Counsels for the parties. My issue wise findings is as under :
ISSUE NO. 1
Whether the deceased Shri Narender Kumar had sustained fatal injuries on 14.11.2006 at about 3.00 p.m , Under Pass, Punjabi Bagh, Delhi due to the use of vehicle i.e Bajaj Chetak Scooter bearing registration no. DL 3SQ 5913?
WITNESSES OF PETITIONER
9 In order to prove the accident , the petitioner Smt. Hemlata has examined herself as PW1 by filing her affidavit Ex. PW1/A wherein she has deposed that on 14.11.2006 at about 3.00 p.m her husband was sitting as a pillion rider on Bajaj Chetak Scooter bearing registration 5 no. DL 3SQ 5913 being driven by Surender Kumar /respondent no. 1 and met with an accident out of the said scooter. It is further stated that her husband was removed to Sanjay Gandhi Memorial Hospital from where he was referred to Sushruta Trauma Centre where he was admitted from 14.11.2006 to 20.11.2006 and died on 20.11.2006 due to injuries sustained in the accident. It is further stated that FIR was registered with Police Station Punjabi Bagh. In her cross examination by Ld. Counsel for respondents , she has stated that she was not any eye witness to the accident.
10 ASI Lallan Parsad has examined himself as PW2 and had placed on record the final investigation report Ex. PW2/A, original report Ex. PW2/B , site plan Ex. PW2/D , FIR prepared by the computer Ex. PW2/E , seizure memo of two wheeler scooter Ex. PW2/F, complaint made by Surender Ex. PW2/G , Statement of Surender Kumar Ex. PW2/H, DD no. 50 B Ex. PW2/I , statement of identification of the dead body Ex. PW2/J, Mechanical inspection report Ex. PW2/K, MLC Ex. PW2/L, postmortem report Ex. PW2/M , death summary Ex. PW2/N and RC of the two wheeler Ex. PW2/O. In his cross examination, he has stated that he had recorded the statement of pillion rider Surender Kumar who told him that the scooter was being driven by deceased Narender and no other witness of accident was found during investigation conducted by him.
11 PW3 Parveen Kumar Gupta , record clerk in his examination 6 has stated that he had brought the original register containing postmortem report no. 924/06. The photocopy of the same is Ex. PW3/A. He was not crossexamined on behalf of respondents despite opportunity given.
WITNESSES OF RESPONDENT 12 The respondent no. 1 has examined himself as RW1 . In his affidavit ,he has stated that on 14.11.2006 , he was pillion rider on the scooter bearing no. DL 3SQ 5913 and the deceased Shri Narender Kumar was driving the scooter. It is further stated that scooter met with accident and both of them fell down and deceased was seriously injured and taken to the hospital and died. He further testified that he was not the registered owner of the scooter and was not liable to pay any compensation to the petitioner. In his cross examination he has stated that accident had taken place on 14.11.2006 and Shri Narender Kumar sustained injury and later on died . In a court question regarding who was driving the offending vehicle , he has stated that deceased Narender was driving and he was sitting behind him. 13 While deciding the culpability and the involvement of the vehicle in the accident, the Tribunal is not required to be too technical but to decide the case on preponderance of evidence in order to take special care that the innocent victim do not suffer and the driver and owner do not escape liability merely because of doubt. The rule of prudence 7 is to be vigilant and drive at a slow speed with due care and caution at a spot which is generally used by pedestrian or others and is otherwise often crowded by the pedestrian or other vehicular traffic. The case of Sukhdev Singh and others Vs. Vinod Kumar and others, 107 (2003) DLT 590, can be relied in that regard wherein it was held as follows: "The Tribunal while deciding the culpability and involvement of the vehicle in the accident is not required to succumb to niceties, technicalities and mystic maybes but are required to decide the cases on preponderance of evidence. The Tribunal while deciding such cases must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable."
14 In view of the above discussion , the petitioner has succeeded in establishing that the deceased has sustained injury on 14.11.2006 at about 3.00 p.m due to the use of Bajaj Chetak Scooter bearing registration no. DL 3SQ 5913 . The issue no. 1 is decided accordingly in favour of the petitioners .
ISSUE NO. 2
Whether the petitioners are entitled to compensation ? If so, to what amount and from whom ?
815 For deciding this issue , it is required to be ascertained from the evidence of the parties as to who was owner of the offending vehicle on the date of accident. The petitioner has impleaded M/S Bagai Construction , the respondent no. 2 as owner of the offending vehicle. The respondent no.1 Surender Kumar was impleaded as driver of the offending vehicle.
16 In the written statement by respondent no. 2, it is stated that M/s Bagai Construction had no relation or link because respondent no. 2 had already sold the vehicle i.e Bajaj Cheetak Scooter to Surender Kumar , respondent no. 1 on 1.8.2006 whereas accident has occurred on 14.11.2006. It is further stated that respondent no. 2 has been wrongly impleaded as a party . He had filed application U/o 1 Rule 10 CPC for deletion of his name as respondent in the present petition ; the respondent no. 1 had informed that he would himself get the scooter registered in his name after executing all necessary documents by respondent no. 2 in his favour . It is further stated that the sale transaction was completed in presence of Sanjiv Kumar , friend of respondent no. 1 and employee of respondent no. 2 Sanjiv Kumar Sharma and physical possession of the offending vehicle was given on the spot alongwith receipt of full payment of Rs. 4,500/ . Hence , it is stated that respondent no. 2 was in no manner liable to pay any compensation to the petitioners.
17 The respondent no. 1 in his reply to the petition has stated that 9 the respondent no. 1 was not driving the offending scooter bearing no. DL3S Q 5913 and it was the deceased who was driving the same at the time of accident whereas respondent no. 1 was sitting as pillion rider of the same; this fact is mentioned in FIR no. 969/2006 , PS Punjabi Bagh Delhi; as such respondent no. 1 was not responsible for the said accident and further denied that he was liable to pay compensation to the petitioners.
ARGUMENTS 18 In his written argument , Ld. Counsel for petitioners has argued that the respondent no. 1 and 2 both are denying their liability on the ground that respondent no. 2 has sold the vehicle to the respondent no. 1 whereas respondent no. 1 is saying that he had never purchased the offending vehicle from the respondent no. 2 . It is argued that Section 50 (1) of the Motor Vehicle Act enjoins upon the transferor of the vehicle to report the transfer to the Local Transport Authority within a period of 14 days and simultaneously send a copy of the said report to the transferee . It is further argued that Sub section 3 of the Section 50 of the Motor Vehicle Act provides that if transferor or the transferee fails to report to the registering authority the fact of transfer within a period specified in clause (a) and clause (b) of sub section (1) or the person required to make an application under sub section (2) fails to make such application within the period 10 prescribed , the registering authority may ask them to pay any amount not exceeding one hundred rupees as per section 177 of the Motor Vehicles Act. It is therefore argued that both respondent no. 1 and 2 are jointly and severally liable to make the payment of compensation to the petitioners.
19 Ld. Counsel for respondent no. 2 in his written arguments has submitted that the offending vehicle was already sold to respondent no. 1 on 1.8.2006 for a sum of Rs. 4500/ and the accident had taken place on 14.11.2006 ; the possession of offending vehicle was handed over to respondent no. 1 on the same date and cash receipt and delivery receipt were signed by respondent no. 1 and Form 29 and 30 were also signed by the respondent no. 2 in favour of respondent no.1. The said sale transaction took place in the presence of Shri Manoj Sharma (RW2) , Sanjiv Kumar (RW3) and Shri Sanjiv Kumar Sharma (RW4); respondent no. 1 informed the respondent no. 2 that he would get the registration of the vehicle transferred in his own name and assured respondent no. 2 not to bother about that, therefore, respondent no. 2 handed over all original documents to respondent no. 1 in the presence of witnesses : It is further argued that even after a lapse of two months, the respondent no. 1 did not get the registration of the scooter in his own name and as such there can be no liability fastened to respondent no. 2 .
20 Ld. Counsel for respondent no. 2 has referred upon the cases 11 of Hon'ble Apex Court in the cases of Rajasthan State Road Transport Corporation Vs Kailash Nath Kothari & others (1997) 7 SCC 481 and Dr. T.V Jose VS. Chacko P.M (2001) 8 SCC 748 .
21 In Dr. T.V Jose Vs Chacko P.M (2001) 8 SCC 748 'it was held that :
' there can be transfer of title by payment of consideration and delivery of the car and the evidence on record shows that ownership of the car had been transferred but registered owner of the vehicle continued to be owner as his name had not been changed in the record of RTO , therefore continued to remain liable to third parties as his name continued in the records of RTO . '
22 Ld. Counsel for respondent no. 2 however argued that the Hon'ble Supreme Court in Dr. T.V Jose Vs Chacko P.M and ors. (SUPRA) was not dealing with Motor Vehicle Act of 1988. And as per Section 51 of the Motor Vehicle Act 1988, once the documents of transfer are executed by both the parties, for all purposes the ownership of the vehicle stands changed in the name of purchaser . If the formalities are not completed by either party they are only liable to make payment as directed under section 177 of the Motor Vehicle Act. It is therefore argued that respondent no. 1 was the owner of the offending vehicle at the time of accident.
23 Ld. Counsel for respondent no. 1 has argued that firstly the 12 vehicle was never purchased by respondent no. 1 and his signatures on the documents have been forged and fabricated. Secondly, since the name was not changed in the record of transport authority , it is the registered owner of the vehicle who is owner of the vehicle for purpose of compensation under Motor Vehicle Act; since it was the respondent no. 2 who is the registered owner of the vehicle in the record of Transport Authority on the date of accident and as such it is respondent no. 2 who being the owner of the offending vehicle is liable to pay compensation, if any liability is fastened in this case. 24 Ld. Counsel for respondent no. 1 referred and relied upon the case of Allahabad High Court in B.D Sharma Vs Zarina and ors. Reported as 2009 ACJ1205 wherein it was held that:
' the ownership of the vehicle is defined under section 2(30) of the Motor Vehicles Act 1988 , which means the persons
(s) in whose name the vehicle is registered . Therefore , registration is essential part to prove transfer and till the necessary corrections are made by competent authority , so far as third parties are concerned, the transferor still continued to remain liable as his name continued in the records of RTO as owner . The Honble Apex Court in Dr. T.V Jose Vs Chacko P.M referred SUPRA was holding that the Hon'ble Apex Court has held that the title and or ownership of the vehicle can be transferred by appropriate documentation which was required to be done but unless or until it was entered into the record of the Regional 13 Transport Authority as owner , the original cannot escape from the liability.
25 The Police investigation was carried out in FIR no. 969/06 , PS Punjabi Bagh and final report u/s 173 Ex. PW 2/A has been filed before Ilaqka Magistrate wherein the investigating agency has sought to close the case as canceled on the ground that during investigation it was found that the offending vehicle was being driven by deceased Narender Kumar and the accident occurred because suddenly the tyre of the scooter got punctured and scooter became disbalanced as a result the scooter fell down and the deceased sustained injuries and died . The statement of respondent no. 1 was also recorded by police and same has been proved as Ex. PW2/H wherein he has stated that on 14.11.2006 he had borrowed the scooter from his neighbour for getting the TSR permit of deceased renewed from the Anand Vihar authority. He further stated that he alongwith deceased was returning from Anand Vihar authority when scooter was being driven by deceased Narender. He was pillion rider and suddenly the rear tyre got punctured as a result they became disbalanced and fell down and deceased Narender sustained injuries in his head and he also sustained injury. Later on Narender Kumar died in hospital on 20.11.2006.
26 The Mechanical Inspection report Ex. PW2/K of the two wheeler 14 scooter bearing no. DL 3S Q 5913 however no where shows that rear tyre of the scooter was punctured as it states that vehicle was fit for road test. According to the police investigation there is no eye witness of the accident except Surender Kumar, respondent no. 1 and on the basis of his statement the investigation was concluded showing that the deceased was driving the offending vehicle and the accident occurred without his fault. Therefore, police has filed a prayer for cancellation of case. It is also mentioned in the chargesheet vide report Ex. PW2/B that Sanjiv Kumar Sharma was having the custody of two wheeler scooter as the same was given to him by his company. 27 He was examined by respondent no. 2 as RW4 who has filed his affidavit Ex. RW4/A wherein it is stated that the said scooter was given to him by company for office use; the scooter was presently owned by M/s Bagai Construction and he was employed in M/s Bagai Construction which is proprietorship concern of Shri Lalit Bagai; that he and his cousin Sanjiv Kumar came to purchase the said scooter but could not purchase due to paucity of funds; then friend of his cousin Sanjiv Kumar came forward to purchase the scooter. 28 That Sanjiv Kumar has been examined as RW3 who has filed his affidavit Ex.RW3/A and stated that the two wheeler scooter was owned by M/s Bagai Construction and the same was given for office use to its employee Sanjiv Kumar Sharma who was his cousin . He and his cousin were interested in purchasing the said scooter but they 15 were not having funds; then his friend Surender Kumar, respondent no. 1 came forward to purchase the said scooter. Surender Kumar purchased the same for Rs.4500/ in his presence and Sanjiv Kumar Sharma and Mr Bagai signed the papers for ownership of the said vehicle and transaction of sale and purchase took place on 1.8.2006. This witness identified the receipt Ex. RW3/1. He has further stated that the possession of the said scooter was handed over to Surender Kumar in his presence and also in the presence of one Manoj Kumar Sharma. In his cross examination by petitioner's counsel he has stated that on 14.11.06 the scooter bearing no. DL 3SQ 5913 was in the name of Surender Kumar as per his knowledge and information and he had signed the sale letter in favour of Surender Kumar as witness. In his cross examination by respondent no.1 , he has stated that he knew Surender kumar, respondent no. 1 living in his neighbourhood but did not know name of father of Surender Kumar and sale and purchase of scooter had taken place in his presence and he has signed the sale letter and other documents ; the scooter was purchased for Rs. 4500/ in cash.
29 Sanjiv Kumar Sharma , employee of respondent no. 2 has been examined as RW4 who has filed his affidavit RW4/A and reiterated the facts as deposed as stated in the affidavit of RW3 Sanjiv Kumar . In his cross examination, by petitioner, he has stated that he cannot tell who was registered owner of the scooter on 14.11.2006 but voluntarily 16 stated that on 1.8.2006 he had contacted his cousin Sanjiv Kumar for sale of scooter of his company who helped in sale of the same to Surender Kumar on 1.8.2006. He has admitted that at the time of sale he was using it as the same was given to him by his company. In the cross examination by respondent no.1, he has stated that at the time of sale his cousin Sanjiv, Manoj and Lalit Bagai were present. He has further stated that Surender Kumar has signed the documents in his presence.
30 The respondent no. 2 has also examined Manoj Sharma as RW2 by filing his affidavit Ex. RW2/A who has stated that one day Surender Kumar came with Sanjiv Kumar Sharma and one Sanjiv Kumar to their office for purchasing the said scooter as Surender Kumar wanted to purchase the same and paid Rs. 4500/ to Shri Lalit Bagai, the proprietor of M/s Bagai Construction and the said transaction took place in his presence; the cash receipt was having revenue stamp signed by Shri Surender Kumar in his presence and attested by Sanjiv as attested witness ;the transfer of the vehicle took place there and thus keys were handed over by him to Surender Kumar. He has further stated that Ex. RW2/1 was signed by Lalit Bagai and Surender Kumar at the same time; form 29 and 30 Ex. RW2/2 and Ex. RW2/3 were also signed by Surender and Lalit in his presence. In his cross examination by petitioner, he has stated that he had been working with respondent no. 2 since 1999 as Accounts ( Head) and scooter in 17 question was purchased in 2000. He further stated that he did not exactly remember who was the registered owner of the scooter on 14.11.2006; the cash receipt Ex. RW2/P1 was not signed by him because the same was signed by Lalit Bagai, the owner; the scooter in question was purchased by Surender Kumar in his presence and the witness and other signatories to the cash receipt Ex. RW2/P1 had been signed in his presence; the documents were got executed on 1.8.2006. 31 The respondent no. 2 has also examined RW5 Kamal Kant Khandelwal, the handwriting expert who examined the disputed signatures mark Q1 to Q3 alleged to be signatures of Surender Kumar in Gurmukhi and compared them. He has deposed that he had prepared the photo enlargement of those signatures and Ex. RW5/1 and RW5/7 and after minute examination and interstate comparison of disputed and specimen signature given his opinion that signatures mark Q1 to Q3 were genuine signatures of the original writer who has written the comparative /specimen signatures. He has proved his report Ex. RW5/9 dated 7.10.2009.
32 The respondent no. 1 had sought time to examine his handwriting expert to disprove the report of RW5 but has failed to do so. The respondent no. 1 has examined himself as RW1 by filing affidavit R1 wherein he has stated that on 14.11.2006 he was pillion rider on the scooter bearing no. DL3S Q 5913 and deceased Narender Kumar was driving the scooter and this fact has been mentioned in 18 FIR no. 969/2006. He has further deposed that he was neither driving the scooter nor registered owner of the same. In his cross examination by petitioner, he has stated that accident took place on 14.11.2006 and Narender sustained injuries and later on died. He along with Narender Kumar was riding two wheeler scooter at the time of accident. In a court question RW1 stated that deceased Narender Kumar was driving and he was sitting behind him. He has further stated in his cross examination that he did not know the exact owner of the two wheeler scooter on 14.11.2006 ; he had taken it from one Mintoo @ Sanjiv from his house at D214 , Peeragarhi Relief Camp; he had not purchased the above mentioned scooter from M/s Bagai Construction on 1.8.2006. He however admitted that Manoj Kumar, Mintoo were working in M/s Bagai Construction. He further stated that he had started knowing deceased Narender Kumar just one day before the accident as deceased was an auto in his name and they were going to get the permit of the said auto renewed from Anand Vihar Transport Authority; the change of the permit was required because deceased had already sold the auto to a dealer. He has further stated that he rushed Narender to Sanjay Gandhi Memorial Hospital where he died after one week. In his cross examination by respondent no. 2 he had stated that he knew Mintoo @ Sanjiv who was his neighbour and doing electric work from his house but was not aware about Sanjiv Kumar Sharma or M/s Bagai Construction. He has 19 further stated that he had gone to the office of Bagai Construction because Sanjiv Kumar had told him to sign some documents stating that nothing would happen. He has further stated that he had signed one document when he had gone to office of M/s Bagai Construction and he had not read the said document and signed the same in Gurmukhi. He further stated that he was forced to sign the document but did not know the name who had forced him to sign the papers; he had not made any complaint against them for obtaining his signatures by force. He however stated that he had stated the said fact at Rohini Courts that he had gone to M/s Bagai Construction because Sanjiv had asked him to go there as owner had called him.
33 The Petitioner Hemlata examined herself as PW1 by filing affidavit Ex. PW1/A stating that on 14.11.2006 at about 3.00 p.m, her husband was sitting a pillion rider on Bajaj Chetak Scooter bearing no. DL 3SQ 5913 being driven by Surender Kumar, respondent no. 1 and met with an accident; the respondent no. 2 M/s Bagai was the registered owner of the said scooter. She has proved the criminal case record Ex PW2/A mark A to C. In her cross examination by counsel for respondents, she has stated that she was not an eye witness of the accident.
34 PW2 ASI Lallan Parsad is the IO of the criminal case investigated by him and placed on record FIR Ex. PW2/A. The original final report Ex. PW2/B, FIR Ex. PW2/C, site plan Ex. PW2/D, seizure memo of two 20 wheeler scooter Ex. PW2/F, complaint made by Surender Kumar Ex. PW2/G, the statement of Surender Kumar Ex. PW2/H, DD no. 50 B Ex. PW2/I, mechanical inspection report Ex. PW2/K, RC of the two wheeler scooter Ex. PW2/O. In his cross examination by respondent no. 1, he has stated that he had recorded the statement of Surender Kumar who told him that scooter was being driven by deceased Narender Kumar and there was no other witness found during investigation. No cross examination of PW2 was carried out on behalf of respondent no.2.
35 On perusal of the evidence led by the parties as discussed above, it can be safely concluded that firstly on the date of accident, the registered owner of the vehicle as per RC Ex. PW2/O was respondent no. 2 M/s Bagai Construction. As per police investigation, vide FIR Ex. PW2/B the offending vehicle was being driven by deceased Narender Kumar and respondent no. 1 was the pillion rider of the same. Secondly on the date of accident, the scooter was in the possession of Sanjiv Kumar Sharma before the same was borrowed. Thirdly, the offending vehicle two wheeler scooter bearing no. DL 3SQ 5913 on the date of accident was borrowed by respondent no. 1 from Sanjiv Kumar Sharma, the employee of respondent no. 2 M/s Bagai Construction but respondent no. 1 has failed to establish this fact by leading sufficient evidence because Sanjiv Kumar Sharma and Sanjiv, neighbour of respondent no. 1 had deposed contrary to it stating that the said 21 scooter was purchased by respondent no. 1 and was therefore in his possession.
36 It is very surprising to note that the IO has not recorded statement of Sanjiv Kumar Sharma or Sanjiv during investigation for the reason but known to him.
37 The respondent no. 1 in his cross examination has admitted that he had gone to office of M/s Bagai Construction though after the accident and had signed the document by force. He has failed to establish that he was forced to sign those documents by force as he had not made any complaint to any authority in that regard. Moreover, RW5 established that document of sale purchase of the two wheeler scooter including receipt and Form 29 Ex. RW2/2 and Form 30 Ex.RW2/3 are also signed by respondent no. 1 as purchaser of the two wheeler scooter. The respondent no. 1 has tried to give the impression that he has signed the document of purchase of two wheeler scooter after the accident had already taken place when he was taken by Sanjiv his neighbour, to Bagai Construction, on the pretext of signing some document saying that nothing would happen . Such nature of his deposition shows that his deposition is not worthy of reliance.
38 From the evidence, it is established fact that on the date of accident, scooter was registered in the name of respondent no. 2 M/s Bagai Construction as per record of transport authority. Therefore, on 22 the basis of the law laid down by Hon'ble Apex Court in Dr. T.V Jose Vs Chacko P.M for the purpose of fastening liability to pay compensation to the third party for the accident occurred, it is respondent no.2 who is to be held liable for the liability, if any, to pay compensation under Motor Vehicle Act.
39 Further, the question arises as to whether the respondent no. 2 has succeeded in establishing that the scooter in question was sold by respondent no. 2 to the respondent no. 1 on 1.8.2006. By examining RW5 Kamal Kant Khandelwal, handwriting expert, the respondent no. 2 has established only the fact that the delivery receipt Ex. RW2/1, Form 30 Ex. RW2/3 are signed by respondent no. 1 at point X and Y. The disputed signatures Q1 of delivery receipt and Q2 and Q3 on Form 30 have been proved to have been scribed by respondent no. 1 in Gurmukhi script.
40 It is very surprising to note that the cash receipt Ex. RW3/1 which is highly relied by respondent no. 2 is also allegedly bearing signatures of the respondent no. 2 on the revenue stamp but those signatures have not been tallied by hand writing expert and are not thus established to be scribed by respondent no. 1 . There is no explanation by PW5 Kamal Kant Khandelwal, hand writing expert, as to why he has not tallied the signatures of respondent no.1 on the cash receipt.
41 Moreover, the best evidence to prove the sale transaction 23 regarding the two wheeler scooter bearing no. DL3SQ 5913 by respondent no. 2 to respondent no. 1 is the testimony of Mr. Lalit Bagai, respondent no. 2 and the books of account of the respondent no. 2 wherein the sale transaction amount must have been recorded. The income derived from the sale of the vehicle i.e. Rs.4500/ must have been entered into account books of the company i.e. respondent no. 2 as income for the corresponding year.
42 For the reasons best known to respondent no. 2, the proprietor of respondent no. 2 has not come in the witness box to prove that he has sold the two wheeler scooter bearing no. DL 3SQ 5913 to respondent no. 1 by executing necessary documents. RW2 Manoj Kumar has examined himself being head of the Accounts of M/s Bagai construction. In his affidavit Ex. RW2/A, he has stated that the sale transaction took place in his presence and cash receipt was signed by respondent no. 1 and attested by Shri Lalit Bagai who has also signed the same on behalf of respondent no. 2. He has nowhere stated in his deposition that the cash amount of Rs. 4500/ received from respondent no. 1 for the sale of two wheeler scooter was entered into the account books of respondent no. 2. He has remained silent on this aspect which shows that no such entry was made in the account books, therefore, leading to the conclusion that no such transaction was ever done by respondent no. 2 company with the respondent no.
1. The respondent no. 2 has thus failed to place on record the best 24 evidence available with them to prove the sale transaction of the two wheeler scooter with respondent no. 1. They have further failed to take necessary steps as required u/s 50 of the Motor Vehicles Act for giving information to the registering authority regarding the sale transaction of the two wheeler scooter which stands registered in the name of respondent no. 2 for months /years. There is not an iota of evidence that any step was taken by respondent no. 2 for submitting necessary documents to the registering authority after carrying out the alleged sale transaction of the two wheeler scooter with respondent no.1.
43 In these circumstances, the clarification given by respondent no. 1 in his cross examination by respondent no. 2 seems to be probable. The respondent no. 1 has stated in the cross examination that he had visited the office of M/s Bagai Construction after the accident along with Sanjiv Kumar @ Mintoo. He had gone there because Sanjiv had told him to sign some documents and he had further told him that nothing would happen; he had signed one document/paper when he had gone to the office of M/s Bagai Construction and had not read the said paper and signed the same in Gurmukhi; he was forced to sign the papers in the company and he had stated this fact to the Court at Rohini Courts but has not complained against anyone for obtaining his forced signatures. He has further stated that Sanjiv Kumar had asked him to go to M/s Bagai Construction because owner had called 25 him. Further, the respondent no. 2 has not led any evidence to prove that the contents of cash receipt Ex. RW3/1, the delivery receipt Ex. RW2/1 and Form 30 Ex. RW2/3 as to who has filled up the contents. In the absence of this evidence, it cannot be said to have been established that all these documents i.e cash receipt, delivery receipt, form 29 & 30 were filled and signed by respondent no.1 on the date i.e. 1.8.2006. There is every possibility that the respondent no.1 might have been called after the accident as stated by him in his cross examination and in order to avoid liability, if any, by respondent no. 2 the documents had been executed in his favour. Therefore, lack of sufficient and best evidence having not being produced on record on behalf of respondent no. 2 to establish the sale transaction of two wheeler scooter in question, it is held that on the date of accident, it was respondent no. 2 who was the owner of the vehicle for purpose of claiming compensation if any under Motor Vehicle Act. 44 The next question arises as to whether the deceased Narender Kumar who has been shown in police investigation to be driver of the two wheeler scooter at the time of accident can be said to have stepped into the shoes of the owner of the vehicle. The evidence on record and investigation by police of the criminal case has shown that two wheeler scooter was borrowed by the respondent no. 1 from the employee of the respondent no. 2. In case, the respondent no. 1 had been driving the offending vehicle at the time of accident, there is no dispute 26 because the law is already settled that he would have stepped into the shoes of the owner of the vehicle. Reliance can be placed on : 45 Nigammma & anr Vs United India Insurance Co. Ltd. reported as 2009 ACJ 202 . In the case referred SUPRA, it was held that :
Para 18 : In the case of Oriental Insurance Co. Ltd. Vs Rajni Devi 2008 ACJ 1441 (SC) , wherein one of us, namely, Hon'ble Justice S.B Sinha was a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract , the claim of the claimant against the insurance company would depend upon the terms there of. It was held in the said decision that section 163 A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved . The decision further held that the question is no longer res integra. The liability under section 163 A of the MVA is on the owner of the vehicle. So a person cannot be both a claimant as also a recipient, with respect of claim . Therefore, the heirs of the deceased could not have maintained a claim in terms of section 163 A of the MVA . In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the 27 present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner and, therefore, he would step into the shoes of the owner of the motorbike.
Para 19: We have already extracted section 163 A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out to the aforesaid motor vehicle in that event the liability to make payment of compensation is on the insurance company or the owner , as the case may be as provided under section 163 A. But if it is proved that driver is the owner of the motor vehicle , in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of section 163 A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under section 163 A of the MVA. 46 From the above law laid down by Hon'ble Apex Court, one thing is clear that in case Surender Kumar, Respondent no. 1 had been the 28 driver and not the pillion rider of the offending vehicle at the time of accident, he would not have been entitled to any compensation u/s 163 A of the Motor Vehicle Act . It is so because as per his own evidence he would have stepped into the shoes of the owner of the vehicle as he had borrowed the same from the employee of respondent no.2.
47 The question in this case is whether deceased Narender Kumar who as per evidence on record was authorized by respondent no. 1, who has stepped into the shoes of the owner of the vehicle two wheeler scooter, can be stated to have stepped into the shoes of the owner or is he to be considered victim of the accident for the purpose of deciding the question of compensation u/s 163 A of the Motor vehicle Act ?
48 Ld. Counsel for petitioner has relied upon three cases of Hon'ble High Court of Calcutta, Himachal Pradesh and Hon'ble High Court of Gujrat respectively and the same are discussed as under : 49 In case Bhikham Yadav Vs. National Insurnace Co. Ltd. & ors. Reported as 2009 (4) T.A.C 419 (cal) , the deceased was employee of the owner and died in the accident where two other vehicles were also involved . The Ld. Tribunal has dismissed the claim petition on the ground that there was contributory negligence on the part of victim and he was not entitled to get any compensation. The Hon'ble High Court has held that the Ld. Tribunal acted perversely in rejecting the application by totally over looking the fact 29 that the proceedings were u/s 163 A of the Motor vehicle Act and thus, in such a proceeding rash and negligence of the victim was immaterial. Once it was established from evidence that due to the accident involving the vehicles insured by two Insurance companies, the victim was insured, it was the duty of the Ld. Tribunal below to enter into the merit of the matter for the purpose of assessing the amount of compensation by taking aid of the second schedule of the Motor Vehicles Act.
50 In National Insurance Company Vs Sushma Devi and others referred SUPRA, the Hon'ble High court of Himachal Pradesh has held that :
' a person on account whose negligence accident takes place, is also entitled to compensation and that in case that person dies ,his dependants can seek compensation by pressing into service of the provision U/s 163 A of the Motor Vehicles Act.
It was further held that section 163 A of the Motor Vehicle Act covers case where negligence is on the part of the victim.
51 In New India Assurance Co. Ltd. Vs Manishaben Mahendra and ors. Reported as 2009 ACJ 1861 , the Hon'ble High Court of Gujarat was pleased to hold that :
'the victim of the accident being the tortfeasors, pillion rider, employee of the insured or gratuitous passenger appears to be wholly irrelevant for the purposes of adjudication of a claim for compensation U/s 163 A of the Motor Vehicles Act.30
52 The facts of the case of Bhikham Yadav Vs. National Insurance Col. Ltd. , case were totally different from the case in hand. The victim of accident in that case was employee of the owner of the vehicle and two other vehicles were involved in the accident. 53 The ratio of other two cases i.e Hon'ble High Court of Gujarat and High Court of Himachal Pradesh relied by Ld. counsel for petitioner has been discussed in detail by Hon'ble High Court of Karnataka in Appaji Vs M. Krishna reported as (2005) ACC 591 and the law laid down by Hon'ble High Court of Karnataka is found to be of more persuasive value wherein it was held : "Para 14 : Section 163 A was never intended to provide relief to those who suffered in a road accident not because of the negligence of another person making use of a motor vehicle, but only on account of their own rash, negligent or imprudent act resulting in death or personal injury to them. The recommendations of the Law commission were concerned more with the victims of hit and run accident cases where the particulars of offenders could not be ascertained. It is also expressed concern about the security of victims of road accidents and recommended dispensing with proof of fault on the part of the owner or driver of the vehicle. The recommendations it is clear were made from the point of view of victims of accidents on the roads more than those who were responsible for the same . The Review Committee too 31 had viewed the situation from the point of view of such victims and expressed concern about the time it took for disposal of ordinary cases before the Tribunals. The objects and reasons underlying the introduction of the provision also envisaged adequate compensation to victims of road accident without going into what was described as long drawn procedure. The decision of the Supreme Court in Kodak's case (supra) elucidated the purpose underlying the introduction of Section 163 A in the light of the recommendations of the Law Commission and the committee. There is nothing in any one of the above to suggest that section 163 A was intended to be available even in a situation where the accident in question had caused the death or physical injury to none except the person who was rash and negligent in using the motor vehicle . The universal concern was for the safety and the social security of an innocent user of the road and not for a person who had because of his own imprudence , rashness or negligence met with an accident and suffered as injury or death. "
Para 17 : The right to receive compensation under Section 163 A presupposes that the person who makes a claim is a victim or the legal heirs of a victim. The provision on the plain language employed in the same does not entitle a person who is neither a victim nor his/her legal heirs to claim 32 any compensation. In other words, one who is the victim of his own actions of rash or negligent driving cannot invoke section 163 A for making a claim. The concern of the Legislature and the jurists is understandably for the victim in contradistinction to the victimizer or one who falls a victim to his own action. While road accidents generally affect innocent third parties or those making use of public transport, cases where the owner or driver of the vehicle alone suffers on account of his rash and negligent driving are not uncommon. Drunkrn driving, speeding in what are high performance new generation of automobiles including two wheelers are accounting for a large number of accidents every day. Quite often these accidents kill or wound even the person who is driving the vehicle. The Parliament did not in our opinion intend to provide for compensation to the person responsible for the accident on structured formula basis in such cases. Neither the provisions of Section 163A nor the background in which the same were introduced disclose any such intention . The argument that section 163 A is a panacea for all ills concerning the accidents regardless of whether the person who is killed or injured is or is not a victim must therefore be rejected.
Para 20 : Section 163 A of the Act no doubt bring about a significant change in the legal position as regards the obligation to prove fault is concerned, but the change is 33 not so drastic so as to make even a tort feasor entitled to claim compensation for his own act of rashness, negligence or imprudence. The non obstante clause in section 163A simply dispenses with proof of fault by the claimants against the driver or the owner of the vehicle involved in the accident. The claimant under section 163 A therefore need not prove that the driver to the owner of the vehicle was at fault in the sense that the accident had occurred on account of any negligence or rashness on his part. That does not however mean that the claimant can maintain a claim on the basis of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the insurance company pay for the same. In as much as Section 163 A dispenses with proof of fault, it does so only where the claimant is not solely responsible for the accident. The correct approach appears to us to be to find out whether in the absence of Section 163 A , a claim could on the facts pleaded be maintained by the claimant of the answer is 'no because the claimant was himself the tortfeasor , the provisions of section 163 A would not come to his rescue and make such a claim maintainable. If the answer is 'yes' the beneficial provisions of Section 163 A would absolve the claimant of the obligation to prove that the accident had taken place on account of the 34 fault of the driver or owner of the vehicle provided he is willing to accept the amount of compensation offered according to the structured formula prescribed in the Schedule. That is the only way in which the anomaly arising out of a contrary interpretation can possibly be avoided.
54 It was held by the Hon'ble Supreme Court in case of Oriental Insurance Co. Ltd. Vs. Hansraj Bhai V. Kodala, reported in I(2001) ACC 618(SC) that the non obstante clause in Section 163 A of M. V. Act, simply excludes determination of compensation on the principle of fault liability. The said provision does not permit a person to place a premium upon his own fault and make the insurance company pay for the same.
55 In the case of Ningamma & Anr.(SUPRA), the Hon'ble Supreme Court after discussing the case of Deepal Girishbhai Soni Vs United India Insurance Co. Ltd. reported in 2004 ACJ 934, held that when the deceased borrowed the motor cycle from the owner and the accident took place without involvement of any other vehicle, but has taken place due to the rash and negligent driving of himself, then the legal representatives of such deceased are even not entitled u/s 163A Motor Vehicles Act. It was held that "a bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid 35 motor vehicle in that event the liability to make payment of the compensation is on the Insurance Company or the owner, as the case may be as provided under section 163A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to the same is on him. This proposition is absolutely clear on a reading of Section 163A of the Motor Vehicles Act. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163A of the Motor Vehicles Act".
56 In the present case , no other vehicle was alleged to be involved in the accident against whose driver or owner or the claimants could make the claim for compensation on no fault basis U/s 163 A of the Motor Vehicle Act. The petitioner has alleged in her petition that it was respondent no. 1 who was driving the two wheeler scooter and the deceased was pillion rider. The police investigation has concluded contrary to the contents of the petition and found that at the time of accident it was the deceased who was driving the two wheeler scooter and the accident occurred because the rear tyre of the scooter got punctured. . The legal representative of the deceased / claimants herein have not filed any protest petition before Ld. Metropolitan Magistrate before whom police has filed the final report, 36 despite the fact that the said fact had already come to their knowledge when petitioners examined PW2 ASI Lallan Parsad, IO of the criminal case. The petitioner has also cross examined respondent no.1 and nothing was suggested in his cross examination that it was he who was driving the two wheeler scooter and the deceased was pillion rider. The respondent no.1 Surender Kumar in his cross examination by Ld. Counsel for petitioner has clarified in a court question that it was deceased Narender Kumar who was driving and he (respondent) was sitting behind him at the time of accident.
57 The police investigation has concluded that the accident occurred because rear tyre of the scooter got punctured. This fact of investigation is not reflected in the Mechanical Inspection report of the two wheeler scooter which is placed on record as Ex. PW2/A, and has found the two wheeler scooter fit for road test. Even if it is assumed that the tyre got punctured and scooterist fell down, this itself shows that the scooter was not being driven in a prudent manner with due care and caution by its driver. The two wheeler driver is always expected to be conscious of the fact that the tyre of the two wheeler scooter may get punctured at any time. Therefore, he is required to take necessary precaution in that regard so as to prevent any vehicular accident . If accident occurred because tyre got punctured, it cannot be stated that the two wheeler scooter was being driven with due care and caution or in prudent manner. In other 37 words, it was either being driven in rash and negligent manner or in an imprudent manner as a result accident occurred. 58 It is established from the evidence of the parties that the two wheeler scooter bearing no. DL3SQ 5913 was borrowed by respondent no. 1 from the employee of the owner, respondent no. 2, for the purpose of getting the TSR permit of the deceased renewed. Once it is established that the two wheeler scooter was being used and driven by deceased for his own work after being borrowed by respondent no. 1 from the employee of respondent no. 2, it can be safely concluded that the deceased being representative of the borrower of the vehicle from the employee of the owner would step into the shoes of the owner for the purpose of deciding the question of compensation u/s 163 A of the Motor Vehicle Act. The deceased in the present case therefore would step into the shoes of the owner of the vehicle. Once it is proved that the driver /deceased is the owner of the motor vehicle, in that case the owner himself cannot be a recipient of compensation because the liability to pay the same is on him. Accordingly, the legal representative of the deceased who has stepped into the shoes of the owner of the Motor vehicle cannot claim compensation U/s 163 A of the Motor Vehicle Act. Thus, relying upon the cases of Ningamma and another Vs United India Insurance co. and Appaji Vs. M. Krishna (SUPRA) and because of the above discussions, in the facts and circumstances of the case, the deceased himself being driver of 38 the vehicle, at the time of accident and having been stepped into the shoes of the owner of the vehicle having caused the accident due to his own negligence or imprudence, thus was a tortfeasor. Therefore the claimants are not entitled to any compensation u/s 163 A of the Motor Vehicles Act 1988 from the respondents .
59 The issue no. 2 is accordingly decided in favour of the respondents and against the petitioners.
Relief 60 In view of the above discussion, it is hereby held that petitioners are not entitled to any sum of compensation U/s 163 A of the Motor Vehicles Act from the respondents. The claim petition is accordingly dismissed.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 26/02/2010 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE:NDPS (WEST)DELHI