IN THE HIGH COURT OF DELHI AT NEW DELHI. MAC. APP. No. 32/2008. Judgment reserved on: Judgment delivered on: 4th August, 2008

Transcription

1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : Motor Vehicles Act MAC. APP. No. 32/2008 Judgment reserved on: Judgment delivered on: 4th August, 2008 R. Murgadas and Ors.... Appellant. Through: Mr. O.P. Mannie, Adv. versus Virender Yadav and Ors.... Respondents Through: Mr. Kanwal Chaudhary, Adv. KAILASH GAMBHIR, J By way of the present appeal the appellants seek to challenge the impugned Award dated whereby the claim petition filed by the appellants was dismissed by the learned MACT on the ground that the appellants/claimants failed to prove negligence on the part of the driver of the offending vehicle. The brief conspectus of the facts is as follows:- On at about 5.30 a.m. when Smt. Rangamma (now deceased) was going on foot, on the extreme edge of the road by the side of C-Block, Mother Diary, J.J. Colony, Inderpuri then at that very time a tempo bearing registration No. DL-ILA- 5423, driven by its driver Shri Virender Yadav, rashly and negligently, came from the direction of Todarpur-Lohamandi road and after going on wrong side of the road hit against the deceased with great force, without giving any horn or signal of warning, causing fatal injuries to the deceased. Respondent No. 1 was driving the vehicle in violation of traffic rules without caring for the other users of the road and hit the pedestrian who was walking on the extreme right side of the road. Mr. O.P. Mannie, counsel appearing for the appellants contended that the Tribunal failed to appreciate the facts of the case and the evidence led in support thereof by the appellants. The contention of the counsel for the appellants is that the appellants had duly

2 proved on record the arrest of the driver, seizure of the offending vehicle besides proving the site plan. All these documents of criminal case including certified copy of the challan and postmortem report were duly proved through the testimonies of PW-2 and PW-3. Counsel for the appellants further contended that even in the absence of an eye witness, all the said documents of criminal case are sufficient enough to establish negligence on the part of the driver of the offending vehicle. Inviting attention of this Court to the site plan, counsel for the appellants sought to urge that a cursory glance at the site plan would show that principle of res ipsa loquitur squarely applies in the facts of the present case. Elaborating his submission further counsel for the appellants pointed out that the offending tempo was coming from the side of the Todapur-Lohamandi road and then took left turn towards Budh Nagar Road, Inderpuri and instead of keeping the vehicle on its left side came to hit the deceased on the extreme right side of the road and in front of Mother Diary Depot. Counsel for the appellant, thus contended that the said site plan itself explains story of the accident and therefore, no further evidence was required to be produced so as to establish negligence on the part of the driver of the offending vehicle. Counsel thus contended that the Tribunal has wrongly observed that the appellants failed to bring on record any material so as to prove negligence on the part of the driver of the offending vehicle. Counsel for the appellant further contended that the Tribunal wrongly placed reliance on the judgment of the Apex Court reported in Oriental Insurance Company Ltd. vs Meena Variyal and Ors (2) JCC 1280, which judgment as per the counsel was not applicable to the facts of the present case. The fact of the present case are totally dissimilar as the appellants had placed enough material before the Tribunal to write the finding on the issue of the negligence in favour of the appellants unlike in the case before the Supreme Court in Meena Variyal (supra). In support of his submission counsel for the appellants placed reliance on the following judgments:- Basthi Kasim Saheb (Dead) by LRs vs The Mysore State Road Transport Corporation and Ors. AIR 1991 SC 487; National Insurance Company Ltd. vs Smt. Pushpa Rana and Ors II AD (Delhi) 269; and Girdharilal vs Radhey Shyam and Ors. I(1994) ACC 504. Per contra Mr. Kanwal Chaudhary submitted that the appellants have miserably failed to prove and establish on record the factum of negligence on the part of the driver of the offending vehicle and therefore, the Tribunal rightly dismissed the claim petition of the appellants. Counsel further contended that for claiming compensation under Section 166 of the Motor Vehicles Act proof of negligence is sine qua non and therefore, by merely placing on record the documents of the criminal case the appellants/claimants cannot be

3 granted any compensation without proving on record negligence on the part of the driver of the offending vehicle with the help of reliable and cogent evidence. Counsel for the respondent thus contended that the principle of res ipsa loquitur will not become applicable automatically unless the entire circumstances of the case as existing at the site of the accident are explained on record. I have heard learned counsel for the parties and perused the record. There cannot be any dispute to the legal proposition that for maintaining a petition under Section 166 of the Motor Vehicles Act, proof of negligence is necessary before the owner or the insurance company could be held liable for payment of compensation in favour of the claimants. Proof of negligence is a sine qua non to maintain a petition under Section 166 of the Motor Vehicles Act. The Tribunal in the impugned Award after placing reliance on the decision of the Supreme Court in Meena Variyal (supra) came to the conclusion that the appellants have miserably failed to prove that the deceased suffered fatal injuries in road accident caused by the driver of the offending vehicle. The Tribunal has also held that in order to succeed in a petition under Section 166 of the Motor Vehicles Act the petitioner is required to prove negligence of the respondents, except only where either the petition has been filed on principle of no fault basis, wherein compensation can be awarded under Section 163A or Section 140 of the Motor Vehicles Act. Yet another exception of the said rule is principle of res-ipsa-loquitor which has been taken into consideration by the Tribunal in the impugned Award. Not finding fault with the legal proposition discussed by the Tribunal, yet I find that the Tribunal has not correctly applied the said principle in the facts of the present case. The case in hand is not a case of no evidence to prove the factum of negligence on the part of the driver of the offending vehicle. Not only the criminal records of the FIR No. 192/2002 dated were duly proved on record, but the statements of the concerned investigating police officials were duly recorded to prove the factum of the involvement of the driver of the offending vehicle. PW-2 Constable Devender in his unrebutted testimony stated that at the place of accident he found driver of the aforesaid tempo. Signatures of the driver were taken on the seizure memo also. He also mentioned that the driver Shri Virender Yadav was arrested from the place of accident and offending vehicle Tata tempo bearing registration No. DL-ILA was also seized from the place of accident. Similarly, PW-3, ASI Raghuvar Dayal in his deposition categorically stated that the driver of the offending vehicle was arrested and the offending vehicle was seized. The said Investigating Officer also prepared the site plan and other relevant documents including chargesheet of the case. In the FIR also there is a clear reference to the

4 presence of the driver of the vehicle at the site of the accident. Not only this the perusal of the site plan clearly shows that the offending vehicle coming from the direction of Todarpur-Lohamandi road hit the deceased on the extreme right side of the road. In these circumstances it is inconceivable as to how the principle of res ipso loquitur does not apply to the facts of the present case. One cannot be oblivious of the fact that after the amendment of Motor Vehicles Act, 1939 by the 1988 Amending Act there is a sea change in the procedure for claiming compensation by the victims of the road accidents. Under sub-section (4) of Section 158 it is mandatory for the Claims Tribunal to treat any report of accident forwarded to it under subsection (6) of Section 158 as an application for compensation under the Act. Under sub-section (6) as soon as any information regarding any accident involving death or bodily injury to any person is recorded or report is completed by a Police Officer, the Officer in- charge of the Police Station is required to forward a copy of the same within 30 days from the date of recording information or as the case may be on completion of such report, to the claims tribunal having jurisdiction and a copy thereof shall be sent to the concerned insurer and where a copy is made available to the owner, he shall also within 30 days of the receipt of such report, forward the same to such claims tribunal and the insurer. The report so received is to be treated as an application for compensation. In this view of the matter, the criminal records proved on record, if remain unrebutted and unchallenged can be taken to be sufficient to establish negligence on the part of the driver of the offending vehicle. In the absence of eye witness, in such accidents it is the police alone who visits the site at the first opportune time and takes a first hand account of the accident and in all such cases the significance of site plan cannot be ignored. In the facts of the present case, the site plan clearly shows that the offending vehicle had gone absolutely on the wrong direction and had hit the deceased on the extreme right side of the road. In my view, the principles of res ipso loquitur squarely applies in the facts of the case. As regards the principle of res ipsa loquitur, In Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. (P) Ltd., (1977) 2 SCC 745, the Hon ble Apex Court observed as under: 6. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident speaks for itself or tells its own story. There

5 are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Edn.) at p. 306 states: The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused. In Halsbury s Laws of England, 3rd Edn., Vol. 28, at p. 77, the position is stated thus: An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant s negligence, or where the event charged a; negligence tells it own story of negligence on the part of the defendant, the story so told being clear and unambiguous. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care. It would be evident from the above discussion and after considering the facts and circumstances of the instant case, the appellants placed enough material including placing the site plan on record for indulgence of the learned tribunal on the application of the principle of res ipsa loquitur. In the instant case, the appellants not only produced the site plan but had also proved on record the arrest of the driver, seizure of the offending vehicle etc. thus, there can be no confusion that the driver of the offending vehicle was negligent and was liable for the accident. The tribunal erred in dismissing the claim petition and in holding that the appellants failed to prove negligence of the offending vehicle. On the basis of the foregoing discussion, the matter is remanded back to the tribunal for de novo trial. Sd/- KAILASH GAMBHIR J.

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