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Judgment
V.B. Gupta, J.—The present appeal u/s 173 of the Motor Vehicles Act, 1988 (for short as the "Act") has been filed by the Insurance Company/Appellant against the award dated 21.01.08 passed by Ms. Sukhvinder Kaur, Judge, Motor Accident Claims Tribunal (for short as the "Tribunal").
Brief facts of the case are that on 07.09.1992, at about 11.00 p.m., Sham Singh, deceased was going on scooter No. DL-5SC-5079 as a pillion rider on S.A. Road, Okhla Phase-1, New Delhi, which was being driven by Respondent No. 3 in zig-zag manner and at an uncontrollable speed without caring for traffic rules and regulations. When they reached near Lalji Chowk, Okhla Phase-1, New Delhi, Respondent No. 3 struck his scooter against a cow, as a result of which, both of them fell down on the road and the deceased became unconscious. The deceased was removed to AIIMS Hospital, where he succumbed to injuries on the next day.
The claimants filed the claim petition claiming compensation of Rs. 6 Lacs along with interest @ 24% per annum against the Respondent No. 3 and the Appellant.
Respondent No. 3 in its written statement has admitted the factum of accident. However, he has denied that he was driving the scooter in a rash and negligent manner. He has stated that the accident took place due to wrong activity of the cow at the place of accident who unnecessarily moved towards the scooter and hit the scooter. Respondent No. 3 was driving the scooter at a very slow speed and in a gentle manner.
Appellant though admitted that offending vehicle was insured with it in the name of Respondent No. 3 at the time of accident, it has contested the claim inter alia on the ground that it cannot be asked to indemnify the Respondent No. 3 until and unless the terms and conditions of the insurance policy are complied with by the insured and driver of the vehicle was holding the valid and effective driving licence on the date of accident and was not disqualified from holding the same.
Vide impugned judgment, the Tribunal awarded the compensation of Rs. 1,20,000/- along with the interest @ 9% per annum from the date of filing of the petition till its realization.
It has been contended by Ld. Counsel for the Appellant that in the absence of any evidence of an eye witness to the accident in question, the tribunal has erred in holding that the accident had taken place due to rash and negligent driving of the two wheeler scooter No. DL-5S-C-5079 by Respondent No. 3. The bare reading of the cross-examination of PW2 shows that his testimony could not stand on the issue of negligence. Thus, the Tribunal has erred in coming to the conclusion that PW2 was the eye witness to the accident and he was deposing falsely.
It is further contended by the Appellant Counsel that the tribunal has erred in not relying upon the statement of R2W3 that the FIR No. 262/92 was cancelled because the accident was not caused due to rash and negligent driving of the scooter by Respondent No. 3.
It is also contended by the Appellant Counsel that the Tribunal has proceeded with the wrong assumption that after the decision of Kaushnama Begum and Ors. v. The New India Assurance Co. Ltd. (2001) ACJ 421 SCC, the issue of wrongful act or omission on the part of driver of motor vehicle involved in the accident has been left to secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable u/s 166 and 140 of the Act while deciding the issue relating to whether the deceased Sham Singh suffered fatal injuries in an accident which took place on 07.09.1992 due to rash and negligent driving of two wheeler scooter owned and driven by Respondent No. 3 herein and insured with the Appellant herein.
Ld. Counsel for the Appellant has cited Oriental Insurance Co. Ltd. v. Meena Variyal and Ors. (2007) 2 SCC (Cri) 527 and Oriental Insurance Co. Ltd. Vs. Sudhakaran K.V. and Others, in support of its contentions.
On 16th November, 2007 the case was fixed before the Tribunal for final arguments. On that date, counsel for Respondents 1 & 2 was present while, none appeared for the Appellant, despite several calls. Arguments were addressed by the Learned Counsel for Respondents 1 & 2 and the trial court adjourned the matter for further arguments and orders on 21st January, 2008. Liberty was granted to the Appellant to file written arguments within four weeks.
On 21st January, 2008 again none was present on behalf of the Appellant. No arguments were addressed on behalf of Appellant nor any written arguments were filed despite opportunities.
In Smt. Kaushnuma Begum & Ors. (supra), the Apex Court has observed as under;
It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action. Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the Rule in Rylands v. Fletcher 1861-73 All ER (Reprint) 1 supra can apply in motor accident cases. The said Rule is summarised by Blackburn, J, thus:
The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff''s default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.
The Apex Court further has observed as under;
No Fault Liability" envisaged in Section 140 of the MV Act is distinguishable from the rule of strict liability. In the former the compensation amount is fixed and is payable even if any one of the exceptions to the Rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the MV Act permits that compensation paid under ''no fault liability'' can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them.
The Apex Court further referred the decision of Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and Another, where it was observed as under;
Today, thanks to the modern civilization, thousands of motor vehicles are put on the road and the largest number of injuries and deaths are taking place on the roads on account of the motor vehicles accidents. In view of the fast and constantly increasing volume of traffic, the motor vehicles upon the roads may be regarded to some extent as coming within the principle of liability defined in Rylands v. Fletcher. From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles highly dangerous. ''Hit and run'' cases where the drivers of the motor vehicles who have caused the accidents are not known are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist whether negligently or not, he or his legal representatives as the case may be should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents there has been a continuous agitation throughout the world to make the liability for damages arising out of motor vehicles accidents as a liability without fault.
Thus in view of above decision, the contention of the Appellant Counsel that the Tribunal has erred in holding that the deceased Sham Singh suffered fatal injuries in an accident which took place on 07.09.1992 due to rash and negligent driving of two wheeler scooter owned and driven by Respondent No. 3 herein and insured with the Appellant herein is rejected.
As regards to the contention of testimony of PW2, PW2 has testified that he had witnessed the accident. He deposed the manner of the accident before the Tribunal. Further, as regards his testimony, the Tribunal held as under;
Nothing material has come on record which could shake his testimony.
Respondent No. 3 in his written statement has admitted that the accident and involvement of scooter No. DL 5SC 5079 in the accident. He has contested the claim only on the ground that the accident has not occurred due rashness and negligence but due to the fact that a stray cow had suddenly come on the road and hit against his scooter.
However, Respondent No. 3 who was driving the scooter has not appeared in the witness box and as such inference has to be drawn against him.
The involvement of the offending vehicle is also established from the certified copy of FIR No. 263/92 Police Station Okhla Industrial Area which is Ex.PW1/1 which is also Exhibited by the Insurance Company as R3W-1/5.
Appellant has examined Rajeev Bakshi AAO and Rakesh Chaudhary, the Investigator as R2W-1 and R2W-2 to establish its defence that accident had not occurred due to rash and negligent driving of Respondent No. 3.
In this regard the Tribunal held as under;
The testimony of R2W2 cannot be believed in the absence of any corroborating evidence. He also failed to tell the name of police official who had informed him about the cancellation of the case. He also admitted that he did not apply for the certified copy of the charge sheet. It is also pertinent to mention here that respondent No. 1 has not appeared in the witness box to establish that there was no rashness or negligence on his part or to establish the manner in which the accident had occurred.
After perusal of the record, I find myself in agreement with the Tribunal on this issue.
The decisions cited by the Appellant Counsel are not applicable to the facts of the present case.
Thus, I do not find any infirmity or illegality in the impugned judgment of the learned Tribunal. The compensation amount awarded by learned Tribunal is just and fair.
The present appeal is thus not maintainable and the same is hereby dismissed with costs. Costs are assessed at Rs. 5,000/-.
Appellant is directed to deposit the costs within four weeks from today by way of cheque in the name of Registrar General of this Court.
Trial court record be sent back.
List on 30th September, 2008 for compliance.