IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
F.A.O. No. 574 and 575 of 2007 (O&M)
Date of decision: October 06, 2009
Kuldip Kumar
.. Appellant
Vs.
Naresh Kumar Gupta and others
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. R.K. Kanwal, Advocate for
Mr. Sanjiv Pandit, Advocate for the appellant.
Mr. H.S. Bedi, Advocate for the respondents No.3 and 4.
A.N. Jindal, J
This judgment of mine shall dispose of two connected appeals
i.e. F.A.O. Nos. 574-75 of 2007, having arisen out of the same judgment
dated 20.2.2006 passed by the Motor Accident Claims Tribunal, Jalandhar,
awarding compensation as under :-
Case No./ Title Compensation
MACT Case No.17 dated 19.2.2003, Naresh Kumar Gupta Rs.1,00,000/-
and another vs. Nitin Dada and others
MACT Case No.18 dated 19.2.2003, Naresh Kumar Gupta Rs.60,000/-
vs. Nitin Dada and others
The Tribunal had also awarded interest @ 9% per annum each
on the award amount.
Brief resume of facts is that on 26.4.2000, at about 10.15 p.m.
Udit Gupta son of Naresh Kumar Gupta was returning to his house from
Jalandhar city on cycle and reached near Boor Mandi. In the meantime,
Naresh Kumar Gupta also came along with his daughter Priyanka and niece
Gunjan alias Mittu on scooter bearing registration No.PB-08-T-6838.
Naresh Kumar Gupta turned the scooter from the chowk of Boor Mandi for
going to Jalandhar Cantt, in the meantime, the appellant Kuldip Kumar
while driving Tata Chassis No.412050 CZZ-108041 rashly and negligently
came from the side of Rama Mandi. Naresh Kumar Gupta stopped the
F.A.O. No. 574 and 575 of 2007 (O&M) -2-
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scooter while taking towards footpath, but Kuldip Kumar while driving the
aforesaid Tata Chassis struck against the scooter and dragged it to a
distance. Resultantly, Naresh Kumar Gupta, his daughter Priyanka Gupta
and Gunjan alias Mittu (non-appellant) suffered injuries. Ultimately,
Priyanka Gupta succumbed to her injuries. Naresh Kumar Gupta was
shifted to military hospital Jalandhar Cantt, whereas, Priyanka was taken to
Guru Nanak Mission Hospital, Jalandhar and Gunjan was admitted in
Satyam Hospital, Jalandhar. The accident took place on account of the fault
on the part of Kuldip Kumar respondent No.2 (now appellant in FAO No.
575 of 2007). Naresh Kumar Gupta and his wife Veena Gupta claimed
compensation on account of the death of their daughter Priyanka Gupta
aged about 11 years, stating that she was a medical student and after study,
she would have become a doctor. Similarly, Naresh Kumar Gupta also filed
a separate claim petition claiming compensation for the injuries suffered by
him.
Both the claim petitions were contested by the appellant,
respondents No.1, 1A, 2 and 3. The respondents No.1 and 1A (now
respondents No.3 and 4) contested the claim petition urging that they had
already sold the Tata Chassis to Un-Employed Bus Service through its
proprietor Jagdish Chand and delivery was given to Kuldip Kumar
representative of Golden Body Builders. As such, after the vehicle was
delivered through proper documentation to Kuldip Kumar, on the
instructions of Un-Employed Bus Service, the respondent No.1 ceases to be
the owner/controller of the offending vehicle and is not responsible for the
alleged accident. He also pleaded for dismissal of the claim petition being
bad for non joinder of necessary parties. It was further reiterated that
Jagdish Chand proprietor of Un-Employed Bus Service on whose direction
the gate pass was prepared with regard to the vehicle in question for
handing over the same to Janak Raj, Proprietor of Golden Body Builders,
Bye Pass, G.T. Road, Jalandhar, for building the chassis are the necessary
parties. Kuldip Kumar was the representative of M/s Golden Body
Builders. The said chassis was purchased by the Un-Employed Bus Service
and Kuldip Kumar was taking the chassis on behalf of Jagdish Chand and
Janak Raj. Thus, they denied their liability to the pay the compensation.
F.A.O. No. 574 and 575 of 2007 (O&M) -3-
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The appellant-Kuldip Kumar in his written statement has
submitted that he was not driving the vehicle at the time of accident, as
such, he is not responsible for payment of compensation.
National Insurance Company (insurer of the scooter bearing
registration No.PB-08-T-6838) in its written statement while admitting
being the insurer of the scooter in the name of Naresh Kumar Gupta at the
time of accident stated that the company is not liable as neither Naresh
Kumar Gupta nor Priyanka Gupta comes within the definition of third party.
Jagdish Chand did not put in appearance to contest the claim
petition. Suraj Dev Dada-respondent No.1-A also contested the claim
petition reiterating the facts as submitted by the respondent No.1.
From the pleadings of the parties, the Tribunal framed the
following issues in MACT Case No.17 dated 19.2.2003 :-
1. Whether Miss Priyanka Gupta died in the motor vehicle
accident due to rash and negligent driving of vehicle
make TATA bearing Chassis No.412050 CZZ-108041
being driven by respondent No.2 Kuldip Kumar?OPP
2. Whether the applicants are the legal heirs of Miss
Priyanka Gupta and are entitled to compensation, if so,
to what extent and from which of the respondents?OPP
3. Relief.
From the pleadings of the parties, the following issues were
framed in MACT Case No.18 dated 19.2.2003 :-
1. Whether the applicant has received injuries in the motor
vehicle accident involving the vehicle make TATA
bearing Chassis No.412050 CZZ-108041, being driven
by respondent No.2 Kuldip Kumar?OPP
2. Whether the applicant is entitled to compensation, if so,
to what extent and from which of the respondents?OPP
3. Relief.
Both the parties led evidence and ultimately, both the claim
petitions were partly allowed in the aforesaid terms.
F.A.O. No. 574 and 575 of 2007 (O&M) -4-
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The sole question for consideration is “whether the vehicle was
owned by the respondent No.1 and 1-A at the time of accident or it was
sold and delivered to Un-Employed Bus Service through Jagdish Chand and
delivery was taken by Kuldip Kumar on behalf of Un-Employed Bus
Service?”
The Tribunal has observed that Kuldip Kumar appears to have
not taken the delivery as he being challaned by the police was acquitted by
the court. His presence at the time of occurrence has been held to be
doubtful by the criminal court. Secondly, the supurdari of the offending
vehicle was taken by Suraj Dev Dada respondent No.1-A, on behalf of
himself and respondent No.1, therefore, they being the owners are
responsible for the payment of compensation.
Having perused the records of the case, I need to step back to
appreciate the evidence. Naresh Kumar Gupta reiterated the allegations
while appearing as PW-1 to prove the accident. However, the crucial
question is “whether delivery of the vehicle was given to Jagdish Chand and
he became the owner or respondent No.1 and 1-A still remain the owners of
the vehicle. It is no denying a fact that the property was not going to the
premises of Jagdish Chand but it was going to the premises of “Golden
Body Builders”. Kuldip Kumar appeared in the witness box and denied his
liability, but he was not cross examined by the respondents No.1 and 1-A
that he was the person employed by the “Un-Employed Bus Service” and he
had taken the delivery of the Chassis in question for and on behalf of Un-
Employed bus Service or Jagdish Chand. Learned counsel for the
respondent No.1 and 1-A has contended that from the testimony of Nitin
Dada (RW2), Sanjeev Sehgal (RW3) and Arun Sharma (RW4), it has come
on the record that the vehicle was purchased by M/s Un-Employed Bus
Service through Jagdish Chand. But, this fact stands falsified from the
documentary evidence. Documents Ex.R1 to R-3 have been brought on the
record to prove the sale of the Chassis to M/s Un-Employed Bus Service,
but these three documents do not in any way prove the story as set up by the
respondents No.1 and 1-A. From the perusal of Ex.R1 to R-3, it is not
established that the offending vehicle was actually delivered to M/s Un-
Employed Bus Service or its proprietor Jagdish Chand. From Ex.R-2 it is
F.A.O. No. 574 and 575 of 2007 (O&M) -5-
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proved that the vehicle was delivered to Kuldip Kumar but it does not find
mention as to in which capacity he had been delivered the offending
vehicle. It is also not established that he had taken the vehicle as per
direction of Jagdish Chand proprietor of M/s Un-Employed Bus Service or
Janak Raj of Golden Body Builders as alleged in the written statement filed
by the respondent No.1 on behalf of the respondent No.1 and 1-A
themselves. Though, Arun Sharma (RW4) in his affidavit Ex.RW4/A stated
that as per the instructions of Jagdish Chand delivery of the vehicle was
given to Kuldip Kumar appellant for body building of bus on 24.6.2000, but
no document has been proved in order to show that the delivery of the said
vehicle was taken by Jagdish Chand or Kuldip Kumar was ever authorised
by the respondents No.1 and 1-A to deliver the vehicle to M/s Un-Employed
Bus Service. It is also not established that Jagdish Chand after taking the
delivery of the vehicle had authorised the respondents No.1 and 1-A to
deliver the same to Kuldip Kumar. In the absence of any documentary
evidence to the effect that the offending vehicle was ever delivered to
Jagdish Chand respondent in lieu of some sale consideration, the fact
would remain that the respondents No.1 and 1-A are the owners of the
offending vehicle.
As a matter of fact, the respondent never parted with the
ownership of the vehicle as it is established on the file that the respondents
No.1 and 1-A took the offending vehicle on supurdri when it was involved
in this case of accident. Nitin Dada (RW2) admitted in the application made
for obtaining the order of supurdari that their company was the owner of the
offending vehicle. From further perusal of the file it also transpires that the
said vehicle was taken on supurdari by Suraj Dev Dada after obtaining
orders from the court of Mrs. Rajwinder Kaur, Judicial Magistrate Ist Class,
Jalandhar in case FIR No.50 dated 24.6.2000 i.e. the criminal case reistered
against Kuldip Kumar. Had they already sold the said vehicle to Jagdish
Chand, then Suraj Dev Dada would not have filed the application for taking
the vehicle on supurdari. Thus, it stands established beyond doubt that the
respondents No.1 and 1-A had taken the delivery of the chassis in question
being the owner of the same.
F.A.O. No. 574 and 575 of 2007 (O&M) -6-
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As regards the liability of Kuldip Kumar, notwithstanding the
fact that he was acquitted in the criminal case vide judgment Ex.R5, but the
Tribunal is not bound by the findings as returned by the criminal court.
However, ample evidence has come on record that Kuldip Kumar had taken
the delivery of the vehicle (may be on behalf of the owners) but it is
established that the vehicle was being driven by him at the time of accident.
As such he also cannot be exonerated from the liability as fastened by the
Tribunal upon him. As such, findings returned by the Tribunal on issues
No.1 and 2 stand affirmed.
No other point has been raised.
Consequently, finding no merit in both the appeals, the same
are hereby dismissed.
A photo copy of this order be placed on the file of the
connected case.
October 06, 2009 (A.N. Jindal) deepak Judge