* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 473/2002
Judgment reserved on: 29.2.2008
% Judgment delivered on: 4.5.2009
Sh. Dev Raj ...... Appellant
Through: Mr. O.P. Mannie, Advocate
versus
Sh. Rassis Kumar & Ors. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be reported YES
in the Digest?
KAILASH GAMBHIR, J.
1. The present appeal arises out of the order dated 8.5.2002 passed
by the Learned Motor Accident Claim Tribunal dismissing the petition
filed by the claimant appellant.
FAO No. 473/2002 Page 1 of 7
2. The brief conspectus of facts is as under:
3. That on 27.1.1991 at about 3.45 p.m. the appellant was crossing
Road No. 41, very carefully near SD Block, Tower Apartments,
Saraswati Vihar, Delhi when at the same time respondent No. 1 while
driving vehicle bearing registration No. DL-4C-5526 rashly and
negligently at fast speed came from Madhuban Chowk, side and hit
against the appellant resulting serious grievous injuries to the
appellant.
4. A claim petition was filed on 4/3/1991 and an award was passed
on 8/5/2002. Aggrieved with the said award enhancement is claimed
by way of the present appeal.
5. Sh. O.P. Mannie counsel for the appellant claimant urged that the
tribunal erred in dismissing the claim petition. The counsel submitted
that the appellant had fully proved that the respondent driver of the
offending vehicle was rash and negligent in driving the vehicle bearing
registration no. DL 4C 5526.
6. Nobody appeared for the respondents.
FAO No. 473/2002 Page 2 of 7
7. I have heard the counsel for the appellant and perused the
award.
8. In a plethora of cases the Hon‟ble Apex Court and various High
Courts have held that the emphasis of the courts in personal injury
cases should be on awarding substantial, just and fair damages and
not mere token amount. In cases of personal injuries the general
principle is that such sum of compensation should be awarded which
puts the injured in the same position as he would have been, had
accident not taken place. But at the same time, it is also well settled
that when a claim petition is filed under S. 166 of the MV Act then the
burden to prove that the respondent was rash and negligent rests on
the claimant. In this regard in Oriental Insurance Co. Ltd. v. Meena
Variyal,(2007) 5 SCC 428, the Hon‟ble Apex Court observed as
under:
27. We think that the law laid down in Minu B. Mehta v.
Balkrishna Ramchandra Nayan 10 was accepted by the
legislature while enacting the Motor Vehicles Act, 1988 by
introducing Section 163-A 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 SecondFAO No. 473/2002 Page 3 of 7
Schedule, to the legal heirs or the victim, as the case may
be, and in a claim made under sub-section (1) of Section
163-A of the Act, the claimant shall not be required to
plead or establish that the death or permanent
disablement in 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 dependants have an option either
to proceed under Section 166 of the Act or under
Section 163-A 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 163-A of the Act, the compensation will be
awarded in terms of the Schedule without calling
upon the victim or his dependants to establish any
negligence or default on the part of the owner of the
vehicle or the driver of the vehicle.
9. It would be evident from the record and after considering
the facts and circumstances of the instant case that the
appellants had provided enough material by placing on record
the FIR Ex. PW1/1. The eyewitness PW2 Alim Khan also deposed
that the accident took place due to rash and negligent driving of
the driver of the offending vehicle bearing registration No. DL 4C
5526. Therefore, there was ample material on record to prove the
negligence of respondent driver.
10. In Pushpabai Purshottam Udeshi v. Ranjit Ginning &
Pressing Co. (P) Ltd., (1977) 2 SCC 745, the Hon‟ble Apex
FAO No. 473/2002 Page 4 of 7
Court explained the concept of res ipsa loquitur and 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 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.
11. Further, the tribunal while deciding this case, took into account
the decision in the criminal case arising out of the same FIR No.
FAO No. 473/2002 Page 5 of 7
40/1991 wherein the criminal court acquitted the respondent driver
due to inability of the prosecution in proving beyond reasonable doubt
that the respondent driver was rash and negligent in driving the
vehicle. It is well settled that acquittal in criminal case has no bearing
on cases under MV Act. As regards negligence, in N.K.V. Bros. (P)
Ltd.Vs. M. Karumai Ammal and Ors.- AIR 1980 SC 1354, (1980)
3 SCC 457; the Hon‟ble Apex Court observed as under:
The plea that the criminal case had ended in acquittal and that,
therefore, the civil suit must follow suit, was rejected and rightly.
The requirement of culpable rashness Under Section 304-A I.P.C.
is more drastic than negligence sufficient under the law of tort to
create liability. The quantum of compensation was moderately
fixed and although there was, perhaps a case for enhancement,
the High Court dismissed the cross claims also. Being questions
of fact, we are obviously unwilling to reopen the holdings on
culpability and compensation.
12. Be that as it may, minor contradictions can be ignored if
other evidence is sufficient enough to prove otherwise. Thus, the
discrepancy of the PW2 in calling the offending vehicle a car
when the same was a van can be ignored.
13. Therefore, in view of the above discussion, there can be no
confusion that the driver of the offending vehicle was negligent
and was liable for the accident. The tribunal therefore committed
FAO No. 473/2002 Page 6 of 7
error in holding that the appellants could not prove negligence of
the offending vehicle.
14. With the above discussion, the present appeal is remitted back to
the tribunal for deciding the other issues. Parties are directed to
appear before the Tribunal on 25.5.2009. The Tribunal shall decide the
claim petition as expeditiously as possible but in any case not later
than one year from the date of this order.
15. In view of the above directions, the appeal is disposed of.
04th May, 2009 KAILASH GAMBHIR, J.
FAO No. 473/2002 Page 7 of 7