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2018 Supreme(Del) 2698
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUNIL GAUR, J.
SHARMILA & ORS. - Appellants
Versus
NEW INDIA ASSURANCE CO LTD & ORS. - Respondents
MAC.APP. 53, 171, 187 of 2018
Decided on : 05-08-2018
For the Appellant :Mr. Anshuman Bal, Advocate
For the Respondent:Mr. J.P.N. Shahi and Ms. Komal Dhingra, Advocates Mr. Rajiv Kumar Tiwari, Adv.
The application of the 'Rule of Strict Liability' in motor accident claims and the attribution of negligence to the appropriate party.
Headnote:
Negligence - Motor Vehicle Accident - Motor Vehicles Act, 1988 - Section 163-A
Fact of the Case:
The case involved a fatal motor vehicle accident where the driver and passengers of the insured car sustained fatal injuries and died on the spot. The legal heirs of the deceased filed claim petitions for compensation.
Finding of the Court:
The court found that the negligence of the driver of the insured car did not stand proved and attributed the accident to the negligence of the railway authorities. The court set aside the impugned Award and directed the Tribunal to treat the claim petitions as one under Section 163-A of the Motor Vehicles Act, 1988 and to proceed further in accordance with the law.
Issues: The main issue was whether the driver of the insured car was negligent in causing the accident and if the legal heirs were entitled to compensation.
Ratio Decidendi: The court applied the 'Rule of Strict Liability' as declared in the case of Kaushnuma Begum and others Vs. New India Assurance Co. Ltd. and others 2001 ACJ 428, and concluded that the negligence, if any, was of the railway authorities and not of the driver of the insured vehicle.
Final Decision: The court disposed of the appeals, directing the parties to appear before the concerned Motor Accident Claims Tribunal for further proceedings.
1. The above captioned three appeals arise out of common impugned Award of 9th October, 2017 vide which appellants’ claim petitions have been dismissed on ground of there being no negligence on part of driver of insured vehicle.
2. With the consent of learned counsel for the parties, these appeals have been heard together and are being decided by this common judgment.
3. The facts as noted in the impugned Award are as under:
“These petitions are filed by the petitioners stating that on 10.05.2015 Sh. Jay Krishna Tiwari (deceased) alongwith Sh. Santosh Kumar Tiwari (deceased) and Sh. Ram Kumar Dubey (deceased) was coming to Delhi from village Tiwari Chak Rajaj Ram, Distt. Bhadohi by car No. DL 9 CY 5619 (Swift Dzire) which was being driven by its driver Atul Kumar Tiwari (deceased) at a very high speed rashly and negligently and in a zig zag manner without taking care of the safely of car inmates/co passenger. The driver was warned by the co passengers not to drive the car in such a manner but of no avail and continued driving the car on his whims and fancies. At about 9:30 to 10 AM, when the Swift Car reached at Kishun Dev Pur, Railway Phatak, PS Gopi Ganj, a train was coming on the same railway track, the car driver in a great hurry at a very high speed, rashly and negligently tried to cross the railway crossing while the train was about to reach on the same crossing. Suddenly the car wheels got stuck into the pitfall on the railway track. In the meanwhile, a train came on the railway track and hit the Swift car with a great force. As a result of this, Swift Car got crushed and all passengers and driver of the said car sustained fatal injuries and died on the spot. They were taken to MCS Distt. Hospital Gyanpur, SRN Bhadohi where their postmortem were conducted. DD No. 20/15 was registered at PS Gopi Ganj, Distt. Bhadoi. Thereafter, petitioners have filed three petitions for compensation i.e. Claim petition No. 15430/2015 titled Sharmila & Ors. V/s Hari Nath Tiwari & Ors., claim petition No. 15456/15 titled Radha Devi & Ors. V/s Rajiv Kumar Tiwari & Ors. & claim petition No. 15457/15 titled Anita Devi & Ors. V/s Rajiv Kumar Tiwari & Ors. The respondents in all the petitions are common except petition No. 15430/15. ”
4. Respondent-Hari Nath Tiwari, legal heir of driver of the insured car, was ex-parte before the learned Motor Accident Claims Tribunal (henceforth referred to as the “Tribunal”) and service upon respondent-Rakesh Mishra, the erstwhile owner of the insured vehicle is dispensed with, as he was also ex-parte before the Tribunal. Otherwise, the subsequent owner of the insured vehicle-Rajiv Kumar Tiwari has appeared in person in these appeals.
5. The Tribunal in the impugned Award, has considered evidence of eye-witness-Manoj Tiwari, but had chosen not to rely upon it, as this eye-witness did not call the police at the spot and gave no reason for not doing so. According to this eye-witness (PW-3), his statement was not recorded by police and site plan of the spot was also not prepared by police at his instance.
6. The challenge to impugned Award by learned counsel for appellants in these three appeals is on the ground that the eye-witness-Manoj Tiwari in his evidence has clearly stated that insured car was being driven in rash and negligent manner and there is no cross-examination of eye-witness and the Tribunal has erred in not relying upon the evidence of eye-witness (PW-3). It is submitted that the three deceased were the passengers in the insured car and so, due compensation to their legal heirs cannot be denied on the ground that driver of insured car (who had also died in this accident) was not negligent. It is pointed out that respondent-Insurer has not led any evidence to demolish the evidence of eye-witness and so, the impugned Award deserves to be set aside and the matter be remanded back for decision afresh on merits.
7. Upon hearing and on perusal of evidence of eye-witness, DD Report and the other evid
