“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2010

(Arising out of SLP (C) No. 24891 of 2009)

Saroj & Ors. … Appellants

Versus

Het Lal & Ors. …Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. In this appeal, the judgment of the High Court

affirming the judgment of the Motor Accident Claims

Tribunal, Gurgaon (hereinafter referred to as ‘the

Tribunal’) dismissing the claim of the claimants-

appellants has been challenged. Shortly stated, the

factual conspectus is as under:-

Claimants-appellants are the legal representatives

of one Joginder Singh who was a young man of 34 years.

An accident took place on 16.09.2005 while deceased

Joginder Singh was driving a motorcycle bearing

registration No.HR-26-P/9413 while going to village

Nimot from village Mandavar. As per the claim, the

motorcycle met with an accident as it was hit by a

vehicle, Tata 207 bearing registration No. HR-38-L/6592

which was being driven in a rash and negligent manner.

It is claimed that in that accident Joginder Singh died

on the spot. He was claimed to be a registered medical

practioner and that his monthly earning was Rs.25,000/-

approximately. Therefore, a claim was filed under

Section 166 of the Motor Vehicles Act wherein the

driver Het Lal, owner of the vehicle Pramod Kumar and

the Oriental Insurance Company were joined as party

respondents. The claim was opposed by the driver and

he took the plea that no such accident ever took place

though he admitted that he was the driver of

aforementioned vehicle. In his statement, however, the

owner i.e. respondent No.2, while opposing the claim,

admitted that his vehicle was engaged in the accident

in paragraph three of his written statement. The part

of paragraph 3 of the written statement of respondent

No.2 is as under:

“The present claim petition is not

maintainable against the answering

respondent in view of the facts mentioned in

preliminary objection No.1 above and

especially when the deceased was driving

motorcycle No.HR-26-P-9413 rashly,

negligently at a reckless speed without

wearing helmet, without holding effective

and valid licence, hit Tata 207 bearing

No.HR-38-L-6592 of respondent No.2 from

behind as he could not control his speed and

thus, the deceased himself was the author of

the alleged accident and there was no fault

on the part of respondent No.1 who was

driving the Tata 207 with moderate speed,

adopting traffic regulations and with valid,

effective driving licence. Hence this

petition is liable to be dismissed on this

ground alone.”

3. The same plea is repeated in the written statement

while replying to paragraphs 1 to 13 of the claim

petition practically in the same words as stated above.

The owner of the vehicle also went on to oppose the

petition on the ground that the claimants-appellants were

not the only legal heirs of the deceased nor were the

sufferers or dependant upon him and that they had filed

the petition only to extract huge amount by way of

compensation. The claims made by the claimants-

appellants in their petition about the age and income of

the deceased were also denied.

4. Thus, it was clear that at least the owner of the

vehicle admitted the claim made in the claim petition to

the effect that the vehicle was engaged in an accident

with the vehicle of the deceased and that it was being

driven by respondent No.1 who was his driver. In support

of their claim of the appellants, following issues were

framed by the Tribunal, they being:-

(1)whether the accident took place due to rash

and negligent driving of vehicle No. HR-38-

L/6592 by respondent No.1?

(2)whether the petitioners are entitled to

compensation on account of death of Joginder

Singh in the accident and, if so, to what

amount and from whom?

(3)whether respondent No.1 was not holding a

valid and effective driving licence at the

time of the accident?

(4)Relief.

5. While respondent Nos.1 and 2 did not contest the

claim and they were proceeded ex parte, it was only the

insurance company, the third respondent who took part in

the proceedings and tendered some documents to support

their claim.

6. One Virender Singh was examined as PW-11 who was an

eye-witness to the accident. He supported the fact of

accident which took place near a bridge. He also

asserted that the Tata 207 vehicle was being driven at a

very high speed and in a rash and negligent manner and it

hit a motorcyclist from behind. He also gave the correct

registration number of the motorcycle. The only

suggestion made to him was that he was not present at the

time of the accident and he was a procured witness. The

appellants also led the evidence that the driver,

respondent No.1 was facing trial for causing accident in

the Court of Smt. Ranjana Agrawal, Judicial Magistrate 1

st

Class, Gurgaon for offences under Sections 279 and 304A,

Indian Penal Code (IPC). The Tribunal took the note that

the First Information Report was filed after 18 hours of

the accident by the brother of the deceased wherein it

was claimed that his elder brother Joginder Singh who was

riding the motorcycle No.HR-26-P/9413 was hit by some

unknown vehicle and he died on the spot. The Tribunal

also noted that this witness had done the further

formalities of removing the dead body etc. The Tribunal

then posed a question to itself as to how and under what

circumstances the police came to know that accident was

caused by the Tata 207 vehicle belonging to respondent

No.2 and that at the time of the accident, it was being

driven by respondent No.1. The Tribunal noted that one

Dhani Ram of village Sanpla was present at his house when

the first respondent, who was the son of his brother-in-

law, came to him and asked him to produce him before the

police saying that the accident in question was caused by

him. Dhani Ram, on this, asked him to bring the

offending vehicle which he brought. That is how Het Lal

produced himself on 18.9.2005 to the police along with

the vehicle. The Tribunal questioned this and doubted

this story of Dhani Ram. According to the Tribunal,

there was no reason for respondent No.1 to go to Dhani

Ram and make the request, as he did. The Tribunal also

drew an adverse inference on account of non-examination

of Dhani Ram. The Tribunal also noted the fact that in

the charge-sheet, Exhibit P-9, Virender Singh was

initially not cited as a witness. The Tribunal,

therefore, deduced that the alleged confession by

respondent No.1 to Dhani Ram was a weak type of evidence.

Virender Singh was introduced as eye-witness and his name

was added with different ink in the report in last at

serial No.11. The Tribunal did not accept his evidence

on the ground that Virender Singh did not take any step

to go to the police after having seen the accident and

his statement was recorded as late as after 20 days. The

Tribunal also refused to comment on the fact that

respondent No.1 was facing a trial for the offence under

Sections 279 and 304A, IPC. Lastly, the Tribunal wrote a

finding that it was apparent that it is a case of hit and

run by some unknown vehicle and the alleged unknown

vehicle was a introduced vehicle to claim compensation.

7. In view of this, the claim was dismissed.

8. The claimants-appellants came to the High Court and

the High Court virtually confirmed the order repeating

the findings given by the Tribunal including a finding

that the offending vehicle owned by respondent No.2 and

allegedly driven by respondent No.1 was not involved in

the accident at all.

9. Shri Balakrishnan, learned senior Counsel appearing

on behalf of the appellants pointed out firstly that both

the Courts below have totally failed to apply their mind

to the pleadings and that has resulted in grave

miscarriage of justice. He pointed out that the

involvement of the Tata 207 vehicle owned by respondent

No.2 in this very accident was an admitted fact which was

admitted in pleadings and as such both the Courts below

were wholly unjustified in holding that the said vehicle

was not involved in the accident and that it was a hit

and run case. The learned Counsel urged that the finding

that this was a hit and run case where the vehicle, Tata

207 was not involved was a mere imagination on the part

of the Tribunal which even the High Court failed to note.

The learned Counsel urged that in fact it was an admitted

position that respondent No.1 was being prosecuted for

causing the accident and death while he was driving the

very same vehicle. The learned Counsel further urged

that there was nothing unnatural in the evidence of

Virender Singh and merely because his statement was

recorded later on, that by itself was no reason to dis-

believe the evidence as he was a totally dis-interested

witness. The learned Counsel also pointed out that non-

examination of Dhani Ram was also of no consequence for

the simple reason that police indeed found that the

accident had taken place wherein the said vehicle, Tata

207 was involved on the one hand and the motorcycle

driven by Joginder Singh on the other. The learned

Counsel, therefore, pointed out that the judgments of the

Courts below could not be sustained.

10.On the other hand, Shri S.L.Gupta, learned Counsel

appearing on behalf of respondent No.3, Insurance Company

tried to support the findings and also admitted that even

if this was a case of hit and run accident, even then the

appellants were liable to be paid the no-fault liability

under Section 161 of the Motor Vehicles Act which

admittedly was not paid to them.

11.Shri Gagan Gupta, learned Counsel appearing on

behalf of respondent No.1, driver, however, denied that

any accident had ever taken place or that the driver was

involved in any accident. Respondent No.2, however, did

not choose to come before us.

12.On considering the rival arguments, it must be said

that the petition could not have been dismissed in

totality. Presuming it to be a hit and run case, the

appellants were entitled to at least Rs.25,000/- as per

the provisions of Section 161 (3) (a) of the Motor

Vehicles Act. Therefore, both the Courts below have

obviously failed to note this provision. But that is not

the end of the matter. In our opinion, both the Courts

below have completely erred in giving the finding that it

was a hit and run case and that the concerned vehicle

belonging to respondent No.2 was not involved in the

accident. Insofar as that finding is concerned, it was

an admitted position in the pleadings of respondent No.2

that firstly, the Tata 207 vehicle bearing registration

No. HR-38-L/6592 was involved in an accident with the

motorcycle bearing registration No.HR-26-P/9413 which

took place on 16.9.2005 at 3.30 p.m. and secondly, the

said vehicle was being driven by respondent No.1. This

admission in the pleadings which we have quoted in the

order was itself sufficient to hold that the concerned

vehicle belonging to respondent No.2 was involved in the

accident. This admission was never traversed by

respondent No.2 and, thus, there was no occasion to hold

that the said vehicle was not involved and that it was a

hit and run case. It is surprising that not only the

Tribunal but the High Court also should have ignored the

vital admission on the part of respondent No.2. It was

nobody’s case that this admission of respondent No.2 was

in collusion between respondent No.2 and appellants.

Once this position is clear, there is no occasion for

holding that the vehicle was not involved in the accident

and on that count exonerating the three respondents.

13.In strict sense, this admission may not be binding

vis-à-vis respondent No.1, the driver, who continued to

take a stand that vehicle being driven by him was not

involved in the accident. This defence of respondent

No.1 is understandable as admittedly he is facing the

prosecution for causing the accident and the death

thereby of deceased Joginder Singh on 16.9.2005 at 3.30

p.m.

14.Shri Gupta, learned Counsel could not dispute the

written statement, copy of which is filed before us and

the fact that there was an admission by respondent No.2

that the vehicle belonging to him was involved in an

accident.

15.It is obvious that both the Courts below have failed

to note this fact. The judgments, therefore, would have

to be set aside and the matter would have to be remitted

back to the Tribunal to decide the liability of the

respondents on account of the accident caused by Tata

vehicle No.207 bearing registration No. HR-38-L/6592 with

motorcycle bearing registration No.HR-26-P/9413 and the

death of Joginder Singh in the same. It was tried to be

feebly argued that under any circumstances, the

negligence was only on the part of the motorcyclist and

there will be no question of any compensation on that

count. We are afraid, we cannot appreciate this. The

Tribunal has not considered the matter from this angle.

It is for this reason that we are inclined to remand the

matter back to the Tribunal only on the question of

liability for compensation on the part of respondent Nos.

1, 2 and 3. The matter is pending for the last five

years. It is an admitted position that the appellants

have not received any compensation up till now.

Therefore, the Tribunal shall be well advised to dispose

of the matter within six months from the date on which

this order is received by the Tribunal. The Tribunal

shall hear the parties again and shall dispose of the

matter in the light of the observations we have made

above regarding questions like no-fault compensation

along with other necessary questions. The appeal is

allowed in these terms. T he costs are assessed at Rs. 25,000/-.

...………………….….J.

[V.S. Sirpurkar]

...………………….….J.

[T.S. Thakur]

New Delhi;

December 7, 2010

J