M C D Vs. RAJ KISHORE TIWARI

JUDGEMENT

(1.) THE present appeal arises out of the award dated 1/8/2006 of the motor Accident Claims Tribunal whereby the Tribunal awarded a sum of Rs. 4,80,000/- along with interest @ 6% per annum to the claimants. The brief conspectus of the facts is as follows:

(2.) MR. O. P. Saxena, counsel for the appellants assailed this award on the ground that the tribunal has erred in holding appellant MCD liable for payment of compensation when there was sufficient material on record to show that Sh. Karamveer, respondent no. 6 herein, was not the driver of MCD at the time of the accident. The counsel urged that the said respondent no. 6 was driving the vehicle unauthorisedly and therefore, liability cannot be fastened on the appellant MCD merely because the vehicle belonged to MCD. The counsel further submitted that MCD in its written statement, stated that the Slum and JJ department of MCD had received a suction machine from Jan Suvidha Complex No. 504 to clean sludge from the septic tank. The driver of the vehicle bearing registration no. DL 1m 0871 Sh. Satinder Kumar and helper Sh. Ravi were engaged in the process to remove the sludge from the septic tank so as to discharge the same in the nearby running Ganda Nalla. The counsel further contended that it was also the case of the appellant that when its employees were busy in the dumping process then all of a sudden somebody drove the aforesaid vehicle of the department and ran away with the purpose of stealing the said suction machine. The counsel maintained that the appellant MCD lodged a written report with the p. S. Shalimar Bagh in this regard. The counsel further averred that even the driver of the vehicle, respondent no. 6 herein, who was arrested on the spot had taken the plea before the trial court that he was neither the employee nor the driver of MCD Slum Department.

(3.) PER contra, Mr. A. Bhattacharjee, counsel for Respondent nos. 1 to 5 vehemently refuted the submissions made by counsel for the appellant. The counsel maintained that the award does not suffer from any infirmity and therefore, this court may not give any indulgence in the matter. The counsel contended that the version of the appellant that the respondent no. 6 committed theft is a concocted story developed by MCD to escape responsibility. The counsel raised doubts regarding the parked vehicle being taken away when the authorised driver and helper were in vicinity. The counsel urged that there appears to be some connivance/collusion between the authorised driver as well as the unauthorised driver respondent no. 6. The counsel urged that the appellant has not approached this court with clean hands and the appeal suffers from misrepresentation of facts and therefore, deserves to be dismissed. The counsel submitted that the appeal has been filed by the appellant MCD with malafide so as to delay the execution of the award. The counsel further contended that even if it is assumed that the respondent no. 6 was not the authorised driver of the offending vehicle but since the authorised driver of the aforesaid vehicle was actually present nearby but made no attempt to avoid such mishap then for the negligence of the driver in not taking care of the property of the employer entrusted to him, the appellant MCD cannot escape its liability. The counsel maintained that even if respondent no. 6 was neither the employee nor the driver of MCD but since he was driving the vehicle of MCD, therefore, MCD cannot be absolved of its liability in toto and in such a situation both MCD and respondent no. 6 should be held liable. The counsel admitted the lodging of the report with the police by the appellant. The counsel also submitted that the appellant did not produce the authorized driver Sh. Satinder Kumar at any time during the proceedings before the trial court. Counsel submitted that in fact the tribunal granted nominal amount of Rs. 25,000/- towards loss of love and affection and Rs. 10,000/- towards loss of estate. The counsel for the respondent nos. 1 to 5 relied upon following judgments in support of his contentions: (1) Selvarajamani and ors. Vs. New India Assurance Co. Ltd. and Ors. ? 2003 ACJ 1152 (Mad) (DB); (2) Parvat vs. Sheikh Ejaj and Ors. ? II (2006) ACC 115 (MP); (3) Hargo Rubber Industries Pvt. Ltd. Vs. Mukesh Sharma and ors. ? 1994 ACJ 450 (Del); and (4) Rita Devi and Ors. Vs. New India Assurance Co. Ltd. and Anr. ? II (2000) ACC 291 (SC ).