PEMA GYALTSO Vs. SURAJ MAL

JUDGEMENT

(1.) BY way of this appeal appellants seek to challenge the impugned Award dated 1. 3. 1996 primarily on the ground that the appellants failed to prove rashness and negligence on the part of the driver of the offending vehicle. Before dealing with the said contention of the counsel for the appellants, it would be appropriate to give brief facts of the case which are as under:-Mrs. Tenzen Palmo was going on rickshaw on 13. 10. 86 at 4. 00p. M from Railway Station, Delhi to Budh Vihar. A crane bearing registration no. DHL 3361 driven in a rash and negligent manner came from behind and hit the rickshaw at 't' point, ISBT. As a result she fell down and was crushed under the wheel of the crane and died on the spot. Mr. O. P. Mannie, Counsel for the appellants contended that the police had registered a case against the driver of the offending vehicle and this in itself was sufficient to hold that he was rash and negligent in driving the offending vehicle. Counsel for the appellants further urged that even in the postmortem report the reason for the death of the victim disclosed was due to the crush injuries and therefore, this conclusion in the postmortem report in itself was sufficient enough to hold that the victim had died due to the accident in question. Counsel further submitted that the Tribunal has not appreciated the applicability of the principle of res ipsa-loquitur in the facts and circumstance of the case and therefore, no further evidence was required to be adduced so as to prove the factum of negligence on the part of the driver of the offending vehicle. Counsel for the appellants in support of his arguments placed reliance on the following judgments:-1. Girdhar Lal Vs. Radhey Shyam and Ors. 1 (1994) ACC 504 2. Basthi Kasim Saheb Vs. The Mysore State Road Transport Corp. and Ors. , air 1991, SC 487; and 3. N. K. V. Bros. (P.)Ltd. Vs. M. Karumai Ammal and Ors. 1980 ACJ 435

(2.) PER contra counsel appearing for the respondent contended that under section 166 of the Motor Vehicles Act it is imperative on the part of the claimants to prove rash and negligent driving on the part of the driver of the offending vehicle and in the absence of the same no compensation can be awarded in favour of the claimants. Refuting the submissions of the counsel for the appellant, the counsel for the respondent contended that the appellant failed to prove the involvement of the offending vehicle in the accident. Once the involvement of the vehicle itself was in dispute then the rashness and negligence on the part of the driver of the said vehicle became out of question. Counsel for the respondent further contended that procurement of a witness by the appellant and then producing him as a witness to the occurrence of the accident clearly showed that there was no involvement of either the driver, respondent No. 1 herein or the owner of the vehicle in the said accident. The counsel for the respondent also contended that the petitioner himself was riding on the rickshaw and he was the best witness to give the first hand account of the occurrence of the accident, but since he was not produced in the witness box, therefore, adverse inference against the appellants should be drawn. Counsel for the respondent further contended that nobody else but the driver of the alleged offending vehicle himself informed to the police about the said overturning of the rickshaw, whereafter the deceased fell down and came under the rear wheel of the crane. Counsel for the respondent also contended that RW-1 in his deposition duly proved that he was not involved in the said accident. He further proved that he was duly acquitted by the criminal Court and no suggestion was put to the said witness by the appellant to the contrary and therefore, the testimony of RW-1 remained unrebutted. Counsel thus contended that there is no illegality in the findings of the Tribunal in holding that the appellant failed to prove rash and negligent driving on the part of the driver of the offending vehicle.

(3.) I have heard learned counsel for the parties at considerable length and perused the record. It is a settled legal position that the proof of rashness and negligence on the part of the driver of the vehicle is sine qua non for maintaining an application under Section 166 of the Act. To prove factum of accident alone without proving the rash and negligent driving on the part of the driver shall not entitle the claimants to the grant of compensation in a petition filed under section 166 of the Motor Vehicles Act. In this regard, while distinguishing sections 166 and 163-A of the Act in Oriental Insurance Co. Ltd. v. Meena variyal, (2007) 5 SCC 428 the Hon'ble Apex Court observed as under:-