RAMJAN ALI Vs. SUNIL KUMAR

JUDGEMENT

(1.) The appeal is against the dismissal of a petition filed under Section 163-A of the Motor Vehicles Act, 1988 with the averments that on 19.4.2006, the deceased Katik Mohd. along with others were traveling in a Mohindra pick-up van returning from village Lakkar to village Buria, after attending the marriage of one Arvind Kumar. The accident is said to have taken place when a truck coming from the opposite direction dashed against the truck in which the deceased was traveling that resulted in death of one of the passengers in the bus, named, Katik Mohd. That driver incidentally also happened to be the owner of the truck and appears to have been proceeded against for negligence driving of the truck. The petition has been dismissed on the ground that the claimant's income was more than Rs. 40,000/-.

(2.) In my view, the dismissal of the petition was clearly erroneous. I have seen through the petition. The claimants are the parents of Katik Mohd., who was 20 years of age and was said to be a computer operator with Satish Kumar, proprietor of Bittu Kamboj Bhuria. The driver of the Mohindra pick-up van has been proceeded with and if it is admitted fact that the deceased was traveling a motor vehicle and the death had also been on account of the accident involving a motor vehicle. The petition was perfectly maintainable. A defence of the deceased being a gratuitous passenger or unauthorized passenger cannot avail to the 1st respondent who himself is driver as well as the owner. Having allowed a passenger in the truck, he is bound to take a consequence for the result of the accident. The plea of non-liability on the ground that the deceased was an unauthorized/gratuitous passenger cannot, therefore, arise.

(3.) Another line of defence was that the claimants had earlier filed a petition No. 120 of 2006, but it was dismissed as withdrawn. The defence was, therefore, in terms of Rule 220 of the Haryana Motor Vehicle Rules 1993, the provision of Order 23 Rule 1 CPC would apply for withdrawal of the petition. Consequently, withdrawal of petition without seeking for permission will bar a fresh petition. I would reject this contention, since, if a petition were filed under Section 166 and it is withdrawn, a fresh petition under the very same provision could be a bar. If, on the other hand, the petition is filed under Section 166 where proof of negligence would have been necessary, there could be no bar to a petition under Section 163-A which dispenses with proof of negligence and allow for determining compensation on the structured formula mentioned in Schedule II.