$~3 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 26th September, 2012 + MAC. APP. No.457/2005 STEEL WOOL CORPORATION & ANR. Appellants Through: Mr. [ENTITY] with Ms. [ENTITY], Advocates Versus HUSANA KHATUN & ORS Respondents Through: Mr. [ENTITY], Advocate CORAM: HON'BLE MR. JUSTICE G.P.MITTAL JUDGMENT
[ENTITY], J. (ORAL)
1. The Appellant [ENTITY] who is the owner of maruti van No.DL-2CF-3308 which was involved in an accident resulting in fatal injuries to [ENTITY] impugns a judgment dated 11.04.2005 whereby the Motor Accident Claims Tribunal(the Claims Tribunal) while holding that the Claimants (Respondents No.1 to 4) were unsuccessful to prove the negligence on the part of the Second Appellant converted the Petition under [SECTION] of the [ACT] Act) to under [SECTION] and awarded the compensation on the basis of the structured formula. The Appellants grievance is that the Claims Tribunal was not empowered to convert the Petition filed under [SECTION] of the Act to one under [SECTION] of the Act particularly when the Respondents No.1 to 4 amended the Claim Petition so as to delete [SECTION] of the Act.
2. In support of the contention, the learned counsel for the Appellants placed reliance on the Supreme Court report in [ENTITY] v. United India Insurance Company Limited, (2004) 5 SCC 385.
3. Per contra, the learned counsel for the Respondents (Claimants) urged that the provisions of the [ACT] dealing with award of compensation to the victim of road accidents is a beneficial piece of legislation. The Claims Tribunal and Courts, therefore, can convert a Claim Petition from [SECTION] of the Act where the negligence is not proved. The learned counsel for the Respondents No.1 to 4 places reliance on the judgment of this Court in New India Assurance Co. Ltd. v. [ENTITY] & Ors., (MAC. APP.533/2008) decided on 12.11.2008.
4. First of all, I may refer to the factual position. A Claim Petition under [SECTION] and [SECTION] of the Act was filed by the Respondents No.1 to 4 on 18.02.2003. An Application under [SECTION] [ACT] dated 10.12.2003 was moved by the Respondents No.1 to 4 so as to delete [SECTION] The said Application was allowed by an order of even date on the ground that the Petition could be amended at the initial stage of the inquiry. An amended Petition was filed on 10.12.2003 under [SECTION] and [SECTION] of the Act. In [ENTITY], it was held as under:
"59. The question may be considered from different angles. As for example, if in the proceedings under [SECTION] of the Act, after obtaining compensation under [SECTION], the awardee fails to prove that the accident took place owing to negligence on the part of the driver or if it is found as of fact that the deceased or the victim himself was responsible therefore as a consequence whereto the Tribunal refuses to grant any compensation; would it be within its jurisdiction to direct refund either in whole or in part the amount of compensation already paid on the basis of structured formula? Furthermore, if in a case the Tribunal upon considering the relevant materials comes to the conclusion that no case has been made out for awarding the compensation under [SECTION] of the Act, would it be at liberty to award compensation in terms of [SECTION] thereof.
60. The answer to both the aforementioned questions must be rendered in the negative. In other words, the question of adjustment or refund will invariably arise in the event if it is held that the amount of compensation paid in the proceedings under [SECTION] of the Act, is interim in nature.
5. While examining the question of conversion of a Claim Petition under [SECTION] to under [SECTION] of the Act, this Court in [ENTITY] & Ors. v. Jagdish Kumar & Ors., (FAO.398/2000) decided on 02.07.2012 held that a Claimant is entitled to amend the Petition from one under [SECTION] of the Act to under [SECTION] of the Act in appropriate cases. But on interpretation of [ENTITY], it was held that if negligence is not proved, the Claims Tribunal cannot suo motu convert a Petition under [SECTION] under [SECTION] of the Act. Para 14 of the report in [ENTITY] is extracted hereunder:
"14. In my view, on the basis of Supreme Court report in [ENTITY]) it can be said that the Claims Tribunal cannot suo moto convert a petition under [SECTION] to the one under [SECTION] of the Act if negligence is not proved. [ENTITY]) does not foreclose the right of a party to convert a Petition under [SECTION] to under [SECTION] in an Appeal if a Claimant otherwise satisfies the Court that the amendment should be allowed."
6. Thus, it is evident that the Claims Tribunal was not competent to convert the Claim Petition from under [SECTION] to under [SECTION] of the Act without any prayer on behalf of the Respondents No.1 to 4. [ENTITY] relied on by the learned counsel for the Respondents No.1 to 4 is not applicable as the Supreme Court report in [ENTITY] was not considered therein.
7. There is another aspect of the matter. In this case, it was established that the accident was not caused on account of rashness or negligence on the part of the Second Appellant. Rather, it was evident that the accident occurred on account of the deceased's own negligence. In this regard, I would like to refer to para 10 of the impugned judgment, which is extracted hereunder:
"Evidence of PW2 Constable [ENTITY] makes it clear that no wrongful act or omission in the happening of the accident could be attributed to respondent No.1. Evidence of RW1 [ENTITY] that the deceased suddenly emerged on to the road after jumping of scaling over the iron railing in the middle patri and lost his balance, is corroborated by the evidence of PW2 Constable [ENTITY]. If a pedestrian at dead of night suddenly emerges on the road from nowhere, there is no way that the driver of a vehicle could be said to be rash or negligent in causing the accident, whatsoever be the speed of the vehicle. Judicial cognizance of the fact could be taken that the place where the accident occurred remains busy with people and traffic till late hours of the day/night and the suggestion by the claimants that respondent No.2 was driving the Maruti van at reckless fast speed, cannot be believed."
8. I have before me Constable [ENTITY]'s) testimony which clearly shows that the maruti van was being driven at a normal speed and the accident occurred as the deceased jumped over the iron railing on the central verge and lost his balance. The iron railings are put on the central verge so as to dissuade the pedestrian from crossing the road at will from any place they like. Jumping over the railing on the central verge was a wrongful act on the part of the deceased himself, which caused the accident. Thus, the deceased himself was responsible for the accident.
9. In National Insurance Company Limited v. [ENTITY] & Ors., 2011 (13) SCALE 84, the Supreme Court drew distinction between award of compensation on the basis of no fault liability under [SECTION] of the Act and payment of compensation under [SECTION] of the Act and laid down that the award of compensation under [SECTION] of the Act is not on no fault liability and that a Claim Petition under [SECTION] of the Act can be defeated by the concerned party(owner or Insurance Company) by pleading and proving wrongful act, neglect or default on the part of the victim/deceased. Para 16 of the report is extracted hereunder:
"16. At the instant juncture, it is also necessary to reiterate a conclusion already drawn above, namely, that [SECTION] of the Act has an overriding effect on all other provisions of the [ACT]. Stated in other words, none of the provisions of the [ACT] which is in conflict with [SECTION] of the Act will negate the mandate contained therein (in [SECTION] of the Act). Therefore, no matter what, [SECTION] of the Act shall stand on its own, without being diluted by any provision. Furthermore, in the course of our determination including the inferences and conclusions drawn by us from the judgment of this Court in [PRECEDENT], as also, the statutory provisions dealt with by this Court in its aforesaid determination, we are of the view, that there is no basis for inferring that [SECTION] of the Act is founded under the "no-fault" liability principle. Additionally, we have concluded herein above, that on the conjoint reading of [SECTION] and [SECTION], the legislative intent is clear, namely, that a claim for compensation raised under [SECTION] of the Act, need not be based on pleadings or proof at the hands of the claimants showing absence of "wrongful act", being "neglect" or "default". But that, is not sufficient to determine that the provision falls under the "fault" liability principle. To decide whether a provision is governed by the "fault" liability principle the converse has also to be established, i.e., whether a claim raised thereunder can be defeated by the concerned party (owner or insurance company) by pleading and proving "wrongful act", "neglect"
or "default". From the preceding paragraphs (commencing from paragraph 12), we have no hesitation in concluding, that it is open to the owner or insurance company, as the case may be, to defeat a claim under [SECTION] of the Act by pleading and establishing through cogent evidence a "fault" ground ("wrongful act" or "neglect" or "default"). It is, therefore, doubtless, that [SECTION] of the Act is founded under the "fault" liability principle. To this effect, we accept the contention advanced at the hands of the Learned Counsel for the Petitioner."
10. Thus, even otherwise on the basis of the principles laid down in [ENTITY] & Ors., the Respondents were not entitled to any compensation except the compensation of `50,000/- on no fault liability.
11. The Appeal, therefore, has to be allowed and the impugned order is liable to be set aside. I order accordingly.
12. By an order dated 24.05.2005, the award amount was ordered to be deposited and 50% thereof was ordered to be released in favour of the Respondents No.1 to 4. The Appellants would be entitled to restitution of the amount, except the amount of `50,000/- paid to the Respondents.
13. The Appeal is allowed in above terms.
14. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant.
15. Pending Applications stand disposed of.
([ENTITY]) JUDGE SEPTEMBER 26, 2012 pst