FAO No. 341/2002 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO No. 341/2002 Judgment reserved on: 29.2.2008 % Judgment delivered on: 04.05.2009 Smt. Saroj Gupta ...... Appellant Through: Mr. O.P. Goyal, Advocate versus Shri Inderjeet Gupta & Anr. ..... Respondents Through: Nemo CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. Whether the Reporters of local papers may be allowed to see the judgment? YES 2. To be referred to Reporter or not? YES 3. Whether the judgment should be reported YES in the Digest? KAILASH GAMBHIR, J. 1. The present appeal arises out of the award of compensation passed by the Learned Motor Accident Claim Tribunal on 11/3/2002 for FAO No. 341/2002 Page 2 of 5 awarding of compensation. The learned Tribunal dismissed the petition filed by the claimant appellant. 2. The brief conspectus of facts is as under: 3. That on 15.12.1988 the appellant was going sitting on the pillioin seat of the motor cycle No. DEE-9788, from her office towards their residence. The motor cycle was being driven by her husabdn, respondent No. 1 at a very high speed and near Safdarjung Hospital, when a DTC bus also driven rashly and at a very high speed by its driver, overtook from the right side of the motor cycle and the bus driver turned to his left side suddenly, without giving any signal and respondent No. 1 who was also moving at a very high speed had to apply full brake in order to avoid the bus, causing the motor cycle to slip as a result thereof the appellant fell down on the road along with respondent No. 1 and sustained injuries. 4. A claim petition was filed on 3/7/89 and an award was passed on 11/3/2002. Aggrieved with the said award enhancement is claimed by way of the present appeal. 5. Sh. O.P. Goyal counsel for the appellant claimant urged that the tribunal erred in dismissing the claim petition. The counsel submitted FAO No. 341/2002 Page 3 of 5 that the appellant had fully proved that the respondent driver of the bus was rash and negligent in driving the vehicle. 6. Nobody appeared for the respondents. 7. I have heard the counsel for the appellant and perused the award. 8. In a plethora of cases the Hon’ble Apex Court and various High Courts have held that the emphasis of the courts in personal injury cases should be on awarding substantial, just and fair damages and not mere token amount. In cases of personal injuries the general principle is that such sum of compensation should be awarded which puts the injured in the same position as he would have been had accident not taken place. But at the same time, it is also well settled that when a claim petition is filed under S. 166 of the MV Act then the burden to prove that the respondent was rash and negligent falls on the claimant. In this regard in Oriental Insurance Co. Ltd. v. Meena Variyal,(2007) 5 SCC 428, the Hon’ble Apex Court observed as under: 27. We think that the law laid down in Minu B. Mehta v. Balkrishna Ramchandra Nayan 10 was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by FAO No. 341/2002 Page 4 of 5 introducing Section 163-A of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of a motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under sub-section (1) of Section 163-A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned. Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163-A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle. 9. In the instant case, the appellant Mrs. Saroj Gupta deposed as PW 2 that on 15/12/1988 at about 5:30 pm her husband went from Delhi University to her office to pick her up on his motorcycle bearing registration no. DEE 9778. They started from her office and when they reached in front of Safdarjung Hospital after crossing the bus stop near it, all of a sudden a DTC bus overtook from the right side and swerved towards left and in that process her husband applied brakes and FAO No. 341/2002 Page 5 of 5 therefore, the motorcycle skidded. She deposed that her husband was also to swerve towards left in order to save themselves. Clearly, from the testimony of the appellant it is manifest that the husband of the appellant instead of swerving the said vehicle applied brakes when he was at a high speed, due to which the motorcycle skidded and she sustained injuries. 10 Also, no document such as FIR against the said bus driver, seizure or the supardarinama of the bus, site plan etc. were brought on record to prove the rash and negligent driving of the respondent. 11. Further, no eyewitness to the accident was called upon for examination by the appellant to prove that the respondent was negligent. 12. In view of the above discussion, I do not feel that the tribunal committed any error in dismissing the claim petition, therefore, no interference is made in this regard. 13. In view of the foregoing, the present appeal is disposed of. 04th May, 2009 KAILASH GAMBHIR, J.