MAC.APP.No.609/2009 Page 1 of 116 * IN THE HIGH COURT OF DELHI AT NEW DELHI + MAC.APP.609/2009 % Date of reserve : 3rd March, 2010 Date of decision: 12th April, 2010 MAYUR ARORA ……..Appellant Through : Mr. S.P. Jain and Mr. Sumit Gupta, Advs. versus AMIT @PANGE & ORS. …Respondents Through : Dr. Arun Mohan, amicus curiae. Mr. Kanwal Choudhary, Adv. for R-3. CORAM :- THE HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? JUDGMENT 1. The appellant has challenged the award of the learned Tribunal whereby his claim petition has been dismissed. 2. FACTS OF THE CASE 2.1. The accident dated 21st June, 2008 resulted in grievous injuries to the appellant. The appellant was driving his two wheeler scooter No.DL-6SP-1632 while coming from Keshav Puram towards Sarai Basti. The appellant met with an accident with Maruti Van No.DL-2C-R-6342 near Mochi Chowk, Keshav Puram. 2.2. The appellant suffered fracture on his right wrist, fracture on his right shoulder and peeled off skin of his left MAC.APP.No.609/2009 Page 2 of 116 leg due to the accident. The appellant was treated at Parmarth Mission Hospital, Hindu Rao Hospital and Aggarwal Nursing Home. 2.3. The appellant appeared in the witness box as PW-2 and deposed with respect to accident having been caused due to rash and negligent driving of Maruti Van No.DL-2C-R-6342. The appellant also deposed with respect to the injuries suffered by him, treatment taken and the expenditure occurred by him. The appellant was cross-examined at length by counsel for respondent No.3. The appellant deposed in cross-examination that the road was about 10 feet wide and there was not much traffic. The appellant was coming from the service lane approaching towards the main road and had to take right turn on the main road. There was no red light signal and the appellant stopped the scooter at the corner upon seeing the van when he was hit by the van coming at the very fast speed. 2.4. S.I. Narender Singh, P.S. Keshav Puram appeared as PW-1 and proved the FIR No.134/2008 under Sections 279/337 as Ex.PW-1/1 and the MLC as Ex.PW-2/1. The FIR was registered against the driver of the Van for rash and negligent driving. 2.5. No evidence was led by the respondents to rebut the evidence lead by the appellant. MAC.APP.No.609/2009 Page 3 of 116 3. FINDINGS OF THE CLAIMS TRIBUNAL 3.1. The learned Tribunal dismissed the claim petition holding that the appellant has failed to prove the rash and negligent driving by the driver of the Maruti Van. The learned Tribunal has given following reasons in para 9 of the award:- 3.2. The petitioner has not filed certified copy of criminal record such as site plan and mechanical inspection report of both the vehicles. 3.3. Had the certified copies of site plan being filed, the Tribunal would have considered as to how the accident had taken place. 3.4. Inspection report of both the vehicles would have also shown as to whether scooter of the petitioner was hit or not. 3.5. The petitioner was approaching the main road from service lane and there was no red light signal there. It was the duty of the petitioner while approaching the main road to ascertain whether any vehicle was going on the main road. Had he done so, accident should not have happened and, therefore, it was his fault due to which accident had taken place. 3.6. When petitioner had approached the corner of service lane, he had already seen the van which was about 15 feet away and, therefore, it was his duty to stop the scooter and should have allowed the van to pass away since the van was going on the main road and petitioner was coming from service lane, for going on the main road. MAC.APP.No.609/2009 Page 4 of 116 3.7. The petitioner has failed to prove the fact that accident had taken place due to rash and negligent driving of the maruti van DL-2C-R-6342. 4. CONTENTIONS IN THIS APPEAL 4.1 The learned counsel for the appellant submits that the findings of the Claims Tribunal are contrary to the evidence on record. The learned counsel submits that appellant appeared in the witness box as PW-2 and deposed that the accident occurred due to the rash and negligent driving of the driver of the Maruti Van who was driving at a very fast speed. The appellant further deposed that he had seen the Maruti Van at a distance of 15 feet and had stopped the scooter and the Maruti Van hit the stationary scooter because of negligent driving. No evidence was led by the respondent to rebut the evidence led by the appellant. The FIR recorded by the police against the driver of the Maruti Van also supported the appellant‟s case. 4.2. The learned counsel for the appellant next submits that the learned Tribunal has not conducted any inquiry as contemplated under Sections 168 and 169 of the Motor Vehicles Act, 1988. The learned counsel submits that if the Tribunal had any doubt about the rash and negligent driving of the Maruti Van, the learned Tribunal should have summoned the record of the criminal case to ascertain the truth instead of drawing an adverse inference against the appellant. MAC.APP.No.609/2009 Page 5 of 116 4.3. The learned counsel for the appellant further submits that the Claims Tribunal has disregarded the series of judgments passed by this Court in which this Court has time and again held that an inquiry under Section 168 of the Motor Vehicles Act is not same as a trial under the Code of Civil Procedure. The learned counsel submits that the scope of inquiry under Sections 168 and 169 of the Motor Vehicles Act should be elucidated for guidance of the Claims Tribunal. 5. THE NEED TO GO INTO DEPTH 5.1. There is a need to go deeper into the matter and clarify the legal position and more so after the adoption of a new stance by the police, and the Insurance Companies, as also the various pronouncements of this Court. It becomes necessary to do so, so that there is no confusion, there is consistency and the practice and procedures in this field find development and application that serves the goal. Considering all this, vide order dated 23rd December, 2009, this Court appointed Dr. Arun Mohan, Senior Advocate and author of “Justice, Courts and Delays” as amicus curiae to assist this Court. Thereafter, the amicus curiae was heard at length, several other counsels also informally heard, and this judgment is being rendered. 6. SECTION 168 OF THE MOTOR VEHICLES ACT, 1988 6.1. The objective of this legislation being well known, does not require detailing and we can proceed straight with the statutory provision. Section 168 of the Motor Vehicles Act, MAC.APP.No.609/2009 Page 6 of 116 1988 provides that the Claims Tribunal shall hold an inquiry into the claim. Section 168 of the Motor Vehicles Act is reproduced hereunder:- “Section 168. Award of the Claims Tribunal- On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award. (3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.” 7. SECTION 169 OF THE MOTOR VEHICLES ACT, 1988 7.1. Section 169 of the Motor Vehicles Act, 1988 provides that in holding the inquiry under Section 168, the Claims MAC.APP.No.609/2009 Page 7 of 116 Tribunal may follow such summary procedure as it thinks fit. Section 169 of the Motor Vehicles Act is reproduced hereunder:- “Section 169. Procedure and powers of Claims Tribunals- (1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. (2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). (3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry.” 8. DELHI MOTOR ACCIDENTS CLAIMS TRIBUNAL RULES, 2008 8.1. The Delhi Motor Accidents Claims Tribunal Rules, 2008, notified by Government of NCT of Delhi on 13th July, 2009, provide the procedure to be followed by the Claims Tribunal. Some of the relevant Rules are as under:- “Rule 3 - Duties of investigating police officer in motor accident cases.- (1) Notwithstanding anything contained to the contrary in any other rules in force, it shall be the duty of the investigating police officer, as expeditiously as possible to- (a) get the scene of accident photographed from such angles as to clearly depict, and in case MAC.APP.No.609/2009 Page 8 of 116 of inability to do so, prepare a site plan, drawn to scale, as to indicate the lay-out and width, etc. of the road(s) or place, as the case may be, the position of vehicle(s), or person(s), involved, and such other facts as may be relevant so as to preserve the evidence in this regard, interalia for purposes of proceedings before the Claims Tribunal; (b) gather full particulars of the insurance certificate /policy in respect of the motor vehicle involved in the accident and to require the production of documents mentioned in sub- section (1) of section 158 of the Act, and thereupon either to take the same in possession against receipt, or to retain the photocopies of the same, after attestation thereof by the person producing the same; (c) verify the genuineness of the documents mentioned in clause (b) by obtaining confirmation in writing from the office /authority purporting to have issued the same; (d) submit detailed report regarding an accident to the Claim Tribunals, in Form “A” by not later than thirty days of the receipt of notice in Form “B”, accompanied by requisite documents which shall include copy of report under section 173 of the Code of Criminal Procedure, 1973(2 of 1974), medico legal certificate, post-mortem report (in case of death), first information report, photographs, site plan, photocopies of documents mentioned in clause (c), report regarding confirmation of genuineness thereof, if received, or otherwise action taken; (e) furnish to the applicant information and particulars about the accident in Form “A” within thirty days, on receiving the application in Form “C” by the person who wishes to make an application for compensation and who is involved in an accident, or his next of kin, or the legal representative of the deceased, or the insurance company, as the case may be. Provided that such information shall be given to the insurance company on payment of a fees of rupees ten only per page; (f) not to release and impound the vehicle involved in the accident, when it is found that it is not covered by policy of insurance of third MAC.APP.No.609/2009 Page 9 of 116 party risks, taken in the name of the registered owner, or when the registered owner fails to furnish copy of such insurance policy, and bring this to the notice of the Magistrate having jurisdiction over the area, where the accident occurred. (g) report to the Magistrate mentioned in clause (f), as to why the registered owner has not been prosecuted for offence punishable under section 196 of the Act, where such prosecution has not been preferred, despite existence of facts constituting such an offence. (2) The duties enumerated in sub rule (1) shall be construed as if they are included in section 60 of the Delhi Police Act 1978 (34 of 1978) and any breach thereof shall entail consequences envisaged in that law. Rule 4 - Duties of the registering authority.- It shall be the duty of the concerned registering authority to- (a) submit a detailed report in Form “D” to the Claims Tribunal regarding a motor vehicle involved in an accident or licence of the driver thereof within fifteen days of the receipt of direction in Form “E”; (b) furnish within fifteen days, the requisite information in Form “D” on receiving the application in Form “F”, by the person who wishes to make an application for compensation or who is involved in an accident arising out of use or his next of kin, or to the legal representative of the deceased or to the insurance company, as the case may be. Provided that information shall be given to the insurance company on payment of rupees ten only per page. Rule 5 - Duties of the insurance company.- It shall be the duty of the divisional manager of the insurance company, as expeditiously as possible, to- (a) move an application in Form “C” before the investigating police officer with prescribed fees and gather full information about the accident, at the earliest, after receiving information about it, MAC.APP.No.609/2009 Page 10 of 116 or on receipt of notice from the Claims Tribunals under rule 13; (b) ascertain and verify facts about insurance of motor vehicle(s) involved in the accident and confirm the same to the Claims Tribunal within thirty days of receiving notice of the claim case; (c) move application before the concerned registering authority in Form “F” and gather information about the motor vehicle(s) involved, and the driving licence(s) held by the driver(s) thereof as per details mentioned in Form“D”; (d) deposit with the written statement in the Claims Tribunal, the amount equivalent to the compensation, awardable on the principle of no fault liability under section 140 of the Act in such cases where the information received in Form “A” and Form “D” confirms death or permanent disability to have been caused as a result of the use of the motor vehicle covered by the insurance certificate/policy issued by it. Rule 6 - Prohibition against release of motor vehicle involved in accident.- (1) No court shall release a motor vehicle involved in an accident resulting in death or bodily injury or damage to property, when such vehicle is not covered by the policy of insurance against third party risks taken in the name of registered owner or when the registered owner fails to furnish copy of such insurance policy despite demand by investigating police officer, unless and until the registered owner furnishes sufficient security to the satisfaction of the court to pay compensation that may be awarded in a claim case arising out of such accident. (2) Where the motor vehicle is not covered by a policy of insurance against third party risks, or when registered owner of the motor vehicle fails to furnish copy of such policy in circumstance mentioned in subrule(1), the motor vehicle shall be sold off in public auction by the magistrate having jurisdiction over the area where accident occurred, on expiry of three months of the vehicle being taken in possession by the investigating police officer, and proceeds thereof shall be deposited with MAC.APP.No.609/2009 Page 11 of 116 the Claims Tribunal having jurisdiction over the area in question, within fifteen days for purpose of satisfying the compensation that may have been awarded, or may be awarded in a claim case arising out of such accident. Rule 7 - Presumption about reports.- The contents of reports submitted to the Claims Tribunal in Form “A” and Form “D” by investigating police officer and concerned registering authority respectively, and confirmation under clause (b) of rule 5 by the insurance company shall be presumed to be correct, and shall be read in evidence without formal proof, till proved to the contrary. Rule 8 - Applications.- (1) Every application for payment of compensation shall be made in Form “G” and shall be accompanied by as many copies, as may be required, to the Claims Tribunal having jurisdiction to adjudicate upon it. (2) There shall be appended to every such application:- (a) an affidavit of the applicant to the effect that the statement of facts contained in the application is true to the best of his/her knowledge/belief, as the case may be, and further if the applicant(s) has/have earlier preferred any claim petition with regard to the same cause of action, and if so, what was the result thereof; (b) all the documents and affidavits for the proof thereof, and affidavits in support of all facts on which the applicant relies in context of his/her claim, entered in a properly prepared list of documents and affidavits: Provided that the Claims Tribunal may not allow the applicant to rely in support of his/her claim, on any document or affidavit not filed with the application, unless it is satisfied that for good or sufficient cause, he/she was prevented from filing such document or affidavit earlier; (c) proof of identity of the applicant (s) to the satisfaction of the Claims Tribunal, unless MAC.APP.No.609/2009 Page 12 of 116 exempted from doing so for reasons to be recorded in writing by it; (d) passport size photograph(s) of the applicant(s) duly attested by the advocate on record. (e) reports obtained in Form “C” and Form “D” from investigating police officer, and registering authority; and if no such report(s) have been obtained reasons thereof; (f) medical certificate of injuries, or the effect thereof, other than those included in Form “C”. (3) The Claims Tribunal may also require the applicant to furnish the following information to satisfy itself that spurious or a collusive claim has not been preferred:- (a) full particulars of all earlier accidents in which the applicant or the person deceased, as the case may be, has been involved; (b) the amount of compensation paid in such earlier accidents, name and particulars of the victim, and of the person who paid the damages; and (c) connection of persons mentioned in clause (b), if any with the applicant. (4) Any application which is found defective on scrutiny may be returned by the Claims Tribunal for being re-submitted after removing the defects within a specified period not exceeding two weeks. (5) Every application for compensation shall be registered separately in appropriate register prescribed as per rule 36. Rule 9 - Police Reports under sub-section (6) of section 158 of the Act and action thereon.- (1) The report in terms of sub-section (6) of section 158 of the Act by the police shall mutatis mutandis be in Form “A”. (2) On receipt of report mentioned in sub-rule (1) , the Claims Tribunal shall go through the MAC.APP.No.609/2009 Page 13 of 116 same and may call for such further information or material as considered necessary for proper and effective action in accordance with subsection (4) of section 166 of the Act. (3) The Claims Tribunal after examination of the report, further information/material, if called for, shall register the claim case thereon and, then, issue notice for appearance to all parties concerned, which would include the victim(s) of the accident, or his/her legal representative(s), as the case may be, driver, owner and insurer of the vehicle(s) involved, in Form “H”. (4) On receipt of notice, the parties mentioned in the forgoing provision would be required to appear and declare through affidavit, if any claim case had either been preferred, or was being preferred in respect of the same cause of action, and if so, the police report treated as claim case would be tagged to such claim case preferred independently by the parties. (5) If the person(s) injured, or legal representative(s) of the person(s) deceased do not appear in response to the notice aforementioned in the manner indicated above, the Claims Tribunal may presume that the said parties were not interested in pursuing the claim for any compensation in such proceedings, and on such presumption it shall close the case. (6) Unless the police report treated as claim case stands tagged to independent claim case preferred by the parties themselves, the Claims Tribunal shall call upon the person(s) injured or legal representative(s) of the person(s) deceased, as the case may be, and who may have appeared in response to the notice, to submit statement of facts regarding compensation, if any claimed by them, which statement of facts shall be along the lines required to be furnished in application in Form “G”. (7) If statement of facts about compensation claimed and basis thereof are furnished by the parties in the manner indicated in sub-rule(6), the case shall be further proceeded with in the same manner as required to deal with MAC.APP.No.609/2009 Page 14 of 116 applications moved by the parties for compensation directly before the Claims Tribunal. (8) If after statement of facts about compensation claimed has been furnished by the party, which subsequently commits default in appearance, the provisions of Order IX of the Code of Civil Procedure, 1908(5 of 1908) would apply: Provided that in case accident in question involves more than one vehicle and persons connected to all such vehicles stake claim for compensation, the police report treated as claim case shall be presumed to be a claim case preferred by each of them and absence by any one or more of such parties shall not prejudice or affect the claim of the party which continues to appear. Rule 10 – Examination of applicant.- On receipt of an application under rule 8, the Claims Tribunal may examine the applicant on oath, and the substance of such examination, if any, shall be reduced to writing. Rule 11 - Summary disposal of application.- The Claims Tribunal may, after consideration of the application and statement, if any, of the applicant recorded under rule 10, dismiss the application summarily, if for reasons to be recorded, it is of the opinion that there are no sufficient grounds for proceeding therewith. Rule 13 - Notice to parties involved.- If the application for claim is not dismissed under rule 11, the Claims Tribunal shall send to the opposite parties a copy of the application along with all the documents and affidavits filed by applicant under rule 8 together with a notice in Form “I” of the date on which it will hear the application, and may call them upon to file on that date a written statement as per