Case: Saroj &amp; Others Vs. Het Lal &amp; Others

repeating the findings given by the Tribunal including a finding that the offending vehicle owned by respondent No.2 and allegedly driven by respondent No.1 was not involved in the accident at all. 9. Shri Balakrishnan, learned senior Counsel appearing on behalf of the appellants pointed out firstly that both the Courts below have totally failed to apply their mind to the pleadings and that has resulted in grave miscarriage of justice. He pointed out that the involvement of the Tata 207 vehicle owned by respondent No.2 in this very accident was an admitted fact which was admitted in pleadings and as such both the Courts below were wholly unjustified in holding that the said vehicle was not involved in the accident and that it was a hit and run case. The learned Counsel urged that the finding that this was a hit and run case where the vehicle, Tata 207 was not involved was a mere imagination on the part of the Tribunal which even the High Court failed to note. The learned Counsel urged that in fact it was an admitted position that respondent No.1 was being prosecuted for causing the accident and death while he was driving the very same vehicle. The learned Counsel further urged that there was nothing unnatural in the evidence of Virender Singh and merely because his statement was recorded later on, that by itself was no reason to dis-believe the evidence as he was a totally dis-interested witness. The learned Counsel also pointed out that non- examination of Dhani Ram was also of no consequence for the simple reason that police indeed found that the accident had taken place wherein the said vehicle, Tata 207 was involved on the one hand and the motorcycle driven by Joginder Singh on the other. The learned Counsel, therefore, pointed out that the judgments of the Courts below could not be sustained. 10. On the other hand, Shri S.L.Gupta, learned Counsel appearing on behalf of respondent No.3, Insurance Company tried to support the findings and also admitted that even if this was a case of hit and run accident, even then the appellants were liable to be paid the no-fault liability under Section 161 of the Motor Vehicles Act which admittedly was not paid to them.11. Shri Gagan Gupta, learned Counsel appearing on behalf of respondent No.1, driver, however, denied that any accident had ever taken place or that the driver was involved in any accident. Respondent No.2, however, did not choose to come before us. 12. On considering the rival arguments, it must be said that the petition could not have been dismissed in totality. Presuming it to be a hit and run case, the appellants were entitled to at least Rs.25,000/- as per the provisions of Section 161 (3) (a) of the Motor Vehicles Act. Therefore, both the Courts below have obviously failed to note this provision. But that is not the end of the matter. In our opinion, both the Courts below have completely erred in giving the finding that it was a hit and run case and that the concerned vehicle belonging to respondent No.2 was not involved in the accident. Insofar as that finding is concerned, it was an admitted position in the pleadings of respondent No.2 that firstly, the Tata 207 vehicle bearing registration No. HR-38-L/6592 was involved in an accident with the motorcycle bearing registration No.HR-26-P/9413 which took place on 16.9.2005 at 3.30 p.m. and secondly, the said vehicle was being driven by respondent No.1. This admission in the pleadings which we have quoted in the order was itself sufficient to hold that the concerned vehicle belonging to respondent No.2 was involved in the accident. This admission was never traversed by respondent No.2 and, thus, there was no occasion to hold that the said vehicle was not involved and that it was a hit and run case. It is surprising that not only the Tribunal but the High Court also should have ignored the vital admission on the part of respondent No.2. It was nobodys case that this admission of respondent No.2 was in collusion between respondent No.2 and appellants. Once this position is clear, there is no occasion for holding that the vehicle was not involved in the accident and on that count exonerating the three respondents.13. In strict sense, this admission may not be binding vis-à-vis respondent No.1, the driver, who continued to take a stand that vehicle being driven by him was not involved in the accident. This defence of respondent No.1 is understandable as admittedly he is facing the prosecution for causing the accident and the death thereby of deceased Joginder Singh on 16.9.2005 at 3.30 p.m.14. Shri Gupta, learned Counsel could not dispute the written statement, copy of which is filed before us and the fact that there was an admission by respondent No.2 that the vehicle belonging to him was involved in an accident.15. It is obvious that both the Courts below have failed to note this fact. The judgments, therefore, would have to be set aside and the matter would have to be remitted back to the Tribunal to decide the liability of the respondents on account of the accident caused by Tata vehicle No.207 bearing registration No. HR-38-L/6592 with motorcycle bearing registration No.HR-26-P/9413 and the death of Joginder Singh in the same. It was tried to be feebly argued that under any circumstances, the negligence was only on the part of the motorcyclist and there will be no question of any compensation on that count. We are afraid, we cannot appreciate this. The Tribunal has not considered the matter from this angle. It is for this reason that we are inclined to remand the matter back to the Tribunal only on the question of liability for compensation on the part of respondent Nos. 1, 2 and 3. The matter is pending for the last five years. It is an admitted position that the appellants have not received any compensation up till now.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]12. On considering the rival arguments, it must be said that the petition could not have been dismissed in totality. Presuming it to be a hit and run case, the appellants were entitled to at least Rs.25,000/as per the provisions of Section 161 (3) (a) of the Motor Vehicles Act. Therefore, both the Courts below have obviously failed to note this provision. But that is not the end of the matter. In our opinion, both the Courts below have completely erred in giving the finding that it was a hit and run case and that the concerned vehicle belonging to respondent No.2 was not involved in the accident. Insofar as that finding is concerned, it was an admitted position in the pleadings of respondent No.2 that firstly, the Tata 207 vehicle bearing registration No.was involved in an accident with the motorcycle bearing registrationwhich took place on 16.9.2005 at 3.30 p.m. and secondly, the said vehicle was being driven by respondent No.1. This admission in the pleadings which we have quoted in the order was itself sufficient to hold that the concerned vehicle belonging to respondent No.2 was involved in the accident. This admission was never traversed by respondent No.2 and, thus, there was no occasion to hold that the said vehicle was not involved and that it was a hit and run case. It is surprising that not only the Tribunal but the High Court also should have ignored the vital admission on the part of respondent No.2. It was nobodys case that this admission of respondent No.2 was in collusion between respondent No.2 and appellants. Once this position is clear, there is no occasion for holding that the vehicle was not involved in the accident and on that count exonerating the three respondents.13. In strict sense, this admission may not be bindingrespondent No.1, the driver, who continued to take a stand that vehicle being driven by him was not involved in the accident. This defence of respondent No.1 is understandable as admittedly he is facing the prosecution for causing the accident and the death thereby of deceased Joginder Singh on 16.9.2005 at 3.30 p.m.14. Shri Gupta, learned Counsel could not dispute the written statement, copy of which is filed before us and the fact that there was an admission by respondent No.2 that the vehicle belonging to him was involved in an accident.15. It is obvious that both the Courts below have failed to note this fact. The judgments, therefore, would have to be set aside and the matter would have to be remitted back to the Tribunal to decide the liability of the respondents on account of the accident caused by Tata vehicle No.207 bearing registration No.with motorcycle bearing registrationand the death of Joginder Singh in the same. It was tried to be feebly argued that under any circumstances, the negligence was only on the part of the motorcyclist and there will be no question of any compensation on that count. We are afraid, we cannot appreciate this. The Tribunal has not considered the matter from this angle. It is for this reason that we are inclined to remand the matter back to the Tribunal only on the question of liability for compensation on the part of respondent Nos. 1, 2 and 3. The matter is pending for the last five years. It is an admitted position that the appellants have not received any compensation up till now