V.B. Gupta, J.@mdashPresent appeal u/s 173 of Motors Vehicles Act, 1998 (for short as ''Act'') has been filed by the appellant (who is the owner of offending vehicle) against the judgment dated 25th November, 1997 passed by Sh.H.S.Sharma, Judge Motor Accident Claims Tribunal (for short as ''Tribunal''), Karkardooma Court, Delhi and also against the order dated 2nd January, 1998 on the application of the appellant for reviewing of the judgment dated 25th November, 1997.
2. Brief facts are that, Smt. Sulochana Devi, aged about 29 years who was employed as a teacher in primary school of Municipal Corporation of Delhi and was earning Rs. 2,814/- per month met with a fatal accident on 27th July, 1998. Her legal heirs, that is, her husband and her children who are respondents 1 to 4, herein, have filed claim petition u/s 110-A of the Act for grant of compensation.
3. Vide the impugned judgment, the learned Tribunal passed award for a sum of Rs. 3,56,200/- along with 12% interest from the date of filing of the petition till realization in favor of the claimants and against the respondents, that is, the driver, owner and Insurance Company.
4. Since the liability of Insurance Company as per Motor Vehicles Act, 1939 was limited to the extent of Rs. 50,000/-, it was ordered that driver and owner are jointly and severally liable to pay the award amount as the liability of the Insurance Company is limited to Rs. 50,000/- in all. It appears that thereafter the present appellant moved an application for review before learned Tribunal and vide order dated 2nd January, 1998 the application for review filed by the present appellant was dismissed.
5. Notice of this appeal was issued to respondents. However, respondents have not been appeared in spite of service.
6. It has been contended by learned Counsel for the appellant that the learned Tribunal was not justified in rejecting the application of the appellant for review of the judgment. Further, the learned Tribunal has altogether ignored the factum of the acquittal of the driver of the offending vehicle by the criminal court. It is contended that once it has been established and decided that the driver was not guilty for rash and negligent driving, the present appellant/owner of the vehicle has no vicarious liability to pay the compensation to the claimant. It has been fully established in the criminal trial by evidence that the accident was caused due to negligence of the driver of the scooter, who is the husband of the deceased and there was contributory negligence on the part of the driver of the scooter. Further the multiplier applied by the Tribunal is not just and fair, rather it is arbitrary and excessive claim has been granted to the claimant.
7. This contention of learned Counsel for the appellant that the learned Tribunal was not justified in rejecting the application of review is not sustainable, in view of the order dated 27th July, 1998 passed by this Court when the present appeal was listed for hearing.
8. On 27th July, 1998 this Court has passed the following Order:
This appeal is directed against the judgment delivered by Sh. H.S. Sharma, Judge, MACT, Karkardooma Courts, Delhi on 25th November, 1997 and the order dated 2nd January, 1998 for reviewing the judgment dated 25th November, 1997.
Learned Counsel for the appellant has argued only one point relating to the appreciation of evidence in accident claim petition. It is submitted that an independent witness, who was examined before the Criminal Court, did not support the prosecution case and stated as if there was no negligence on the part of the driver/respondent No. 1 and the scooter driver himself was negligent. The Criminal Court acquitted the accused on the basis of the statement of the witness. The witness who was examined before the Criminal Court was not examined before the Tribunal. It is stated that the appellant came to know of it later. This aspect cannot be considered, for at least the driver knew about the statement. It is also not the case of the appellant and all of a sudden the appellant met him at cremation ground. It appears to be just a device to delay. Moreover, there is difference of nature of negligence in respect of offence relating to rash and negligent driving and nature of negligence expected for the purpose of awarding compensation under the Motor Vehicles Act, 1988. For the aforesaid reasons, I do not feel it appropriate to interfere with the impugned order and do not find any force in appeal against the order of review. This part of prayer in appeal is rejected keeping also in view that appeal against main order dated 27th November, 1997 has also been filed.
9. So, plea of the appellant with regard to review has already been dismissed by this Court.
10. Now, coming to the merits of the present appeal, the main contention of learned Counsel for the appellant is that the driver of the offending vehicle has been acquitted in the criminal trial and the driver of the scooter was at fault and he was also contributory negligence to the accident.
11. In this regard, it may be pointed out that driver of offending vehicle had not appeared in the witness box before the trial court to prove his defense. On the other hand, PW-3, the driver of the scooter, that is, husband of the deceased, on which deceased was traveling has appeared in the witness box and in his statement he stated that he was driving scooter at a normal speed and was on the correct side of the road and was hit from behind by bus No.DEP-2424 being driven rashly and negligently by its driver and due to this impact his scooter became dis-balanced and they fell on the road and sustained injuries and rear wheel of the bus passed through the body of his wife. Further he has stated that this accident was caused fully due to rash and negligent driving of the bus driver.
12. Though the owner and driver of the offending bus had filed their written statement in the trial court but PW-3 was not at all cross-examined either by the owner or by the driver. On the other hand this witness was only cross-examined by counsel for the Insurance Company and PW-3 denied the suggestion given to him in the cross-examination that the accident was caused due to his rash and negligent driving or due to contributory negligence on the part of both the drivers.
13. As per written statement filed by the owner and driver, their defense is that the accident took place due to rash and negligent driving of the scooter and it was not caused by the driver of the bus. Further the driver of the offending bus has not appeared in the witness box for the reason best known to him though he has filed written statement in the trial court.
14. Moreover the defense taken in the written statement by the driver was nowhere put to the driver of the scooter when he appeared in the witness box.
15. From the testimony of PW-3, it stands clearly established that the accident had occurred due to rash and negligent driving of the bus driver and there is nothing on record to show that its driver had any enmity with the deceased or her husband who was driving the scooter.
16. Now, coming to the plea of the learned Counsel for the appellant that the bus driver has been acquitted by the criminal court and as such the appellant is not liable to pay any compensation to the present proceedings.
17. It has been laid down by this Court in the case of State of Haryana and Anr. v. Sh.Ajay Kumar and Ors. (2008) I AD (Delhi) 93 that;
Similarly the acquittal of the driver of the offending vehicle of the appellant by the criminal court cannot be taken to have any adverse effect on the findings reached by the Tribunal in an independent compensation case. The MACT cases have to be decided on their own footings and the same are not dependant upon the result or an outcome of a criminal case. In this regard the Hon''ble Apex Court in its judgment entitled
The plea that the criminal case had ended in acquittal and that, Therefore, the civil suit must follow suit, was rejected and rightly. The requirement of culpable rashness u/s 304-A, I.P.C. is more drastic than negligence sufficient under the law of torts to create liability. The quantum of compensation was moderately fixed and although there was perhaps, a case for enhancement, the High Court dismissed the cross-claims also. Being questions of fact, we are obviously unwilling to reopen the holding on culpability and compensation.
18. Now coming to the quantum of compensation awarded in this case, deceased was working as a school teacher and she was aged 29 years and was to retire at the age of 60 years. The husband of the deceased was aged about 39 years at the time of accident, so multiplier of 15 was adopted. This multiplier adopted by the learned Tribunal has been rightly adopted keeping in view the age of the deceased as well as her husband. Further the Tribunal has deducted a sum of 50% of her income as personal expenses, as deceased being employed as a government teacher and as such the compensation awarded by the Tribunal is just and fair.
19. Under the circumstances, no ambiguity can be found that the impugned order passed by the learned Tribunal and the present appeal is without any basis and is not maintainable and the same is, hereby dismissed with costs of Rs. 5,000/-.
20. Appellant is directed to deposit costs of Rs. 5,000/- with the trial court within a period of four weeks from today, failing which the trial court shall recover the same in accordance with law.
21. Copy of this judgment be sent to the trial court.
22. Trial court record be sent back forthwith.
