V.S Sirpurkar, J.— Leave granted. In this appeal, the judgment of the High Court affirming the judgment of the Motor Accidents Claims Tribunal, Gurgaon (hereinafter referred to as “the Tribunal”) dismissing the claim of the appellant-claimants has been challenged.
2. Shortly stated, the factual conspectus is as under:
The appellant-claimants are the legal representatives of one Joginder Singh who was a young man of 34 years. An accident took place on 16-9-2005 while deceased Joginder Singh was driving a motorcycle bearing Registration No. HR 26 P 9413 while going to Village Nimot from Village Mandavar. As per the claim, the motorcycle met with an accident as it was hit by a vehicle, Tata 207 bearing Registration No. HR 38 L 6592 which was being driven in a rash and negligent manner. It is claimed that in that accident Joginder Singh died on the spot. He was claimed to be a registered medical practitioner and that his monthly earning was Rs. 25,000 approximately. Therefore, a claim was filed under Section 166 of the Motor Vehicles Act, 1988 wherein the driver Het Lal, owner of the vehicle Pramod Kumar and the Oriental Insurance Company were joined as party respondents. The claim was opposed by the driver and he took the plea that no such accident ever took place though he admitted that he was the driver of aforementioned vehicle.
3. In his statement, however, the owner i.e Respondent 2, while opposing the claim, admitted that his vehicle was engaged in the accident in paragraph three of his written statement. The part of Para 3 of the written statement of Respondent 2 is as under:
“The present claim petition is not maintainable against the answering respondent in view of the facts mentioned in Preliminary Objection 1 above and especially when the deceased was driving motorcycle, No. HR 26 P 9413 rashly, negligently at a reckless speed without wearing helmet, without holding effective and valid licence, hit Tata 207 bearing No. HR 38 L 6592 of Respondent 2 from behind as he could not control his speed and thus, the deceased himself was the author of the alleged accident and there was no fault on the part of Respondent 1 who was driving the Tata 207 with moderate speed, adopting traffic regulations and with valid, effective driving licence. Hence this petition is liable to be dismissed on this ground alone.”
4. The same plea is repeated in the written statement while replying to Paras 1 to 13 of the claim petition practically in the same words as stated above. The owner of the vehicle also went on to oppose the petition on the ground that the appellant-claimants were not the only legal heirs of the deceased nor were the sufferers or dependent upon him and that they had filed the petition only to extract huge amount by way of compensation. The claims made by the appellant-claimants in their petition about the age and income of the deceased were also denied.
5. Thus, it was clear that at least the owner of the vehicle admitted the claim made in the claim petition to the effect that the vehicle was engaged in an accident with the vehicle of the deceased and that it was being driven by Respondent 1 who was his driver. In support of the claim of the appellants, following issues were framed by the Tribunal, they being:
(1) whether the accident took place due to rash and negligent driving of vehicle bearing No. HR 38 L 6592 by Respondent 1?
(2) whether the petitioners are entitled to compensation on account of death of Joginder Singh in the accident and, if so, to what amount and from whom?
(3) whether Respondent 1 was not holding a valid and effective driving licence at the time of the accident?
(4) Relief.
6. While Respondents 1 and 2 did not contest the claim and they were proceeded ex parte, it was only the Insurance Company, the third respondent who took part in the proceedings and tendered some documents to support their claim.
7. One Virender Singh was examined as PW 11 who was an eyewitness to the accident. He supported the fact of accident which took place near a bridge. He also asserted that the Tata 207 vehicle was being driven at a very high speed and in a rash and negligent manner and it hit a motorcyclist from behind. He also gave the correct registration number of the motorcycle. The only suggestion made to him was that he was not present at the time of the accident and he was a procured witness.
8. The appellants also led the evidence that the driver, Respondent 1 was facing trial for causing accident in the Court of Smt Ranjana Agrawal, Judicial Magistrate Ist Class, Gurgaon for offences under Sections 279 and 304-A, Penal Code (IPC).
9. The Tribunal took the note that the first information report was filed after 18 hours of the accident by the brother of the deceased wherein it was claimed that his elder brother Joginder Singh who was riding the motorcycle bearing No. HR 26 P 9413 was hit by some unknown vehicle and he died on the spot. The Tribunal also noted that this witness had done the further formalities of removing the dead body, etc. The Tribunal then posed a question to itself as to how and under what circumstances the police came to know that an accident was caused by the Tata 207 vehicle belonging to Respondent 2 and that at the time of the accident, it was being driven by Respondent 1.
10. The Tribunal noted that one Dhani Ram of Village Sanpla was present at his house when the first respondent, who was the son of his brother-in-law, came to him and asked him to produce him before the police saying that the accident in question was caused by him. Dhani Ram, on this, asked him to bring the offending vehicle which he brought. That is how Het Lal produced himself on 18-9-2005 to the police along with the vehicle. The Tribunal questioned this and doubted this story of Dhani Ram. According to the Tribunal, there was no reason for Respondent 1 to go to Dhani Ram and make the request, as he did. The Tribunal also drew an adverse inference on account of non-examination of Dhani Ram. The Tribunal, therefore, deduced that the alleged confession by Respondent 1 to Dhani Ram was a weak type of evidence.
11. The Tribunal also noted the fact that in the charge-sheet, Ext. P-9, Virender Singh was initially not cited as a witness. Virender Singh was introduced as eyewitness and his name was added with different ink in the report in last at Serial No. 11. The Tribunal did not accept his evidence on the ground that Virender Singh did not take any step to go to the police after having seen the accident and his statement was recorded as late as after 20 days. The Tribunal also refused to comment on the fact that Respondent 1 was facing a trial for the offence under Sections 279 and 304-A IPC. Lastly, the Tribunal wrote a finding that it was apparent that it is a case of hit-and-run by some unknown vehicle and the alleged unknown vehicle was an introduced vehicle to claim compensation.
12. In view of this, the claim was dismissed.
13. The appellant-claimants came to the High Court and the High Court virtually confirmed the order repeating the findings given by the Tribunal including a finding that the offending vehicle owned by Respondent 2 and allegedly driven by Respondent 1 was not involved in the accident at all.
14. 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 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.
15. The learned counsel urged that in fact it was an admitted position that Respondent 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 disbelieve the evidence as he was a totally disinterested 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.
16. On the other hand, Shri S.L Gupta, learned counsel appearing on behalf of Respondent 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 compensation under Section 161 (sic Section 140) of the Motor Vehicles Act which admittedly was not paid to them.
17. Shri Gagan Gupta, learned counsel appearing on behalf of Respondent 1, driver, however, denied that any accident had ever taken place or that the driver was involved in any accident. Respondent 2, however, did not choose to come before us.
18. 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 vehicle concerned belonging to Respondent 2 was not involved in the accident. Insofar as that finding is concerned, it was an admitted position in the pleadings of Respondent 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 1. This admission in the pleadings which we have quoted in the order was itself sufficient to hold that the vehicle concerned belonging to Respondent 2 was involved in the accident. This admission was never traversed by Respondent 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 2. It was nobody's case that this admission of Respondent 2 was in collusion between Respondent 2 and the 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.
19. In strict sense, this admission may not be binding vis-à-vis Respondent 1, the driver, who continued to take a stand that the vehicle being driven by him was not involved in the accident. This defence of Respondent 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
20. 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 2 that the vehicle belonging to him was involved in an accident.
21. 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 207 vehicle 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 Respondents 1, 2 and 3.
22. 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. Therefore, the Tribunal shall be well advised to dispose of the matter within six months from the date on which this order is received by the Tribunal. The Tribunal shall hear the parties again and shall dispose of the matter in the light of the observations we have made above regarding questions like no-fault compensation along with other necessary questions. The appeal is allowed in these terms. The costs are assessed at Rs. 25,000.