In The High Court of Delhi at New Delhi FAO No. 884/2003

IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO No. 884/2003

Date of decision: 22nd May, 2009
SOMARI DEVI & ORS.
..... Appellants
Through : Mr. P.K. Sharma, Adv.
versus
RAGWAR SINGH & ORS.
..... Respondents
Through : Mr. Ram N. Sharma and
Mr. Abhishek, Advs. for R 4.
CORAM :THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may
Yes
be allowed to see the Judgment?

2.
To be referred to the Reporter or not?
Yes
3.
Whether the judgment should be

reported in the Digest?
Yes
JUDGMENT (Oral)
1.
The appellant has challenged the award of the learned
Tribunal whereby the learned Tribunal has dismissed the claim

petition filed by the appellants.
2.
The accident dated 4th January, 1998 resulted in the death
of Jokhu Ram.
The deceased was a Contractor and was going
from Sector-11, Rohini to his house on foot. Two labourers were

accompanying the deceased. The deceased was crossing the
road near Lok Nayak Apartments, Sector-7, Rohini, Delhi, when he
was hit by truck bearing No.HR-38-BG-6052 coming from Rithala
FAO.No.884/2003
Page 1 of 12
side at a very high speed and being driven in a rash and

negligent manner and without blowing the horn. The deceased
sustained fatal Injuries on his head and other parts of the body
and was initially taken to Hindu Rao Hospital which referred him
to Ram Manohar Lohia Hospital where he expired on 5th January,
1998.
3.
The deceased was survived by his widow, two minor sons
aged about 12 and 7 years, a minor daughter aged about 3 years

and father who filed the claim petition before the learned
Tribunal.
4.
The widow of the deceased appeared as PW-1 and deposed
that the deceased was a Contractor doing flooring work earning

Rs.6,000/- to Rs.7,000/- per month and at the time of the
accident, he had a work contract at Sector-7, Rohini.
The
deceased was 35 years at the time of his death. PW-1 tendered

in evidence the chargesheet Ex.P-1, mechanical inspection
report Ex.P-2, post-mortem report Ex.P-3, Registration Cover
Ex.P-4, seizure memo of truck Ex.P-5, FIR Ex.P-6, seizure
memo of driving licence Ex.P-7, driving licence Ex.P-8, site
plan Ex.P-9 and death certificate Ex.P-10.
5.
The appellant produced the eye-witness, PW-2 who deposed
that he was accompanying the deceased on 4th January, 1998 at

about 10:55 pm and while crossing the road near Lok Nayak
Apartment, Sector-7, Rohini, the deceased was hit by truck
bearing No.HR-38-BG-6052 coming from Rithala side at a very
high speed and driven in a rash and negligent manner.
FAO.No.884/2003
Page 2 of 12
6.
The driver of the offending vehicle filed the written
statement
before
the
learned
Tribunal
involvement of the truck in the accident.
and
denied
the
The owner of the
offending truck did not appear before the learned Tribunal and
was proceeded ex-parte. The Insurance Company admitted the
factum of insurance of the offending vehicle before the learned
Tribunal.
7.
The learned Tribunal dismissed the claim petition on the
ground that the post-mortem report does not mention that the
eye-witness, PW-2 identified the dead body of the deceased. The
learned Tribunal further held that the MLC has not been proved
by the appellants. It is further recorded that as per the FIR and
chargesheet, no witness was found on the spot.
The learned
Tribunal observed that PW-2 has not stated the number of TSR in
which he followed the PCR Jeep to the hospital. The name of PW
2 has not been recorded in the FIR.
The seizure memo of the
truck was prepared one day after the accident by the I.O. As
per the chargesheet, R-1 surrendered before the Criminal Court
on 19th January, 1998 but refused to submit himself to Test
Identification Parade.
The seizure memo of the truck was not
witnessed by PW-2.
The learned Tribunal, therefore, gave a
finding that PW-2 was not the actual eye-witness of the accident
and was brought in as the witness subsequently.
The learned
Tribunal further observed that neither the identity of the

deceased was established nor the identity of the person who was
driving the truck has been established and there is no material on
FAO.No.884/2003
Page 3 of 12
record to prove that Jokhu Ram sustained fatal injuries as a result

of the accident caused by rash and negligent driving of the truck
bearing No.HR-38-BG-6052. The learned Tribunal dismissed the
claim petition for all these reasons.
8.
The learned Tribunal has utterly failed to discharge the duty
casted by Section 168 of the Motor Vehicles Act.
Section 168
provides that the Tribunal shall hold an inquiry into the claim.
Section 169 provides that the Claims Tribunal shall follow such
summary procedure as it thinks fit subject to the Rules made in
that behalf.
Delhi Motor Vehicles Rules, 1993 provides the
procedure to be followed by the Claims Tribunal.
Rule 118 of
Delhi Motor Vehicles Rules, 1993 provides the procedure to be

followed by the claims Tribunal.
Rule 118(7) provides that the
claims Tribunal may during the course of enquiry visit the site of
accident or examine any person likely to be able to give
information relevant to the proceedings.
9.
The scheme of the Motor Vehicles Act and the Rules is that
the Tribunal has to conduct an inquiry into the claim and a

summary procedure has to be evolved. The Act as well as Rules
nowhere use the word trial.
10.
In the case of Saramma Scaria Vs. Mathai, 2003 ACJ
213, the Kerala High Court observed as under:

4. We may at the outset point out that the
Tribunal cannot claim any credit in the manner
in which the claim petition was disposed of. We
find in very many cases Tribunals are dealing
with the compensation claims lightly forgetting
the purpose for which they have been
constituted. Motor Accidents Claims Tribunals
FAO.No.884/2003
Page 4 of 12
11.
are constituted under the Act so as to advance

speedy remedy to the injured as well as the
legal heirs' of the deceased. Claimants are not
seeking any charity but their legitimate right to
get justice and adequate compensation for the
tragedy befallen on them not due to their fault
but due to the negligence of the other side. The
Tribunal is bound to mitigate the hardship of the
person injured and to save the family from
penury. In N.K. V. Brothers (P) Ltd. v. M.
Karumai Ammal, AIR 1980 SC 1354 Supreme
Court has reminded the Claim Tribunals stating
as follows:
"Road accidents are one of the top killers in
our country, specially, when truck and bus
drivers operate nocturnally. This proverbial
recklessness often persuades the courts, as has
been observed by us earlier in other cases, to
draw an initial presumption in several cases
based on the doctrine of res ipsa loquitur.
Accidents Tribunals must take special care to
see that innocent victims do not suffer and
drivers and owners do not escape liability
merely because of some doubt here and some
obscurity there. Save in plain cases, culpability
must be inferred from the circumstances where
it is fairly reasonable. The Court should not
succumb to niceties, technicalities and mystic
maybes.
In Ramdevsing V. Chudasma Vs. Hansrajbhai
V.
Kodala, 1999 ACJ 1129, the division bench of Gujarat High

Court observed as under:
The thrust of the attack on judicial values
is not so much that judges are consciously
prejudiced, but that they are subconsciously
influenced by the fact that they come from a
narrow social stratum and reflect the values of a
minority class. There can be no question but
that subconscious influences of this kind do
exist, but the submission made here is that the
charge is prone to exaggeration.
In the first place, if subconscious influences
are taken into account, as indeed they should
be, then account should be taken of all such
influences, including those that tend to
counteract and minimize prejudice. One of these
is fidelity to rules, principles and doctrines.
Even if a judge were to have some prejudice and
FAO.No.884/2003
Page 5 of 12
12.
wants to give effect to it, he has to do so as

plausibly as possible within the framework of
rules, the leeways of doing so are not unlimited
and this does operate as a brake on personal
prejudice. It has to be remembered that cases
are argued, often with great ingenuity, by
counsel, and if one side puts forward an
interpretation of a statutory provision or a
precedent, which cannot be countered plausibly,
the judge has to decide accordingly, however
much his own wishes are to the contrary.
The learned Tribunal could have invoked Section 165 of the
Indian Evidence Act which is reproduced hereunder:-
13.
SECTION 165.
JUDGE'S POWER TO PUT
QUESTIONS OR ORDER PRODUCTION
The Judge may, in order to discover or to
obtain proper proof of relevant facts, ask any
question he pleases, in any form, at any time,
of any witness, or of the parties about any fact
relevant or irrelevant; and may order the
production of any document or thing; and
neither the parties nor their agents shall be
entitled to make any objection to any such
question or order, nor, without the leave of
the Court, to cross-examine any witness upon
any answer given in reply to any such
question:
Provided that the judgment must be based
upon facts declared by this Act to be relevant,
and duly proved:
Provided also that this Section shall not
authorize any Judge to compel any witness to
answer any question or produce any document
which such witness would be entitled to refuse
to answer or produce under Sections 121 to
131, both inclusive, if the questions were asked
or the documents were called for by the
adverse party; nor shall the Judge ask any
question which it would be improper for any
other person to ask under Section 148 or 149;
nor shall he dispense with primary evidence of
any document, except in the cases herein
before excepted.
This section invests the Judge with plenary powers to put
any question to any witness or party; in any form, at any time,

about any fact relevant or irrelevant. Section 165 is intended to
FAO.No.884/2003
Page 6 of 12
arm the Judge with the most extensive power possible for the
purpose of getting at the truth. The effect of this section is that
in order to get to the bottom of the matter before it, the Court will
be able to look at and inquire into every fact whatever and thus
possibly acquire valuable indicative evidence which may lead to
other evidence strictly relevant and admissible. The Court is not,
however, permitted to found its judgment on any but relevant
statements.
14.
A Judge, who at the trial merely sits and records evidence
without caring so to conduct the examination of the witnesses

that every point is brought out, is not fulfilling his duty.
15.
Mr. Edmund Burke arguing in Warren Hastings Trial said
that it is the duty of the Judge to receive every offer of evidence,

apparently material, suggested to him, though the parties
themselves through negligence, ignorance, or corrupt collusion,
could not bring it forward. He has a duty of his own, independent
of them, and that duty is to investigate the truth.
If no
prosecutor appears, the Court is obliged through its officer, the

clerk of the arraigns, to examine and cross examine every
witness who presents himself; and the Judge is to see it done
effectively, and to act his own part in it.
16.
In Bartly vs. State, 55 Nebr 294 : 75 N.W.832
Harrison, C.J., said:

It is undoubtedly necessary that the Judge
who presided should acquire as full a
knowledge of the facts and circumstances of
the case on trial as possible, in order that he
FAO.No.884/2003
Page 7 of 12
17.
may instruct the jury, and correctly, to the

extent
his
duty
demands,
shape
the
determination of the litigated matters, that
Justice may not miscarry, but may prevail; and
doubtless, it is allowable at times, and under
some circumstances, for the presiding Judge to
interrogate a witness.
The object of a trial is, first to ascertain truth by the light of
reason, and then, do justice upon the basis of the truth and the
Judge is not only justified but required to elicit a fact, wherever
the interest of truth and justice would suffer, if he did not.
18.
The framers of the Act, in the Report of the Select
Committee published on 1st July, 1871 along with the Bill settled
by them, observed as follows:Passing over certain matters which are
explained at length in the Bill and report, I
come to two matters to which the Committee
attach the greatest importance as having
peculiar reference to the administration of
justice in India. The first of these rules refers
to the part taken by the judge in the
examination of witnesses; the second, to the
effect of the improper admission or rejection
of evidence upon the proceedings in case of
appeal.
That part of the law of evidence which relates
to the manner in which witnesses are to be
examined assumes the existence of a welleducated Bar, co-operating with the Judge and
relieving him practically of every other duty
than that of deciding questions which may
arise between them. I need hardly say that
this state of things does not exist in India, and
that it would be a great mistake to legislate as
if it did. In a great number of cases probably
the vast numerical majority the Judge has to
conduct the whole trial himself. In all cases,
he has to represent the interests of the public
much more distinctly then he does in England.
In many cases, he has to get at the truth, or as
near to it as he can by the aid of collateral
inquiries, which may incidentally tend to
something relevant; and it is most unlikely
FAO.No.884/2003
Page 8 of 12
that he should ever wish to push an inquiry

needlessly, or to go into matters not really
connected with it. We have accordingly
thought it right to arm Judges with a general
power to ask any questions upon any facts, of
any
witnesses,
at
any
stage
of
the
proceedings, irrespectively of the rules of
evidence binding on the parties and their
agents, and we have inserted in the Bill a
distinct declaration that it is the duty of the
Judge, especially in criminal cases, not merely
to listen to the evidence put before him but to
inquire to the utmost into the truth of the
matter.
19.
The Judge contemplated by Section 165 is not a mere
umpire at a wit-combat between the lawyers for the parties

whose only duty is to enforce the rules of the game and declare
at the end of the combat who has won and who has lost. He is
expected, and indeed it is his duty, to explore all avenues open to
him in order to discover the truth and to that end, question
witnesses on points which the lawyers for the parties have either
overlooked or left obscure or willfully avoided.
20.
The learned Tribunal did not conduct the inquiry as
envisaged in Section 168 of the Motor Vehicles Act. Although, the

statement of PW-2 as well as the documents Ex.PW-1 to Ex.PW10 clearly proved that the deceased died in a road accident
arising out of the rash and negligent driving of the vehicle
bearing No.HR-38-BG-6052 by its driver, still if the Tribunal had
any doubt about the factum of the accident, the Tribunal could
have summoned the Investigating Officer and other witnesses
recorded in the criminal case. Nothing prevented the Tribunal to
summon the Investigating Officer or other witnesses to ascertain
FAO.No.884/2003
Page 9 of 12
the truth but instead of conducting an enquiry, the learned

Tribunal passed the order which is based on surmises and
conjectures. The findings of the learned Tribunal are therefore set
aside.
21.
The learned Tribunal has not computed the compensation.
The evidence led by the appellants has been perused and the
compensation is computed on the basis of the material on record.
22.
The deceased was aged 35 years at the time of the accident
as per death certificate Ex.P-10. The deceased was survived by

his widow, two minor sons, one daughter and father at the time
of the accident. The deceased was working as a Contractor for
doing flooring work. It is alleged that the deceased was earning
Rs.6,000/- per month.
However, no document whatsoever has
been placed on record to prove the income of the deceased. The

income of the deceased is, therefore, taken according to the
minimum wages for a skilled worker which was Rs.2,208/- at the
time of the accident.
Taking notice of the increase in the
minimum wages over a period of 10 years due to inflation and

price
index
and following the judgments of this Court in the
cases of Kanwar Devi vs. Bansal Roadways, 2008 ACJ 2182;

Lekh Raj vs Suram Singh, 2007 ACJ 2165 and National
Insurance Company Limited vs. Renu Devi, III (2008) ACC
134,
the
income
of
the
deceased
for
computation
of
compensation is taken to be Rs.3,312/- [(Rs.2,208 + Rs.2,208 x

2)/2].
1/4th is deducted towards the personal expenses of the
deceased and applying the multiplier of 16, the loss of

FAO.No.884/2003
Page 10 of 12
dependency of the appellants is computed to be Rs.4,76,928/-.

Rs.10,000/- is awarded for loss of love and affection, Rs.10,000/for loss of estate, Rs.10,000/- towards loss of consortium and
Rs.5,000/- towards funeral expenses. The total compensation is
computed at Rs.5,11,928/-.
23.
The appeal is accordingly allowed and an award of
Rs.5,11,928/- along with interest @7.5% per annum from the date
of filing of the petition, i.e. 17th March, 1998 till realization is
passed in favour of the appellants and against respondent No.4.
24.
R4W1 is the witness from District Transport Office, Alwar
who produced the original register pertaining to the year 1993

containing the entries from 17835 to 18404 and there is no entry
in the name of Ragwar Singh.
Copy of the extract from the
register and the entry of 18th November, 1993, has been

exhibited as Ex.R4W1/AR.
Respondent No.4 produced another
witness R4W2 who proved the notice under Order 12 Rule 8

issued to the driver as well as the owner to produce the driving
licence. Respondent No.4 has succeeded in proving that the
photocopy of the driving licence placed on record from the
criminal case was fake.
25.
Respondent No.4 is, therefore, given the recovery rights to
recover the award amount from respondents No.2 after making

the payment to the claimants.
26.
The learned counsel for the appellant submits that the
father of the deceased expired during the pendency of the
FAO.No.884/2003
Page 11 of 12
petition and his share has devolved upon the appellants.
The
share of the appellants in the award amount shall be as under:Appellant No.1

Appellants No.2 and 3
Appellant No.4
27.
:
:
60%
:
10% each
20%
The order with respect to the mode of investment shall be
passed on the next date of hearing as this Court has directed LIC,
SBI and other banks to formulate a special scheme for victims of
road accident.
28.
Renotify on 3rd July, 2009.
J.R. MIDHA, J
MAY 22, 2009
aj
FAO.No.884/2003
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IN THE HIGH COURT OF DELHI AT NEW DELHI

FAO No. 884/2003

be allowed to see the Judgment?

To be referred to the Reporter or not?

Whether the judgment should be

The appellant has challenged the award of the learned

Tribunal whereby the learned Tribunal has dismissed the claim

The accident dated 4th January, 1998 resulted in the death

The deceased was a Contractor and was going

from Sector-11, Rohini to his house on foot. Two labourers were

side at a very high speed and being driven in a rash and

The deceased was survived by his widow, two minor sons

aged about 12 and 7 years, a minor daughter aged about 3 years

The widow of the deceased appeared as PW-1 and deposed

that the deceased was a Contractor doing flooring work earning

deceased was 35 years at the time of his death. PW-1 tendered

The appellant produced the eye-witness, PW-2 who deposed

that he was accompanying the deceased on 4th January, 1998 at

The driver of the offending vehicle filed the written

involvement of the truck in the accident.

The owner of the

The learned Tribunal dismissed the claim petition on the

The seizure memo of the

The seizure memo of the truck was not

The learned Tribunal, therefore, gave a

Tribunal further observed that neither the identity of the

record to prove that Jokhu Ram sustained fatal injuries as a result

The learned Tribunal has utterly failed to discharge the duty

casted by Section 168 of the Motor Vehicles Act.

Delhi Motor Vehicles Rules, 1993 provides the

procedure to be followed by the Claims Tribunal.

Delhi Motor Vehicles Rules, 1993 provides the procedure to be

Rule 118(7) provides that the

the Tribunal has to conduct an inquiry into the claim and a

In the case of Saramma Scaria Vs. Mathai, 2003 ACJ

213, the Kerala High Court observed as under:

are constituted under the Act so as to advance

Kodala, 1999 ACJ 1129, the division bench of Gujarat High

wants to give effect to it, he has to do so as

Indian Evidence Act which is reproduced hereunder:-

any question to any witness or party; in any form, at any time,

A Judge, who at the trial merely sits and records evidence

without caring so to conduct the examination of the witnesses

Mr. Edmund Burke arguing in Warren Hastings Trial said

that it is the duty of the Judge to receive every offer of evidence,

prosecutor appears, the Court is obliged through its officer, the

In Bartly vs. State, 55 Nebr 294 : 75 N.W.832

Harrison, C.J., said:

may instruct the jury, and correctly, to the

The framers of the Act, in the Report of the Select

that he should ever wish to push an inquiry

The Judge contemplated by Section 165 is not a mere

umpire at a wit-combat between the lawyers for the parties

The learned Tribunal did not conduct the inquiry as

envisaged in Section 168 of the Motor Vehicles Act. Although, the

the truth but instead of conducting an enquiry, the learned

The learned Tribunal has not computed the compensation.

The deceased was aged 35 years at the time of the accident