K SURESH vs AGNIBH MUDI & ORS.

2023-12-08 Information

$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 08.12.2023

+ MAC.APP. 12/2022
K SURESH
….. Appellant
Through: Mr.Saurabh Kansal & Mr.Tushar Alok, Advs.

versus

AGNIBH MUDI & ORS.
….. Respondents
Through: Ms.Urvashi Basak, Adv. for R-1.
Mr.Sanjay Kumar, Adv. for R-4.

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA, J. (ORAL)
1. This appeal has been filed challenging the Award dated 09.07.2020 (hereinafter referred to as the Impugned Award) passed by the learned Motor Accidents Claims Tribunal, South East District, Saket Courts, Delhi (hereinafter referred to as the Tribunal) in MACT No. 37/2017, titled K. Suresh v. Agnibh Mudi & Ors.
2. By the Impugned Award, the Claim Petition filed by the appellant herein has been dismissed by the learned Tribunal, holding that the appellant had been unable to prove that the accident in question had taken place due to the rash and negligent driving of the car bearing registration no. DL-2CAU-7214 (hereinafter referred to as the Offending Vehicle).
3. It is the admitted case of the parties that while the appellant was trying to cross the Offending Vehicle from the left side, the co-passenger in the Offending Vehicle had opened the door of the Offending Vehicle on the left side, resulting in the accident. It is also admitted that the Offending Vehicle was in a stationary position when the accident occurred. The learned Tribunal has held that the Claim Petition was not maintainable as the driver of the Offending Vehicle could not be said to be driving the Offending Vehicle in a rash and negligent manner.
4. The learned counsel for the appellant, placing reliance on the judgment dated 07.12.2018 passed by the High Court of Karnataka in MFA No. 30370/2012 (MV), titled The Branch Manager, ICIC Lombard General Insurance Co. Ltd. v. Abdul Rehaman & Ors., submits that in similar circumstances, where the door of the Offending Vehicle was opened by a driver in a sudden manner leading to the accident, the Court held that it would be a case of contributory negligence.
5. On the other hand, the learned counsels for respondent no.1 and respondent no.4 submit that in the present case there was no negligence on the part of the driver of the Offending Vehicle. As per the case of the appellant himself, it was the co-passenger, who had opened the door of the Offending Vehicle which led to the accident. They submit that, therefore, the entire negligence was of the appellant alone.
6. The learned counsel for the respondent no.4 further submits that, in any case, as the negligence is not of the driver of the Offending Vehicle, the respondent no.4 cannot be made liable to pay the compensation.
7. I have considered the submissions made by the learned counsels for the parties.
8. Section 165 of the Motor Vehicles Act, 1988 is reproduced as under:-

165. Claims Tribunals.(1) A State Government may, by notification in the Official Gazette, constitute one or more motor Accidents Claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.
(2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof.
(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he

(a) is, or has been, a Judge of a High Court, or
(b) is, or has been, a District Judge, or
(c) is qualified for appointment as a Judge of a High Court (or as a District Judge).
(4) Where two or more Claims Tribunals are constituted for any area, the State Government, may be general or special order, regulate the distribution of business among them.

9. A Motor Accidents Claims Tribunal is constituted inter alia for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to persons arising out of the use of motor vehicles. In the present case, it is admitted that the accident had taken place with a motor vehicle.
10. In Shivaji Dayanu Patil & Anr. v. Vatschala Uttam More (Smt.), (1991) 3 SCC 530, the Supreme Court has held that the word use has a wider connotation and covers a situation even where the motor vehicle is not moving and is stationary.
11. In the present case, it is the case of the appellant that the door of the Offending Vehicle was opened in a sudden manner, though by the co-passenger. In my view, it is also the duty of the driver of the Offending Vehicle to warn the co-passenger to not open the door of the Offending Vehicle without being cautious and at least looking first that there is no other vehicle approaching the Offending Vehicle. If the driver of the Offending Vehicle has not warned his co-passenger of the same, the driver is equally negligent and vicariously responsible for the accident, and cannot escape the liability of the accident that may be caused because of such negligence of the co-passenger.
12. In Abdul Rehaman (Supra), the High Court of Karnataka, while considering the case where the driver of the Offending Vehicle had opened the door of the vehicle in a sudden manner leading to the accident, has attributed contributory negligence of 70% on the driver of the car.
13. In the present case, therefore, the learned Tribunal has erred in holding that there is no negligence on the part of the driver of the Offending Vehicle, and thereby dismissing the Claim Petition filed by the appellant. This would be a case of contributory negligence and it was for the learned Tribunal to determine the extent of the same.
14. Accordingly, the Impugned Award is set aside. The Claim Petition is remanded to the learned Tribunal to make assessment of the contributory negligence of the parties to the accident, determine the compensation, if any, payable to the appellant, and also determine who shall be liable to pay the same.
15. The parties shall appear before the learned Tribunal on 11th January, 2024.
16. The appeal is allowed in the above terms.

NAVIN CHAWLA, J
DECEMBER 8, 2023/rv/am
Click here to check corrigendum, if any

MAC.APP. 12/2022 Page 1 of 5