1 IN THE COURT OF MS [ENTITY] JUDGE MACT DELHI SUIT NO 25/06 1 Shri [ENTITY] son of Shri Bashir Ahmed Ansari r/o B-86, Sarai Kalen Khan New Delhi (Petitioner is unable to sign hence petition is filed through his father). Petitioner Versus 1. Shri [ENTITY] son of Shri Mange Ram R/o 38, Main Road Mukanpur Delhi 2. The [ENTITY] Respondents DATE OF PETITION: 20.12.2005 DATE OF DECISION: 31.08.2007 JUDGMENT
Brief facts leading to the present judgment cum award are that on 16.10.05 at about 10.15 p.m. the petitioner was driving the motorcycle bearing no DL-7SZ-6515 and he was proceedings toward [ENTITY] from the house of his friend. When he reached at Ring Road Opposite CNG Shamshan Ghat near Vijay Ghat bus stand then a truck bearing no HR-63-B-4498 driven by its driver at rash and negligent manner came from back side,over took the motorcycle of petitioner and applied sudden brakes without giving any indication. As a result of overtaking by the truck the accident was caused, as a result of forceful impact the petitioner fell down on the road and sustained injuries.
2. Respondent no 1 has filed written statement in which it is stated that petition is liable to be dismissed as same have been filed by petitioner without any cause of action; and petitioner has concealed the material facts from the court; it is submitted that vehicle of the respondent no 1 had not caused the said accident but it is the petitioner who was negligent in driving his vehicle and he himself involved in the said accident and petitioner is not entitled for any compensation.
3. Respondent no 2 ie insurance company has filed the written statement. It is stated that the amount claimed by petitioner is excessive, exorbitant. If it is held that driver of the offending vehicle was not holding proper and effective driving license at the time of accident, respondent no 2 is not liable to make the payment of compensation to petitioner. It is stated that offending vehicle was insured vide policy no. 350503003301 for the period from 28.4.05 to 27.4.06.
4. Out of pleadings of the parties, the following issues were framed by my Ld Predecessor :-
1 Whether injured [ENTITY] suffered injures on 16.10.05 at 10.15 a.m at Ring Road opposite CNG Shamshan Ghat near Vijay Ghat Bus Stand due to rash and negligent driving of vehicle bearing no DL-7SZ-6515 of respondent no 1 at the time of accident?
2. Whether the petitioner is entitled for any compensation, if yes to to what amount and from whom?
3 Relief.
5. Petitioner has examined himself as PW1 who has narrated the allegations of petition and relied upon the documents from ExPW1/2 to ExPW1/108. PW2 is Dr [ENTITY] from Sushrut Trauma Centre who has treated the petitioner on the date of accident and has proved the record as ExPW2/1. PW3 Dr [ENTITY] from Guru Nanak Eye Hospital has proved the disability certificate as ExPW3/1. PW4 Dr [ENTITY] Lok Nayak Hospital has proved the MRI report of petitioner as ExPW1/100.
6. Respondent has examined Shri [ENTITY], Record Clerk ITO who has stated that driving license no T-4387 was issued on 22.6.00 in the name of [ENTITY] for the period of 22.6.00 to 21.6.03 which is ExRW2/1. The driving license no T3263 was issued in the name of [ENTITY] which is ExRW2/2. Respondent no 2 has also examined Shri [ENTITY] Assistant from insurance company who has proved the carbon copy of the policy as ExR2W2/1. The notice to driver and owner and its re ceipts are ExR2W2/2 to ExR2W2/13, verification report is ExR2W2/14,
7. Thereafter the matter was listed for final arguments as the evidence of the parties had already been closed. Learned counsel for the parties had advanced arguments.
8. I have considered the arguments submitted by Ld counsel for parties, evidence led by the parties and the other material on record. After considering the same my issue wise findings are as under:
ISSUE NO 1
9. Issue no 1 needs to be amended as the accident was not caused due to the motorcycle which was being driven by petitioner. Issue no 1 should read as follows:
"Whether injured [ENTITY] suffered injures on 16.10.05 dt 10.15 a.m at Ring Road opposite CNG Shamshan Ghat near Vijay Ghat Bus Stand due to rash and negligent driving of vehicle bearing HR-63-B-4498 by its driver?"
10. In order to prove the case, petitioner has examined himself as PW1 and other witness examined by petitioners are doctors who have given treatment to petitioner under various specialities of the medicines and in different hospitals.
11. It is the case of petitioner that on 16.10.05 petitioner was driving motorcycle bearing no DL-7SZ-6515 at Opposite CNG shamshan Ghat near Vijay Ghat Bus Stand Delhi and his friend was sitting as pillion rider. The offending vehicle bearing no HR- 63-B-4498 being driven in rash and negligent manner came from behind, overtook the motorcycle of petitioner and driver of the said truck suddenly applied brakes due to which motorcycle of petitioner struck against the truck and injuries were sustained by petitioner.
12. In this case after considering the entire documents and evidence on record I feel compelled to state that neither petitioner nor respondents have prosecuted or defended the case with due diligence. Petitioner has not taken any step to examine the witness for proving the accident or for filing certified copies of the criminal record. On the other hand Insurance Company has been so negligent that they even did not see what averments they are writing in written statement. In the written statement insurance company firstly denied having any concern with the offending vehicle and later in same written statement states that cover note no . 350503003301 is issued for RTV and not for truck. But in evidence insurance company has placed on record the copy of the insurance policy in respect of the present offending vehicle. This shows the casual approach with which insurance companies are filing written statement and contesting the claim of compensation.
13. As per requirement of [SECTION] of the [ACT] it was the duty of petitioner to prove on record that accident was caused due to the negligence of the driver who was driving the offending vehicle at the time of accident. The negligence of driver could have been proved by petitioner by examining eye witness, which in this case is his own friend, who was accompanying the petitioner at the time of accident or petitioner could have placed on record the certified copies of the criminal case record which could have prima facie shown the allegations levelled against the offending driver as the site plan could have shown the manner of accident and place of accident. With no reason explained, petitioner has not placed on record any such certified copies or even photocopies of the charge sheet. Petitioner has not even proved the FIR which is stated to have been lodged in Police Station Kotwali on the date of accident by the friend of the petitioner. Since the copy of the FIR is on record although not proved on record by petitioner but as present claim Tribunal established under [ACT] is are required to hold inquiries for granting compensation to the victim of accident therefore strict principles of [ACT] are not applicable to the present case hence, I consider it my duty to peruse and consider the copy of the FIR as placed on record .
14. In the petition as well as in the evidence petitioner has stated that offending vehicle had come from back side of petitioner, over took motorcycle of petitioner and applied sudden brakes without giving any indication and thereby caused accident . As a result of this petitioner fell down on the road and sustained injuries. In the entire evidence as well as in petition petitioner has not explained what actually happened after the truck driver allegedly applied brakes and how he fell down from the motorcycle? Petitioner has stated up to the point that alleged driver of the alleged offending vehicle had applied sudden brakes but petitioner had not mentioned that due to applying of brakes by offending driver, motorcycle which was being driven by petitioner struck against the back side of the truck and because of which petitioner sustained injuries. On the other hand in the FIR lodged by his friend who was accompanying the petitioner at that time it is clearly mentioned that offending truck was going in front of petitioner and due to application of sudden brakes by the driver of truck, motorcycle struck against back portion of the truck. Mechanical inspection report or seizure memo of motorcycle has not been placed on record therefore damages occurred on the motorcycle cannot be evaluated. Since the petitioner had not placed on record the certified copies of the criminal case record, petitioner has also not been able to prove damages sustained on the truck due to the alleged accident. However one copy of the mechanical inspection report is available on the record. Perusal of which shows that this mechanical inspection has been carried out by private surveyor and has not been carried out by agency of police department. Secondly it is also important to note that this mechanical inspection report pertains to the case FIR 439/05 of the same date 17.10.05 of Police Station Kotwali whereas accident in respect to the present compensation claims is reported in FIR no 448/05 of Police Station Kotwali. Therefore this mechanical inspection report does not belong to case in hand, and hence cannot be considered.
15. Further it is also strange to consider that if the truck no.HR-63-B-4498 was involved in accident under FIR no 439/05 of same Police Station Kotwali, how it could have been plied on road on 16.10.05 at 10.15 p.m. when it was mechanically inspected on 17.10.05 ie at that time truck must be in custody of police under FIR no 439/05 and thus could not have caused present accident for which FIR is 448/05.
16. In the present case petitioner has not made driver of the offending vehicle as party in the present petition. The arguments for his exclusion has been advanced by Ld counsel for petitioner as motor vehicle rules applicable to Delhi does not make it mandatory that driver of the offending vehicle be made party to the petition under [SECTION] of the [ACT]. Even if the contention of Ld counsel for petitioner is accepted that presence of driver is not necessary as a party in the claim petition under [SECTION] of the [ACT] filed in Delhi because of the provision of [ACT] applicable in Delhi I am of the opinion that as per the judgment of Hon'ble Supreme Court in case The Oriental Insurance Company Limited vs [ENTITY] and others, in [CASE NUMBER] dt 2.4.2007, it is the duty of the petitioner to prove on record that driver of the offending vehicle was negligent at the time of driving the vehicle which had caused accident.
17. In case Oriental Insurance Company Limited vs [ENTITY] and others Hon'ble Supreme Court after considering the various judgments has held that judgment in [ENTITY] and another vs Balkrishna Ram Chandra Nayan and another reported as (1977) 2 SCR 8861 governs the claim under [SECTION] of the [ACT] and it is the duty of the petitioner to prove negligence on the part of the driver before petitioner would be entitled for compensation.
18. Their Lordship after considering the judgment of [ENTITY] has held that :
"In the context of [SECTION] and [SECTION] A of the Act of 1988 we are persuaded to think that the so called obiter observation in [ENTITY]'s case govern a claim under [SECTION] of the Act and they are inapplicable only when a claim is made under [SECTION] of the Act. Obviously, it is for the claimant to choose under which provision he should approached the Tribunal and if he chooses to approach the Tribunal under [SECTION] of the Act, we cannot see why the principle stated in [ENTITY] case should not apply to him.
19. Therefore as per the judgment mentioned above it is settled principle of law that before petitioner could be held to be entitled to compensation under [SECTION] of [ACT], he is under duty to prove that accident has occurred due to the negligence of the driver. In order to establish the negligence of driver, it was also held in [ENTITY] case by Hon'ble Supreme Court, that since the negligence of the driver is in issue presence of driver as party in the petition is essential. Even if it is accepted due to the arguments of Ld counsel for petitioner that "driver" in Delhi is not required to be made as a party at least identity of the driver who was driving the offending vehicle at the time of accident should have been proved without any doubt and ambiguity.
20. In the present case petitioner has not mentioned the name of the driver who was driving the offending vehicle in the entire petition because driver has not been made party in the present case. In the FIR name of driver has been mentioned as [ENTITY] son of [ENTITY] r/o 18/87 [ENTITY], Part II, Mukandpur Extension Delhi. No seizure memo of the driving license has been placed on record by petitioner. The insurance company has verified the driving license which is in the name of [ENTITY] son of Shri [ENTITY] r/o Mohalla Adarsh Nagar [ENTITY]. After considering the copy of the FIR available on record and copy of the driving license alleged to have been seized by the police as stated by insurance company but denied by the petitioner in cross examination of witness of Insurance Company. it is difficult to understand as to who was the person who was driving the alleged offending vehicle at the time of accident whether it was [ENTITY] son of [ENTITY] r/o 18/87 [ENTITY], Part II, Mukandpur Extension Delhi or Shri [ENTITY] s/o [ENTITY] r/o Mohalla Adarsh Nagar [ENTITY]. Even the respondent no 1 who is stated to be owner of the offending vehicle has not stated anything about the driver or the name of driver . Seizure memo of vehicle ie offending truck has not been proved by petitioner. Thus, I am of opinion that apart from statement of petitioner no document has been placed or proved on record to substantiate the claim of petitioner. When, even the identity of the person who was driving the offending vehicle at the time of alleged accident is not established by petitioner by way of evidence, the question of proof of negligence on the part of such person, while driving the offending vehicle does not arise. Hence I am of the opinion that petitioner has failed to prove the negligent driving of the alleged offending vehicle by its driver.
21. On the point of proof of negligence Ld counsel for petitioner has relied upon following judgments:
[PRECEDENT] In the case [PRECEDENT] Hon'ble High Court of Punjab and Haryana has held that the statement of eye witness, who was author of FIR, which was lodged promptly on that day itself rules out every possibility of consultation and and deliberations". In case [PRECEDENT] is held by Hon'ble High Court of Karnataka when there is no denial of occurrence of accident, no contra evidence to disbelieve oral evidence and when driver of vehicle is prosecuted in criminal case, it proves that the accident had occurred due to negligence of the driver of the vehicle.
22. After carefully perusing the judgments relied upon by Ld counsel for petitioner, I am of the view that my opinion gets fortified by the judgments relied upon by Ld counsel for petitioner. As it is clear in present case that petitioner has failed to prove on record the negligence on the part of the offending driver. Taking the case of the Hon'ble High Court of Punjab and Haryana in case [PRECEDENT] and this case, the difference, first of all is that in the case before Hon'ble High Court of Punjab and Haryana driver of the offending vehicle was made a party and eye witness was examined by Tribunal who was author of FIR but in the present case eye witness ie friend of petitioner who was accompanying the petitioner and who is author of FIR has not been examined by petitioner nor driver has been made a party who could have explained the manner of accident and there is clear contradiction in the statement of petitioner and statement of pillion rider who has lodged the FIR which makes the statement of petitioner unreliable.
23. After considering the judgment of Hon'ble High Court of Karnataka in case [PRECEDENT] relied upon by ld counsel for petitioner. The case in hand can be differentiated and I also rely upon the judgment of Hon'ble High Court of Karnataka. In the present case, before this Tribunal, petitioner has failed to place on record the certified copies of the criminal case which could show whether the driver was prosecuted in criminal case or not. Respondent no 1 owner of the offending vehicle has specifically denied the occurrence of the accident, although respondent no 1 has been proceeded exparte at the later stage of the case. But in the written statement he has clearly denied the involvement of his vehicle in accident as alleged by petitioner. Therefore merely on the statement of petitioner which is contrary from the statement given in the FIR by his friend I am of the opinion that it cannot be said that accident had occurred due to negligence of driver who was driving vehicle at the time of accident.
24. Even the identity of the person who was driving the vehicle at the time of alleged accident is not known as it is mentioned earlier that whether [ENTITY] son of [ENTITY] resident of 18/87, [ENTITY], Part II, Mukandpur Extension Delhi [ENTITY] son of Shri [ENTITY] r/o Mohalla Adarsh Nagar [ENTITY] was driving the vehicle is not proved by petitioner . Therefore question of negligence of driver cannot be decided.
25. Although it is alleged by petitioner that he has sustained injuries because of road traffic accident as mentioned above considering the medical summary prepared in Aruna Asaf Ali hospital on 16.10.05 Doctor of Surgery Department had doubted the injuries to be assaulted injuries, as they have mentioned "assaulted injuries?" Therefore it is also not clearly proved by petitioner that injuries suffered by petitioner was due to road traffic accident. Petitioner has also failed to prove that accident was caused due to negligence of the driver of the offending vehicle, identity of driver has not been proved, negligence on the part of the driver is not proved. Even involvement of offending vehicle is in doubt as per the facts mentioned by me earlier. Therefore I am of the opinion that petitioner has failed to prove that accident was caused due to rash and negligent driving of the driver of offending vehicle No. HR-63-B-4498. Hence Issue no 1 is decided against the petitioner.
ISSUE NO 2
26. Since the issue no 1 has been decided against the petitioner, there is no need to consider the amount of compensation which could be awarded to petitioner as petitioner is not entitled to any compensation in this case . Interim compensation of Rs25,000/- under [SECTION] of the [ACT] has already been awarded to petitioner as petitioner has suffered 100% permanent visual disability . Petition is dismissed. File be consigned to record room.
ANNOUNCED IN ([ENTITY]) OPEN COURT JUDGE MACT DELHI TODAY DATED 31.08.2007