1 IN THE COURT OF MS. [ENTITY] SPECIAL JUDGE NDPS, DISTRICT NORTH, DELHI PETITION NO.97/09 1. Sh. [ENTITY] S/o Sh. [ENTITY] 2. Sh. [ENTITY] S/o Sh. [ENTITY] Both R/o H.No. 6, Gali No.3, Kali Ghat, Near Shiv Mandir (RK Tent) Wazirabad, Delhi. Petitioners Versus 1. Sh. [ENTITY] S/o Sh. Bada Lal R/o H56/37A, Near Sahid Bhagat Singh Public School, Karawal Nagar, Delhi 2. Sh. [ENTITY] S/o Sh. Gulab Chand, R/o H1/77A, West Karawal Nagar, Delhi110094 3. [ENTITY] Respondents
[CASE NUMBER] Page 1 of 11 pages DATE OF INSTITUTION: 16.10.08 DATE OF TRANSFER TO THIS COURT: 29.07.09 JUDGMENT RESERVED ON: 12.10.10 DATE OF JUDGMENT: 13.10.10 AWARD
1. By way of present petition, brought under the provisions of [ACT] ([SECTION] [ACT]) petitioners seek compensation for the accidental death of their mother Smt. [ENTITY] w/o Sh. [ENTITY]. It is the case of the petitioners that on 08.06.08, while Smt. [ENTITY] was crossing the road, respondent no.1 while driving motorcycle bearing registration no. DL6SS1534 hit the deceased [ENTITY] due to which she fell down on the road and received multiple grievous injuries. The deceased was removed to Hindu Rao Hospital where she died on 11.06.08. It is alleged that respondent no.1 being the driver and respondent no.2 being the owner and respondent no.3 being the insurer of the offending vehicle bearing no. DL6SS1534 are liable to pay compensation to the petitioners. The claim of Rs.10,00,000/ (ten lakhs) is put forth alongwith interest 18% per annum by the petitioners.
2. Respondents No.1&2 filed written statement denying the case of the petitioners. It is alleged that the deceased herself is responsible for the accident as she was crossing the road in a hurry whereas respondent [CASE NUMBER] Page 2 of 11 pages no.1 has tried his level best to control. According to the respondent no. 1&2 they are not liable to pay any compensation particularly because it was the negligence of the deceased and also because the vehicle was duly insured as on the date of accident. It is prayed that petition filed by the petitioners be dismissed.
3. The insurance company respondent no.3 filed separate written statement stating that it has no liability in the event of contravention of terms and conditions of the policy. The extent of the claim put forth by the claimants is also disputed and further denying the averments of the petition, it is prayed that petition be dismissed.
4. From the pleadings of the parties following issues were framed vide order dated 28.11.08:
1. Whether the deceased Sh. [ENTITY] S/o Late Sh. [ENTITY] died because of the injuries sustained by him in an accident which took place on 08.06.08, at about 10:30am because of rash and negligent driving of the Motor Cycle Hero Honda Passion Plus bearing No. DL6SS1534 by the respondent no.1?
2.Whether the petitioners are entitled to get any compensation? If so, to what amount and from whom?
3.Relief.
[CASE NUMBER] Page 3 of 11 pages
5. Petitioner [ENTITY] has examined himself as PW1 by tendering his affidavit in evidence Ex. PW1/X stating therein that on 08.06.08, while her mother was crossing the road she was hit by the motorcyclist while driving motor cycle bearing no. DL6SS1534. [CASE NUMBER] was registered relating to the accident. Her mother expired due to accidental injuries at Bara Hindu Rao Hospital. About Rs.50,000/ had been spent on her treatment. He also proved FIR Ex. PW1/2, siteplan Ex. PW1/3, inspection report Ex. PW1/4, seizure memo Ex. PW1/5, RC of motorcycle Ex. PW1/6, driving licence of respondent Ex. PW1/7, insurance cover note Ex. PW1/8, MLC Ex. PW1/9, postmortem report Ex. PW1/10 and arrest memo Ex. PW1/11. During cross examination, he denied that accident has not taken place due to the fault of respondent no.1. He admitted that he has not witnessed the accident. Thereafter, petitioner closed his evidence.
6. On 19.12.09, the court on its own ordered the IO of the case to be examined and opportunity was also granted to the petitioners to lead additional evidence. PW1 was again called for examination on 13.04.10 during which he proved his ration card Ex. PW1/14, LPG cylinder book Ex. PW1/15 and birth certificate Ex. PW1/13. The additional evidence of the petitioners was closed vide order dated 02.07.10.
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7. No evidence was led on behalf of respondents and therefore RE was also closed and matter was listed for final arguments. IO of the case ASI [ENTITY] examined as CW1 on 02.07.10 and proved the date body receipt CW1/X and stated that body of the deceased was handed over to her son [ENTITY]. During cross examination on behalf of respondent no.3, IO stated that he has no personal knowledge about this case.
9. Again on 07.08.10, request was made on behalf of petitioners for leading additional evidence and the same was allowed. However, despite various opportunities given, no additional evidence was led by the petitioners and matter was again listed for final arguments.
10. I have heard learned counsel Sh. [ENTITY] for petitioners and counsel Sh. [ENTITY] for respondent no.3 and given due consideration to the facts and circumstances of the case, evidence and the record. My issue wise findings on the abovementioned issues are as follows:
ISSUE NO.1
11. The present case is about the death of mother of the petitioners namely [ENTITY] wife of Sh. [ENTITY] but issue no.1 was framed about the death of [ENTITY]. It seems to have been [CASE NUMBER] Page 5 of 11 pages inadvertently done.
12. Considering the claim of the petitioners about the accidental death of [ENTITY] and the evidence adduced, I am of the opinion that there is no material on record to establish that respondent no.1 was rash or negligent and caused accident with the deceased [ENTITY].
13. The present claim has been filed by the petitioners U/[SECTION] of [ACT] and in order to succeed, it is incumbent upon the petitioners to prove that death of the deceased has been due to rash and negligent driving of the driver of offending vehicle. It has been held by Hon'ble Supreme Court in [PRECEDENT] that before a person can be made liable to pay compensation for any injury and damage which have caused by his action, it is necessary that a person damaged or injured should be able to establish that he has some cause of action against the party responsible.
It was concluded that proof of negligence is necessary before the owner and the insurance company could be held to be liable for the payment of compensation in a motor accident claim case.
14. It has been held by Hon'ble Supreme Court in the case titled '[PRECEDENT]', as under: [CASE NUMBER] Page 6 of 11 pages "We think that the law laid down in Minu B. Mehta vs. Balkrishna Ramchandra Nayan, 1977 ACJ 118 (SC), was accepted by the legislature while enacting the [ACT] by introducing [SECTION] of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, s indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under [SECTION] of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned. Therefore, the victim of an accident or his dependents have an option either to proceed under [SECTION] of the Act or under [SECTION] of the Act. Once they approach the Tribunal under [SECTION] of the Act, they have necessarily to [CASE NUMBER] Page 7 of 11 pages take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under [SECTION] of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner of he vehicle or the driver of the vehicle".
15. It is also held by Hon'ble Supreme Court in the judgment titled '[PRECEDENT] as under : "Proof of rashness and negligence on the part of the driver of the vehicle is sine qua non for maintainability of an application under [SECTION] of the Act.'
16. The ratio of the above said judgments is clear to the effect that in a case U/[SECTION] of [ACT], it must be established that owing to the negligence of driver of vehicle involved, the accident has taken place. In this light, I have carefully examined the facts and circumstances of the present case as surfaced by the evidence and documentary material placed on record. The accident in the present case has taken place on 08.06.08 and according to the FIR, no eye witness was available at the [CASE NUMBER] Page 8 of 11 pages spot. Injured was removed to the hospital where she was found unfit for statement. There is no mention in the FIR about the driver of the offending vehicle or number of the offending vehicle nor any vehicle was found at the spot. The petitioners have placed on record the seizure memo of motorcycle no. DL6SS1534 dated 11.07.08 to show that accident has been caused by this vehicle. However, there is no link evidence on record to establish as to how this motorcycle came to be seized as offending vehicle. No witness has been examined on this aspect nor there is any statement of any witness under [SECTION] [ACT] to show the involvement of motorcycle in this accident. MLC of the injured [ENTITY] shows that she was taken to the hospital by [ENTITY]. It is submitted during the course of present proceedings that husband of the deceased namely [ENTITY] was with her at the time of accident and he has witnessed the occurrence but since he has passed away no eye witness is left. However, there is nothing on record even to suggest that [ENTITY] was accompanying the deceased at the time of accident. It is not reflected in the police record that [ENTITY] was with the deceased at the time of accident. The statement of PW1 [ENTITY] to the effect that his mother was shifted to hospital by his father is not corroborated by the MLC where name of his father is not recorded.
[CASE NUMBER] Page 9 of 11 pages IO was summoned and examined as court witness but he even did not state that on investigation he found the respondent no.1 to be responsible for causing the accident nor he mentioned the number of the offending vehicle in his statement. Despite opportunity awarded to the petitioners, no question were asked from the IO so as to establish that respondent no.1 is responsible for causing accident.
17. On examination of entire facts and circumstances of the present case, I am of the opinion that negligence of respondent no.1 has not been established not even involvement of his vehicle in the accident. I therefore, conclude that petitioners have failed to establish rash and negligent driving by respondent no.1 and resultant death of deceased. The issue no.1 is decided against the petitioners. ISSUE NO.2
18. In view of my findings with respect to issue no.1, no order for compensation can be made as against the respondents as rash and negligent driving on the part of respondent no.1 is not established nor even the involvement of vehicle of respondent no.2. Issue no.2 is also decided against the petitioners.
ISSUE NO.3 (RELIEF)
19. In view of my findings with respect to issue No.1&2, I hold that [CASE NUMBER] Page 10 of 11 pages petitioners are not entitled to any relief against the respondents. The petition is accordingly dismissed.
20. File be consigned to records.
ANNOUNCED IN THE OPEN COURT ON 13th OCTOBER 2010 ([ENTITY]) SPECIAL JUDGE NDPS (N) DELHI [CASE NUMBER] Page 11 of 11 pages