FAO No.75/2000 Page 1 of 4 19 *IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO No.75/2000 Date of Decision: 21st January, 2010 % KARTARI DEVI & ORS ..... Appellants Through : Mr. O.P. Mannie, Adv. versus D.T.C. & ORS ..... Respondents Through : Mr. Jyotindra Kumar, Adv. 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 YES reported in the Digest? JUDGMENT (Oral) 1. The appellants have challenged the award of the learned Tribunal whereby their claim petition has been dismissed. 2. The accident dated 17th/18th August, 1994 resulted in the death of Ram Mehar Singh. The deceased was survived by his widow, two daughters, one son and mother who filed the claim petition before the learned Tribunal. 3. The deceased was hit by a DTC bus bearing No.DL-1P- 9685. The accident was witnessed by Om Prakash who appeared before the learned Tribunal as PW-1 and deposed that he witnessed the accident caused by the aforesaid DTC FAO No.75/2000 Page 2 of 4 bus. PW-1 withstood the cross-examination before the learned Tribunal. 4. The respondent referred to and relied upon the statement of Om Prakash recorded before the Court in criminal case in which he turned hostile and deposed that he did not see the accident happening but was told about the accident by a scooterist. 5. The learned Tribunal dismissed claim petition in the light of contrary statement made by Om Prakash before the Court in criminal case. 6. The Investigating Officer of the police was directed to produce the police file which has been produced today. The police file contains the statement of Om Prakash under Section 161 of the Code of Criminal Procedure in which Om Prakash has stated to have witnessed the accident in question. The statement of Om Prakash under Section 161 of the Code of Criminal Procedure was not confronted to him when he appeared in the witness box before the concerned Metropolitan Magistrate. 7. The learned counsel for the appellant submits that the statement of Om Prakash made before the learned Claims Tribunal should be considered for deciding the claim petition. The learned counsel further submits that Om Prakash turned hostile before the learned Metropolitan Magistrate and should have been cross-examined by the concerned Public Prosecutor after taking permission of the Court and Om FAO No.75/2000 Page 3 of 4 Prakash should have been confronted with his previous statement under Section 161 of the Code of Criminal Procedure. The learned counsel further submits that Om Prakash was not even confronted with his statement under Section 161 of the Code of Criminal Procedure before the Claims Tribunal as well. 8. The learned Tribunal has not examined the above aspect of the matter which needs consideration. In that view of the matter, the matter needs to be remanded back to the Claims Tribunal to examine the above aspect and conduct a proper inquiry into the matter. 9. For all the aforesaid reasons, the appeal is allowed and the impugned award is set aside. The case is remanded back to the Claims Tribunal to conduct a fresh inquiry in accordance with law. While conducting such an inquiry, the Claims Tribunal may examine the Investigating Officer of the police, if deemed necessary. The Claims Tribunal shall also consider the implications of Om Prakash turning hostile and not having been confronted with his previous statement under Section 161 of the Code of Criminal Procedure. 10. The parties are directed to appear before the Claims Tribunal on 2nd March, 2010. 11. Considering that the case relates to death of Ram Mehar in the road accident dated 17th/18th August, 1994, the Claims Tribunal is directed to complete the inquiry within a period of four months. FAO No.75/2000 Page 4 of 4 12. The LCR be returned back to the Claims Tribunal through a special messenger. 13. Copy of this order be given ‘Dasti’ to learned counsel for the parties. J.R. MIDHA, J JANUARY 21, 2010 aj