MAC App. No.384/2008 Page 1 of 6 * HIGH COURT OF DELHI : NEW DELHI MAC App. No.384/2008 % Judgment reserved on: 29th September, 2008 Judgment delivered on: 16th October, 2008 Smt. Kandhai Devi W/o. Late Shri Kandha, R/o. House No.682, Sun Light Colony-2, New Delhi-110014 ….Appellant Through: Mr. T.A. Francis, Adv. Versus 1. Mr. Kamal Kapoor, (Owner of Vehicle No.DL 4 CK 0136) 10173/15, Abdul Aziz Road, Karol Bagh, New Delhi 2. Insurance Company (particulars to be disclosed By respondent No.1) …Respondents. Through: Nemo. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? No 3. Whether the judgment should be reported in the Digest? No MAC App. No.384/2008 Page 2 of 6 V.B.Gupta, J. The appellant, who is an injured in this case has filed the present appeal under Section 173 of the Motor Vehicles Act, 1988 (for short as „Act‟) against the judgment dated 17th December, 2007, passed by Sh. J.P.S. Malik, Presiding Officer, MACT (for short as „Tribunal‟), New Delhi vide which the claim petition filed by the appellant was dismissed. 2. The facts in brief are that on 15th November, 2003, at about 9.00 a.m., appellant was going for her work as she was working as a maid servant. When she reached near Nehru Stadium, she was hit by a Maruti Car No. DL-4CK- 0136, coming from behind being driven at a high speed and in a rash and negligent manner. 3. It is stated that appellant was taken to Mool Chand Hospital by the driver of the offending vehicle. The appellant received grievous injuries due to the accident. Later on, appellant was informed by the police that the driver of the offending vehicle has expired as he was suffering from cancer. MAC App. No.384/2008 Page 3 of 6 4. The claim petition was filed against respondent No.1/the owner of the offending vehicle and the Insurance Company was to be impleaded as respondent No.2 in case the particulars were provided by respondent No.1. 5. Before the trial court, the owner was served by affixation but none appeared for the owner and he was provided ex-parte. Particulars of the Insurance Company could not be found. 6. It has been contended by learned counsel for the appellant that the Tribunal has erred in dismissing the petition on the ground that the accident caused could not be linked to the vehicle bearing No.DL 4CK 0136, when in fact there is over whelming evidence linking the maruti car bearing No.DL 4CK 0136 to having caused the accident and subsequent injuries. 7. The Tribunal also erred in not taking into account that the driver of the offending vehicle had himself taken the appellant and got her admitted in Mool Chand Khairati Ram Hospital, where the appellant had made a statement to the police. MAC App. No.384/2008 Page 4 of 6 8. Other contention is that FIR registered in this case could not be further proceeded with since, the driver of the offending vehicle expired on account of cancer. 9. The Tribunal has held that; “In the petition filed, petitioner has stated that someone had noted the number of the offending vehicle but in the affidavit of evidence filed by her, she has not disclosed by whom the number of the vehicle was communicated to the petitioner. There is no evidence on record to link the vehicle No.DL 4CK 0136 in the alleged accident which had taken place on 15.11.2003 at about 9AM near Nehru Stadium and there is no evidence on record that vehicle in question was being driven by the said driver who has since died as per the testimony of the petitioner in a rash and negligent manner. Petitioner has failed to make out a case for any liability for the injuries suffered by her as against R1.” 10. As per averments made in the claim petition, the appellant has stated that the driver of the offending vehicle had taken her from the spot and admitted her in Mool Chand Khairati Ram Hospital, Lajpat Nagar-III, New Delhi. Further, the case of appellant is that an unknown person MAC App. No.384/2008 Page 5 of 6 had noted the number of offending vehicle (Maruti Car) and told the same to the appellant. 11. The appellant has placed various documents on the record of the Trial Court. However, the initial MLC prepared in this case showing the date of admission and as to which person has brought her to hospital, has not been placed on record. 12. Under these circumstances, since the initial medical record, pertaining to admission of appellant in Mool Chand Khairati Hospital on the date of accident which was very material and the appellant for the best reasons known to her, has not produced that initial medical record, inference has to be drawn against her. 13. Moreover, in the evidence by way of affidavit, she has not disclosed the name of person by whom the number of the offending vehicle was communicated to her. 14. Thus, under these circumstances, I do not find any infirmity or illegality in the impugned judgment of the Tribunal. MAC App. No.384/2008 Page 6 of 6 15. The present appeal filed by the appellant is hereby, dismissed. 16. No order as to costs. 17. Trial court record be sent back. 16th October, 2008 V.B.GUPTA, J. rs