Delhi District Court
Vipin Kr Verma vs Punit Anand Etc on 24 February, 2024
IN THE COURT OF SH.SHAILENDER MALIK, PRESIDING
OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL-02,
SHAHDARA, KARKARDOOMA COURTS, DELHI
MACT No.750/2016
Vipin Kumar Verma
s/o Sh.Dayanand
r/o H.No.612, Gali no.6,
Jawala Nagar, Near Vastsalya Mandir,
Shahdara, Delhi. ....Petitioner
Versus
Punit Anand
s/o Sh.S.N. Tyagi
r/o Barrack No.7,
PS Jagatpuri, Delhi. ....Respondent
Date of Institution : 01.12.2014
Date of Arguments : 24.02.2024
Date of pronouncement : 24.02.2024
JUDGMENT
1. This is a claim petition under Section 166 and 140 of M.V. Act whereby petitioner is seeking compensation on account of injuries stated to have been suffered in a road side accident. As per the facts mentioned in the claim petition on 14.02.2014 at about 12.15 p.m. petitioner was going on his bicycle and stated to be following traffic rules. Petitioner when reached in front of Guru Harkishan School, suddenly a motorcycle no.DL- 5S-Y-9897 allegedly being driven by respondent no.1 (owner cum driver) at a very high speed and in a rash and negligent manner. It is stated that respondent no.1 while coming on the wrong side of the road hit the petitioner due to which petitioner fell down and sustained grievous injuries.
Digitally signed by SHAILENDER SHAILENDER MALIK MALIK MACT No.750/2016 Date: 2024.02.24 Page 1 16:03:41 +0530 Petitioner was taken to Hedgewar Hospital.
2. It is stated that in respect of the accident local police registered the FIR after many months as the respondent no.1/owner of the offending vehicle was working in Delhi Police. It is stated that FIR no.354/2014 of PS Anand Vihar in this case has been registered only on 06.06.2014. It is further mentioned that at the time of accident petitioner was having good health and was working as salesman in a Medicare centre and was drawing income of Rs.10,000/- per month. It is stated that after the accident due to grievous injuries suffered by him, petitioner's working capacity has adversely affected. Moreover petitioner has already spent substantive amount for his medical expenses and conveyance and also took attendant for his help for his daily chores.
3. After service of summons respondent no.1 filed the WS taking an objection that claim petition is based on false and concocted facts, petitioner has concealed material facts, respondent has been falsely implicated in the alleged accident whereas respondent has nothing to do with the accident and no accident has taken place due to negligence of respondent. It is pleaded that while petitioner has implicated the respondent in criminal case, under a conspiracy to obtain compensation, however the motorcycle in question was not involved in the accident. It is stated that at the time of accident respondent was not in Delhi as he was on leave from 03.02.2014 to 23.02.2014 and had gone to his village Panchi, PS Kharkhoda, District Meerut and took his motorcycle no.DL-5S-Y-9897 with him.
4. It is stated that even in the criminal case police thoroughly investigated the matter and filed the cancellation report in which it was found that motorcycle of the respondent was not involved in the accident.
Digitally signed by SHAILENDERMACT No.750/2016 SHAILENDER MALIK
MALIK Date: Page 2
2024.02.24
16:04:18 +0530
Case of the petitioner has been denied in totality.
5. On the basis of pleadings as come on the judicial record ld. Predecessor of this Tribunal vide order dated 22.11.2016 framed following issues :
(1)Whether respondent no.1 was driving vehicle bearing no.DL-
5SY-9897 on 14.02.20214 at 12.15 p.m. in front of Guru Harkishan Public School, Delhi in a high speed and in a rash and negligent manner and hit against cyclist i.e. petitioner who fell down and sustained injuries? OPP (2)Whether the petitioner is entitled for any compensation, if so and for what amount? OPP (3)Relief.
6. On behalf of petitioner two witnesses have been examined. PW1 is petitioner Vipin Kumar Verma and PW2 is Vineet Pawar from Paradigm Enterprises.
7. On behalf of respondent four witnesses have been examined. R1W1 is Mahender Maurya, Ahlmad of the court of ld. ACMM, wherein untrace report of FIR No.354/2014 of PS Anand Vihar was filed. R1W2 is Ompal, from the village Panchi, R1W3 is Momin, who was also from village Panchi and was witness in FIR No.354/2014, R1W4 is respondent Punit Anand Tyagi.
8. I have heard Sh.Madhur Goel, ld. counsel for petitioner as well as Ms.Sulekha Thakur, ld. counsel for respondent. I have also gone through the hand written submissions filed on behalf of the petitioner along with certain case law. My issue wise findings are as under :
Issue No.1
9. It is settled proposition of law that an action founded on the principle of fault liability, the proof of rash and negligent driving of the Digitally signed by SHAILENDER SHAILENDER MALIK MALIK Date:
2024.02.24 MACT No.750/2016 Page 3 16:04:30 +0530 offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is to be tested on the touchstone of preponderance of probabilities. Holistic view is to be taken while dealing with the Claim Petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance Co. Ltd. v. Sakshi Bhutani & Others. (MAC APP. No. 550/2011 decided on 02.07.2012), Bimla Devi & Others v. Himachal Road Transport Corporation & Others (2009) 13 SC 530, Parmeshwari v. Amirchand & Others 2011 (1) SCR 1096 & Mangla Ram v. Oriental Insurance Company Ltd. & Others 2018 Law Suit (SC) 303.
10. It is submitted by Sh.Madhur Goel, ld. counsel for the petitioner that respondent despite being involved in the accident, is denying the involvement of his vehicle in the accident. It is submitted that since the respondent has been working in Delhi Police, therefore local police did not register the FIR regarding accident in question and later when FIR was registered, police filed the untrace report. It is argued that even if there has been an untrace report filed by the police, still this Tribunal can decide the question of negligence and involvement of vehicle independently on the basis of evidence. Reliance has been placed on judgment of Apex Court in Mathew Alexander vs. Mohammed Shafi and others 2023 Live Law (SC) 531. Counsel for the petitioner further argued that evidence of petitioner/PW1 establish the involvement of offending vehicle no.DL-5S- Y-9897 being driven by respondent and nothing came in his evidence to disbelieve that version. Counsel for the petitioner further argued that police filed the cancellation report on the plea of alibi, whereas the grounds taken in the cancellation report, are not cogent. It is submitted that police relied Digitally signed MACT No.750/2016 Page 4 by SHAILENDER SHAILENDER MALIK MALIK Date:
2024.02.24 16:04:55 +0530 upon CDR and location, to conclude that respondent at the time of accident was in his native village Panchi, whereas it is not proved that CDR of the mobile belong to respondent. Moreover respondent being on leave at the relevant time, cannot be a reason to believe that on the day of accident respondent was not in Delhi. Counsel for the petitioner therefore relied upon the judgment of Apex Court in Rajesh Yadav and Anr. vs. State of UP (Criminal Appeal Nos.339-340/2014 decided on 04.02.2022) and submitted that final report filed by the IO is not substantive and conclusive conclusion and cannot be mechanically relied upon by Claim Tribunal while deciding the question of negligence. Reliance has also been placed on the judgment of Apex Court in Janabai vs. ICICI Lombard (Civil Appeal No.5220/2022 decided on 10.08.2022) wherein it is laid down that rule of evidence in claim petition is not the same as in a criminal trial.
11. Ms.Sulekha Thakur, ld. counsel for respondent on the other hand submitted that in the present case petitioner suffered the accidental injuries may not be of dispute but involvement of vehicle no.DL-5S-Y- 9897 of respondent is disputed and respondent has from the beginning taken the plea having been falsely implicated in the present case. Therefore even if the rule of proof in claim Tribunal cases may be that petitioner is required to prove a fact by preponderance of probability but there must be some evidence to establish the involvement of the vehicle as well as rash and negligent driving of the respondent. It is argued that such aspect cannot be taken to be proof by just making an allegation of the same. It is submitted that there must be some convincing evidence to establish such important aspect. It is argued that in the present case police registered the FIR after about six months of the accident. Even as per the FIR complainant has alleged that registration number of motorcycle involved Digitally signed MACT No.750/2016 by SHAILENDER SHAILENDER MALIK MALIK Page 5 Date: 2024.02.24 16:05:11 +0530 being DL-5S-Y-9897 was given to him by someone by writing on a paper slip, moreover as per the averments of FIR brother in law of the petitioner had also reached at the place of accident. However petitioner has neither examined the said person who gave the slip mentioning registration number of the vehicle nor examined the brother in law of petitioner, for reasons best known to him.
12. It is further argued by the counsel for the respondent that it is matter of record that police filed the untrace report concluding that motorcycle no.DL-5S-Y-9897 was not involved in the accident. It is submitted that since the respondent was from Delhi Police, therefore investigation was carried out from all angles and even leave details, CDR and location of the respondent was verified and it was found that on the day of accident respondent was in his native village Panchi which was very far off from the place of incidence and it was not possible for respondent to be present at the place of accident. It is further argued that untrace report filed by the police has been accepted by ld. MM and nothing came even in the evidence of PW1 proving the involvement of motorcycle no.DL-5S-Y- 9897.
13. Before this Tribunal proceed to examine the evidence on the record, it is appropriate to note down established proposition in respect of appreciation of evidence in motor accident claim proceedings :-
(a) In claim proceedings a fact is required to be proved only by preponderance of probability, rule of evidence is not the same in claim proceedings as is required even in criminal or civil proceedings;
(b) Even if a fact needs to be proved by preponderance of probability but there must be some evidence which prove it. Mere assertion of Digitally signed by SHAILENDER MACT No.750/2016 SHAILENDER MALIK MALIK Date:
Page 6 2024.02.24 16:05:21 +0530 a fact cannot be taken to be a proof of the same. As such there must be some material available on the record satisfying the judicial conscience of the claim Tribunal to conclude that a fact has been proved;
(c) While examining the question of involvement of a vehicle and rash and negligence driving resulting into accident, claim Tribunal though generally take into consideration the registration of FIR, report u/s 173 Cr.PC and material collected during the investigation of criminal case of accident such as site plan, mechanical inspection report, statement of witnesses etc. However such materials are generally considered to be corroborative evidence. Non availability of any of such document/evidence ipso facto cannot be a reason to conclude that there was no rash and negligent driving. In other words claim Tribunal needs to decide that aspect independently, even if police documents support or do not support a particular fact.
14. Keeping above noted legal proposition, let us examine the facts of the present case. First of all it be noted that unfortunately in this case accident occurred on 14.02.2014 but FIR no.354/2014 regarding the said accident was registered at PS Anand Vihar, after about four months on 06.06.2014. It is not clear as to why immediately after the accident when injured was taken to Dr.Hedgewar Hospital, a call was not made to police from hospital authority and any police official was deputed to verify the circumstances of the accident on the same day or immediately thereafter. Be that as it may, this Tribunal is now left with oral evidence of PW1 Vipin Kumar Verma.
15. Let us examine the evidence of PW1. PW1 in his deposition stated that on 14.02.2014 when he was going on the bicycle and reached in Digitally signed MACT No.750/2016 by SHAILENDER SHAILENDER MALIK Page 7 MALIK Date: 2024.02.24 16:05:30 +0530 front of Guru Harkishan School, near Hargovind Enclave, motorcycle no.DL-5S-Y-9897 being driven by respondent no.1 came at very high speed and in a rash and negligent manner and hit him, resultantly he sustained grievous injuries and was taken to Hedgewar Hospital.
16. Regarding the account of accident as given by PW1, in cross examination PW1 admits that FIR was registered after about six months of the accident. Witness says that he visited the police station on the same day of accident and also made a call at 100 number from his mobile phone. PW1 further admits in his cross examination that fact mentioned in the FIR to the effect "ek aadmi ne mujhe number likh kar diya" is not correct as same was written by the IO himself. PW1 further admits in the cross examination that he does not know the colour of the vehicle and further admits that he has not filed any complaint against the IO, since the lodging of the FIR till today.
17. It has come on the record by way of evidence of PW R1W1 that in above mentioned FIR No.354/2014 of PS Anand Vihar police filed the untrace report. It is also matter of record and undisputed fact that untrace report has been accepted by ld. MM, when the protest petition filed at the instance of petitioner/complainant in criminal case was declined. It is admitted during the course of arguments that order dated 01.02.2023 of ld. ACMM whereby untrace report was accepted and protest petition of complainant was declined, has not been challenged by way of appeal. As such the order of ld. MM accepting the cancellation report has attained finality.
18. There is no dispute to the legal proposition as reiterated by the Apex Court in Mathew Alexander vs. Mohammed Shafi and others (supra) as relied upon by the counsel for the petitioner, wherein it is laid Digitally signed MACT No.750/2016 Page 8 by SHAILENDER SHAILENDER MALIK MALIK Date:
2024.02.24 16:05:43 +0530 down that final report in criminal investigation connected to accidents would have no bearing on the claim petition. Claim petition must be considered on its own merits. While following such legal proposition if we examine the facts of the present case, even if the fact that untrace report was filed by the police and same was approved by judicial order of ld. ACMM, is ignored for the time being, nothing has come on the judicial record of this Tribunal except the oral assertion of PW1 regarding the involvement of motorcycle no.DL-5S-Y-9897.
19. Now if we examine the oral evidence of PW1 regarding the account of accident as well as involvement of vehicle no.DL-5S-Y-9897, first and foremost aspect to be noted that in FIR recorded after about four months of accident, petitioner has alleged that he was given a slip mentioning motorcycle no.DL-5S-Y-9897 by someone. PW1 also stated in the FIR that his brother in law also reached at the spot. But petitioner has neither examined the person who had handed over the slip mentioning motorcycle no.DL-5S-Y-9897 or even his brother in law. If this aspect be also ignored for the time being, still it is not clear as to why when PW1 as per his version made a call at 100 number from his mobile phone, did not prove that fact or did not file or prove the complaint when FIR was not being registered immediately after the accident.
20. Moreover the evidence of PW1 is contradictory to the version given by him in his FIR. PW1 in his cross examination stated that facts as mentioned in the FIR that one person had given him registration number of the motorcycle in writing is not correct and the fact IO himself recorded the registration number of the motorcycle. This fact is against the record. There is also contradiction with regard to colour of the motorcycle. As such on meaningful reading of evidence of PW1 in totality along with other Digitally signed by MACT No.750/2016 SHAILENDER SHAILENDER MALIK MALIK Page 9 Date:
2024.02.24 16:05:54 +0530 material on the record, evidence of PW1 does not appear to be convincing and sufficient enough to conclude regarding involvement of motorcycle no.DL-5S-Y-9897 in the accident. More particularly when R1W2 Ompal who is stated to be resident of village Panchi has stated in his deposition that on 14.02.2014 respondent Punit Anand was present in his village and on that day he on his motorcycle no.DL-5S-Y-9897 came to his medical store of that village. Nothing substantive came in the cross examination of R1W2 to disbelieve that version.
21. Similarly respondent has examined one R1W3 Momin who had even given the statement u/s 161 Cr.PC during investigation of FIR No.354/2014 of PS Anand Vihar to the effect that on 14.02.2014 respondent was present in village Panchi Meerut and his motorcycle no.DL-5S-Y-9897 was also there. Even in the cross examination of PW R1W3 nothing substantive came to disbelieve the version. R1W3 in his cross examination though stated that he visited Delhi after three months of 14.02.2014 regarding accident and weny to PS Anand Vihar on the asking of respondent and went with him. This aspect however does not affect the entire testimony of PW R1W3.
22. On the similar manner there is evidence of R1W4/respondent Punit Anand Tyagi himself who has also stated that he has been working in Delhi Police and he remained on leave from 03.02.2014 to 20.02.2014. On the day of alleged accident i.e. 14.02.2014 he was on leave and had gone to his native village Panchi Meerut. As during the period of 20 days of leave he never came to Delhi. R1W4 further says that he later came to know regarding registration of criminal case regarding alleged accident and he informed to the IO no accident has occurred from him from his motorcycle no.DL-5S-Y-9897. Even in the cross examination of R1W4 nothing Digitally signed by SHAILENDER SHAILENDER MALIK MACT No.750/2016 MALIK Date: 2024.02.24 16:06:06 +0530 Page 10 substantive came to disbelieve the version.
23. Thus on appreciating the entire evidence as come on the judicial record this Tribunal is of considered view that petitioner has failed to establish the involvement of vehicle no.DL-5S-Y-9897 in the accident even by preponderance of probability. Evidence of PW1 is not sufficient and convincing enough for proving the involvement of vehicle no.DL-5S- Y-9897 in the accident.
24. While considering the judgments this Tribunal has already noted above that the ratio laid down in Mathew Alexander's case (supra) can hardly be of any dispute, however facts of that case were altogether different as in that case the driver Nixon Abey Mathey driving Maruti Alto car no.KL-2AC-1370 along with five others traveling in that car died in the accident. When MACT case was filed, local police in FIR case of the accident filed final report holding that proceedings abated as driver of the car died in the accident itself. However when further investigation was ordered, ACP concluded that accident was unavoidable as accident occurred despite the fact that driver of the said Alto car was trying to over take a pick up van and that van did not give the way, resultantly car collided with tanker lorry. It is in such factual context Apex Court held that conclusion of investigating agency cannot be a final word for claim Tribunal to decide the question of negligence. Apparently the facts of that case were different, but while following the ratio laid down in that judgment, this Tribunal though would ignore the fact that untrace report was filed, still evidence of PW1 was found to be insufficient to prove involvement of motorcycle no.DL-5S-Y-9897.
25. Another judgment relied upon by the counsel for the petitioner is Janabai vs. ICICI Lombard (supra) wherein it is laid down that rule of Digitally signed MACT No.750/2016 Page 11 by SHAILENDER SHAILENDER MALIK MALIK Date: 2024.02.24 16:06:17 +0530 evidence for proving a fact in a motor accident claim proceeding is not the similar as in criminal trial. There is no denial to such well established legal proposition, however facts of each are to be examined in peculiar circumstances. Even if a fact is required to be proved by preponderance of probability but there must be some evidence to prove that fact. It is not that there is no necessity of any evidence. Motor Vehicle Act is no doubt is a beneficial legislation, the object of which is to provide relief to victims of accident, therefore while assessing the material on the record Tribunal need not to be technical in its approach. However at the same time it is also bounded duty of the Tribunal to ensure that while fixing the liability the amount of compensation, there must be some lawful, cogent and proper evidence on the record to conclude regarding the liability and amount of compensation.
26. Another judgment relied upon by the counsel for the petitioner in Rajesh Yadav and others vs. State of UP case (supra) which is essentially with regard to criminal trial and therefore not at all applicable to proceedings in MACT case.
27. Thus for the reasons stated above this Tribunal concludes that involvement of motorcycle no.DL-5S-Y-9897 has not been proved. It is however not disputed that petitioner has suffered accidental injuries. Accordingly issue stands decided against the petitioner. Issue No.2
28. In view of the findings on issue no.1, once it is established on the record that involvement of vehicle no. DL-5S-Y-9897 could not be proved, nor the aspect of rash and negligent driving has been established in the absence of specific evidence regarding involvement of a vehicle. In such circumstance since this Tribunal has already concluded that the Digitally signed by SHAILENDER MACT No.750/2016 SHAILENDER MALIK MALIK Date: 2024.02.24 Page 12 16:06:25 +0530 petitioner had suffered accidental injuries, therefore for providing the lump sum amount of compensation, matter of the petitioner is being referred to District Legal Services Authority, Shahdara, with the request for Secretary of DLSA, to decide the question of lump sum amount of compensation for petitioner under victim compensation scheme.
File be consigned to Record Room.
Digitally signed by SHAILENDER SHAILENDER MALIK MALIK Date: 2024.02.24 16:06:32 +0530 Announced in the open Court ( Shailender Malik ) on 24.02.2024 PO MACT-02/SHD/KKD MACT No.750/2016 Page 13