Delhi District Court
Mithalesh vs Oriental Insurance Co. Ltd on 1 November, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.328/14
Date of Institution: 02.07.2013
IN THE MATTER OF:
1. Mithalesh
W/o Late Shri Suresh @ Suresh Kr. Kashyap
2. Yogesh Kumar
S/o Late Shri Suresh @ Suresh Kr. Kashyap
3. Nitin
S/o Late Shri Suresh @ Suresh Kr. Kashyap
4. Sunaina
D/o Late Shri Suresh @ Suresh Kr. Kashyap
All r/o D13, Nehru Garden
Khoda, Ghaziabad, U. P. ...Petitioners
Versus
Oriental Insurance Co. Ltd.
Through its Manager
1516, Scindia House, C. P.
New Delhi. ...Respondent
Final Arguments heard : 27.09.2014 Award reserved for : 01.11.2014 Date of Award : 01.11.2014 Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 1 of 42 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that on 06.04.2012 at about 23.00 hrs Shri Suresh Kumar @ Suresh Kashyap was riding Activa Scooter bearing No.UP14BF7151 and was returning home towards Ghaziabad via Meerut Road, Muradnagar and on reaching Balaji Dhaba, Muradnagar, UP was hit by a speeding Tata Tempo bearing No.DL1LE3882 from behind, due to which Shri Suresh Kumar fell and sustained injuries. It is averred that the erring vehicle i.e. Tata Tempo driver stopped, came down and then fled from the spot and did not help the victim. It is averred that the injured was taken to Sai Hospital for First Aid and then referred to Satya Medical Centre Noida and due to the accidental injuries Shri Suresh Kumar died on 09.04.2012, leaving behind the petitioners as his legal heirs. It is averred that the parents of the deceased had predeceased and there were no other legal heirs of Shri Suresh Kumar @ Suresh Kumar Kashyap except the petitioners. It is averred that the accident occurred solely due to the rash and negligent driving of Tata Tempo bearing No.DL1LE3882 and none else. It is stated that an FIR No.452/12 dated 18.10.2012 under Sections 279/338/304A of IPC was registered at PS Muradnagar, Ghaziabad and DD entry No.7 was recorded on 08.04.2012 at Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 2 of 42 PS Sector24 Gautambudh Nagar, UP.
3. It is averred that the deceased was 52 years old and married and was gainfully employed as Supervisor with M/s Delhi ACB Service Centre earning about Rs.7020/ per month. It is averred that the deceased was contributing towards household expenses being the sole bread winner of the family, and the petitioners being the widow and unmarried children were totally dependent upon the deceased and none of the legal heirs was earning. It is averred that as the deceased was in a stable employment his income and status would have multiplied with the passage of time and experience. It is averred that the petitioners being legal heirs of the deceased are entitled for damages on account of loss of dependency, loss of estate, loss of love and affection, loss of company and consortium. It is averred that the trauma of losing the breadwinner is unexplainable. It is averred that future prospects of the deceased may be taken into consideration while ascertaining just and proper compensation, seeing the economic scenario of depreciating value of rupee, resulting in diminishing purchasing power with the passage of time. It is averred that besides earning, the deceased used to gratuitously render various services to the family/petitioners which had pecuniary value of not less than Rs.10,000/ per month. It is stated that the expenses during the treatment prior to the death in accidental injuries was about Rs.1,00,000/ which had not been reimbursed from any source and may be granted as part of compensation. It is averred that the petitioners may be compensated for the pecuniary and non Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 3 of 42 pecuniary losses. It is averred that the respondent is the registered owner of the offending vehicle Tata Tempo bearing No.DL1LE3882 and hence liable to compensate the petitioners for third party loss of life and property. It is averred that the driver and insurer of the erring vehicle are not known and as the registration number of the erring vehicle is of Delhi, hence this Court has the jurisdiction to try and adjudicate the case. It is prayed that an amount of Rs. 50,00,000/ be awarded as compensation in favour of the petitioners and against the respondent.
4. Written statement was filed on behalf of the respondent making the preliminary submissions that the vehicle bearing No.DL1LE3882 (Tata 407) was insured with the Oriental Insurance Co. Ltd. under policy No. 212200/31/2006/1495 in the name of Shri Abhay Yadav, valid from 18.07.2005 to 17.07.2006. It is averred that on 19.03.2006, the said vehicle was stolen and an FIR bearing No.263/2006, dated 31.03.2006 under Section 379 IPC was lodged with PS Dabri. It is averred that Oriental Insurance Co. Ltd. paid the claim of the stolen vehicle to the insured Shri Abhay Singh Yadav in January, 2008. The insured executed a letter of subrogation dated 21.12.2007 in favour of the respondent thereby subrogating all the rights and remedies to the insurance company in respect of the stolen vehicle. Upon payment of the claim amount of Rs.2,47,925/ the stolen vehicle was registered in the name of the respondent on 25.07.2008, so that if the stolen vehicle was recovered in future, the insurance company may take the physical possession of the same. It is Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 4 of 42 averred that the stolen vehicle had not been recovered by the police till date. Preliminary objections were taken that the petition was not maintainable qua the respondent in view of the fact that the vehicle in question was a stolen one which had never been recovered by the police, nor any intimation in respect thereof was ever communicated to the respondent. It is averred that the insured merely transferred the registration of the stolen vehicle in the name of Oriental Insurance Co. Ltd. as per the rules framed in the claim manual guidelines and the insurance company never got physical possession of the stolen vehicle. Without prejudice to the rights and contentions of the respondent, it is averred that the stolen vehicle was not involved in the alleged accident. It is averred that the alleged accident took place on 06.04.2012, but the FIR in respect of the same was lodged on 18.10.2012 with PS Murad Nagar, Ghaziabad, after more than six months, which casts serious doubt over the genuineness of the involvement of the stolen vehicle in the alleged accident and it was a clear case of hit and run. It is averred that the stolen vehicle is in the possession of a criminal/unauthorized person without having any insurance cover and the respondent is not liable to pay any claim in respect thereof. It is averred that the informant is not an eye witness and the testimony of Shri Ajit claimed to be the eye witness of the alleged accident seems to be a concocted and cooked up version and does not inspire any confidence and is aimed at getting unlawful claim from the respondent. It is averred that the claim petition is shrouded with mystery in view of the fact that there is no postmortem report of the deceased. It is averred that as per the Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 5 of 42 petition as well as the FIR, the alleged accident took place on 06.04.2012, however, the deceased was admitted in the hospital on 08.04.2012 with the problem of intestinal perforation with septic shock which had nothing to do with the alleged accidental injuries. It is averred that no MLC was prepared in respect of the alleged accident and there was no immediate police report, which casts serious doubt upon the occurrence of the alleged accident. It is averred that the petitioners are not entitled to claim any compensation from the respondent as the petitioner himself (ought to be deceased) was rash and negligent and he was solely responsible for the alleged accident. It is averred that the deceased was not holding any effective and valid driving license at the time of the alleged accident. It is averred that the claim of the petitioner is arbitrary, exorbitant, baseless, collusive and malafide. The averments made in the claim petition were denied. It was denied that the stolen Tata Tempo bearing No.DL1LE3882 was involved in the alleged accident.
5. From the pleadings of the parties, the following issues were framed vide order dated 28.03.2014:
1. Whether the petitioner/injured (ought to be deceased) sustained injuries in the accident which occurred on 06.04.2012 at about 11 pm at Balaji Dhaba, Muradnagar, UP, caused by rash and negligent driving of vehicle No.DL 1LE 3882 Tata Tempo owned and insured with respondent no.1?
OPP.
Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 6 of 42
2. Whether the petitioner/injured is entitled for compensation? If so, to what amount and from whom?
3.Relief.
6. On behalf of the petitioners the petitioner No.1 entered into the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. She stated that she is the widow of Late Shri Suresh Kumar also known as Suresh Kumar Kashyap who died due to road accident dated 06.04.2012 at about 11 p.m. on GhaziabadMeerut Road near Balaji Dhaba Muradnagar, UP. She stated that on 06.04.2012 Shri Suresh Kumar was returning home towards Ghaziabad via Meerut Road, at about 11 p.m. On reaching Muradnagar Balaji Dhaba he was hit by a speeding Tata Tempo/Tata 407 bearing registration No.DL1LE3882 from behind due to which Shri Suresh Kumar fell and sustained injuries and he was dropped by a road user Shri Ajit S/o Shri Chotelal. She stated that the deceased suffered internal injuries in the abdomen with lacerated injuries on both legs and was conscious when dropped by Ajit. She stated that the deceased narrated the accident to her. She stated that as the pain in the abdomen of the deceased became severe he was taken to Sai Hospital Vandana Enclave Sector62 Noida for checkup on 07.04.2012, as doctors opined surgery, Shri Suresh Kumar was taken to Satya Medical Centre Sector 34 Noida for treatment of accidental injuries on 08.04.2012 and was treated surgically and kept on ventilator, but despite best of treatment Shri Suresh Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 7 of 42 Kumar died at about 5.35 p.m. on 09.04.2012. She stated that the cost of up bringing the minor children had increased as contribution of deceased in family affairs and upbringing of young ones had vanished. She stated that on an average the deceased used to provide 1/4th time of a day to his family. She stated that after the demise of Suresh @ Suresh Kumar Kashyap, she approached Shri Ajit who narrated the accident and detail of offending Tata Tempo and she approached the Noida Police where initial DD entry was recorded but despite repeated visits no action was taken and she was finally directed to approach the police station where the accident had taken place, as such she approached PS Murad Nagar, District Ghaziabad, UP and after few rounds of visits, finally on 18.10.2012 FIR No.452/12 was recorded by PS Murad Nagar, UP. She stated that the accident occurred solely due to the rash and negligent driving of the driver of DL1LE3882 and noneelse. Copy of ID card issued by the employer of the deceased is Ex.PW1/1, copy of death summary of the deceased is Ex.PW1/2, copy of death certificate is Ex.PW1/3, treatment record of the deceased is Ex.PW1/4 (colly), bills of Rs.70,000/ are Ex.PW1/5, copy of DD entry No.7 dated 08.04.2012 recorded by PS Sector34, Noida is Ex.PW1/6, copy of salary slip of the deceased is Ex.PW1/7, copy of election ID card of PW1 is Ex.PW1/8, copy of election ID card of petitioner No.2 is Ex.PW1/9, copy of educational qualification certificate of the deceased is Ex.PW1/10, copy of FIR is Ex.PW1/11 and copy of registration details of offending Tata 407 Tempo bearing No.DL1LE3882 is Ex.PW1/12.
Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 8 of 42
7. PW2 Shri Ajeet Verma stated that he is a summoned witness and copy of his election ID card is Ex.PW2/1. He stated that on 06.04.2012, he was returning from Meerut and was going towards Ghaziabad at about 11.00 p.m. On reaching Murad Nagar, near Balaji Dhaba an Activa bearing No.UP14BF7151 was going ahead of him at a distance of about 1025 steps. A Tata 407 (Tempo) bearing registration No.DL1LE3882 came from the opposite side and took a sudden turn without any signal or indicators and hit the Activa Scooter bearing No.UP14BF7151. He stated that the driver of the Activa Scooter fell on the road due to the impact of hitting him from behind. He stated that the Tata 407 bearing No.DL1LE3882 stopped after some distance and he also stopped upon seeing the accident. He went to help the victim. Few people from the side of Balaji Dhaba also came on the spot. 4 persons got down from the Tata 407 bearing No.DL1LE3882. He stated that the victim suffered some injuries on both legs and the public gathered also said that nothing had happened. Meanwhile the victim stood on his own leg. The four persons who got down from the Tata 407 fled away in their Tata 407 Tempo bearing No.DL1LE3882. He stated that the victim tried to board his Activa Scooter and developed sudden pain in his stomach area. On inquiry by PW2, the victim told his condition to him and on inquiry it was revealed that the victim was also resident of Khoda Colony Ghaziabad, where PW2 resided. He stated that the Activa Scooter of the victim was parked on the side of Balaji Dhaba and the victim was given lift by him on his motorcycle and was taken to his residence. He stated that the victim was conscious throughout but was complaining of Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 9 of 42 pain in his stomach. Upon reaching his residence, PW2 met a lady and told her about the occurrence of injuries to the victim and thereafter, he left for his residence after dropping the victim at his residence. He stated that the accident occurred due to the rash and negligent driving of Tata 407 Tempo bearing No.DL1LE3882. He stated that he had never been contacted by any police personnel till date with respect to the accident in question.
8. PW3 Dr. Pradeep, Satya Medical Centre Hospital deposed that he is working with Satya Medical Centre Hospital for the previous one year. He stated that he could identify the signatures on Ex.PW1/2 which were of Dr. Surender at point A. He had also brought the death summary of deceased Suresh Kashyap original of which is Ex.PW1/2. He stated that as per the death summary Suresh Kashyap was admitted because of road accident injuries sustained on 06.04.2012 and he was admitted in Satya Medical Hospital on 08.04.2012. He stated that the patient was detected with severe pain abdomen with lacerated injuries B/L legs due to alleged H/o RTA at Muradnagar, Meerut Road, U.P hit by unknown vehicle when the patient was on his scooty. He stated that in the normal course the said injuries result into death. He stated that the patient Suresh Kashyap also died while he was admitted and under treatment with Satya Medical Centre Hospital on 09.04.2012 at about 5.35 p.m. He had seen the original bill dated 09.04.2012 which is Ex.PW1/5 and he stated that the same was correct. He stated that an intimation by Satya Medical Centre Hospital was also given to the PS on Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 10 of 42 08.04.2012 when the patient arrived with road accidental injuries which is Ex.PW3/1. He stated that the injuries sustained by the patient as mentioned in the death summary could occur in a road accident. He stated that the post mortem was not conducted and the body was handed over to the relatives of the patient.
9. Shri Rahees Ahmad, Manager, Delhi ACB Service Center was produced as PW4 and he had brought the salary sheets and bonus sheets of Delhi ACB Service Center. His authority letter is Ex.PW4/1. He had brought the pages of salary register for the month of January 2012 till April 2012. He stated that the name of Suresh Kumar was mentioned in para 2 at point A on Ex.PW4/2. He stated that the last drawn salary for April 2012 of Shri Suresh Kumar S/o Shri Bhurey Lal was Rs.12,000/ mentioned at point B on Ex.PW4/2. He stated that Ex.PW4/2 bore the signatures of Abdul Rab who is the proprietor of Delhi ACB Service Center. He stated that the deceased was a permanent employee and was entitled for PF and ESI facilities of the company. He stated that normally in their company the salary increases once in a year. He stated that the salary of the deceased was Rs.10,000/ p.m. in January 2012 which was increased to Rs.12,000/ p.m. from February, 2012 and his salary continued to be the same at the time of the accidental death. He stated that the age of retirement for the employees in their company was 60 years. He stated that the deceased was a good worker. He had also brought the bonus disbursement sheet for the year 1.04.2011 to 31.03.2012 of Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 11 of 42 Delhi ACB Service Center and the same is Ex.PW4/3 and the bonus disbursed to Suresh Kumar is at entry No.3. He stated that a bonus @ 8.33% amounting to Rs.2624/ (on the basis of basic salary of 9 months) was given to the deceased in the financial year 01.04.2011 to 31.03.2012. PE was closed on 7.6.2014.
10. On behalf of the respondent Ms. Pallavee Thakral, Administrative Officer appeared in the witness box as R1W1 and led her evidence by way of affidavit which is Ex.R1W1/1. She deposed that the vehicle bearing No.DL1LE 3882 (Tata 407) was insured with the Oriental Insurance Co. Ltd. under policy No.212200/31/2006/1495 in the name of Shri Abhay Yadav, valid from 18.07.2005 to 17.07.2006. She stated that on 19.03.2006, the said vehicle was stolen and an FIR bearing No.263/2006, dated 31.03.2006 under Section 379 IPC was lodged with PS Dabri to that effect. She stated that Oriental Insurance Co. Ltd. paid the claim of the stolen vehicle to the insured Shri Abhay Singh Yadav in January, 2008. The insured executed a letter of subrogation dated 21.12.2007 in favour of the respondent thereby subrogating all the rights and remedies to the insurance company in respect of the stolen vehicle. Upon payment of the claim amount of Rs.2,47,925/ the stolen vehicle was registered in the name of the respondent on 25.07.2008, so that if the stolen vehicle was recovered in future, the insurance company may take the physical possession of the same. She stated that the stolen vehicle had not been recovered by the police till date. Photocopy of the insurance policy is Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 12 of 42 Mark A, claim payment voucher is Mark B, Letter of Undertaking is Mark C, Letter of Subrogation dated 21.12.2007 is Mark D, Letter of Indemnity is Mark E, Letter to RTO for transfer of registration certificate in the name of OICL dated 2.11.2007 is Mark F, copy of FIR dated 21.3.2006 is Mark G, untraced report is Mark H. She stated that the petition was not maintainable qua the respondent in view of the fact that the vehicle in question was a stolen one which had never been recovered by the police, nor any intimation in respect thereof was ever communicated to the respondent. She stated that the insured merely transferred the registration of the stolen vehicle in the name of Oriental Insurance Co. Ltd. as per the rules framed in the claim manual guidelines and the insurance company never got physical possession of the stolen vehicle. Claim Guide Manual copy is Mark I. RE was closed on 25.7.2014.
11. I have heard the Learned Counsel for the petitioners as well as the Learned Counsel for the respondent and perused the record. The petitioners were also examined on 5.9.2014 and 27.9.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
12. My findings on the specific issues are as under:
Suit no.328/14
Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 13 of 42 Issue No. 1
13. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 14 of 42 It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
14. The case of the petitioners is that on 06.04.2012 at about 23.00 hrs Shri Suresh Kumar @ Suresh Kashyap was riding Activa Scooter bearing No.UP14BF7151 and was returning home towards Ghaziabad via Meerut Road, Muradnagar and on reaching Balaji Dhaba, Muradnagar, UP was hit by a speeding Tata Tempo bearing No.DL1LE3882 from behind, due to which Shri Suresh Kumar fell and sustained injuries. It was averred that the erring vehicle i.e. Tata Tempo driver stopped, came down and then fled from the spot and did not help the victim. It was averred that the injured was taken to Sai Hospital for First Aid and then referred to Satya Medical Centre Noida and due to the accidental injuries Shri Suresh Kumar died on 09.04.2012, leaving behind the petitioners as his legal heirs. It was averred that the accident Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 15 of 42 occurred solely due to the rash and negligent driving of Tata Tempo bearing No.DL1LE3882 and none else. It was stated that an FIR No.452/12 dated 18.10.2012 under Sections 279/338/304A of IPC was registered at PS Muradnagar, Ghaziabad and DD entry No.7 was recorded on 08.04.2012 at PS Sector24 Gautambudh Nagar, UP. The petitioner No.1 in paras 1, 2 and 5 of her affidavit Ex.PW1/A had reiterated the manner of accident as stated in the claim petition. She stated that she is the widow of Late Shri Suresh Kumar also known as Suresh Kumar Kashyap who died due to road accident dated 06.04.2012 at about 11 p.m. on GhaziabadMeerut Road near Balaji Dhaba Muradnagar, UP. She stated that on 06.04.2012 Shri Suresh Kumar was returning home towards Ghaziabad via Meerut Road, at about 11 p.m. On reaching Muradnagar Balaji Dhaba he was hit by a speeding Tata Tempo/Tata 407 bearing registration No.DL1LE3882 from behind due to which Shri Suresh Kumar fell and sustained injuries and he was dropped by a road user Shri Ajit S/o Shri Chotelal. She stated that the deceased suffered internal injuries in the abdomen with lacerated injuries on both legs and was conscious when dropped by Ajit. She stated that the deceased narrated the accident to her. She stated that as the pain in the abdomen of the deceased became severe he was taken to Sai Hospital Vandana Enclave Sector62 Noida for checkup on 07.04.2012, as doctors opined surgery, Shri Suresh Kumar was taken to Satya Medical Centre Sector 34 Noida for treatment of accidental injuries on 08.04.2012 and was treated surgically and kept on ventilator, but despite best of treatment Shri Suresh Kumar died at about 5.35 p.m. on 09.04.2012. She Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 16 of 42 stated that after the demise of Suresh @ Suresh Kumar Kashyap, she approached Shri Ajit who narrated the accident and detail of offending Tata Tempo and she approached the Noida Police where initial DD entry was recorded but despite repeated visits no action was taken and she was finally directed to approach the police station where the accident had taken place, as such she approached PS Murad Nagar, District Ghaziabad, UP and after few rounds of visits, finally on 18.10.2012 FIR No.452/12 was recorded by PS Murad Nagar, UP. She stated that the accident occurred solely due to the rash and negligent driving of the driver of DL1LE3882 and noneelse. The petitioners had also examined PW2 in support of their case who had reiterated the mode and manner of the accident.
15. The petitioners have placed on record the criminal record consisting of copy of death summary of the deceased which is Ex.PW1/2, copy of death certificate which is Ex.PW1/3, treatment record of the deceased which is Ex.PW1/4 (colly), bills of Rs.70,000/ which are Ex.PW1/5, copy of DD entry No.7 dated 08.04.2012 recorded by PS Sector34, Noida which is Ex.PW1/6, copy of FIR which is Ex.PW1/11 and copy of registration details of offending Tata 407 Tempo bearing No.DL1LE3882 which is Ex.PW1/12. As per the FIR No.452/12 under sections 279/338/304A IPC, PS Murad Nagar, Ghaziabad the case was registered on the basis of the complaint of the petitioner No.1 wherein she had stated about the manner of the accident.
Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 17 of 42
16. The respondent had filed the written statement averring that the vehicle bearing No.DL1LE3882 (Tata 407) was insured with the Oriental Insurance Co. Ltd. under policy No.212200/31/2006/1495 in the name of Shri Abhay Yadav, valid from 18.07.2005 to 17.07.2006. It was averred that on 19.03.2006, the said vehicle was stolen and an FIR bearing No.263/2006, dated 31.03.2006 under Section 379 IPC was lodged with PS Dabri. Oriental Insurance Co. Ltd. paid the claim of the stolen vehicle to the insured Shri Abhay Singh Yadav in January, 2008. The insured executed a letter of subrogation dated 21.12.2007 in favour of the respondent thereby subrogating all the rights and remedies to the insurance company in respect of the stolen vehicle. Upon payment of the claim amount of Rs.2,47,925/ the stolen vehicle was registered in the name of the respondent on 25.07.2008, so that if the stolen vehicle was recovered in future, the insurance company may take the physical possession of the same. It was averred that the stolen vehicle had not been recovered by the police till date. It was stated that the petition was not maintainable qua the respondent in view of the fact that the vehicle in question was a stolen one which had never been recovered by the police, nor any intimation in respect thereof was ever communicated to the respondent. It was averred that the insured merely transferred the registration of the stolen vehicle in the name of Oriental Insurance Co. Ltd. as per the rules framed in the claim manual guidelines and the insurance company never got physical possession of the stolen vehicle. Without prejudice to the rights and contentions of the respondent, it was averred that the stolen vehicle was not Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 18 of 42 involved in the alleged accident. It was averred that the alleged accident took place on 06.04.2012, but the FIR in respect of the same was lodged on 18.10.2012 with PS Murad Nagar, Ghaziabad, after more than six months, which cast serious doubt over the genuineness of the involvement of the stolen vehicle in the alleged accident and it was a clear case of hit and run. It was averred that the stolen vehicle was in the possession of a criminal/ unauthorized person without having any insurance cover and the respondent was not liable to pay any claim in respect thereof. It was averred that the informant was not an eye witness and the testimony of Shri Ajit claimed to be the eye witness of the alleged accident seemed to be a concocted and cooked up version and did not inspire any confidence and was aimed at getting unlawful claim from the respondent. It was averred that the claim petition was shrouded with mystery in view of the fact that there was no postmortem report of the deceased. It was averred that as per the petition as well as the FIR, the alleged accident took place on 06.04.2012, however, the deceased was admitted in the hospital on 08.04.2012 with the problem of intestinal perforation with septic shock which had nothing to do with the alleged accidental injuries. It was averred that no MLC was prepared in respect of the alleged accident and there was no immediate police report, which cast serious doubt upon the occurrence of the alleged accident. It was averred that the petitioners are not entitled to claim any compensation from the respondent as the petitioner himself (ought to be deceased) was rash and negligent and he was solely responsible for the alleged accident. It was averred that the Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 19 of 42 deceased was not holding any effective and valid driving license at the time of the alleged accident. It was denied that the stolen Tata Tempo bearing No.DL1LE3882 was involved in the alleged accident. The respondent in support of its case had produced R1W1 in the witness box who had reiterated the averments made in the written statement. She deposed that the stolen vehicle had not been recovered by the police till date. Photocopy of the insurance policy is Mark A, claim payment voucher is Mark B, Letter of Undertaking is Mark C, Letter of Subrogation dated 21.12.2007 is Mark D, Letter of Indemnity is Mark E, Letter to RTO for transfer of registration certificate in the name of OICL dated 2.11.2007 is Mark F, copy of FIR dated 21.3.2006 is Mark G, untraced report is Mark H. She stated that the petition was not maintainable qua the respondent in view of the fact that the vehicle in question was a stolen one which had never been recovered by the police, nor any intimation in respect thereof was ever communicated to the respondent. She stated that the insured merely transferred the registration of the stolen vehicle in the name of Oriental Insurance Co. Ltd. as per the rules framed in the claim manual guidelines and the insurance company never got physical possession of the stolen vehicle. Claim Guide Manual copy is Mark I.
17. During crossexamination by the learned counsel for the respondent PW1 admitted that she is a resident of Ghaziabad. She admitted that she had no residential address of Delhi. She admitted that she was not an eye witness to the accident in question. She stated that the accident occurred on Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 20 of 42 06.04.2012 at about 11.00 p.m. She came to know about the accident when a boy named Ajeet brought her injured husband to her home at about 1.30 a.m. She stated that she did not know Ajeet prior to the time he came to her house along with her injured husband. She denied the suggestion that she knew Ajeet and he had not accompanied her injured husband. She stated that Ajeet gave the vehicle number by which the accident occurred on 03.05.2012 when she visited his place. She did not remember the registration number of the offending vehicle. She stated that her husband was having DL on the date of accident. On the day of her examination she had not brought the same. However, she could search and produce the same. She denied the suggestion that her deceased husband was not holding DL at the time of the accident. She admitted that police had registered the FIR pertaining to the accident on 18.10.2012. She stated that she ran from pillar to post from one police station to the other. Thereafter, on 18.10.2012 finally an FIR was registered. She denied the suggestion that she had mentioned the registration number of the offending vehicle merely to get compensation and in fact the said vehicle was not involved in the accident. She stated that she had never been intimated by the police that the offending vehicle had been seized. She admitted that the police had never intimated till date that the driver of the offending vehicle had been arrested. She denied the suggestion that her husband died due to the accidental injuries dated 06.04.2012 and died due to any other reason except accidental injuries. She denied the suggestion that the death of her husband had not occurred due to the accidental injuries. She admitted that postmortem Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 21 of 42 was not conducted. She stated that her husband was admitted to the hospital on 07.04.2012. Thus PW1 admitted that she was not an eye witness to the accident in question and she came to know about the accident when a boy named Ajeet brought her injured husband to her home at about 1.30 a.m. She was crossexamined on the deceased having a DL and she stated that her husband was having DL on the date of accident though on the day of her examination she had not brought the same. As such PW1 was not an eye witness to the accident.
18. The petitioners in support of their case had examined PW2 and during crossexamination by the learned counsel for the respondent PW2 stated that he is 12th pass. At that time he did not have any document to show that he was 12th pass. He stated that at the time of the accident he was engaged in the occupation of ironing clothes at Khoda Village in front of his house. He stated that he had never appeared as witness in any Court prior to the said deposition. He stated that he received the summons and as such he had appeared before the Court. Thus PW2 had stated about appearing before the Court as he had received the summons and he had never appeared as witness in any court prior to the said deposition. PW2 stated that he had gone to Meerut to meet one of his friends namely Ajhar at Jakir Colony, Meerut. He reached Meerut at about 5.005.30 p.m. He stated that he had not phoned his friend. However, in the morning he had a talk on the phone that he would be reaching Meerut at about 5.005.30 p.m. He did not recollect the mobile Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 22 of 42 number on which he had talked to his friend. He stated that he was not having any mobile at that period of time. He stated that he rang his friend from an STD Booth. He denied the suggestion that he had neither rung nor gone to Meerut on the date in question. He stated that he was aged about 20 years when the said incident happened. He stated that he started from Meerut at about 9.30 p.m. He stated that he was having DL but he had not brought the same and he could produce the same, if required. He stated that the license was of Ghaziabad Authority. He did not remember the date of making of his DL. However, it was in the year 2011. He stated that the distance as per his information between Meerut to Murad Nagar was 3040 kms. He stated that he drives his motorcycle normally at a speed of 4050 km/hr. Thus PW2 was crossexamined on going to Meerut and having a DL. He stated that he was having a DL which was issued by the Ghaziabad Authority in 2011 though he had not brought the same. Further he stated that he had gone to Meerut to meet his friend with whom he had a talk in the morning though he did not recollect the mobile number on which he had talked to his friend and himself he had made a call from an STD Booth.
19. During further crossexamination PW2 admitted that the place where the accident occurred is a road having a divider. He stated that the Balaji Dhaba is situated before crossing the 'Nehar'. However, the exact distance was not known to him and it was night time when he was traveling. He stated that as per his knowledge, highway lights were there on the road where the Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 23 of 42 accident had occurred. He denied the suggestion that there were no highway lights over the place where the accident had occurred. He stated that the accident occurred near the Balaji Dhaba just ahead of 50 steps from Balaji Dhaba. He stated that there is a cut in the road divider where the accident had occurred. The cut between the divider was before few steps from the Balaji Dhaba. Thus PW2 was crossexamined on the spot of accident and there being highway lights over the place where the accident had occurred and he stated that as per his knowledge highway lights were there on the road. Even nothing to the contrary has been brought on record by the respondent. He stated that where the accident occurred the road was having a divider and a perusal of the site plan also shows the existence of a divider on the road. It is also seen that Balaji Dhaba was there near the spot of accident and there was a cut in the divider near the spot of the accident. PW2 also stated that he had seen the driving of Activa during his course of journey for about 45 km stretch. He stated that other vehicles were also plying on the road. There was only one scooter on the road. He stated that approximately, the speed of his motorcycle and the Activa scooter was almost same. He took note of the registration number of the Activa scooter when it fell down due to the accident. He remembered the scooter number because he parked the scooter after the accident at Balaji Dhaba. He stated that he had not written the registration number of Activa on any piece of paper. As such PW2 stated that he had seen the vehicle of the deceased for about 45 km and there was only one scooter of the road and the speed of his motorcycle and the Activa scooter was almost Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 24 of 42 the same. He was also crossexamined on remembering the number of the Activa and he stated that he remembered the scooter number because he had parked the scooter after the accident at Balaji Dhaba. PW2 stated that the accident took just near the cut on the road divider and a perusal of the site plan also shows that the spot of accident has been shown to be just near the cut on the road divider. It may be mentioned that PW2 had stated that the alleged offending vehicle had come from the opposite side and took a sudden turn without any signal or indicators and hit the Activa Scooter of the deceased and the driver of the Activa Scooter fell on the road due to the impact of hitting him from behind. However if the offending vehicle had taken a sudden turn then clearly it would have to slow down and if the Activa Scooter of the deceased had been hit from behind then the alleged offending vehicle would have taken a Uturn as it would have to be behind the Activa Scooter to hit it from behind and in that case the speed of the offending vehicle would have further been reduced. However there is no mechanical inspection report of the offending vehicle (which was never traced out) on record nor even of the Activa Scooter of the deceased and in any case the FIR was registered after more than 6 months of the accident. As such there is nothing to corroborate the testimony of PW2 regarding the manner of the accident.
20. During crossexamination PW2 also stated that he was alone on his motorcycle on the date of the accident. He stated that he saw the offending Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 25 of 42 vehicle Tata 407 Tempo for the first time when it hit the scooter. He stated that the offending Tata 407 tempo stopped after the occurrence of accident at a distance of about 50 steps. He saw the accident from a distance of 2025 steps. He stated that he saw the number of offending vehicle Tata 407 when it stopped and 4 physically strong men got down. He had not noted the registration number of the offending Tata 407 on any piece of paper. He stated that he remembered the registration number of the Tata 407 because the accident occurred in his presence and it hit the scooter. He denied the suggestion that he had not acknowledged the registration number of the offending vehicle Tata 407. Thus PW2 was crossexamined on remembering the registration number of the offending vehicle and PW2 stated that he was alone on his motorcycle on the date of the accident. It is pertinent that PW2 stated that he saw the offending vehicle Tata 407 Tempo for the first time when it hit the scooter and as such he had not seen it prior to the accident. He stated that the offending Tata 407 tempo stopped after the occurrence of accident at a distance of about 50 steps and he saw the accident from a distance of 2025 steps and that he saw the number of offending vehicle Tata 407 when it stopped and 4 physically strong men got down. However that means that the alleged offending vehicle would have been more than 75 steps away from PW2 and though PW2 had stated about the presence of highway lights it cannot be lost sight of that it was night time. PW2 stated that he had not noted the registration number of the offending Tata 407 on any piece of paper though he stated that he remembered the registration number of the Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 26 of 42 Tata 407 because the accident occurred in his presence and it hit the scooter. However he had by his own statement seen the Tata 407 for the first time when it hit the scooter and he had seen the number when it stopped at a distance of about 50 steps after the occurrence of the accident i.e. about 75 steps away from him.
21. During further crossexamination PW2 admitted that he had not narrated the said incident to the police. He stated that he told the registration number of the offending vehicle when the wife of the victim approached him in the starting of May, 2012. He did not remember the exact date. He stated that he told his address orally to the wife of the victim when he went to the house to drop the victim after the road accident. He admitted that he had never gone to the house of the victim thereafter. He denied the suggestion that no such registration number was communicated to the wife of the victim and never the wife of the victim approached him. He stated that he reached at about 1.00 a.m in the intervening night at the house of the victim. He stated that the accident occurred at about 11.00 p.m. He stated that the distance from the spot of accident to the house of the victim would be about 30 kms. He stated that he left the spot of accident along with the victim after about 2530 minutes after the occurrence of the accident. He denied the suggestion that he was not present on the spot of the accident when the accident occurred or that he was deposing falsely at the behest of the victim family to help them in getting compensation. PW2 had stated about giving lift to the victim and taking him to Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 27 of 42 his residence and PW1 had also stated about PW2 bringing the deceased to the house and PW2 was crossexamined regarding the same. It is pertinent that PW2 stated that he reached at about 1.00 a.m in the intervening night at the house of the victim and even PW1 had stated that she came to know about the accident when a boy named Ajeet brought her injured husband to her home at about 1.30 a.m. though the accident occurred at about 11.00 p.m. and the distance from the spot of accident to the house of the victim would be about 30 kms and he left the spot of accident along with the victim after about 2530 minutes after the occurrence of the accident. Clearly it could not have taken about 1 ½ hours to reach the house of the victim which was at a distance of only 30 kms from the spot of the accident and it is also not the case put forth by PW2 that he had taken the deceased to any hospital for checkup as he was complaining of pain in his stomach. It is also significant that PW2 himself stated that he had not narrated the said incident to the police whereas he could have informed the police when the accident took place. Moreover he could have informed the police at least when the wife of the deceased allegedly met him and he would have come to know that the deceased had expired.
22. PW2 had stated that he had told the registration number of the offending vehicle when the wife of the victim approached him in the starting of May, 2012 though he did not remember the exact date and PW1 had stated during crossexamination that Ajeet gave the vehicle number by which the Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 28 of 42 accident occurred on 3.5.2012 when she visited his place. It is significant that PW2 stated that he told his address orally to the wife of the victim when he went to the house to drop the victim after the road accident and he admitted that he had never gone to the house of the victim thereafter. However it cannot be believed that the petitioner No.1 would remember the address of PW2 told to her orally at the time when her husband was in an injured condition nearly one month after the accident as the accident had taken place on 6.4.2012 and PW1 had allegedly gone to the house of PW2 on 3.5.2012. PW1 had stated that she did not remember the registration number of the offending vehicle at present but she could remember the address of PW2 told to her orally after nearly one month and PW2 could also remember the registration number of the offending vehicle which he had not noted down anywhere after nearly one month of the accident. PW1 had stated that she did not know Ajeet prior to the time he came to her house along with her injured husband. However it may be mentioned that PW2 had stated that the victim was also the resident of Khoda Colony where he resided. It is pertinent that PW1 had stated that she ran from pillar to post from one police station to the other and on 18.10.2012 finally an FIR was registered and PW2 had stated that he never narrated the incident to the police and there is no explanation why PW1 never approached PW2 to make a statement before the police.
23. It is seen that as per the case of the petitioners the deceased met with an accident on 6.4.2012 and he was brought home by PW2 but no report was Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 29 of 42 made to the police immediately. PW1 had admitted during crossexamination that police had registered the FIR pertaining to the accident on 18.10.2012. She stated that she ran from pillar to post from one police station to the other. Thereafter, on 18.10.2012 finally an FIR was registered. However there is nothing to show that the petitioner had made any written complaint prior to the said date or to show that she tried to approach any court of law for passing appropriate directions. Clearly if the number of the offending vehicle was known to the petitioner on 3.5.2012 there was nothing which prevented a complaint being made immediately. It may also be mentioned that PW1 had stated that the deceased had narrated about the accident to her but she has not stated whether the number of the offending vehicle was told to her or not. The petitioners have relied on the fact that DD in respect of the accident was lodged at PS Sector 24 Noida as mentioned in the FIR. A copy of the said DD has been placed on record and the same shows that it was recorded on the information received from Satya Medical Centre and it mentioned that the deceased (who was then still alive) had been hit by an unknown vehicle on 6.4.2012 and there is nothing to show what follow up action was taken on the same. PW3 had also stated that an intimation by Satya Medical Centre Hospital was also given to the PS on 08.04.2012 when the patient arrived with road accidental injuries which is Ex.PW3/1 and the same mentions that the accident had been caused by an unknown vehicle. It is also pertinent that the same was not got recorded by the petitioners or by PW2 but by the Medical Centre. As such the FIR in which the number of the alleged offending vehicle Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 30 of 42 was mentioned was got registered only on 18.10.2012 i.e. after more than 6 months of the accident.
24. It is then the case of the respondent that no post mortem was got conducted in the present case and PW1 had admitted that postmortem was not conducted. She stated that her husband was admitted to the hospital on 07.04.2012. It may be mentioned at the cost of repetition that though PW2 had stated that the deceased had pain in his stomach the deceased was not taken to the hospital immediately and it was only later that he was taken to the hospital. The petitioners in support of their case in this regard had produced PW3 in the witness box who proved Ex.PW1/2 which is the death summary of the deceased Suresh Kashyap. He stated that as per the death summary Suresh Kashyap was admitted because of road accident injuries sustained on 06.04.2012 and he was admitted in Satya Medical Hospital on 08.04.2012 and a perusal of Ex.PW1/2 also shows the same though it also mentions that the deceased was hit by unknown vehicle. He stated that the patient was detected with severe pain abdomen with lacerated injuries B/L legs due to alleged H/o RTA at Muradnagar, Meerut Road, U.P hit by unknown vehicle when the patient was on his scooty. He stated that in the normal course the said injuries result into death though the same was nowhere mentioned in the death summary. He stated that the patient Suresh Kashyap also died while he was admitted and under treatment with Satya Medical Centre Hospital on 09.04.2012 at about 5.35 p.m. He had seen the original bill dated 09.04.2012 Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 31 of 42 which is Ex.PW1/5 and he stated that the same was correct. PW3 stated that the injuries sustained by the patient as mentioned in the death summary could occur in a road accident but again the same was nowhere stated in the death summary. It is pertinent that PW3 stated that the post mortem was not conducted and the body was handed over to the relatives of the patient.
25. During crossexamination by the learned counsel for the respondent PW3 stated that he is an MBBS doctor. He had not yet obtained any specialization. He admitted that Suresh Kashyap was admitted in Satya Medical Centre on 07.04.2012. He stated that he had no personal knowledge as to when the accident occurred on seeing the death summary, he could say that the accident had occurred on 06.04.2012 as it was mentioned therein. The photocopy of the MLC of the patient is Mark PW3/X. He could not say as to why the post mortem was not conducted on the body of Suresh Kashyap. He stated that it is not necessary that in all accidental cases post mortem is conducted, as in the present case the death summary was prepared in which the nature of injuries, treatment given and cause of death was mentioned, post mortem was not done in the case. He denied the suggestion that in each and every case of accidental death the post mortem is conducted. He stated that the injuries on abdomen as mentioned in the death summary were definitely sustained in the present case in road accident as it was normally in the road accident cases that such injuries were sustained. He admitted that he had not attended Shri Suresh Kashyap. He denied the suggestion that since he was Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 32 of 42 not an expert he could not say as to the contents of the death summary. He stated that he already recognized the signatures of Dr. Surender on the death summary. He denied the suggestion that since the patient had died naturally so the postmortem was not conducted in the present case. Thus PW3 admitted that Suresh Kashyap was admitted in Satya Medical Centre on 07.04.2012 though as per Ex.PW1/2 he was admitted on 8.4.2012. One document of Sai Hospital which is not dated is on record which states that Shri Suresh Kumar was admitted in the hospital on '7.4.11' at 11.00 a.m. as a case of RTA and blunt trauma abdomen and he was advised for surgery but the attendant refused so the patient was released at 6 p.m. on 7.4.12. However the said document was not got proved and it is not even clear when it was issued and by whom.
26. PW3 stated that he had no personal knowledge as to when the accident occurred and on seeing the death summary, he could say that the accident had occurred on 06.04.2012 as it was mentioned therein. The photocopy of the MLC of the patient is Mark PW3/X. PW3 was crossexamined on the post mortem not being conducted and he could not say as to why the post mortem was not conducted on the body of Suresh Kashyap. He stated that it is not necessary that in all accidental cases post mortem is conducted, as in the present case the death summary was prepared in which the nature of injuries, treatment given and cause of death was mentioned, post mortem was not done in the case. However a perusal of Ex.PW1/2 shows that the specific Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 33 of 42 cause of death was not mentioned in the same, nor even if the injuries sustained by the deceased could be caused in RTA. PW3 stated that the injuries on abdomen as mentioned in the death summary were definitely sustained in the present case in road accident as it was normally in the road accident cases that such injuries were sustained though he also admitted that he had not attended Shri Suresh Kashyap. A suggestion was put to him that since the patient had died naturally so the postmortem was not conducted in the present case which he denied. However it is significant that when the hospital had informed the police about the admission of the deceased there is no reason why the hospital did not inform the police about the death of the deceased and wait for instructions for post mortem to be conducted. Thus Ex.PW1/2 does mention history of RTA and intimation was also given by the hospital to the police and the injuries sustained by the deceased were also mentioned in Ex.PW1/2 but the cause of death was not specifically mentioned nor that such injuries were possible in an RTA and there is no plausible explanation why the post mortem was not done.
27. It is further significant that in the instant case even if it were accepted that the accident had been caused by the alleged offending vehicle bearing No.DL1LE3882 the said vehicle was never recovered pursuant to the accident and even the driver of the alleged offending vehicle was never arrested. During crossexamination PW1 had stated that she had never been intimated by the police that the offending vehicle had been seized. She admitted that Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 34 of 42 the police had never intimated till date that the driver of the offending vehicle had been arrested. Thus even to the knowledge of PW1 the offending vehicle had not been seized and the police had never intimated about the arrest of the driver of the offending vehicle. The learned counsel for the petitioners had argued that if the vehicle had not been recovered by the police the petitioners could not be denied compensation on that ground. However for grant of compensation it has to be established that the accident had been caused by the rash and negligent driving of the offending vehicle but in the instant case neither the vehicle was recovered nor the driver who was allegedly driving the offending vehicle rashly and negligently was ever arrested. The petitioners have themselves placed on record certified copy of the final report of the police dated 3.12.2012 as per which the vehicle bearing No.DL1LE3882 was found not to be a tempo as stated in the FIR but to be a Tata 407. It was also mentioned in the report that the said vehicle had been stolen from Delhi on 19.3.2006 and it was stated that the number of the offending vehicle was wrongly mentioned in the FIR as the said vehicle was not a tempo which carries passengers but a Tata 407 and that as the number of the vehicle was not correct, no clue could be found about the same. Thus the final report filed by the police also does not support the case of the petitioners regarding the involvement of vehicle No.DL 1LE 3882 and there is nothing to show that the petitioners had challenged the said report in any manner. Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 35 of 42
28. As mentioned in the final report of the police vehicle No.DL 1LE 3882 was stolen from Delhi on 19.3.2006 and that is also the case put up by the respondent that it was a stolen vehicle. During crossexamination by the learned counsel for the petitioners R1W1 stated that on 06.04.2012, tempo bearing No.DL1LE3882 (Tata 407) was registered in the name of Oriental Insurance Co. Ltd. She had no knowledge whether, any letter between the period of 31.03.2006 till the date of her examination was written by her company to any authority as to the traceability of whereabouts of vehicle bearing No.DL1LE3882. She had no knowledge whether any letter was written to the registering authority where the tempo bearing No.DL1LE3882 was registered so as to cancel the registration certificate of OIC. She stated that no letter had been written to the registering authority intimating that the tempo bearing No.DL1LE3882 was a stolen vehicle as per FIR dated 31.03.2006 volunteered a letter dated 02.11.2007, Mark F was written for transfer of registration certificate of vehicle No.DL1LE3882 from Shri Abhey Singh Yadav to OIC. She did not know whether any other letter except the letter dated 02.11.2007 was ever written to the registering authority. Thus R1W1 stated that on 06.04.2012, tempo bearing No.DL1LE3882 (Tata 407) was registered in the name of Oriental Insurance Co. Ltd. and that is not even in dispute.
29. R1W1 had no knowledge whether, any letter between the period of 31.03.2006 till the date of her examination was written by her company to any authority as to the traceability of whereabouts of vehicle bearing Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 36 of 42 No.DL1LE3882. However once the FIR was there and the respondent had got the vehicle transferred in its name there was no reason for it to write to any authority regarding the traceability of the whereabouts of the vehicle. She had no knowledge whether any letter was written to the registering authority where the tempo bearing No.DL1LE3882 was registered so as to cancel the registration certificate of OIC. However it is not clear why the respondent would write to the registering authority so as to cancel the registration certificate of OIC when it is the specific case of the respondent that upon the payment of the claim to the original owner of the vehicle the stolen vehicle was registered in the name of the respondent on 25.07.2008, so that if the stolen vehicle was recovered in future, the insurance company may take the physical possession of the same. Thus the purpose of the insurance company in getting the vehicle transferred in its name was that if it was recovered in the future it would become the property of the insurance company and there is no reason why it would write to get the registration cancelled. R1W1 stated that no letter had been written to the registering authority intimating that the tempo bearing No.DL1LE3882 was a stolen vehicle as per FIR dated 31.03.2006 volunteered a letter dated 02.11.2007, Mark F was written for transfer of registration certificate of vehicle No.DL1LE3882 from Shri Abhey Singh Yadav to OIC and clearly once that was done nothing further required to be done and there is no reason why any such letter should have been written to the registering authority. Thus as per the case of the respondent the vehicle bearing No.DL 1LE 3882 was stolen on 19.3.2006 in respect of which FIR was Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 37 of 42 got registered at PS Dabri, thereafter the respondent being the insurance company in respect of the vehicle paid the claim to the owner who executed the necessary documents in favour of the respondent and thereafter the respondent became the owner of the said vehicle. As such on the date of the alleged accident i.e. 6.4.2012 the respondent was in the capacity of the owner of the vehicle No.DL 1LE 3882 and clearly the said vehicle did not have any insurance cover as the vehicle was not even in the possession of the respondent.
30. Apart from the contention that the stolen vehicle was not involved in the alleged accident it is the contention of the respondent that it cannot be held liable even as the owner as the vehicle was not being driven by a person authorized by the respondent to drive the same. Per contra the learned counsel for the petitioners had argued that being the owner the presumption would be that the vehicle was being driven under the authority of the respondent and the respondent could not avoid its liability to pay the compensation amount. The learned counsel for the petitioners had relied on the judgment of the Hon'ble High Court of Delhi in MCD v. Raj Kishori Tiwari 2010 ACJ 581 where a scavenging van owned by MCD hit the deceased when it was driven by an unauthorized person and the plea taken was that the van was stolen and it was being driven by an unauthorized person and case of theft had been registered with the police. In the said case it was held that the owner was liable but it is pertinent that the Hon'ble High Court took note of the Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 38 of 42 fact that the Tribunal had held the person who was driving it equally liable to pay the compensation amount along with MCD whereas in the instant case the person who was allegedly driving the vehicle at the time of the accident is not known and was never arrested. Further in the case before the Hon'ble High Court the scavenging van at the time of the accident was under the control of the employee of MCD and it was held that it was clear neglect and carelessness on the part of the employees otherwise nobody could dare to attempt stealing the said heavy van which is again not so in the present case as in the present case vehicle No.DL 1LE 3882 had never been recovered in 6 years since it was stolen. It was observed in the said case that the fact that FIR was lodged could not absolve the employee of the MCD and the MCD being the employer from their acts of negligence in not taking proper care to protect and safeguard their vehicle which question again does not arise in the present case. It was observed in the said case:
"5. It would be thus manifest that the act of theft in itself would neither absolve the owner nor insurer to indemnify the risk of the third parties.
Primarily, a person can only be held responsible for the consequences of his own action. But in certain circumstances, by reason of the particular legal relationship with the wrongdoer, a person may be held liable for the wrongful act of another person. Such a liability, which is shown as vicarious liability in the law of torts, arises when there is relationship of master and servant or principal and agent between the person held liable and the person who has committed the wrongful acts. In order that a master may be held vicariously liable for the wrongful act of his Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 39 of 42 servant, it is however, necessary that the wrongful act of the servant must fall within the course of the servant's employment. Similarly, the principal can be held to be vicariously liable for the wrongful act of the agent provided that the wrongful act falls within the scope of his agency. In the instant case, the driver was assigned the job of removing sludge and it was in the course of employment of MCD that the accident occurred whatsoever be the reason, thus, the MCD is liable for the accident as much as the driver."
Thus it was held that in order that a master may be held vicariously liable for the wrongful act of his servant, it is necessary that the wrongful act of the servant must fall within the course of the servant's employment and the principal can be held to be vicariously liable for the wrongful act of the agent provided that the wrongful act falls within the scope of his agency which is not so in the present case.
31. The learned counsel for the petitioners has also relied on the judgment of the Hon'ble High Court of Kerala in Sasidharan Nair v. Ali and others 2010 ACJ 1061. However the said judgment is not applicable to the facts of the present case as in that case it was the insurance company which was held liable on the ground that the theft of vehicle and unauthorized use by a person who had stolen the vehicle could not be termed as a breach committed by the insured and it was held that the insurance company was at liberty to recover the amount from the person who was driving the motorcycle. In the present case apart from the fact that the person who was allegedly driving the vehicle Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 40 of 42 at the time of the accident is not known, the respondent is not the insurance company in respect of the vehicle but is the owner of the vehicle and in the above case it was specifically held that the insured who would be the owner could not be held liable for payment since there was no vicarious liability for the negligence on the part of the person who caused the accident. Thus this judgment also does not help the case of the petitioners. The learned counsel for the respondent had relied on the judgment of the Hon'ble Supreme Court in Eshwarappa @ Maheshwarappa & Anr. v. C.S. Gurushanthappa & Anr. [2010] 10 SCR 362 but the same would not help the case of the respondent specifically.
32. It is thus seen that though a DD was got registered by the hospital but there was a delay of more than 6 months in getting the FIR registered, the vehicle in question was a stolen vehicle and even in the present case it was never recovered nor the driver arrested and in the absence of the same merely on the testimony of PW2 it could not be said to be established that the accident had been caused by rash and negligent driving of vehicle No.DL 1LE 3882 when he had not even informed the police immediately, nor his statement was ever recorded and even the final report of the police does not support the case of the petitioners which casts a doubt on the identity of the vehicle which had allegedly caused the accident due to which the deceased died. No post mortem report was got prepared. Further the respondent who is the owner of the alleged offending vehicle could not be held liable for payment since there Suit no.328/14 Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 41 of 42 was no vicarious liability for the negligence on the part of the person who caused the accident. In view of the above discussion the claim petition is dismissed.
File be consigned to record room.
Announced in open court
On this 1st day of November, 2014 (GEETANJLI GOEL)
PO: MACT - 2
New Delhi.
Suit no.328/14
Mithlesh & Ors. v Oriental Insurance Co. Ltd. Page no. 42 of 42