Delhi District Court
Shri Mohd. Hussain vs U.P. State Roadways Transport ... on 27 October, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.365/14
Date of Institution: 05.08.2008
IN THE MATTER OF:
1. Shri Mohd. Hussain
S/o Mohd. Islam
2. Smt. Nooriya Khatoon
W/o Mohd. Hussain
Both R/0 286B, Mehboob Hotel
Hazrat Nizamuddin
New Delhi - 110013.
Permanent residents of
Village & P.O. Kataya
PS Beney Patti
District Madhubani
Bihar. ...Petitioners
Versus
1. U.P. State Roadways Transport Corporation
Through its Secretary
Lucknow, U.P.
2. The Regional Manager
U.P.S.R.T.C., Meerut, U.P.
Suit no.365/14
Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 1 of 22
3. Paley Ram (deceased) through LRs:
a) Smt. Mohini Devi
W/o Late Shri Paley Ram
b) Shri Sushil Kumar
S/o Late Shri Paley Ram
c) Shri Raju
S/o Late Shri Paley Ram
d) Shri Sachin
S/o Late Shri Paley Ram
All R/o Mahulla Arya Puri, Shamli
District Muzaffer Nagar, U.P. ...Respondents
Final Arguments heard : 01.10.2014 Award reserved for : 27.10.2014 Date of Award : 27.10.2014 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition initially 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 which was later converted into a petition under Section 163A of the Act.
2. It is the case of the petitioners (as per the amended petition) that on 19.04.2008 at about 6.20 a.m, the deceased Mukhtyar was sitting as Helper in Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 2 of 22 DCM Truck bearing registration No.DL1LE2776 and coming towards Delhi Haridwar. It is averred that the DCM was being driven by its driver at the correct speed observing the traffic rules and on the correct side of the road. When at about 6.20 a.m, the DCM Truck reached at G.T. Road, near Village Mandawli, suddenly a U.P. Roadways Bus bearing No.UP15W9992, which was being driven by its driver/ respondent No.3 at a very high speed, rashly, negligently, without blowing any horn and in contravention of the traffic rules came from behind i.e. from Haridwar side and hit the DCM Truck from behind with a great force. With the sudden and forceful impact, the deceased sustained grievous/ fatal head injuries. The deceased was removed to JNSM Sanyunkt Chikitsalaya, Roorki. After first aid, the deceased was shifted to Apex Trauma Centre (AIIMS), New Delhi, and the deceased unfortunately died on 05.05.2008, due to the injuries sustained in the road accident. It is averred that the accident took place solely due to the rash and negligent driving of the respondent No.3, who drove the offending vehicle at a very high speed, rashly, negligently and no horn was given by the respondent No.3. It is averred that the respondent No.3 could have easily avoided and averted the fatal accident, had he driven his vehicle at a slow speed carefully and consciously and on his correct left side of the road. It is averred that the respondent No.3 failed to keep proper lookout and did not observe proper care and caution as was expected from a prudent driver and had driven his vehicle in violation of the traffic rules and was entirely responsible for the fatal accident and hence liable to pay the compensation. It is averred that the Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 3 of 22 respondents No.1 and 2 are vicariously liable to pay the compensation being the owner of the offending vehicle/ UP Roadways Bus. It is averred that the driver/ respondent No.3 was driving the offending bus under the employment, supervision and control of the respondents No.1 and 2 owner/ U.P. Roadways Transport Corporation. It is stated that in respect of the accident FIR No. 132/2008 under Sections 279/337/338/304A/427 IPC was registered at PS Manglaur, Haridwar.
3. It is averred that the deceased was just 25 years of age with sound health and physique. He was not a victim of any disease whatsoever. It is averred that if the deceased had not been crushed to untimely death he would have survived and earned in all probabilities upto the age of 80 years as there is history of longevity of life in the family of the deceased. It is averred that the deceased was unmarried. He was doing private service as helper on DCM Truck and he was earning about Rs.3,300/ per month. It is averred that the deceased was paying the whole of his income to the petitioners for household expenses and if he had not been killed in the accident, he would have earned double of his present income in the near future. It is averred that due to the death of the deceased, the petitioners lost their both times meals. The death of the deceased had also adversely affected the future of the family for the whole life apart from suffering sorrows and love and affection. It is averred that the deceased was a man of simple habits and a teetotaler. He was having no expenses of his own and was totally dependent on homemade food. It is Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 4 of 22 averred that the petitioners were deprived of the entire income of the deceased. It is stated that the petitioners are the only legal heirs of the deceased. It is stated that an amount of Rs.50,000/ was spent on medical treatment and cremation. It is prayed that an amount of Rs.20,00,000/ be awarded as compensation in favour of the petitioners and against the respondents, on account of unnatural and premature death of the deceased, loss of enjoyment, mental pain and agony, loss of affections, loss of company, loss of expectancy, loss of dependency, funeral expenses, loss of future prospects and other special and general damages.
4. Written statement was filed on behalf of the respondents No.1 and 2 to the amended claim petition making the preliminary submissions that the petitioners have not come with clean hands / true facts before the Tribunal and have filed the petition on uncertified, manipulated facts. It is averred that the petition against the respondents is without any cause of action as there was no negligent driving on the part of the driver of the bus owned by the respondents No.1 and 2. It is averred that the driver of the bus was coming from Agra towards Saharanpur while driving the bus bearing No.UP15W9992 and at about 6 a.m when the bus reached near Mandawali at that time a DCM Truck No.DL1LE2776 was coming from opposite direction and the bus was hit from behind by a truck No.HR55B6318 with the result that the bus hit against the DCM Truck. It is averred that the accident was solely caused due to the rash and negligent driving on the part of the drivers of both the trucks. It is averred Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 5 of 22 that the petitioners are not the legal heirs of the deceased and are not entitle for the compensation as claimed. It is averred that the petitioners have not given the basis on which the amount claimed has been arrived at. It is averred that the petition is bad for nonjoinder of necessary parties. It is stated that the driver, owner and insurer of truck bearing No.HR55B6318 and truck No.DL1LE2776 are necessary parties and in their absence the petition cannot be adjudicated upon properly. It is averred that the deceased was alleged to be a cleaner in truck bearing No.DL1LE2776 and his dependents are entitled to claim compensation under Workmen's Compensation Act. The averments made in the claim petition were denied. It is stated that the accident was caused due to the rash and negligent driving on the part of the drivers of trucks bearing No.HR55B6318 and DL1LE2776. It is averred that the police registered a false case against the driver of the bus. It is averred that the bus was owned by the respondent No.1 and not by the respondent No.2. It is averred that the amount claimed is exorbitant, arbitrary and without any basis. The allegations regarding rash and negligent driving on the part of the driver of the bus were denied. It is averred that the accident was not caused due to the sole negligence on the part of the driver of the bus. The accident was the result of rash and negligent driving on the part of the drivers of both the trucks.
5. Written statement was filed on behalf of the LRs of the respondent No.3 taking the preliminary objections that the petitioners have not come to the Tribunal with clean hands and have suppressed the true and material facts Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 6 of 22 with a view to mislead the Court and get the desired results and have filed the petition on the ground of unverified and manipulated facts. It is averred that the petition against the respondent is without any cause of action as there was no negligent and rash driving on the part of the driver of the offending vehicle. It is averred that the driver of the offending vehicle was following the vehicle No.DL1LE2776 and when both vehicles reached at the spot (where the accident occurred) another vehicle bearing No.HR55B6318 coming from behind in a most rash and negligent manner hit the vehicle being driven by the deceased/ respondent No.3 (whose LRs are parties) and it further hit the DCM No.DL1LE2776, and the accident in question occurred. It is averred that it is proved that Paley Ram (deceased) driving the bus No.UP15W9992 of UP Roadways was not driving the vehicle in a rash and negligent manner. It is averred that the petitioners have not filed any documents on record to show that they were in relation of the deceased and thus, the identities of the petitioners were disputed. It is averred that the compensation claimed by the petitioners has not been legally computed by them. It is averred that the petition is bad for nonjoinder of necessary parties. It is averred that the driver, owner and insurer of the truck bearing No.HR55B2776, are the necessary parties. The averments made in the claim petition were denied. It is averred that the petitioners have not mentioned the name and address of the employer with whom the deceased was working. It is averred that the accident was caused due to the rash and negligent driving on the part of the drivers of the trucks bearing No.HR55B6318 and DL1LE2776. It is averred that the police Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 7 of 22 registered a false case against the driver of the bus bearing No. UP15W9992. It is averred that the bus was owned by the respondent No.1 and not by the respondent No.2. It is denied that the petitioners are the legal heirs of the deceased. It is averred that the amount claimed is exorbitant, arbitrary and without any basis. The allegations regarding rash and negligent driving on the part of the driver of the bus were denied. It is stated that the accident was not caused due to the negligence on the part of the driver of the bus and the accident was the result of rash and negligent driving on the part of the driver of Truck bearing No.HR55B6318.
6. An application under Section 151 CPC was filed on behalf of the petitioners to implead the driver as the respondent No.3 which was allowed vide order dated 12.5.2009 of my learned predecessor. On 1.6.2009 it was stated that the driver of the bus had also expired on the day of the accident. Vide order dated 6.1.2010 of my learned predecessor the petitioners were directed to bring evidence for determination of compensation. An application was filed on behalf of the petitioners to implead the LRs of the respondent No. 3 driver which was allowed vide order dated 8.11.2011 of my learned predecessor. An application under order 6 rule 17 CPC was filed on behalf of the petitioners for amendment of the petition and for converting the same to a petition under Section 163A of the Act which was allowed vide order dated 3.4.2012 of my learned predecessor. As per the order sheet dated 10.5.2012 the application filed to implead the LRs of the deceased driver, respondent No. Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 8 of 22 3 was allowed. From the pleadings of the parties, the following issues were framed by my learned predecessor vide order dated 22.08.2012:
1. Whether the deceased sustained injuries in the accident which occurred on 19.04.2008 at about 6.20 a.m, near Village Mandawli, G.T. Road, PS Manglaur, (Delhi Haridwar Road), caused by rash and negligent driving of vehicle No.UP15W9992 driven by respondent No.3, owned by respondents No.1 and 2? OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. The claim petition was dismissed in default vide order dated 27.2.2013 of my learned predecessor. Thereafter an application under order 9 rule 9 CPC was filed on behalf of the petitioners for restoration of the petition along with an application under Section 5 of the Limitation Act which was allowed vide order dated 6.2.2014. It was also directed by the said order that the petitioners shall not be entitled to any interest for the delay occasioned on account of dismissal of the petition from 27.2.2013 till 6.2.2014. An application under order 6 rule 17 CPC was filed on behalf of the petitioners for amendment in the name and parentage of the petitioners which was dismissed vide order dated 5.6.2014.Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 9 of 22
8. Husheni Momin entered into the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He stated that the driver of the DCM truck had also expired due to the accident. He stated that he had spent a sum of Rs.50,000/ towards treatment and cremation ceremony of his son. He stated that the deceased was the only earning member in the family. Copy of his election I Card is Ex.PW1/1, copy of Ration Card is Ex.PW1/2, election I card of his wife is Ex.PW1/3, copy of FIR is Ex.PW1/4, copy of site plan is Ex.PW1/5, copy of final report is Ex.PW1/6 and Mechanical Inspection report of the offending vehicle / bus is Ex.PW1/7, certificate of burial issued by the Kabristan is Mark A, copy of medical bills is Mark B, copy of document of hospital is Mark C and copy of voter list is Mark CA.
9. Dr. Manish Kumath, Associate of Department of Forensic Medicine, Safdarjung Hospital, Delhi was examined as PW2 and he had brought the copy of the postmortem report of the deceased Mukhtyar, which is Ex.PW2/A. He stated that as per the same, it was a case of Septicemia consequent upon injury sustained by blunt force which could be possible in a road traffic accident.
10. I have heard the Learned Counsels for the respondents No.1 and 2 and 3 and perused the record. Written arguments were filed on behalf of the petitioners which I have perused.Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 10 of 22
11. My findings on the specific issues are as under:Issue No. 1
12. It is the case of the petitioners that on 19.04.2008 at about 6.20 a.m, the deceased Mukhtyar was sitting as Helper in DCM Truck bearing registration No.DL1LE2776 and coming towards Delhi Haridwar. It was averred that the DCM was being driven by its driver at the correct speed observing the traffic rules and on the correct side of the road. When at about 6.20 a.m, the DCM Truck reached at G.T. Road, near Village Mandawli, suddenly a U.P. Roadways Bus bearing No.UP15W9992, which was being driven by its driver/ respondent No.3 at a very high speed, rashly, negligently, without blowing any horn and in contravention of the traffic rules came from behind i.e. from Haridwar side and hit the DCM Truck from behind with a great force. With the sudden and forceful impact, the deceased sustained grievous/ fatal head injuries. The deceased was removed to JNSM Sanyunkt Chikitsalaya, Roorki. After first aid, the deceased was shifted to Apex Trauma Centre (AIIMS), New Delhi, and the deceased unfortunately died on 05.05.2008, due to the injuries sustained in the road accident. It was averred that the accident took place solely due to the rash and negligent driving of the respondent No.3, who drove the offending vehicle at a very high speed, rashly, negligently and no horn was given by the respondent No.3. It was averred that the respondent No.3 could have easily avoided and averted the fatal accident, Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 11 of 22 had he driven his vehicle at a slow speed carefully and consciously and on his correct left side of the road. It was averred that the respondent No.3 failed to keep proper lookout and did not observe proper care and caution as was expected from a prudent driver and had driven his vehicle in violation of the traffic rules and was entirely responsible for the fatal accident. It was stated that in respect of the accident FIR No.132/2008 under Sections 279/337/338/304A/427 IPC was registered at PS Manglaur, Haridwar. PW1 in paras 3 and 5 of his affidavit Ex.PW1/A had deposed to that effect.
13. The respondent No.3 who was the driver of the alleged offending bus had expired and written statement was filed on behalf of the LRs of the respondent No.3 averring that there was no negligent and rash driving on the part of the driver of the offending vehicle. It was averred that the driver of the offending vehicle was following the vehicle No.DL1LE2776 and when both vehicles reached at the spot (where the accident occurred) another vehicle bearing No.HR55B6318 coming from behind in a most rash and negligent manner hit the vehicle being driven by the deceased/ respondent No.3 (whose LRs are parties) and it further hit the DCM No.DL1LE2776, and the accident in question occurred. It was averred that it was proved that Paley Ram (deceased) driving the bus No.UP15W9992 of UP Roadways was not driving the vehicle in a rash and negligent manner. It was averred that the accident was caused due to the rash and negligent driving on the part of the drivers of the trucks bearing No.HR55B6318 and DL1LE2776 and the police Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 12 of 22 registered a false case against the driver of the bus bearing No. UP15W9992. The allegations regarding rash and negligent driving on the part of the driver of the bus were denied. It was stated that the accident was not caused due to the negligence on the part of the driver of the bus and the accident was the result of rash and negligent driving on the part of the driver of Truck bearing No.HR55B6318.
14. At the outset, it may be mentioned that in the written statement filed on behalf of the LRs of the respondent No.3 it was averred that the petitioners had not filed any documents on record to show that they were in relation of the deceased and thus, the identities of the petitioners were disputed. The learned counsel for the respondents No.1 and 2 had also argued that the petitioners were not the legal representatives of the deceased.
15. Per contra on behalf of the petitioners it was argued that the petitioners had filed the present claim petition through their previous counsel but the previous counsel for the petitioners had filed the claim petition by mentioning their wrong names, parentage and addresses. It was argued that the petitioners changed their counsel who after going through the documents came to know that the claim petition was filed by the previous counsel in their different names which were not mentioned in their documents and as per the documents the names and parentage of both the petitioners were Husheni Momin S/o Islam Momin and Nurajaho W/o Husheni Momin. It was argued Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 13 of 22 that the new counsel for the petitioners had also filed an application under Order 6 rule 17 CPC read with Section 151 CPC for amending the names of the petitioners and their parentage along with amended memo of the parties and in support of their correct names the petitioners produced the voter list before the Ld. Trial Court in which the name of the father of the deceased was mentioned as Husheni Momin i.e. the petitioner No.1 but despite that the said application was dismissed by the court vide order dated 05.06.2014. It was argued that both the petitioners are illiterate persons and had only put their thumb impressions on the claim petition etc. at the instructions of their previous counsel and the previous counsel had not explained the contents of the claim petition to the petitioners. It was argued that even the photograph of the petitioner No.1 on the petition was the same. It was argued that the Ld. Trial court had failed to consider the fact that one person can have two different names and in the present matter both the petitioners were having their two names and on the ground that the petition had not been filed by the petitioners with their names which were mentioned on documents, the claim of the petitioners could not be effected because it was total negligence on the part of the previous counsel. It was argued that both the petitioners were having two names as mentioned and they were the real sufferers as their son had expired untimely.
16. It is thus seen that on behalf of the petitioners it was sought to be contended that the previous counsel for the petitioners had filed the claim Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 14 of 22 petition by mentioning their wrong names, parentage and addresses but the new counsel came to know that the claim petition was filed by the previous counsel in their different names which were not mentioned in their documents and filed an application under Order 6 rule 17 CPC read with Section 151 CPC for amending the names of the petitioners and their parentage. However a perusal of the record shows that not only in the petition which was filed but even in the documents which were prior to the petition such as the post mortem report the name of the father of the deceased was mentioned as Mohd. Hussain. Further the verification of the address of the petitioners was got done through the concerned SHO and then also the name of the petitioner No.1 was stated to be Mohd. Hussain. The application under order 6 rule 17 CPC filed for amendment in the name and parentage of the petitioners was dismissed vide order dated 5.6.2014 observing:
"Learned counsel for the petitioner has placed on record a copy of Voter List from Bihar of the year 2011, which shows the name of father of Mukhtar as Husheni Momin. However, in the present case, the petitioners were directed to produce some documents to show that Mohd. Hussain and Husheni Momin are one and the same. Learned counsel has submitted that there is no document to show the same.
Perusal of the record shows that throughout the matter was proceeded in the name of Mohd. Hussain, and even the claim petition was filed by Mohd. Hussain S/o Mohd. Islam and Smt. Nooriya Khatoon W/o Mohd. Hussain. Even the affidavit, that was filed in support of the claim petition showing the address of the petitioner, was of Mohd. Hussain S/o Mohd. Islam. Affidavits filed in support of applications filed on behalf of petitioners were also given by Mohd. Hussain S/o Mohd.Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 15 of 22
Islam and the name of father of deceased Mukhtar was clearly stated as Mohd. Hussain. Postmortem Report also shows the name of father of deceased as Mohd. Hussain, as also the certificate of Burial issued on 07.05.2008, the certificate issued by the proprietor of Mehboob Hotel, was also in favour of Mohd. Hussain S/o Mohd. Islam and the Verification Report of the PS was also to that effect. Further when the application under Order 9 Rule 9 CPC, was filed on behalf of the petitioner, therein as well affidavit of Mohd. Hussain S/o Mohd. Islam was filed and it is only when the evidence by way of affidavit was filed, it was sought to be filed in the name of Husheni Momin S/o Islam Momin. Learned counsel has sought to rely upon the ration card to show that Mukhtar was the son of petitioners but the same does not establish anything as the ration card is in the name of Husheni Momin."
However there is nothing to show that till date the said order has been challenged by the petitioners. PW1 was also crossexamined in regard to the identity of the petitioners and during crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that he is illiterate. He stated that the name of his son was Mukhtyar Momin. He stated that he had placed on record ration card to show that Mukhtyar was his son. However as observed in the order dated 5.6.2014 the same did not establish anything as the ration card was in the name of Husheni Momin. The petitioners had also placed reliance on the voter list which contains the name of the deceased but it is seen that the same is of 2011 whereas the deceased had expired in May, 2008. It may be mentioned that the permanent address of Bihar of the petitioners to the claim petition and of Husheni Momin and Nurajaho is of Vill. & P.O. Kataya, District Madhubani (except for some variations in the house number in the various documents which have been filed by the petitioners) but the present is Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 16 of 22 not a case of there being some typographical error in the names which was sought to be corrected but the name and parentage of the petitioners was sought to be changed without anything being brought on record to show that Mohd. Hussain and Husheni Momin are one and the same persons and for nearly 6 years the name of Mohd. Hussain was there in all the applications and affidavits and documents which were filed before the court. In fact even no document in respect of the deceased to show his identity was filed and the voter list on which reliance was placed was of 2011.
17. The petitioners have sought to put the blame on the previous counsel for the wrong names being given in the claim petition but the same is clearly misplaced as the previous counsel could not have come up with the names on his own and would have mentioned the names and parentage only as told by the petitioners. Further the application under Order 9 rule 9 CPC was filed by the present counsel and thereafter an application was also filed under Section 5 of Limitation Act for condonation of delay in filing the application under Order 9 rule 9 CPC and in support of both the applications the affidavit of Mohd. Hussain s/o Mohd. Islam was filed. It was argued on behalf of the petitioners that the petitioners are illiterate persons and had only put their thumb impressions on the claim petition etc. at the instructions of their previous counsel and the previous counsel had not explained the contents of the claim petition to the petitioners but if that were so the whole basis of the claim petition goes as the petitioners are supposed to know the contents of the claim Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 17 of 22 petition filed on their behalf. In the written arguments that were filed it was also argued that the Ld. Trial court had failed to consider the fact that one person can have two different names and in the present matter both the petitioners were having their two names and on the ground that the petition had not been filed by the petitioners with their names which were mentioned on documents, the claim of the petitioners could not be effected because it was total negligence on the part of the previous counsel, however if that were so then the name of the husband of the petitioner No.2 would also not be different. Even otherwise there is nothing to show that the order dated 5.6.2014 has been challenged by the petitioners.
18. It was then argued by the learned counsel for the respondents No.1 and 2 that there was nothing to show that Mukhtyar died in the accident and as per the documents only the drivers died and there was nothing about the passenger and the charge sheet also mentioned only Sonu Kumar and Paley Ram and there was no mention of Mukhtyar. On behalf of the petitioners it was argued that the respondents No.1 and 2 appeared before the Court and filed their written statement and in the written statement filed by the respondents No.1 and 2 which is dated 14.07.2012, they admitted that, 'the deceased was alleged to be a cleaner in truck bearing No.DL1LE2776 and his dependents are entitled to claim compensation under workmen's Compensation', which clearly shows that the deceased son of the petitioners expired in the same very accident which took place on 19.04.2008. It was argued that the demise Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 18 of 22 of the deceased Mukhtyar was not disputed by the respondents in the said accident. However the averment in the written statement of the respondents No.1 and 2 that 'the deceased was alleged to be a cleaner in truck bearing No.DL1LE2776 and his dependents are entitled to claim compensation under workmen's Compensation' cannot be said to be any admission on the part of the respondents that the deceased expired in the accident which took place on 19.4.2008 nor would it establish that the deceased had indeed expired in the accident which took place on 19.4.2008.
19. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 admitted that the name of his son was not mentioned as one of the injured in the FIR nor in the final report. He denied the suggestion that his son did not sustain any injuries in the accident. He denied the suggestion that he had filed forged and fabricated documents. He denied the suggestion that his son sustained injuries in some other accident and not in the accident in question or that he had filed a false claim. Thus PW1 himself admitted that the name of his son was not mentioned as one of the injured in the FIR nor in the final report though he denied the suggestion that his son did not sustain any injuries in the accident or that his son sustained injuries in some other accident and not in the accident in question.
20. The petitioners have placed on record copy of FIR which is Ex.PW1/4 and copy of final report which is Ex.PW1/6. A perusal of the FIR No.132/2008 Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 19 of 22 PS Manglaur, District Haridwar under Sections 279/337/338/304A/427 shows that it mentions only about the driver of the DCM Truck having expired at the spot and about the driver of the offending bus sustaining injuries but there is no mention of anyone else having expired or sustained injuries in the accident in the FIR. In the Final Report it was stated that the driver of the DCM truck Sonu Kumar had died at the spot and the driver of the offending bus had expired in the hospital. It was also stated in the Final Report that the passengers of the bus, DCM and traulla had sustained injuries in the accident but nowhere the names of the said passengers was mentioned. The petitioners had filed one treatment slip of Roorkee Hospital which is Mark B and is dated 19.4.2008 but the same is only a slip by the radiologist and mentions referred by EMO, SJNSM Govt. Hospital, Roorkee and MI was not traceable. Again as far as the treatment record of AIIMS is concerned only photocopy of one bill of Award Sales Corporation has been produced and no other treatment record is there. Once the name of the deceased was not there in the FIR or in the Final Report specifically it was incumbent on the petitioners to have summoned the IO of the case and/or produced some evidence to show that the deceased was admitted in the Hospital at Roorkee pursuant to the accident and thereafter he was shifted to AIIMS or produced any eye witness in the witness box. Even the alleged employer of the deceased was not examined. While applications were filed to summon the witness from the Hospital at Roorkee and the employer no efforts were made to summon the IO and there is nothing to show that the witness at Roorkee was duly served. Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 20 of 22
21. The petitioners have relied on the post mortem report and in support of their case had examined PW2 who had brought the copy of the postmortem report of the deceased Mukhtyar, which is Ex.PW2/A. He stated that as per the same, it was a case of Septicemia consequent upon injury sustained by blunt force which could be possible in a road traffic accident. During cross examination by the learned counsel for the respondents No.1 and 2 PW2 stated that it was not possible to state from the post mortem report how old the injuries were as the wounds had already been stitched and the deceased had also been operated upon. He denied the suggestion that the deceased had not died due to injuries sustained in the road accident. Thus PW2 stated that it was not possible to state from the post mortem report how old the injuries were as the wounds had already been stitched and the deceased had also been operated upon though he denied the suggestion that the deceased had not died due to injuries sustained in the road accident. The post mortem report mentions alleged history of RTA on 19.4.2008 but there is no mention of where the accident had allegedly taken place. Even there is nothing on record to show who had got the deceased admitted to AIIMS.
22. In light of the above discussion there is nothing on record to show that the deceased had indeed expired pursuant to the injuries sustained in the accident which took place on 19.4.2008 allegedly arising out of the use of bus No.UP15W9992 and the identity of the petitioners is also not established as legal representatives of the deceased. Accordingly the claim petition is Suit no.365/14 Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 21 of 22 dismissed.
File be consigned to record room.
Announced in open court
on this 27th day of October, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit no.365/14
Mohd. Hussain & Ors. Vs. U.P. State Roadways & Ors. Page 22 of 22