Delhi District Court
Mahfooz vs . Anil Tiwari on 8 March, 2017
IN THE COURT OF MS. MADHU JAIN:
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL: SOUTH
EAST DISTRICT/ SAKET COURTS: NEW DELHI
Suit No. 161/16
FIR No. 264/15
MACT No. 4716/16 - PS H. N. DIN
Mahfooz Vs. Anil Tiwari
Injury Case
Sh. Mehfooz S/o Sh. Mehboob
R/o 2810, Gali Tehsildar, Pahari Bhojla, Chitli Kabar, Delhi.
........................... Petitioner/Claimant
Versus
1. Sh. Anil Tiwari, S/o Sh. Ramesh Dutt Tiwari (driver)
R/o 150A, Hari Nagar, Ashram, New Delhi.
2. Sh. Kuldeep S/o Sh. Sardar Maan Singh (owner)
R/o 652, Church Road, Bhogal, New Delhi.
3. Shriram General Insurance Company Limited (Insurer)
Add A32, 2nd Floor, Lajpat NagarII, New Delhi.
.....................Respondents
Initial date of Institution : 13.07.2016 Date of reserving the judgment : 28.02.2017 Date of pronouncement : 08.03.2017 Judgment:
Present claim proceedings initiated on the basis of Detailed Accident Report under Section 166 (4) of Motor Vehicle Act filed by the police on 13.07.2016.
1. Brief facts of the case are that on 03.07.2015 at about 10.00 am, respondent no.
1/driver Anil Tiwari coming from the Ashram side towards Nizamuddin and driving his tempo bearing registration no. DL1LE3539 in a very high speed MACT No. 4716/16 Mehfooz Vs. Anil Tiwari & Ors. (Pg 1 of 8) and rash and negligent manner. In the said process, when, injured was crossing the main road in front of petrol pump of Niazamuddin, the respondent came in high speed and crushed the right foot of the injured. After this injured was taken to Holy Family Hospital by the respondent no. 1, where his MLC was prepared by the concerned doctors.
2. FIR number 864/2015 under Section 279/337 IPC, PS Hazrat Nizamuddin was registered. During investigation police prepared the site plan of the place of occurrence, given notice U/s 133 M. V. Act, seized the offending vehicle, conducted mechanical inspection of the offending vehicle and arrested respondent no.1 driver. On completion of investigation found respondent no. 1 driver/accused of rash and negligent driving, hence chargesheeted him for the commission of offence under section 279/338 of Indian Penal Code.
3. During proceedings, written statement filed on behalf of respondent no.
1/driver and it is stated that the driver was driving the vehicle bearing no. DL1 LE3539 with due caution and care and without negligence. Whereas the claimant who was the injured who was crossing the road without following due traffic rules and regulations and also not following the safety measures. As a result of which the injured suffered injuries without any fault from the side of the driver. It is further stated that the offending vehicle was insured with the Shri Ram General Insurance Company vide policy no. 101006/31/16000668 valid up to 20.05.2016, as such if any liability accrues that will be the insurance company. It is further stated that the offending vehicle in question which was being driven by respondent no. 1/driver was having R. C. and insurance policy and the said accident was caused solely by the negligent act of the injured by using the heavy busy road. It is further stated that the driver of the offending vehicle was having commercial driving licence to drive the above said MACT No. 4716/16 Mehfooz Vs. Anil Tiwari & Ors. (Pg 2 of 8) offending vehicle, hence, liability if any will be of the insurance company.
4. During proceedings, reply filed on behalf of insurance company and it is stated that through the case has been filed Under Section 279/338 IPC but the medical treatment record speaks loudly in medicolegal report dated 03.07.2015, place of accident at home, A/H/O crush injury sustained, injury to RT foot, fall of object (drum) over Rt foot at Home around 10.00 am. Accompanying person Nikhat, daughter. It is further stated that the FIR was lodged after a lapse of 6 months in which it has been alleged that one Anil Tiwari, auto driver caused the accident, when the injured was crossing the road near H. N. Din petrol pump and sustained crush injury. It is also alleged that the said auto driver got him admitted in the Holy Family Hospital but very surprising the name mention accompanying person as Nikhat, daughter. It is further stated that after the registration of FIR of IO served notice U/s 133 M. V. Act to the owner but even in that the owner doesn't admit the accident. It is further stated from the facts and circumstances, it appears that no such accident has occurred but the inured sustained injury due to fall of drum at home as mentioned in the medical slips of Holy Family Hospital and later on color of accident has been given to get the compensation. It is further stated that the alleged offending vehicle has been planted one. It is further stated that all the documents were verified by the IO and same were found to be genuine and the policy also covers the date of accident.
5. From pleadings, following issues were framed vide order dated 21.09.2016 which are as under: (1.) Whether the petitioner received injuries in the accident which took place on 03.07.2015 at about 10.00 a.m. involving offending vehicle i.e Tempo bearing number DL1LE3539 due to rash and negligent driving of MACT No. 4716/16 Mehfooz Vs. Anil Tiwari & Ors. (Pg 3 of 8) respondent no. 1, owned by respondent no. 2 and insured by respondent no. 3(insurance company)? OPP (2) To what amount of compensation the petitioner is entitled to claim and from whom?
(3) Relief.
6. During evidence, petitioner Sh. Mehfooz examined himself as PW1 on 09.11.2016 and relied upon certain documents i.e medical documents are collectively Ex. PW1/1, dressing bills is Ex. PW1/2, medical bills are collectively Ex. PW1/3 and copy of Adhar Card is Mark "A". In his cross examination, PW1 stated that he was doing drilling and fitting job at the workshop of H. N. Din, the shop is located at Malkaganj, New Delhi. He usually reach at the shop at about 10 am and get back to home at about 7 to 8 pm. His employer used to give him Rs. 9000/ per month but he cannot produce any record. He further stated that he was taken to Holy Family Hospital, the MLR is Ex. PW1/X (colly). He further stated that it was 10 am when he was at Holy Family Hospital for treatment. From the Holy Family Hospital, he was referred to L. N. J. P. hospital and he got treatment from there as a OPD patient. He further stated that no information or 100 number call made to the police. He further stated that he doesn't know when the information was given to the police but a complaint was given to PS H. N. Din. His statement was also recorded by the police of PS H. N. Din and also police has lodged the FIR.
7. During evidence, petitioner has examined Sh. Nazmuddin as PW2 on 29.11.2016 who has tendered his evidence as Ex. PW2/A and also relied upon his affidavit as Ex. PW2/1. In his cross examination, he stated that he has come in the Court to depose at the instance of the injured himself. There is no firm or business establishment is registered in his name till date. The salary was being MACT No. 4716/16 Mehfooz Vs. Anil Tiwari & Ors. (Pg 4 of 8) paid in cash to the injured. No receipt voucher or signatures were being obtained by him at the time of payment of salary to the injured. He further stated that he cannot show any documents or proof to show that he has been running drilling and fitting shop.
8. No evidence to the contrary has been led by any of the respondents.
9. After hearing arguments and considering the material on record, my issue wise findings are as follows: Issue no. 1 (Negligence)
10. Since, present claim proceedings were initiated on the basis of DAR filed by the police which was registered as a claim petition U/s 166 of M. V. Act, it was the bounden duty of the petitioner to prove rashness and negligence on part of respondent no. 1/driver and involvement of offending vehicle. However, MLC (Ex. PW1/X) of petitioner filed along with the DAR shows that petitioner suffered crush injury to right foot due to fall of object (drum) at home at around 10 am. MLC Ex. PW1/X also shows the name of accompanying person/attendant as Nikhat who is daughter of injured Mehfooz. It is clear that doctor who examined petitioner on 03.07.2015, mentioned the cause of injuries in the MLC as told by the accompanying person/attendant. On 03.07.2015, Nikhat, who is daughter of injured Mehfooz accompanied him to the hospital. At the time of preparing of MLC Ex. PW1/X, daughter of injured has told the doctor that her father received injuries at home due to fall of drum on his foot. She had no reason to wrongly state the cause of injuries suffered by her father at the time of preparation of MLC. Further, discharge summary Ex. PW1/1 (colly) issued from Lok Nayak Hospital shows that petitioner was admitted in the said hospital on 03.07.2015 and was discharged on 04.07.2015, but brief clinical history in the said discharge summary is mentioned as follows: "patient MACT No. 4716/16 Mehfooz Vs. Anil Tiwari & Ors. (Pg 5 of 8) is case of MLC from Holy Family Hospital. H/O fall of heavy object over R foot on 03.07.2015 (10.00 am)". Further, petitioner had made a complaint on 30.07.2015 to the Commissioner of Police to take legal action against the respondent no. 1 Anil Tiwari, in contradiction to the averments of his daughter regarding the cause of injuries as told at the time of initial treatment at Holy Family Hospital. Petitioner did not take any action or chosen to file any complaint from 03.07.2015 to 29.07.2015 and suddenly, filed a complaint to Commissioner of Police on 30.07.2015 stating that he suffered injuries in an accident. Said conduct of petitioner shows that though he suffered injuries at home, he made a false & concocted story just to grab compensation. All medical documents also shows cause of injuries as fall of heavy object/drum over right foot. There is no reason why the doctor would state a false history in the MLC. He must have written what was told by the attendant of injured who was none other than daughter of injured.
11. In view of the above discussion, petitioner is not able to prove that he suffered injuries due to rash and negligent driving of the respondent no. 1. Accordingly the issue no. 1 is decided against the petitioner.
Issue no 2 (Compensation)
12. In view of discussions made in issue no. 1, petitioner is not entitled to any compensation since, he failed to prove that he received injuries in a road vehicular accident due to rash & negligent driving of respondent no. 1.
Relief :
13. In view of the findings in issue no. 1 & 2, no compensation can be awarded to the petitioner. Present Petition is dismissed.
MACT No. 4716/16 Mehfooz Vs. Anil Tiwari & Ors. (Pg 6 of 8)
14. FormIV of the Modified Claims Tribunal Agreed Procedure to be mentioned in the Award is as under:
1 Date of the accident 03.07.2015 2 Date of intimation of the accident by the 03.07.2015 Investigating Officer to the Claims Tribunal.
3 Date of intimation of the accident by the Not available.
Investigating Officer to the Insurance Company.
4 Date of filing of Report under Section Not known.
173 Cr.P.C. before the Metropolitan Magistrate.
5 Date of filing of Detailed Accident 13.07.2016 Information Report (DAR) by the Investigating Officer before Claims Tribunal.
6 Date of service of DAR on the 13.07.2016 Insurance Company.
7 Date of service of DAR on the 13.07.2016 claimant(s).
8 Whether DAR was complete in all Yes respects?
9 If not, state deficiencies in the DAR? NA 10 Whether the police has verified the Yes documents filed with DAR?
11 Whether there was any delay or DAR has been filed after one deficiency on the part of the year of accident but no Investigating Officer? If so, whether any application for extension to action/ direction warranted? file DAR in on record. 12 Date of appointment of the Designated Not available Officer by the Insurance Company.
13 Name, address and contact number of Not available the Designated Officer of the Insurance Company.
14 Whether the Designated Officer of the Yes Insurance Company submitted his report within 30 days of the DAR?
15 Whether the Insurance Company No admitted the liability? If so, whether the MACT No. 4716/16 Mehfooz Vs. Anil Tiwari & Ors. (Pg 7 of 8) Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
16 Whether there was any delay or No applicable deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?.
17 Date of response of the claimant(s) to No legal offer filed.
the offer of the Insurance Company.
18 Date of the award. 08.03.2017 19 Whether the award was passed with the No consent of the parties?
20 Whether the claimant(s) examined at the Petitioner was not examined.
time of passing of the award to ascertain his/their financial condition?
21 Whether the photographs, specimen signatures, proof of residence and Photographs, proof of resident particulars of bank account of the etc were already on record. injured/legal heirs of the deceased taken at the time of passing of the award?
22 Mode of disbursement of the award Not applicable.
amount to the claimant(s).
23 Next Date for compliance of the award. Petition dismissed
15. Copy of this order be given dasti to the parties.
Announced in open Court Dated: 08.03.2017 (Madhu Jain) POMACT02/(South East District) Saket, New Delhi/08.03.2017 MACT No. 4716/16 Mehfooz Vs. Anil Tiwari & Ors. (Pg 8 of 8)