Delhi District Court
Mact No.341/10 Rohit Singh vs . Dtc & Ors. on 5 October, 2012
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MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
IN THE COURT OF SH. B. S. CHUMBAK, PO MACT EAST
DISTRICT : DLEHI
Petition No. 341/10
Date of filing of the petition 01/04/2010
Date of assignment to this court 01/042010
Date on which judgment was reserved 28/09/2012
Date of award 05/10/2012
IN THE MATTER OF:
Rohit Singh
S/o Sh. Rajesh Singh
H.No.103, Delhi ADMN Flats
Karkardooma, Delhi ....... Petitioner
VERSUS
1.Delhi Transport Corporation
(through its General Manager/Chairman)
At Central WorkshopI, Banda Bahadur Marg
Mukherjee Nagar, New Delhi ....Owner
2.Sh. Rakesh Kumar
S/o Sh. Ram Niwas
Village & PO Gadhi Distt. Bhagpat, UP ....Driver
3.United India Insurance Co. Ltd.
Office at 1, Kunchunjunga Building 8th floor
18, Barakhamba Road, New Delhi ...Insurer
......Respondents
A W A R D
1. Sh. Rohit Singh S/o Sh. Rajesh Singh H.No.103, Delhi ADMN Flats Karkardooma, Delhi (hereinafter referred to as petitioner) filed the present petition u/s 166 & section 140 of the Motor Vehicles Act 1988 (hereinafter 2 MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
referred to as Act of 1988) against Delhi Transport Corporation (through its General Manager/Chairman) At Central WorkshopI, Banda Bahadur Marg Mukherjee Nagar, New Delhi Owner (hereinafter referred to as respondent no.1), Sh. Rakesh Kumar S/o Sh. Ram Niwas Village & PO Gadhi Distt. Bhagpat UP Driver (hereinafter referred to as respondent no.2) and United India Insurance Co. Ltd. Office at 1, Kunchunjunga Building 8th floor 18, Barakhamba Road, New Delhi Insurer (hereinafter referred to as respondent no.3) for seeking compensation in lieu of injuries received due to said accident.
2. Petitioner in this case was 22 years old at the time of accident, doing his own business and earning Rs.6,000/ per month.
3. Brief facts arising out of this case are that on 07.03.2010 at about 11:42 p.m petitioner alongwith his cousin Herald John were travelling on a motorcycle bearing no. DL1SQ9100. The said motorcycle was being driven by the cousin of petitioner Herald John. When they reached at "F" Block bus stand, Jagat Puri, Delhi in the meantime a DTC bus bearing no. DL1PB4983 which was being driven by its driver in a rash and negligent manner reached there and hit the motorcycle. As a result of which petitioner alongwith his cousin fell down and sustained grievous injuries. He was immediately taken to GTB hospital and was medically examined 3 MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
vide MLC no. B956/10.
4. Driver of the offending vehicle was arrested and a case u/s 279/338 IPC was registered vide FIR no.79/10 at PS Jagat Puri.
5. It is further alleged that petitioner spent around Rs.10,000/ on his treatment. He also incurred expenses on conveyance, better diet and also undergone great mental pain and agony as well as physical suffering due to injuries received in accident and claimed Rs.5,00,000/ with interest towards all the heads.
6. R1 is the owner, R2 is the driver and R3 is insurer, therefore, they all are jointly and severally liable to pay the amount of compensation to the petitioner and R3 is liable to indemnify R1 and R2.
7. Notice of the petition was served upon all the respondents and pursuant to the service of notice all the respondents appeared and filed their written statements separately.
8. R1 in its written statement controverted all the allegations as alleged in the petition and also took many preliminary objections such as no accident has taken placed due to rash and negligent driving of the vehicle bearing 4 MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
no. DL1PB4983 and R2 has been falsely implicated at the instance of complainant by the IO. It is further averred that driver of the motorcycle himself hit the bus from its rear side at the time when it was to start.
9. It is further averred that R1 is not liable to make the payment of compensation as the said bus was insured with R3 vide policy no. 341100/31/09/02/00004292 in favour of R1 and was valid from 2.1.2010 to 1.1.2011. The driver was also in possession of a valid DL and in such circumstances the liability, if any is of R3 insurance company and requested for dismissal of the petition against R1 and R2.
10. R2 also controverted all the allegations as alleged in the petition and took many preliminary objections such as petition is not maintainable on the ground of suppression of material facts and also on the ground that motorcyclist himself was negligent and was driving the vehicle under the influence of alcohol as has been mentioned in the MLC bearing no . C1012/10 of driver of the motorcycle. It is also alleged that he was having valid DL and vehicle was insured therefore, petition is not maintainable against him and requested for dismissal of the petition.
11. R3 in its written statement controverted all the allegations as alleged in the petition and also took many preliminary objections such as petitioner 5 MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
has not come to this court with clean hands and concealed the material facts from this court. It is further alleged that answering respondent is not liable to pay any compensation to the petitioner in case the driver of the alleged vehicle was not holding a valid and effective driving license and that the owner was not found in possession of valid and effective permit in respect of the vehicle at the time of alleged accident. It is further alleged that answering respondent is not liable to pay any amount of compensation to the petitioner in case insured has violated the terms and conditions of the insurance policy. It is further pleaded that one Sh. Herald John alleged to be the cousin brother of injured was driving the motorcycle bearing no. DL1SQ9100 and the petitioner was the pillion rider of the motorcycle. He was driving the motorcycle with rash and negligent manner and hit the bus from its rear side in such circumstances, driver, owner and insurer of the DTC bus bearing no. DL1PB4983 appears to have been falsely implicated and are not liable to make the payment of compensation. It is further pleaded that petition is bad for non joinder of necessary parties i.e (driver and owner of the motorcycle bearing no.DL1SQ 9100). It is further alleged that amount claimed by the petitioner is highly excessive, exorbitant and without any basis however, in reply to para no.18 it is admitted that vehicle bearing no.DL01PB4983 was insured with R3 vide policy no.34110031090200004292 in the name of R1 for the period from 02.01.2010 to 01.01.2011 but subject to terms 6 MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
and conditions of the policy. But in the present case the terms and conditions of the policy are violated and requested for dismissal of the petition.
12. On the basis of pleadings from both the parties following issues were framed by the then Ld. PO vide order dated 13.07.2011:
i) Whether petitioner suffered injuries in a road side accident on 07.03.2010 involving Bus No. DL1PB4983 driven allegedly by the driver of the same in a rash and negligent manner?
ii) To what amount of compensation, if any,
petitioner is entitled to?
iii) Relief
13. After framing of issues case was fixed for petitioner's evidence.
14. Petitioner/injured Rohit Singh appeared as PW1 and filed his affidavit in evidence which is Ex.PW1/A. In his affidavit he stated all the facts which were stated by him in his petition. He also relied upon documents I.e copy of criminal record, mark A ( consisting of 24 sheets) (earlier written as Ex.PW 1/1 in his affidavit), original bills of treatment and medicines Ex.PW .1 /2 amounting to Rs. 750/, discharge summary and prescriptions are Ex.PW 1/ 3(two sheets), Copy of D/L Ex.PW 1/ 4(OSR). 7
MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
15. During his cross examination on behalf of counsel for R1 he denied the suggestion that one Herald who was driving the motorcycle hit the standing bus from its back side.
16. During his cross examination on behalf of counsel for R2 he admitted that Mr. Herald was his cousin who was driving the motorcycle. He denied the suggestion that he and Herald consumed alcohol. He also admitted that he has not placed any documentary proof regarding his income and incurring expenses towards medical treatment, conveyance and better diet. He also denied the suggestion that his cousin Herald was under the influence of liquor but the MLC Ex. PW1/D1 is shown to him, he admitted that on the MLC of Herald the doctor opined the presence of alcohol at point A. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
17. During cross examination on behalf of Ld. counsel for R3 he admitted that he had not filed any documentary proof regarding his income and medical bills in support of his claim. Rest of his testimony is reiterated by him as submitted by him during examination in chief. Thereafter petitioner's evidence was closed and case was fixed for respondent's evidence.
18. Sh. Rakesh Kumar (Driver of DTC bus appeared as R2W1 and filed his 8 MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
affidavit which is Ex. R2W1/1. In his affidavit he deposed that on 7.3.2010 he was plying a bus bearing no. DL1PB4983 on a route no . GL23 from Kashmere Gae Bus Terminal to Anand Vihar Bus Terminal and on that day in the night time when he reached Jagat Puri Flyover bus stand some passengers got down from the bus, he was in process to start the bus to proceed on the route, in the meantime a motorcyclist bearing registration no. DL1SQ9100 hit his bus from back side due to that motorcyclist and pillion rider both received injuries. He immediately stopped the bus and informed the PCR van. PCR Van took both the injured to GTB hospital and police official took his bus to PS. He further alleged that the accident has taken place due to sole negligency of motorcyclist who was driving his motorcycle without following the traffic rules and were also under the influence of liquor. He further stated that he was in possession of a valid DL which was valid upto 28.1.2012, the bus was duly insured with R3 and he also produced the copy of fitness certificate, insurance policy, DL and permit which are Ex. R2W1/1A to D. He further deposed that on the issue of negligent act of the petitioner the passengers who were travelling in the bus also made endorsement in the complaint book which was in possession of conductor Rishi Pal with Badge no.23205 posted at Seema Puri Depot. The extract of complaint book bearing no. E1485 page no. 4 and 5 are collectively marked C. He also deposed that the petitioner and his cousin (driver of motorcycle) both were under the influence of liquor 9 MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
and same fact is mentioned in their MLC's Ex. R2W1/1E and submitted that R1 and R2 are not liable to make the payment of compensation.
19. During his cross examination on behalf of petitioner he reiterated that at the time of accident bus was parked at bus stand and was not in motion. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
20. During his cross examination on behalf of counsel for insurance company he specifically stated that his license Ex. R2W1/1A was initially issued from Licensing Authority , Baghpat UP for Motorcycle and LMV and later on it was endorsed for transport vehicle w.e.f 30.10.2003. The above stated document Ex. R2W1/1A is a duplicate copy issued by the authority in lieu of the original record available with the authority. The duplicate copy was issued at his request after the original license was lost. It is correct that date of issue of the duplicate copy of the license is not mentioned in Ex. R2W1/1A . He was not in possession of the copy of the application stated by him to have been submitted for issuance of the duplicate copy of the license. It is wrong to suggest that he is deposing falsely. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
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MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
21. Sh. Rishi Pal Conductor of DTC bus appeared as R2W1 and filed his affidavit in evidence which is Ex. R2W2/1. In his affidavit irrespective of corroborating the statement of R2W1 he also produced the extract of complaint book which is Ex. R2W2/1A to C. He also produced photocopy of identity card issued by DTC is Ex. R2W2/1D, he also produced copy of way bill Ex. R2W2/1E.
22. During his cross examination on behalf of counsel for petitioner he reiterated his testimony as submitted by him during examination in chief. Thereafter RE was closed and case was fixed for final arguments.
23. Arguments on behalf of counsel for petitioner as well as on behalf of respondents heard. On the basis of arguments advanced and the evidence adduced by both the parties my findings on the issues are as follows :
i) Whether petitioner suffered injuries in a road side accident on 07.03.2010 involving Bus No. DL1PB4983 driven allegedly by the driver of the same in a rash and negligent manner?
24. On this issue, the petitioner filed his affidavit Ex.PW1/A stating therein that on 7.3.2010 at about 11:42 p.m he was travelling as pillion rider on a motorcycle bearing no. DL 1SQ9100 which was being driven by his 11 MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
cousin brother, he met with an accident involving a DTC bus bearing no. DL1PB 4983 which was allegedly being driven by R2 in a rash and negligent manner. He also relied upon the criminal case record and the investigation conducted by the IO.
25. On the other hand R1 and R2 both appeared as R2W1 and R2W2 stating therein that no accident had taken place due to rash and negligent driving of the bus bearing no.DL1PB4983. They both specifically deposed that the bus was stopped at Jagat Puri Flyover Bus stand in the meantime a motorcyclist on which petitioner was a pillion rider reached there hit the bus from back side, both received injuries and were taken to hospital. In support of their contention R2W2 produced a photocopy of the extract of complaint book wherein it is mentioned as follows :
"AAJ DINAK 7.3.2010 KO GARHE NO. DL 1P 4983 JO JAGAT PURI STAND PER YATRI UTTAR RAHI THEE TABHI MOTORCYCLE SAVAR NE JAISE HE BUS CHALEE PEECHEY SE BUS MEIN TAKKAR MAR DEE ISME BUS KE DRIVER KA KOI DOSH NAHI HAI"
which has been signed by the passengers bearing their ticket numbers and mobile phone numbers.
26. In view of the rival contentions as raised by Ld. counsel for both the 12 MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
parties and to resolve the controversy on the issue of rash and negligent driving I took the help of criminal case record and the documents which are discussed as follows :
(a) IO prepared the site plan showing therein that the accident had taken place at point A i.e near to bus stop F block Jagat Puri and in the said site plan it is also mentioned that the bus was found standing at point A and the motorcycle of injured was found standing at point B in an accidental condition. Thereby it is established that the offending bus was ahead the motorcyclist and he was in the rear side of the bus.
(b) On perusal of the mechanical inspection prepared by the IO it transpires that rear bumper of the bus was found dented and pressed thereby it appears that the motorcyclist hit the bus from its rear side.
( c) On perusal of seizure memo of the motorcycle bearing no. DL1SQ9100 it transpires that the aforesaid motorcycle was found in an accidental condition and its front mudguard were completely broken and the upper portion of the petrol tank was found dented. It is also mentioned that the left side mirror of the motorcycle was also found broken, thereby it is established that the motorcyclist was coming from the back side of the bus, the accident has taken place near the bus 13 MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
stand, thereby it is established that the motorcycle hit with the rear portion of the bus due to that petitioner and the driver of the motorcycle received injuries. In support of the aforesaid observation I also considered the conduct of the petitioner as well as driver of the motorcycle on the issue that they both had taken liquor at the time of driving the motorcycle but they both denied during their cross examination despite of the fact that on the MLC's of both the injured the smell of alcohol positive was opined.
27. In view of over all discussion and on considering the documentary evidence collected by the IO during the investigation of this case coupled with the fact that R1 and R2 both filed their affidavits corroborating thereby that the accident had taken place due to rash and negligent driving of motorcycle on which petitioner was the pillion rider. In such circumstances I am of the considered view that petitioner only succeeded in proving that he met with an accident and received injuries but totally failed to prove that he received injuries due to rash and negligent driving of a DTC bus bearing no.DL1PB4983 which was being driven by R2. I accordingly held that the accident had happened due to rash and negligent act of motorcycle bearing no.DL1SQ9100 which was being driven by the cousin of petitioner who has not been impleaded as respondents in this case, therefore, the petitioner failed to 14 MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
prove the said issue in his favour.
28. Since the petitioner failed to prove issue no.1 on the point of rash and negligent act of R1 and R2, in such circumstances I feel no need to decide remaining issues.
29. In view of the observation given while deciding issue no.1 the petition is hereby dismissed. No order as to costs. File be consigned to the Record Room.
Announced in the open court (B.S. CHUMBAK)
on 05/10/2012 PO MACT/EAST DISTT/
KKD:DELHI
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MACT NO.341/10 ROHIT SINGH VS. DTC & ORS.
MACT NO.341/10
05.10.2012
Present: None.
Final arguments already heard.
Vide separate award petition has been dismissed. No order as to costs. File be consigned to the Record Room.
(B.S. CHUMBAK) PO MACT EAST DISTRICT KKD DELHI 05/10/2012