Delhi District Court
Rakesh Yadav vs Sh. Nathu Ram on 19 November, 2009
: 1 : IN THE COURT OF MS. REENA SINGH NAG POMACT (SOUTH) PATIALA HOUSE COURTS, NEW DELHI IN THE MATTER OF : 1. Rakesh Yadav S/o Sh. Bishambar Yadav, R/o village & Post Rajokri, New Delhi Petitioner Versus 1. Sh. Nathu Ram S/o Sh. Kishan Lal, R/o W62/474, Sanker Garden, New Delhi (Driver) 2. Sh. Gurmeet Singh S/o Sh. K.S. Saluja, R/O M78, Guru Hari Kishan Nagar, Paschim Vihar, New Delhi (Owner) Respondents FACTS AT A GLANCE PETITION NO : 789/08 DATE OF FIRST INSTITUTION : 04/01/02 DATE OF INSTITUTION IN PRESENT COURT : 28.11.2008 PLACE OF ACCIDENT : Rajokri Barial Toll Tax DATE OF ACCIDENT : 28.12.2000 OFFENDING VEHICLE : Road Roller Engine no. 3120111701 FIR NO : 661/2000 dated 28.12.00 POLICE STATION : Vasant Kunj : 2 : NATIRE OF INJURIES : Grievous NAME OF HOSPITAL : Safdarjung Hospital AGE OF THE DECEASED : 20 Years EDUCATION OF VICTIM : No record STATUS OF WS FILED BY RESPONDENT : Filed by R1 and R2 STATUS OF CONTEST BY RESPONDENT : Contested by R2 and R3 OCCUPATION OF INJURED : Student INCOME OF THE INJURED : Rs. 5,000/ pm by running Tutorial Coaching Center BRIEF FACTS : On 28.12.2000, at about 4.30 P.M, the injured was coming from Gurgaon and was going to his village Rajokri on his scooter no. DL9SE7482 along with his wife Smt. Rita Yadav who was sitting on pillion seat. When he reached before the Toll tax Barrier, Rajokri, a road roller boiler was going ahead of the scooter and when the petitioner was overtaking the road roller from right side the driver of the road roller who was driving the same in a rash and negligent manner, moved the road roller in the right side and the hot mixing plant struck against his scooter and hit the petitioner. ARGUMENTS HEARD : 31.10.09 and 04.11.2009 DATE OF DECISION : 19.11.09 : 3 : JUDGEMENT
In the above backdrop, and from the pleadings the followings issues were framed: ISSUES
1. Whether the petitioner sustained injuries in road accident dated 28.12.2000 because of rash and negligent driving of road roller bearing engine no. 3120111701 by R1, owned by R2 as alleged? OPP
2. If issue no. 1 is proved in affirmative, to what amount of compensation, the petitioner is entitled to and from whom?
3. Relief In support of its case, the petitioner has examined himself as PW1 wherein he tendered his affidavit vide Ex.PW1/A wherein he also furnished documents Ex.PW1/1 to Ex.PW1/40. As per his affidavit on 28.12.2000, at about 4.30 P.M, he was coming from Gurgaon with his wife on his scooter bearing no. DL9SE7489. When he reached before the Toll Tax barrier Rajokri, a road roller attached with a hot mixing machine and attached boiler was going ahead of his scooter and he was overtaking the road roller from right side, the driver of the road roller without giving any signal moved the road roller in the right side as a result of which the hot machine plant struck against the scooter and hit him as a result his scooter came in between the hot mixing machine and the Taar Coal boiler and despite his hue and cry, the driver of the road roller did not listen and dragged his scooter to the barricade. He was : 4 : pulled out by the people. PCR was called. He claimed that his left leg was broken and he remained hospitalised in Batra hospital from 28.12.2000 to 06.01.2001 after having been initially taken to Safdarjung hospital from the spot. He also claimed that he suffered loss of Rs. 5,000/ per month which he was earning from private tutions. In his cross examination by the Counsel for insurer, he stated that he is 12 th class pass in 2001 from National Open School but he did not have any certificate on the day of his deposition. He also stated that he was not income tax payee. He denied the suggestion that he did not receive injuries on account of rash and negligent driving by the driver of road roller. He also denied that medical bills Ex.PW1/1 to Ex.PW1/40 were forged.
PW2 is HC Maha Singh who proved the FIR no. 661/00, P.S Vasant Kunj vide Ex.PW2/A. PW3 is Smt. Rita Yadav who is wife of the petitioner and also the eye witness, who tendered her affidavit in evidence as Ex.PW1/A and she also referred to the documents as already Ex.PW1/1 to Ex.PW1/40 by the petitioner.
In her cross examination, she stated that she also suffered injuries in the accident but she did not go to any hospital or doctor. She denied the suggestion that accident was caused due to the rash and negligent driving by her husband.
Respondent has examined one Jagdish in his defence as R1W1 to inter alia testified that in the month of December, 2000, he was : 5 : working on the accidental site and on the same day, road work was going on. As per him, there was a chunggi and he was on cycle whereas at the construction site, one road roller, one mini plant (mixture) and a boiler there in a straight line. As per him, one scooter rider was crushed between divider of the road and boiler and he was rescued by the persons present at the spot. Thereafter, the person in chunggi and other persons rushed to rescue the victim who fell in between divider and boiler and that there was no space between the boiler and the divider which caused the accident.
I have heard the arguments from both the sides and gone through the case file.
Counsels for respondent has argued that it was the victim who himself hit the boiler and the road roller did not hit the scooterist. His another prong of argument is that road roller was without registration number as such it was not a motor vehicle but was a machine since in the Motor Vehicle Act, every vehicle is required to have a registration number. He has also added that it was the victim who himself was rash and negligent as he overtook the road roller without giving any signal by blowing horn. Admittedly, as per Ld. Counsel for respondent, the offending vehicle moving ahead and its driver is not required to look back while driving ahead and it was the petitioner who did not follow the traffic rules. It has also been argued that no medical bills or other relevant documents have been placed on record. Whatever documents have been filed are no proof as per law.
: 6 :In this case, despite opportunity Counsel for petitioner did not address arguments and opportunity was given to him to send written brief but the same was not send. So, I am proceeding to dispose of the matter on the basis of available material on record and my findings on the issues are as under: Issue No. 1 Counsel for the petitioner has however, placed on record the authority reported in AIR 1995 Allahabad 253, titled as State of U.P and others vs. Suresh Chandra in which Hon'ble High Court inter alia observed that the road roller is a motor vehicle. There is no dispute with regard to preposition of law enunciated in decision supra as such plea of the respondent to the effect that there being no registration number of this vehicle, it is not a motor vehicle is not tanable and it is held that road roller is a motor vehicle.
This is a petition under Section 166/140 MV Act, 1988, as such Petitioner is required to prove the involvement of the offending vehicle and rash and negligent driving by the driver of the offending vehicle i.e the road roller. It is the own case of the petitioner that he was behind the road roller and when he was in the process of overtaking the road roller from its right side, the driver of the road roller without giving any signal moved the road roller to the right side as a result he sustained injuries. But, it is the duty of every motorist to drive the vehicle in a controlled manner so as to avoid any impact with any object or any person moving ahead of him. In this context, I have gone through : 7 : the site plan placed on judicial record. It shows the position of the point at which the scooterist was hit by road roller mixing plant attached with the road roller which is indicated at point 'A' in site plan. Next in line to 'A' in North direction is point 'B' where the scooter of the victim has been show in between the hot mixing plant at point 'D' which is ahead of 'B' and 'e', which is the position behind the scooter. Whereas at point 'E', the position of the road roller has been shown. It is also noted that the road roller, the hot mixing plant and the Taar coil boiler have been shown towards/near/corner of the road. By its very nature, the road roller, vehicle is a big vehicle with heavy wheels which is used for making the road metallic with the help of taar coil. When it moves, it makes a big noise, so petitioner should have been vigilant in overtaking the road roller in such circumstances where the distance between the corner of the road and the road roller, hot mixing plant and taar coil boiler was not much. There is no mentioning in the FIR that while overtaking the road roller, the scooter motorist blew horn. Even for the argument sake, if it is presumed that the scooterist blew horn because of the great noise by movement of the road roller and it being the busy road, it is not expected from a normal person that he would hear the blowing of the horn while moving the road roller. It was for the other vehicles moving near the road roller to have avoided the road roller while moving past it. Petitioner did not take due care and caution while moving on the road and it was due to his own negligence, he hit the back of the taar coil boiler and got stuck up : 8 : between the taar coil boiler and mixing machine. Moreover, it is also noted that R1 was driving the road roller with attachment of hot mixing machine just behind the road roller which was in turn connected with taar coil boiler. There being no rear view mirror on the road roller, it is not expected from its driver that while moving on the side of the road, he would take care of the traffic on its back.
It has been observed that the road roller can not move in fast speed with the attachment. So, in these circumstances, it can be inferred that it was the scooterist who was driving the scooter at fast speed and tried to overtake the road roller by taking the risk of passing through the narrow space left in between the road roller and corner of the road.
In these circumstances, I am of the considered opinion that petitioner has not been able to establish that respondent no. 1 was driving the vehicle rashly and negligently. In the obtaining circumstances, issue no. 1 is decided against the petitioner as such, he is not entitled to any compensation.
The petition is disposed of as dismissed. File be consigned to Record room.
Announced in open court 19.11.09 REENA SINGH NAG PO MACT, SOUTH NEW DELHI : 9 : : 10 :