Delhi High Court - Orders
Acp Traffic vs Smt. Achla Samuel & Ors on 10 December, 2020
Author: Najmi Waziri
Bench: Najmi Waziri
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP. 263/2020, CM APPL. 32306/2020, CM APPL.
32307/2020 & CM APPL. 32308/2020
ACP TRAFFIC ..... Appellant
Through: Mr. Aditya Kumar Singhal, Advocate.
versus
SMT. ACHLA SAMUEL & ORS. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% 10.12.2020 The hearing was conducted through video conferencing.
1. The award of compensation dated 15.10.2019, passed by the learned Tribunal in MACP No. 60/14, is impugned on the ground that there was no evidence of the deceased having been hit by the passing crane.
2. The said statement is untrue on the basis of the records, particularly in view of the deposition of PW-2 ASI Sunil Kumar, who had deposed as under:
".....
I am a summoned witness. On 14.11.2013, I was on picket duty at the Africa Avenue from 8.00 AM to 8.00 PM. I was also performing patrolling duty in between. At about 3.40 PM when I was near the Fort Grant Hotel, when all of a sudden a traffic crane no. DL 1LE-0611 came from Akbar Bhawan and was going towards Fort Grand Hotel and in the process it hit a pedestrian and due to sudden hit the pedestrian fell down on the road and crane driver fled away from the spot with the vehicle. In the meantime CATS ambulance came and took the injured to hospital. Thereafter, I went to my picket duty. Thereafter at about 8.30 PM I Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:11.12.2020 13:07:40 narrated the whole incident to SI Naresh. Thereafter my duty was off. The accident occurred due to rash and negligent driving of the driver of aforesaid crane.
XXXXXXXX BY SH. D. S. MEHTA, LD.COUNSEL FOR RESONDENT NO.1.
I had not made call on 100 number, I was around 15-20 mtrs. from the place of accident. There was no round about at the place of accident and it was a straight road. Police had recorded my statement in the police station on the same day. It is wrong to suggest that the accident had not taken place due to negligence of crane driver and it was pedestrian who was negligent. It is wrong to suggest that the pedestrian was going in the middle of the road. The site plan was prepared at my instance and I had visited the place of accident with SI Naresh. It is wrong to suggest that I am deposing falsely in order to help the petitioners.
XXXXXXXX ON BEHALF OF RESPONDENT NO.2. ....."
3. PW-2 has withstood his testimony. He is a police officer of the rank of Assistant Sub-Inspector. He has testified that he had witnessed the accident from 15 to 20 metres. He denied the suggestion that the crane driver was not negligent or that the pedestrian was negligent. He also denied that the pedestrian was going in the middle of the road. The contention raised by the appellant has been duly dealt with in the award as as under:
"...
14. During his cross-examination conducted on behalf of R-1, PW2 has stated that he did not make a call at 100 number and he witnessed the accident from a distance of around 15-20 meters. He also stated Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:11.12.2020 13:07:40 therein that it was a straight road and there was no round about at the place of accident and his statement was recorded by police on the day of accident itself. He also denied the suggestions given to him by Ld. Counsel for R-1 that the accident did not take place due to negligence of crane driver or further that the pedestrian was going in middle of the road. He also stated on record that he visited the place of accident with SI Naresh and site plan was prepared at this instance.
15. During his cross-examination conducted on behalf of R-2 also, the witness is found to have stood almost to his above stand or depositions and reiterated his claim of witnessing the said accident. He also stated that the record pertaining to his being deputed for picket duty at African Avenue should be available in the concerned PS, but he was not in a position to produce it as he stood transferred from the said PS. The request made by Ld. Counsel for R-2 for summoning the said record was declined by this tribunal as it was not felt necessary in view of the fact that the name of witness was also cited as an eye-witness of the said accident in copy of charge-sheet thereof enclosed with the DAR. He also stated during his cross-examination that he left the place of accident at around 4pm, after putting the victim in CATS ambulance, and did not narrate the above said accident to anyone before narrating it to IO/police at around 8pm. He again denied the suggestion given to him by Ld. Counsel for R-2 to the effect that he was not an eye-witness of the said accident.
16. As is clear from the above, the depositions made by this witness about the factum as well as manner of accident have almost gone unchallenged, uncontroverted and unrebutted and there is no reason or ground made out by the Ld. Defence Counsels from the evidence led on record as to why this tribunal Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:11.12.2020 13:07:40 should disbelieve or discard his testimony. It has already been stated above that the claim made by PW2 regarding witnessing the said accident also stands substantiated from a copy of the charge-sheet of criminal case and his statement in this regard was recorded by IO on the date of accident itself in the evening. Further, his above claim and depositions regarding the manner of accident are also found substantiated from the other documents of said case consisting of site plan Ex.PW2/DA, seizure memos of the offending vehicle and it documents and arrest memo etc. of the accused/R-1 etc.
17. Moreover, though R-1 has examined on record himself as R1W1 in support of his defence that he did not cause the above accident, but during his cross- examination conducted before this tribunal he has duly admitted that a charge-sheet against him stands already filed with regard to the said accident and he is facing trial in the said case. The very fact that he stands already charge-sheeted for the offences punishable under Section 279/304A IPC for causing death of deceased James Samuel in the said accident by his rash and negligent driving of the above police crane is in itself a circumstance to corroborate the case of petitioners in this regard.
18. It is also necessary to discuss here, though in brief, some other documentary evidence being referred to by Ld. Counsel for the respondents and it consists of a letter Ex.R2W2/1 of the General Branch, Traffic Police dated 06.03.2018, alongwith certain other documents, one CD Ex.R2W2/2 containing CCTV footage of the said accident and copy of one DD entry Ex.R2W2/3 of Traffic Police Line, Chankyapuri. The above CCTV footage is stated to have been seized during investigation of the criminal case and its seizure memo is a part of the documents enclosed with DAR.Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:11.12.2020 13:07:40
The above CCTV footage has been played in the court during this inquiry at the laptop brought by Ld. Counsel for R-2, in the presence of all counsels, and has been viewed by this tribunal.
19. It has been argued by Ld. Counsel for R-2 on its basis that the presence of PW2 at spot is not substantiated from this CCTV footage as even after lapse of some time from accident, the said footage nowhere shows that this witness had reached there to help the victim and hence, his claim of witnessing the said accident from a distance of around 15-20 meters only is not believable. It has also been argued by Ld. Counsel for R-2 that even the registration number of offending vehicle is not visible in the above CCTV footage.
20. However, with regard to the above submissions, it has been observed by this tribunal that the above CCTV footage was never got played by Ld. Defence Counsels during cross examination of PW2 and he was nowhere questioned or confronted with contents of the above CCTV footage so as to challenge or shatter his claim and depositions about having witnessed the said accident. Hence, now Ld. Defence Counsels cannot be permitted to make the above CCTV footage a ground to dispute or deny the presence of above witness at spot at the relevant time of accident. Moreover, as already discussed above, the onus of proof placed upon the petitioners in these proceedings is even lesser than preponderance of probabilities and the evidence led on record is sufficient to discharge the onus by the above standards.
21. Again the other documents Ex.R2W2/1 and Ex.R2W2/3 being referred to by Ld. Defence Counsel have come on record during the depositions made by R2W2 ACP Sanjeev Parmar and through these Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:11.12.2020 13:07:40 documents and depositions of R2W3 Insp. Bageshwar Kaushik, it is being tried to be established that the offending crane on that day was briefed/ detained for some VVIP movement at around 3.45pm on route checking Prime Minister between Race Course to PM residence at Teen Murti and the above crane was only one of 82 number of cranes hired by the Delhi Traffic Police vide the above circular Ex.R2W2/1. However, even these documents are of no help to the case of respondents because none of these documents is found to have been handed over or produced before IO of above criminal case during investigation of said case and the possibility of these documents having been manipulated and fabricated lateron cannot be ruled out. Had these documents been true and been handed to IO of the said case, the said criminal case could never have culminated in filing of a charge-sheet against R-1 for the above said offences if the authenticity of these documents was established.
22. Moreover, even as per these documents the spot of accident was admittedly within a radius of just 2/3 kms from the route of duty of above vehicle and hence, these documents nowhere rule out the presence of offending crane at the spot of accident at that time. Further, no complaint was ever made by R-1 to the police or any other authority or court regarding his false implication or false implication of his above said crane in the above said criminal case and this fact has also been specifically admitted by him before this tribunal during his examination.
23. Again, the testimony of PW2 regarding involvement of above crane in the said accident cannot be also doubted for another important reason and the same is that he himself being a police official could never have dared to falsely implicate a vehicle belonging to police, i.e. Delhi Traffic Police, in a case Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:11.12.2020 13:07:40 of accident. No reason or motive has also been attributed to him for false implication of the said vehicle or R-1 in this case and admittedly, he is also not related to claimants of this case.
24. As far as death of the deceased in the accident is concerned, the same has not been disputed and it also otherwise stands proved from the oral and documentary evidence led on record.
25. Therefore, on the basis of the above factual and legal discussion, it is held that the oral evidence led on record by the petitioners is duly substantiated by documentary evidence and it stands proved that the above accident resulting into death of James Samuel was caused due to the rash and negligent act of R-1 in driving the above offending vehicle/crane bearing registration no. DL-1LE-0611, which was owned by R- 2 at the relevant time of accident. This issue is accordingly decided in favour of the petitioners and against the respondents.
..."
4. In view of the above, the Court finds no reason to interfere with the impugned award.
5. The appeal is without merit and is dismissed alongwith pending applications.
6. The order be uploaded on the website forthwith.
NAJMI WAZIRI, J DECEMBER 10, 2020/AB Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:11.12.2020 13:07:40