Delhi District Court
Ms. Rajesh Kumari Wife Of Sh. Ram Sunehri vs Mr. Parveen on 18 July, 2018
IN THE COURT OF S.S. MLAHOTRA
PO:MACT-1 (NORTH): ROHINI: DELHI
MACT No. 5361/16
FIR no. 201/09
PS Bawana
1. Ms. Rajesh Kumari wife of Sh. Ram Sunehri
2. Mr. Ram Sunehri S/o Sh. Ram Kishan audacities
Both R/o Village Saidpur,
District Sonepat (Haryana).
.........Petitioners
VERSUS
1. Mr. Parveen
S/o Sh. Raghu Nath
R/o Village Kundal,
Tehsil Kharkhoda
District Sonepat, Haryana.
2. Mr. Bhagat Singh
S/o Sh. Mangtu Ram
R/o Charkhi, Tehsil Dadri,
District Bhiwani, Haryana.
3. United India Insurance Co. Ltd.
8th Floor, Kanchanjunga Building,
Connaught Circus,
New Delhi.
4. Mr. Naresh
S/o Sh. Puran Mal
R/o Ward no. 2, Kharkhoda,
Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 1 /61
District Sonepat, Haryana.
5. Mr. Govind Garg
S/o Sh. Bhoj Raj
R/o 401, Ward No. 6,
Sant Colony, District Sonepat,
Haryana.
6. IFFCO TOKIO Gen. Ins. Co. Ltd.
TDI Centre, Unit A & B 4,
3rd Floor, Jasola,
New Delhi.
........Respondents
DATE OF INSTITUTION : 24.11.2009
JUDGMENT RESERVED ON : 16.07.2018
DATE OF AWARD : 18.07.2018
FINAL ORDER : AWARD OF
RS. 12,29,000/-
FORM - IV A
1. Date of accident: 22.10.2009
2. Name of deceased: Ashish
3. Age of the deceased: 17 years (DOB: 21.08.1992)
4. Occupation of the deceased: Student.
5. Income of the deceased: 3300/- (not proved)
Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 2 /61
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
(i) Ms. Rajesh Kumari 47 years Mother
(ii) Mr. Ram Sunehri 53 years Father
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Compensation is awarded as per formula applied in Chetan Malhotra Vs. Lala Ram etc. MAC APP. No. 554/2010 etc. i.e. 15000x A(632)/331x18.
Figure of Rs. 15,000/-
represents the notional income, specified in Second Schedule 'A' represents CII for the financial year in which victim died, figure 331 represents the CII for the base year and figure 18 is multiplier.
8. Add-Future Prospects (B) As per above judgment
9. Less-Personal expenses of the N/A deceased (C )
10. Monthly loss of dependency as per judgment in Chetan Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 3 /61
{ (A+B) - C =D} Malhotra Vs. Lala Ram etc.
MAC APP. No. 554/2010
etc.
11. Annual loss of dependency - do -
(Dx12)
12. Multiplier (E) - do -
13. Total loss of dependency - do -
(Dx12xE = F)
14. Medical Expenses (G) Nil
15. Compensation for loss of love Nil
and affection (H)
16. Compensation for loss of Nil
consortium (I)
17. Compensation for loss of - do -
estate (J)
18. Compensation towards funeral - do -
expenses (K)
19. TOTAL COMPENSATION Rs. 6,87,371.60
(F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 9%
21 Interest amount up to the date Rs. 5,41,305.13
of award (M) (105 months i.e. from
24.11.09 to 24.08.18)
22. Total amount including interest 12,28,676.73 rounded of (L+M) to Rs. 12,29,000/-
23. Award amount released 10% in terms of modified direction of the Hon'ble High Court Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 4 /61
24. Award amount kept in FDRs 90% as per direction of the Hon'ble High Court
25. Mode of disbursement of the In phased manner award amount to the claimant
(s) (Clause 29)
26. Next date for compliance of the 24.08.2018 award. (Clause 31) FORM - V AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 22.10.2009
2. Date of intimation of the accident by the Report under investigating officer to the Claims Tribunal Section 158(6) of (Clause 2) M.V. Act was filed.
3. Date of intimation of the accident by the Accident had investigating officer to the insurance occurred in year company. (Clause 2) 2009 i.e. prior to the mandate of filing of DAR
4. Date of filing of Report under section 173 N/A Cr.P.C. before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident N/A Information Report (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance N/A Company (Clause 11) Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 5 /61
7. Date of Service of DAR on complainant(s) N/A (Clause 11)
8. Whether DAR was complete in all N/A respects? (Clause 16)
9. If not, whether deficiencies in the DAR N/A removed later on?
10. Whether the police has verified the N/A documents filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency N/A on the part of the Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Not appointed Officer by the insurance Company.
(Clause20)
13. Name, address and contact number of the Not appointed Designated Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the N/A Insurance Company submitted his report within 30 days of the DAR? (Clause 20)
15. Whether the insurance company admitted No. the liability? If so, whether the Designated Officer of the insurance company fairly computed the compensation in accordance with law. (Clause 23)
16. Whether there was any delay or deficiency N/A o the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 6 /61
17. Date of response of the claimant (s) to the Offer not filed offer of the Insurance Company .(Clause
24)
18. Date of the Award 18.07.2018
19. Whether the award was passed with the Parties contested consent of the parties? (Clause 22) the case
20. Whether the claimant(s) were directed to Yes open saving bank account(s) near their place of residence? (Clause 18)
21. Date of order by which claimant(s) were 22.01.2018 directed to open saving bank account (s) near his place of residence and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced Despite giving the passbook of their saving bank account many opportunities near the place of their residence along with petitioners failed to the endorsement, PAN Card and Aadhar produce their bank Card? (Clause 18) passbook endorsed with modified directions of the Hon'ble High Court
23. Permanent Residential Address of the Both R/o Village Claimant(s) (Clause 27) Saidpur, District Sonepat (Haryana).
24. Details of saving bank account(s) of the Not produced, claimant(s) and the address of the bank Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 7 /61
with IFSC Code (Clause 27)
25. Whether the claimant(s) saving bank Yes account(s) is near his place of residence?
(Clause 27)
26. Whether the claimant(s) were examined at No. the time of passing of the award. They would be examined at the time of disbursement of award amount AWARD
1. The petitioners Ms. Rajesh Kumari and Sh. Ram Sunehri parents of victim (Ashish) have filed the claim petition under Section 166 and 140 of M.V. Act seeking compensation of Rs. 20 lacs with interest along with interim award of Rs. 50,000/- from the respondents on account of death of their son namely Ashish, who suffered fatal injuries in road traffic accident. Though the petition has been filed by the parents of the victim, however petitioner no. 2 i.e. father of deceased is pursuing the matter and therefore he is hereinafter referred as "petitioner".
2. Brief facts of the case as per the petitioner are that on 22.10.2009, Mr. Ashish, son of petitioners, was sitting on a motorcycle as pillion rider, Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 8 /61which was being driven by respondent no. 1 at a very high speed, rashly, negligently and in a zigzag manner while talking on mobile phone and despite being requested by Ashish to drop him, respondent no. 1 did not pay any heed and ultimately collided with the offending vehicle no. 2 bearing no. HR69A 0417 at Harewali More, which was also being plied by its driver in a very dangerous manner. Due to such accident, Ashish sustained grievous injuries on all over his body. Some public persons caught the driver of said offending vehicle no. 2. However, he managed to escape from the spot. It is further submitted that the two person / eye- witnesses namely Pardeep Kumar S/o Sh. Rajbir and Ravi Kumar S/o Sh. Om Prakash informed the police who had come on the spot of accident after about 15-20 minutes and petitioner has also reached the spot of accident. He met with one constable Virender of PS Bawana who told the petitioner that the number of the offending vehicle has been noted down by the IO ASI Rajender Singh and thereafter he reached MV Hospital where his son had already been taken by CATS van from where his son was taken to Jaipur Golden Hospital, where he expired during the treatment and Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 9 /61petitioners had spent, more than Rs. 4.50,000/- on the treatment. It is further submitted that the investigation was conducted by ASI Rajender Singh who interrogated above said persons Pardep Kumar, Ravi Kumar and the driver of the motorcycle no. HR19B 8935 and they have told the entire story to the ASI Rajender Singh but despite the fact he neither arrested the driver nor took the offending vehicle in custody and after about 1 ½ month, he closed the investigation as untraced under the influence of the drivers and owner of the said offending vehicles. The petitioner has met several times to the SHO, ACP as well as DCP and moved several complaints. The petitioner met ACP on 01.01.2010 and 01.02.2010 and also moved the application for further investigation and to change the IO upon which the investigation was handed over to the ASI Karan Singh Dahiya. This IO has again interrogated the eye-witness and sent a notice under Section 133 MV Act to the owner of offending vehicle no. 2 thereby directing to produce the driver and offending vehicle in PS on 09.02.2010. The offending vehicle was produced in PS Bawana along with its driver but ASI Karan Singh Dahiya neither arrested the driver not Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 10 /61took the offending vehicle no. 2 in custody rather allowed him to leave PS for the reason that relative of driver and owner of said offending vehicles no. 2 is SHO in Kharkhoda Police Station, The matter has not been investigated properly by SHO PS Bawana and on 18.07.210 and 25.07.2010, the petitioner visited PS Bawana to meet SHO and till date petitioner is visiting the PS Bawana but no solution has been heard from the police and accused are running without the fear of law and justice. The petitioner having left with no option and filed one complaint under Section 200 CrPC against the respondents, which is pending disposal.
3. The petitioner again raised his voice and then the investigation was handed over to the ASI Babu Lal and then to SI Ramesh Chander. SI Ramesh Chander investigated the matter and he again filed untraced report, which was not accepted by the Ld. MM rather cognizance was taken by the Ld. MM.
4. Contending that said accident took place, due to rash and negligent driving of above said offending vehicle no. HR19B 8935 (driven by respondent no. 1, owned by respondent no. 2 and insured with respondent Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 11 /61no. 3) and vehicle no. HR69A 0417(driven by respondent no. 4, owned by respondent no. 5 and insured with respondent no. 6) , the petitioners who are parents of the deceased filed the present claim thereby claiming a sum of Rs. 20 lacs from respondents (jointly and severally) as compensation, alongwith interest @ 18% per annum from the date of filing of claim petition till its realization. An interim award of Rs. 50,000/- has also been claimed for.
5. The claim of petitioners was contested by all the six respondents. In their joint written statement filed by respondents no. 1 and 2 they have taken the preliminary objection inter alia stating that no accident caused with their vehicle, the petitioner has not approached the court with clean hands and have suppressed the material facts and hence petition is liable to be dismissed. The amount of the compensation claimed is highly excessive, exorbitant, exaggerated and without any basis. In further paragraph, its is submitted that respondent no. 1 and 2 are not liable to pay compensation as their vehicle was duly insured with respondent no. 3 and respondent no. 1 has all the genuine documents i.e. valid DL, he is also a trained driver and Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 12 /61having experience of driving the vehicle and is duly qualified to drive. The respondents no. 4, 5 and 6 are liable to pay the compensation as the accident was caused by offending vehicle no. HR69A 0417. It is further stated that they have been falsely implicated in this matter. On merit, contents of petition are denied.
6. Respondent no. 3, in its WS has taken the preliminary objection that if it is proved that the driver / respondent no. 1 was not holding a valid and effective DL at the time of alleged accident then respondent no. 3 will not be liable to pay compensation and if respondents no. 1 and 2 do not appear and are proceeded ex-parte, or failed to contest the case in collusion with the petitioner, then respondent no. 3 would take all the defences, which are available to respondents no. 1 and 2. it is further submitted that as per written submission of petitioner, before the concerned MM the respondent no. 1 was driving his motorcycle at a normal speed while obeying traffic rules and there is no rash and negligent driving by respondent no. 1.
7. In his written statement filed by respondent no. 4, he has taken the Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 13 /61preliminary objection inter alia on the ground that petitioner has not disclosed the true facts and circumstances of the case. It is submitted that respondent no. 5 is registered owner of the vehicle and no accident took place by respondent no. 4. It is further submitted that Dalel Singh, who made the PCR call did not provide the number of the offending vehicle till date and as per statements of Suresh Kumar and Ajit Singh, recorded by the IO, this vehicle was not present on the spot of accident and no accident took place by respondent no. 4. It is further submitted that alleged Ravi Kumar and Pardeep Kumar are interested witnesses as no statement was recorded by the police on the day of accident. It is further submitted that in the statement of Sunil Kumar, he has stated that on 22.10.2009, tempo no. HR69A 0417 loaded with plywood was headed for the delivery of the goods to Gannaur, Sonepat with driver that i.e. respondent no. 4 in his presence and IO was informed all these facts. It is further submitted that on 22.10.2009 he (respondent no. 4) left for Gannaur, Sonipat with plywood loaded including necessary bills. The police had already filed the final report, as per which no accident has Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 14 /61been carried out by their vehicle. The WS filed by respondent no. 5 is on the same lines.
8. It its written statement filed by respondent no. 6, it has not disputed the fact that vehicle of respondent no. 5 is duly insured with it on the date of accident, however it has denied its liability by inter alia stating that as per respondent no. 4, his vehicle was not involved in the accident at all and it has also denied its liabilities on technical grounds as well.
9. From the pleadings of the parties, following issues were framed vide order dated 30.03.2015:
1. Whether the petitioners are entitled for compensation, if yes, what amount and from whom of the respondents? OPP
2. Relief.
10. In order to prove the claim, Sh. Ram Sunehri (petitioner no. 2 and father of deceased) examined himself as PW1 and filed his affidavit Ex. PW1/A in evidence and relied upon documents Ex. PW1/1 to Ex. PW1/4. PW2 Mr. Pardeep, stated to be eyewitness of accident has also been examined. Respondent no. 4 examined himself as R4W1, Respondent no. Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 15 /615 examined five witnesses. He examined himself as R5W1, Sh. Vijay Kumar as R5W2, Sh. Amit Mann as R5W3, Sh. Sunil Kumar as R5W4 and ASI Ramesh Chand as R5W5. Respondent no. 6, examined one witness Sh. Mohit Nagar, as R6W1. No evidence has been adduced on behalf of respondents no. 1, 2 and 3. However, one another petition titled as Parveen Vs. Naresh being petition No. 176/17, which petition has been filed by Mr. Parveen, the respondent no. 1 herein, and a petitioner therein, who has led his evidence and the same would be read in this case as well.
11. I have heard both the Ld. Counsels of parties and have gone through the entire record carefully. My issue wise findings are as under: - ISSUE NO. 1
Whether the petitioners are entitled for compensation, if yes, what amount and from whom of the respondents? OPP
12. Issue no. 1 was framed with respect to the entitled of the petitioners, if any, then to what amount and from whom. Basically, this issue involves some smaller issues, which are required to the answered first. Before it is held that petitioners are entitled to get the compensation and then from whom, following parts of the issues are required to be Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 16 /61answered: -
1. Whether vehicle i.e. motorcycle bearing registration no.
HR19E 8935 is involved in the accident or not?\
2. Whether vehicle i.e. tempo bearing registration no. HR69A 0417 is involved in the accident or not? &
3. Whether it is a case of contributory negligence of both the vehicles?.
13. After the reply of these issues, the next question there would be the extent of amount and then keeping in view the answer of above mentioned issues, as to who has to pay compensation. Apparently, the framing of smaller issues with respect to the involvement of the said motorcycle was not required to be discussed but it has become necessary to discusses as respondent no. 1 denied the involvement of his motorcycle in the accident initially. No doubt, the respondent no. 1, subsequently shifted his own stands, knowingly or unknowingly, on this aspect by stating that he was not negligent in driving his motorcycle and therefore part of the answer has already been admitted by the respondent no. 1 that his vehicle was Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 17 /61involved in the accident. Whether the motorcycle dashed against the offending vehicle no. 2 or whether offending vehicle no. 2 dashed into the motorcycle or who was driving the vehicle in rash and negligent manner would be discussed herein below.
14. Now coming to the fact as to whether offending vehicle having registration no. HR69A 0417 (tempo) was involved in this accident or not or whether there was negligence on the part of motorcycle driver or whether the vehicle with which the motorcycle collided could be traced out successfully or not.
15. Before coming to the evidence, the facts as have been enumerated from various documents filed before this court as well as before Ld. MM are that initially FIR no. 201/09 under Section 279/338 IPC was registered in PS Bawana inter alia on the information recorded vide DD no. 42B where it is mentioned that a call from PCR van has been received and duty officer Const. Manju has informed that one vehicle make Mahindra, which is loaded with vegetable has struck against motorcycle and further reported, that person has died and gathering is there. Thereafter, one ASI Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 18 /61Rajinder Singh reached Harewali Road where one motorcycle having no. HR 19B 8935 (Splender) in accidental condition was found and on information he came to know that injured has been removed to M.V. Hospital and no eye-witness met him there. He reached MV Hospital and collected MLC no. 3077/09 and CR No. 43173/09 of Parveen S/o Raghunath and doctor mentioned "unfit for statement". The matter was investigated and during investigation the motorcycle no. HR19B 8935 was also taken into possession by the police and its mechanical inspection was got done. Statements were recorded but meanwhile it was informed that Ashish S/o Sh. Ram Sunehri has expired. Thereafter necessary proceedings were conducted for getting the postmortem of Ashish done and after the postmortem, the IO made further investigation. The said motorcycle was released on superdari in terms of the order of the court but whereabout and number of offending vehicle were not found as no witness had turned up for identification of offending vehicle Mahindra, carrying vegetables, as driver of the offending vehicle had run away from the spot and ultimately untraced report was filed by the IO ASI Rajinder Singh before the Ld. MM Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 19 /61by stating that in view that offending vehicle is not traceable, the file cannot be kept for longer period. This untraced report was accepted vide order dated 14.12.2009. However, on 27.12.2009, Sh. Ram Sunehri, father of Ashish (deceased) filed a complaint for re-opening the case and case was reopened on 28.12.2009 and investigation was handed over to IInd IO ASI Karan Singh. During the investigation, IO ASI Karan Singh took the hand written complaint of Mr. Ram Suneri (father of deceased) on record, which inter alia reads to the extent that Mr. Ram Sunehri has been told by one Sh. Ravi S/o Sh. Om Parkash R/o H. No. 457A, Shiv Mandir Wali Gali, Delhi claiming himself to be eye-witness of accident. He still was not satisfied with the way of investigation and he levelled certain allegations against IO ASI Karan Singh as well. Accordingly, on 04.08.2010, investigation was handed over to 3rd IO ASI Babu Lal and during investigation on 29.08.2010 one Pardeep S/o Sh. Rajbir R/o Village Sedpur, Sonipat, Haryana stated that the accident which had happened on 22.10.2009 in the evening was caused by one Mahendra Tempo no. HR69A 0417. Thereafter, this IO was also transferred and investigation Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 20 /61was handed over to 4th IO SI Ramesh and during the investigation the owner of said Mahendra Tempo was traced out, through transport authority, i.e. Sh. Govind S/o Bhoj Raj R/o H. No. 401, Ward no. 6, Sant Colony, District Kharkhoda, Sonipat, Haryana to whom notice under Section 133 of MV Act was given and he claimed that he was the previous owner (as by that date he had sold the vehicle) of this vehicle No. HR69A 0417 and on 22.10.2009, his vehicle was being driven by one Naresh S/o Sh. Puran Mal R/o Village Kharkhoda, Sonipat, Haryana, who was working under him and on 22.10.2009 his vehicle had to take plywood from Rai Kakroi Road and was to be delivered at Shakti Plywood, Ganaur. He had never given his vehicle on rent to any person since he has his own work of plywood. On 22.10.2009 his vehicle was out of Delhi. After his this statement, the IO visited Sunil Kumar S/o Jagdish Rai R/o H. No. 1021/30, Kakroi Road, Haryana, who made a statement that on 22.10.2009, Mahendra tempo no. HR69A 0417 was loaded and sent to Shakti Plywood, Ganaur and the vehicle was being driven by Naresh. Thereafter statement of one Suresh Kumar S/o Gauri Shankar R/o T79B, Indra Colony, Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 21 /61Narela was recorded. In his statement Mr. Suresh stated that he deals in plywood and as per his record, on 22.010.2009 at about 6.30 pm vehicle no. HR69A 0417 came from Ram Gopal Jagdish Rai, Kakroi Road, Sonipat, which was being driven by Naresh Kumar S/o Puran Singh and he has received the plywood vide bill no. 1078 dated 22.10.2009. Thereafter statement of Naresh was recorded. Notice under Section 160 CrPC was also given to one Ravi S/o Sh. Om Parkash but he did not join the investigation. Thereafter, statement of one Dalel S/o Sh. Shiv Charan was recorded, who stated to be the eye-witness and investigation was completed.
16. Accordingly the SI Ramesh Chander also filed the untraced report dated 14.11.2011, which came up for hearing on 15.11.2011. The IO, the petitioner, his counsel and Ld. APP for the State were present in court. The petitioner raised the objection with respect to the manner in which investigation has been done in this case. The court of Ld. MM accordingly did not accept the 2nd untraced report, rather directed that the action be taken against the IO concerned, who has not investigated the matter Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 22 /61properly and simultaneously took the cognizance of the offence under Section.279/337/304A IPC. It is a matter of record that accused Naresh filed some revision petition against the order of Ld. MM, who did not accept the untraced report and that revision petition was also dismissed.
In the backdrop of these facts, now coming to the evidence of the parties. The whole issue has to be appreciated and discussed in view of the evidence. The involvement of the motorcycle has already been proved and now the petitioner has to prove as to whether the tempo bearing registration no. HR69A 0417 was involved in the accident or not. Petitioner, Sh. Ram Sunehri has deposed that he is father of deceased (Ashish) and on 22.10.2009 at about 6.12 pm when his son was coming on motorcycle bearing registration no., HR19B 8935, which was being driven by respondent no. 1 Mr. Parveen Kumar at a very high speed and in rash and negligent manner and when they reached near Harevli More, then all of a sudden, respondent no. 4 came driving the offending vehicle bearing registration no. HR69A 0417 in a rash and negligent manner and hit the motorcycle, on which his son was sitting as pillion rider and he was Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 23 /61taken to Maharishi Valmiki Hospital in serious condition, where his son remained hospitalized but keeping in view seriousness of injuries he was taken to Jaipur Golden Hospital where he was treated upon. However, he could not survive and succumbed to the injuries suffered in the accident dated 22.10.2009 on 11.11.2009. The IO deliberately did not take action against the respondent no. 4 and his offending vehicle. He moved an application/complaint before SHO, ACP, DCP and Vigilance, Ex. PW1/1 to Ex. PW1/4.
17. Before coming to his cross examination, I have also gone through the contents of Ex. PW1/1 to Ex. PW1/4. Ex.PW1/1 is a letter dated 27.12.2009, written by the petitioner himself to SHO PS Bawana. It inter alia reads that he is father of deceased Ashish. In the beginning he was not aware about the facts that offending vehicle was tempo bearing no. HR69A 0417. Now he has traced a witness who is eye-witness of the accident. He met many a times and told the IO of the case Rajinder Singh about the case, who did not pay attention and therefore he requested the SHO to look into the matter and take action against the respondent no. 4 and Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 24 /61offending vehicle, and he can produce the eye-witness before him and this matter be reopened and IO be changed. This letter is dated 27.12.2009 and the date is relevant.
18. Ex. PW1/2 is a letter dated 01.01.2010, addressed to the Assist Commissioner of Police, Bawana. It inter alia reads as that his son has expired in road traffic accident on 22.10.2009 within the jurisdiction of of PS Bawana but the IO of the case had not taken custody of offending vehicle no. HR69 0417 (Mahindra open body tempo) intentionally. He has requested the IO many a times and told the name of eye-witness. Although, the SHO had changed the IO, but the IO ASI Karan Singh was also not looking into the matter properly and then the petitioner requested the SHO to direct the IO to work sincerely in this matter.
19. Ex. PW1/3 is another letter dated 02.02.2010 written by petitioner Ram Sunehri to ACP, Sub-Division Bawana. It inter alia reads that his son has expired in road traffic accident on 22.10.2009. The first IO ASI Rajender Singh did not proceed properly in this matter, hence he sent the matter as untraced. The applicant wrote many applications to the SHO PS Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 25 /61Bawana. ASI Rajender Singh was told that the number of the offending vehicle is HR69 0417, a Mahindra tempo. The SHO PS Bawana marked the applications to another IO ASI Karan Singh Dahiya for further proceedings and the second IO ASI Karan Singh Dahiya although was satisfied with the statement of applicant and eye-witness but despite that he is saying that he has not been provided with the case file.
20. Ex. PW1/4 is another letter dated 09.08.2010 written to DCP, Outer District and it inter alia reads that his son met with an accident on 22.10.2009 where after he died on 11.11.2009. On 22.11.2009 he met with IO SI Rajinder Singh but he has not conducted any proper investigation. The number of the offending vehicle was told to him where after IO ASI Rajinder Singh told him that HC Birender Singh has already told him the number of offending vehicle i.e. HR69A 0417 and he is investigating the matter. Thereafter, he met Inspector Meena SHO, PS Bawana, who told him that they are working in this matter and number of offending vehicle has been received. He was also informed that police has to visit many authorities in this matter and informed and even demanded Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 26 /61Rs. 35,000/- and thereafter he would not have to come. He gave Rs. 35,000/- to Mr. Meena, SHO, PS Bawana and further got his statement recorded but he had recorded statement of only one person and despite that no further and proper investigation was done. Thereafter wrote a letter to ACP concerned but still no work was done, then he wrote another letter dated 01.01.201 to ACP, Bawana and the ACP directed the SHO to conduct the investigation and file the report with three days. It is also the fact that the then IO gave notice under Section 133 MV Act. On 22.02.2010, offending vehicle and its driver came to PS Bawana but the SHO PS Bawana let them go without further investigation. He even lodged a complaint with respect to loss of mobile phone of his son and SHO assured him that they will trace out the same soon. He also told that this mobile number has been operated during 15-16 September-2009 and he even had supplied EMEI number of the mobile phone. He came to know that one boy had removed the mobile phone from the pocket of his son. He also requested that details of cell phone be obtained from concerned department, but no action has been taken. Petitioner is relying up the Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 27 /61above said four letters. All this is version of PW1/1 to PW1/4.
21. Petitioner has also examined another witness namely Mr. Pardeep i.e. PW2. He has filed his evidence by way of affidavit and has inter alia deposed that the present accident had occurred before his eyes on 22.10.2009 at about 6.12 pm. One motorcycle no. HR19B 8935, which was being driven by its driver in a very rash and negligent manner and one young boy was sitting as pillion rider on the said motorcycle and when they reached near Harevli More, all of a sudden another vehicle bearing no. HR69A 0417 came from opposite side, which was being driven by its driver rashly, negligently and in a very high speed and in a zigzag manner and hit the said motorcycle. Both the motorcyclists fell down. First of all, deceased / injured were taken to MV Hospital and considering serious condition of injured he was taken to Jaipur Golden Hospital where he expired, after few days. He has given his statement several times to the IO of PS Bawana. The present accident had occurred due to contributory negligence of both the vehicle i.e. motorcycle and open body goods carrying vehicle.
Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 28 /61
22. The driver of motorcycle Mr. Parveen i.e. respondent no. 1 has not been examined by petitioner but this Parveen i.e. respondent no. 1 herein has also filed his case against Naresh, who is respondent no. 4 herein and respondent no. 1 in that petition filed by Mr. Parveen and since petitioner Parveen is injured, he has also deposed and his evidence is also material for the purpose of appreciating as to whether the vehicle bearing registration no. HR69A 0417 was involved in the accident or not.
23. Before coming to his evidence, it is necessary to observe that though the accident had occurred in year 2009 yet petitioner Parveen filed his claim petition in the year 2007 inter alia stating that on 22.10.2009 at about 6.12 pm, when he was going on his motorcycle no. HR69A 0417 towards Auchandi Border on normal speed on correct side of the road by observing traffic rules and Mr. Ashish was sitting as pillion rider and when they reached near Harewali More suddenly Mahindra tempo bearing no. HR69A 0417, which was being driven in a rash and negligent manner and in contravention of the traffic rules coming from opposite side, hit their motorcycle no. HR19B 8935. He and Ashish fell down and he suffered Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 29 /61grievous injuries on all the parts of his body whereas Ashish suffered fatal injury. They both were removed to M.V. Hospital where their MLC was prepared but Ashish was removed to Jaipur Golden Hospital. He got discharged himself on 22.10.2009 and got his treatment in Jaipur Golden Hospital and he came to know that Ashish had died in the Jaipur Golden Hospital during the treatment. His evidence is on the same lines of petitioner by stating that accident took place due to sole negligence on the part of respondent no. 1, in his (Parveen) case i.e. Mr. Naresh (respondent no. 4 herein), who was driving his vehicle in a rash and negligent manner. This all is the evidence given on behalf of petitioner. Petitioner i.e. PW1, Sh. Pardeep i.e. PW2 and Sh. Parveen (petitioner in connected case) All of them have deposed that the accident had happened due to rash and negligence of driver of the vehicle i.e. tempo bearing no. HR69A 0417.
24. Now coming to the cross examination of these witnesses. PW1 was cross examined by Sh. Ramphal Mathur, Ld. Counsel for Ins. Co. / R3. He was also cross examined by Sh. Neeraj Bansal, Ld. Counsel for respondents no. 4 and 5 i.e. driver and owner of the said Mahindra Tempo and by Sh. Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 30 /61Sunil Mittal, Ld. Counsel for respondent no. 6, i.e. the insurer of Mahindra Tempo.
25. The cross examination by respondent no. 3 and respondent no. 6 are not much material with respect to the involvement of their vehicle as they have cross examined on the limited aspect of their liabilities and it is otherwise argued that they will be liable to pay compensation only if their vehicle is proved to be involved in the accident. Cross examination of this witness by Ld. Counsel for respondents no. 4 and 5 are material.
26. In his cross examination by Ld. Counsel for respondents no. 4 and 5, PW1 deposed that he was not present on the spot at the time of accident. He has not given in writing the number of offending vehicle to the IO till IO filed untraced report before the court of Ld. MM concerned. He told the IO verbally the number of vehicle. Police recorded his statement about accident after about one month of accident. He did not know the exact date. He disclosed number of offending vehicle to the police and when specifically asked as to whether respondent no. 4 was present on the spot or not, he deposed that he cannot say if respondent no. 4 i.e. driver of the Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 31 /61tempo was present on the spot or not. He denied the suggestion that he never disclosed the number to the IO before lodging the complaint or that vehicle bearing no. HR69A 0417 has falsely been involved in this case to get compensation and he denied that he know Sh. Rakesh who went to the shop of respondent no. 5 or disclosed the number of that tempo to him. He also denied that he did not give any other statement to the police on 11.11.09 but again said he did not give any other statement apart from the statement about identification of dead body of his son.
27. PW2 Mr. Pardeep, who is claiming to be eye-witness of accident has also been cross examined at length by Ld. Counsel for respondents no. 4 and 5 and he deposed that he and the petitioner are on visiting terms with each other and they both belong to same village. In a statement given before the court concerned he deposed that driver of the motorcycle on which victim was travelling was driving it negligently in a zigzag manner.. He did not observe if that motor-cycle was got damaged in accident or not. The driver as well as pillion rider of that motor-cycle, both had suffered injuries. He admitted in his cross examination that he did not inform police Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 32 /61control room while dialing at 100, and stated that he was not carrying mobile on that day. He denied that he was not present at spot at the time of accident. He did not know if any vigilence inquiry was coducted by police in this matter or not. His statements were recorded 4-5 times by the police, but he did not know if they were from vigilence department or not. He signed those statement. Apart from police station Bawana, his statement was recorded in ACP Office. He did not know what report was given by vigilence department. He further deposed that he did not meet father of said Ashish on the day of accident.. He denied that he returned to his place leaving victim at spot but he again said that he met father of Ashish at Auchandi Boarder, bus stand, near police post, after 20-30 minutes of accident when ambulance came at spot and the said place is at a distance of about 1-1/2 KM. It took him about 20 minutes to reach there. He did not accompany victim Ashish to hospital from the spot. Ashish was taken in a CATS ambulance and he subsequently went to MV Hospital along with the father of Ashish in a bus. Police met him there. He did not give to the police in writing the number of offending vhicle as HR69A 0417 Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 33 /61but he disclosed said number to the police verbally. Police has not recorded his statement in the hospital and for the first time he gave statement to the police after about 1 year of accident and that too after going to PS Bawana. That satement was written by him on his own on being asked by the police. He has not brought copy of the same but can bring the same . He denied that the suggestion that he did not disclose number of offending vehicle to the police till 24.08.2010. He did not remember if he deposed before the court of Ld. MM that he did not give any complaint or did not disclosed number of offending vehicle. He remained at spot at about 10-15 minutes. Again said 15-20 minutes and it was about 7 pm when he went to hospital along with father of Ashish. He did not remember the date of the incident now. He denied that that he has given false affidavit in the court.
28. This is entire cross examination by the petitioners. Admittedly the accident has taken place on 22.10.2009 and at that time apart from one Sh. Dalel, who has called the police while dialing 100 number, there is no other witness on the record with resepct to accidnt. This witness i.e. Sh. Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 34 /61Dalel has caregorically stated before the vigilence committee (he has not been examined in this court) that he could not note down the number of the offending vehicle. The other person Mr. Ravi, whom the petitioner is claiming that he informed him the number of offending vehicle has also not been examined by petitioner.
29. It is admitted case of the petitioner himself that for the first time he disclosed the number of the offending vehicle on 22.12.2009 as the number of veicle was told to him by one Sh. Ravi, who stated to have visited his house and even on that day he did not mention the fact that number of the tempo has been dislcosed to him by Pardeep on the date of accident itself. Keeping in view all this evidence, so far, it is clear that petitioner Ram Suneri is not the eye-witness of accient. The co-injured Parveen has not given any statement immediately with repsect to number of the offending vehicle. He has not filed his own case for about seven years complaining the alleged rash and negligence driving by tempo no. HR69A 0417 and Mr. Ravi has not stepped into the witness box. Now from testimonies of PW1 and PW2, some another statements are also Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 35 /61relevant to be considered.
30. There is a statement / complaint of petitioner on record dated 01.01.2010 i.e. Ex. PW1/1, wherein he states that he is residence of above given address. His son met with an accident on 22.10.2009 at about 6.12 pm while he was sitting pillion rider on the motorcycle no. HR19B 8935 and during that time one tempo bearing number HR69A 0417 struck againt the motorcycle and they both fell down and all these facts were told to him by one Sh. Ravi Kumar S/o Sh. Om Prakash R/o 457A, Bawana, Delhi on 22.12.2009. This statemnt of petitioner is getting corroboration with the facts stated by petitioner in the petition, although the date is not mentioned and it inter alia menas that the very first information with respect to number of the offending vehicle was given to him by Sh. Ravi Kumar that too only on 22.12.2009. The petitioner is not at all stating that the number of the offending vehicle was told to him by Sh. Pardeep on the date of accident itself. It is, therefore, clear that Sh. Pardeep Kumar who claims to be present on the spot of accident and then in the hospital, has not disclosed the number of the ofending vehicle to the Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 36 /61IO on the date of accident. Therefore, the testimonty of PW1 is not getting corroboration with the statement of PW2 with respect to the number of the offending vehicle. Now coming to the further testimony of PW2 Pardeep kumar. He has given the statement before the court of Ld. MM and has also filed his affidavit that he is eye-witness and he has noted the number of offending vehicle on the day of accident itself. He has also deposed that he reached hospital along with father of the deceased Ashish in that hospital on that very day and has given the statement to the police and he informed the police with resepct to the number of the offending vehicle but the police official did not note it. If the testimony of PW2 is appreciated then he was with the petitioner himself in the hospital where he informed this fact to the police and if that is so then petitioner should not have mentioned the fact that the number of the offending vehicle has been told to him by Ravi Kumar S/o Sh. Om Prakash R/o 457A, Bawana, Delhi on 22.12.2009. Therefore the testimony of Sh. Pardeep Kumar that he was present on the date of accident on spot, or he noted the numbher of offending vehicle i.e. tempo is not getting any corroboration again. Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 37 /61
31. Now coming to the statement of Mr. Ravi Kumar. This witness did not appear before the court nor this witness was brought by the petitioner as his witness, despite the fact that this is the very first alleged witness who claimed to have seen the number of the offending vehicle as per petitioner. His statement inter alia reads that on 22.10.2009 he was going on his own motorcycle towards Bawana in his house and saw the offending tempo no. HR69A 0417 being driven in rash and negligent manner came from his back side, overtook him and then hit the motorcycle coming rrom opposite direction, on which two persons were sitting, both of these persson fell down and tempo driver took his face out of the tempo, when he saw him, but he (tempo driver) ran away along with his tempo. Various public persons gathered there but he went on account of some job / work as he was in some hurry. He had come to his village Sedpur in some relation where he came to know that the accident which had occurred at Harevli More on 22.10.2009 causing death of one persons namely Ashish belonged to this village and therefore he went to the father of Ashish and informed him all these facts. This statement of Mr. Ravi Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 38 /61Kumar is not getting corroboration with the statement of petitioner. As per petition, the petitioner has stated that the driver was caught by the public person but he fled away whereas Mr. Ravi Kumar submits that driver did not stop his vehicle and he took his face out and Mr. Ravi Kumar saw him and he ran away with vehicle.
32. It is a matter of record that some vigilance inquiry has initiated as per the direction of the court and the statement of this Ravi Kumar was somehow recorded there and this witness inter alia deposed as follows:
"On 22.10.09 he was coming on his motorcycle from Auchandi Village side. At about 6.30 P.M. when he reached at Harevli Mod, he saw that some people had gathered. On enquiry it was revealed that an accident had taken place at that site.
One motorcycle make Hero Honda Splender bearing Haryana Registration Number was lying at the spot in an accident condition.
The other vehicle involved in the accident had left the spot before he reached the spot.
Ram Sunehari Vs. Parveen Kumar & Ors.MACT no5361-16 39 /61
He has no knowledge about the accident. Enquiries were made from him by the father of deceased Ashish Sh. Ram Suneri and two-three police officers from PS Bawana.
His signature were also obtained on many papers. When confronted with his signed statement (copy of which was attached with the court order) where he had mentioned that the accident was caused by Mahendra Tempo, bearing Registration no. HR-69A-0417, he stated that it was not correct and he had not seen the accident taking place. He clarified that after six-seven days of accident Sh. Ram Sunhari, th father of the deceased Ashish accompanied by three police men had come to his house and had obtained h is signatures on four five blank papers.
He admitted that he had not joined the investigation despite being summoned on 16.10.10, as he was out of town".
33. The statement of Mr. Ravi Kumar is neither here, nor there, nor is getting any corroboration wih the statement of petitioner or even his own statement. Above all, he did not appear in the witness box which raises reasonable doubts with respect to his staement Coming to the testimony of Mr. Pardeep once again. Mr. Pardeep; has deposed that, although, he Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 40 /61knows the number of the offending vehicle but he again stated that he has not seen the driver of the offending vehicle on that day. It cannot be appreciated that if PW2 Mr. Pardeep was with the father of the petitioner on same day just after 15-20 minutes of the accident and when he claimed to have met the father of the deceased i.e. petitioner, when he claimed to have reached in the hospital and remained in hospital with the petitioner and police has reahced in the hospital where he informed the police, about the number, then it can be supposed that he could have told the number of the offending tempo to the petitioner also and if the petitioner is aware of the number of the offending tempo on the day of accident itself, then there was no need to mention that Mr. Ravi Kumar S/o Sh. Om Prakash R/o 457A, Bawana, Delhi had informed him about the accident for the first time about the offending veicle on 22.12.2009 after visiting his residence. Therefore, neither the petitioner, nor Pardeep, nor said Ravi Kumar nor the respondent no. 1 Mr. Parveen Kumar, who is the petitioner in the connected case were aware of the number of offending vehicle on the date of accident.
Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 41 /61
34. The testimony of all the four witnesses i.e. petitioner, Pardeep, Parveen and Ravi Kumar is not getting corroboration to each other witness, which lead to the inference that no one was aware of the number of offending vehicle on the date of accident.
35. Now coming to the other / second aspect with respect to availability of the offenidng vehicle on the date of accident at the spot in terms of the evidence of respondent no. 4 and respondent no. 5. As per petitioner, the offending tempo no. HR69A 0417 and was being driven, on the date of accident by respondent no. 4. He (respondent no. 4) has examined himself in chief. He has deposed that he was was employed as a driver with Sh. Govind Garg on vehicle no. HR69A 0417 and his tempo did not meet with any accident on 22.10.2009. Police recorded his statement after about one year of accident Ex.R4W1/1. He has inter alia stated in his statement that on 22.10.2009, at about 5.30 pm he was driver on vehicle no. HR69A 0417, which he loaded with plywood from the shop of Ram Gopal at Sonipat to be delivered to Shakti Plywood, Ganaur and after delivery of said plywood at Shakti Plywook, Ganaur he came to Kharkhoda Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 42 /61and he went no where else on that day.
36. In his cross examination he has admitted that he is facing trial in case FIR no. 209/2009 PS Bawana under Section 279/337/304-A IPC before the court of Ld. MM. He also admitted the fact of dismissal of his revision petition against the order passed by ld. MM for framing notice against him in that case. He further denied the suggestion that his vehicle met with accident on 22.10.2009.
37. Respondent no. 5 is Mr. Govind Rai (registered owner of offending tempo). He examined himself as R5W1. In his examination in chief, he has admitted that he was the owner of offending tempo on the date of accident and police served a notice under Sevtion 133 of MV Act upon him which is Ex. R5W1/1. On 22.10.2009 his aforesaid tempo was loaded with plywood from Sonipat which were to be unloaded at Gannuar. Copy of bill for the purchase of said plywood is Ex. R5W1/2. Said vehicle did not meet with any accident. In his cross examination, he admitted that his said tempo was given to the driver (Naresh). He also admitted that he did not challenge notice under Section 133 of The Motor Vehicle's Act served by Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 43 /61police upon him. He also admitted that he had purchased said tempo about one year before 22.10.2009 and sold the same to one Sh. Satbir after keeping it for about one year. He has not received any other notice from the police except notice under Section 133 of MV Act. He was having valid fitness / permit of said vehicle which were handed over to Satbir.
38. R5W2 Sh. Vijay Kumar, Ahlmad and R5W3 Sh. Amit Mann, Assistant Ahlmad both from the Court of Sh. Jitendra Partap Singh, Ld. MM-05, District North, Delhi have brought the case file and proved the records court file.
39. R5W4 is Sh. Sunil Kumar S/o Sh. Jagdish Rai, R/o H. No. 1021/30, Kakroi Road, Sonipat who deals in plywood having his shop in the name of Ram Gopal Jagdish Rai, at Kakroi Road, Sonipat. In his examination in chief he deposed that on 22.10.2009, proprietor of Shakti Plywood Ganaur purchased a tempo load of plywood from their shop, same were loaded in a tempo No. HR69A 0417 from their shop at about 5.30. pm That tempo left the shop immediately. Naresh Kumar was driver on that tempo. Said Naresh Kumar did not return to him after unloading the goods. He has Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 44 /61confirmed the receipt . He has brought bill book from 19.08.2009 to 10.11.2009 which have been Ex. R5W3/12. In his cross examination by the Ld. Counsel for petitioner he deposed that as per receipt book brought by him, no such tempo was loaded on 22.10.2009. The court has observed Ex. R5W3/12, upon which the vehicle no. HR69A 0417, time 5.30 p.m. is written on it. It is even otherwise a counter file of the bill/ record. He further deposed that he is not summoned witness and he has come to court on the request of Naresh (respondent). He admitted that he did not go to Ganaur in said tempo to unload plywood. He denied the suggestion that receipt book brought by him is forged. He was also cross examined Ld. Counsel for for respondents no. 1 and 2 and he deposed that usually he attends his shop M/s Ram Gopal Jagdish Rai sitting on counter which remains open from 8 am to 8 pm, having Sundays off. Whenever they require tempo, they call tempo no. HR69A 0417 by calling its owner or driver. Apart from said tempo there are one or two other tempos on their roll. He did not remember now if he called tempo i.e. HR69A 0417 or other tempo on that day. Fare of tempo is fixed by them. Amount of fare is Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 45 /61not mentioned on the bill. He did not remember now as what fare was fixed about trip of tempo no. HR69A 0417 on that day. Delivery of goods are confirmed through phone. Owner or driver of said tempo is not their relative.
40. R5W5 is retired ASI Ramesh Chander, i.e. person who has filed the second untraced report and he has relied upon all the document filed along with report under Section 173 of CrPC. In his cross examination by Ld. Counsel for petitioner, he deposed that case has already been interrogated by three I.O.s i.e. ASI Rajender Singh, ASI Karan Singh and ASI Babu Lal before investigation was handed over to him. He admitted the fact that report filed by him was not accepted by ld. MM and complaint was lodged by Ld. MM against his report on 15.03.2011 which was sent to the Commissioner of Police. He has no knowledge about revision against the order of framing the charge against Naresh. He did not remember whether he served notice to Naveen Garg and Govind Garg. He served notice upon Parveen Kumar. He denied that he has filed false report under Section 173 CrPC.
Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 46 /61
41. He was also cross examined by Ld. Counsel for respondent no. 3. He denied the suggestion that he took signature of Dalel, Ajit and Sunil on blank papers. He further deposed that he still has not been examined before the court of Ld. MM and he admitted that there is only one accused i.e. Naresh in this matter.
42. In his cross examination conducted by Ld. Counsel for respondents no. 1 and 2 he deposed that being IO of the case he has no personal knowledge of the case and he did not remember the date when he served notice upon said Parveen. He denied that Parveen visited him and he told him to go away having no need of him. Parveen never contacted him regarding this case. He did not initiate any proceedings against said Parveen for not appearing before him despite service of notice under Section 160 CrPC.
43. R3W1 Sh. Mohit Nagar, Sr. Manager (Legal) IFFCO TOKIO Gen. Ins. Co. Ltd. TDI, Center, 3rd Floor Jasaula, Delhi. He proved copy of legal notice under Order 12 Rule 8 CPC sent by their company to Sh. Naresh and Govind Garg i.e. driver and owner of offending vehicle through their Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 47 /61counsel Sh. A.C. Mittal, Advocate, same is Ex. R6W1/1, post receipts about sending of said legal notices are Ex. R6W1/2 and R6W1/3. Copy of insurance policy is Ex. R6W1/4 In his cross examination by Sh. K. K. Kaushik, Advocate for petitioner he admitted that no reply was received in their office about notice under Order 12 Rule 8 CPC sent to driver and owner of offending vehicle and neither copy of driving licence of Naresh Kumar nor permit of offending vehicle no. HR69A 0417 was submitted to in their office. This is the entire evidence of respondents.
44. Now from the evidence which has come on record on the part of petitioner as well as on the part of respondents i.e. evidence of PW1 Ram Sunehri, PW2 Pardeep on the one side and the testimony of R4W1, R5W1 to R5W5, on the other side, have to be weighed upon. The testimony of Mr. Pardeep PW2, as given him before the court read with statement of various witnesses taken by the investigating officer, during the course of investigation, as conducted by the police department., particularly keeping the version of PW1 that number of the offending vehicle was first told by him by Mr. Ravi Kumar, appears to be in contradiction to the testimony of Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 48 /61Mr. Pardeep Kumar, who claimed himself to be the eyewitness and even had noticed the number of tempo and even had told the same to the IO. The court is not able to appreciate the contention of the petitioner to the effect that the statement of Pardeep, who claimed to be present in the hospital through out the evening of accident and who also claims that he has told orally the number of offending vehicle on that very day, nor this court can, presume that the IO, who has visited the hospital from the spot of accident directly, might have some mala-fide intention or would be under the influence of some other person i.e. driver and and owner of the offending vehicle i.e. tempo on that very day itself, so as to attribute malafide on the day of accident against the IO or to the effect that his statement was not considered by the IO that too in the back drops of fact that exact number of vehicle was not clear to anyone that day. It is, otherwise, a matter of fact that statement of Mr. Pardeep was recorded after about 13-14 months of the accident. The allegations that IO has not written his statement on the very first day has not been corroborated with any other statement or particularly with the statement of driver of the Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 49 /61motorcycle i.e. Parveen (respondent no. 1), who admittedly gained consciousness after few days of the accident as informed / stated to the IO w.r.t. the registration number of the offending vehicle. This evidence is, therefore, having certain serious lapses, which have not been filled up and there is no consistent chain of facts and circumstances which may lead to the conclusion that this very tempo was involved in the accident that day. On the other hand, the evidence filed of respondents no. 4 & 5 is quite consistent and corroborative. Respondents have examined 5 witnesses. The evidence of these witnesses of respondent no. 5 is supported by the testimony R4W1 Naresh, who corroborated the fact that he was not in Delhi on that day. The statement of R5W1 Govind Rai is also quite corroborative when he deposed that he never let his tempo to run on rent basis, as he has his own business of plywood and his tempo is used for that purpose. The distance between the Harewali More and Gannaur has also not been explained but as per report it is not such distance, which could be covered within a span of 30 minutes. Further the offending tempo, which has caused the accident is stated to have been loaded with Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 50 /61the vegetables as has been disclosed by PW1, whereas the R5W1 submits that he has never let out his vehicle to any other person and he further deposed that the vehicle was not in Delhi that day and therefore evidence led by R4W1 Naresh, R5W1 to R5W5 is quite corroborative.
45. Ld. Counsel for petitioner has argued that when the untraced report was filed by the IO, the same was not accepted by the court rather court has taken the cognizance of the offence and even had directed that an inquiry be conducted against the IO for not having conducted the investigation properly and therefore, it stands proved that offending tempo vehicle was involved in the accident. He has further argued that when the court of Ld. MM took the cognizance of the offence against the respondent no. 4, a revision petition against the said taking cognizance was filed and that revision was dismissed and for this leg of arguments, it is argued by the Ld. Counsel for petitioner that the fact that the offending tempo was involved in the accident stands proved.
46. This court is not in agreement with this contention as mere taking cognizance or rejecting the review petition at the preliminary state, has Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 51 /61nothing material with respect to facts, which are being discussed, now on merits. The view of Ld. Court at that time was based on the fact that IO has not conducted the inquiry fairly and the matter required further investigation. Therefore, dismissing the review petition does not tantamount to reach the conclusion with respect to the involvement of the offending vehicle in the accident. Further the court of Ld. MM at that time specifically observed the fact, that the facts which are to be appreciated by the court cannot be appreciated by the IO rather the IO should have brought all such facts before the court, which then could have been appreciated by the court.
This court is of the opinion that the inquiry order initiating against the concerned IO at that time may have some substance in it but by mere directing the inquiry against some IO who did not investigate the matter properly, in the opinion of this court, does not tantamount that it stood proved with respect to involvement of the offending vehicle i.e. tempo no. HR69A 0417. The order on revision by the Ld. Court concerned at that time also does not have any direct impact with respect to the involvement Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 52 /61of the offending tempo. All such facts have been left open and have to be proved or disproved as per law at the appropriate stage. The fact remains now that the matter has reached the final stage where all the evidence have been clubbed.
47. Further the position of petitioner, possition of Mr. Ravi and posstion of Mr. Pardeep has not been reflected from the site plan, who all deposed differently i.e. Mr. Ravi Kumar stated that vehicle came from his back side whereas Mr. Pardeep statd that vehicle came from front side and petitioner stated that vehicle came from Harevli side. The site plan confirms that vehicle came from Harevli side but this site plan cannot be appreciated, as the location of Mr. Ravi and Mr. Pardeep is not certain. It is even otherwise well settled law that evidnce which is wholely unacceptable fraught and immprobable in itself and is not matching with normal human behaviour and conductn cannot be relied upon, as to form opinion with respect to preponderance of probabilities. Therefore this court is of the opinion that petitioners have failed to prove that the tempo no. HR69A 0417 was involved in the accident.
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48. However, as far as involvement of the motorcycle is concerned that stands proved. It is admitted fact that the motorcycle was being driven by respondent no. 1 and as per testimony of PW1, the motorcycle was being driven by respondent no. 1 in rash and negligent manner. He is definitely not the eye-witness but there is no cross examination of respondent no. 1 on this aspect. The presence of this witness has also been considered by this court while disposing the aforesaid facts. The respondent no. 1, has not denied that he was driving the motorcycle and deceased was sitting as pillion rider. There is no allegation that offending vehicle came from back side. As per site plan, offending vehicle came from Harewali More, if that is so, the rash and negligence part on the part of respondent no. 1 cannot be ruled out. Further doctrine of res ipsa loquitur i.e. the accident "speaks for itself" also cannot be ignored.
Accordingly, rash and negligence on the part of respondent no. 1 stands proved. Accordingly, first part of this issue is being answered that the petitioners have not been able to prove that accident has caused due to involvement of the tempo no. HR69A 0417 but petitioner has been above to prove rash and negligence on the part of respondent no. 1. Keeping in Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 54 /61view all the facts, the court is of the opinion, that all sub part of the issue stands answered and it is held that accident has been caused due to the rash and negligence of respondent no. 1 and petitioners have not been able to prove the offending vehicle i.e. tempo no. HR69A 0417 was involved in the accident and there is no question of contributory negligence.
49. Since the court has held respondent no. 1 liable for causing the accident, as he was found driving the motorcycle rashly and negligently, the next question comes as who is liable to pay compensation. Ld. Counsel for respondent no. 3 has argued that on the one hand, the petitioner has claimed compensation from respondents no. 1 to 3 and on the other hand, respondents no. 4 to 6. Since the court has come to conclusion that the petitioners have failed to prove the involvement of vehicle i.e. tempo no. HR69A 0417, respondents no. 4 and 5 are not liable nor there is any liability of respondent no. 6 to indemnify the the insured / owner (respondent no. 5). The only liability therefore is of respondent no. 1 and respondent no. 2 and since the vehicle was duly insured with respondent no. 3, it (respondent no. 3) is liable to pay the compensation to the petitioner.
Now coming to quantum of compensation
50. As per matriculation certificate Ex. PW1/12 of Ashish (deceased) his date of birth is 21.08.1992. Accident had occurred on 22.10.2009. In Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 55 /61other means, deceased was 17 years of age and therefore in terms of judgment in Chetan Malhotra Vs. Lala Ram etc. MAC APP. No. 554/2010 etc. decided on 13.05.2016, Schedule II annexed with Section 163-A of the Motor Vehicle's Act provides for notional income of such person, as Rs. 15,000/- p.a. It is observed by the Hon'ble High Court that due to lapse of lot of time, this provision has become inadequate and accordingly, the High Court of Delhi speaking through Hon'ble Mr. Justice R.K. Gauba while disposing of 16 appeals through a single judgment titled as Chetan Malhotra Vs. Lala Ram etc. MAC APP. No. 554/2010 etc. decided on 13.05.2016, envisaged a formula called as "inflation correction method", taking financial year of 1997-98 as base year and same is Rs. 15,000 x A /
331. Figure of Rs.15,000/- represents the notional income, specified in Second Schedule 'A' "represents CII for the financial year in which victim died and figure 331 represents the CII for the base year. Accident in question occurred on 22.10.2009, when victim died. CII for the financial year is Rs. 632/-. The Apex Court in case of R. K. Malik Vs. Kiran Pal (2009) 14 SCC (1) devided child victims in three categories, the first being Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 56 /61those, who were less than ten years of age. Second category being of children more than 10 years and upto 15 years, and in third category there are children more than 15 years of age but not having attained age of majority. The High Court of Delhi in Chetan Malhotra's case (Supra) mandated to apply multiplier of 18 for children (victims) betweent he age of 15-20 years. Victim being about 17 years of age, a multiplier of 18 is thus taken. Counting in this way, loss of estate comes to Rs. 5,15,528.70p (15000x632/331x18). After deducting 1/3rd (1,71,842.90), expenses spent on oneself, loss to estate comes to Rs. 3,43,685.80p. An equal amount is added to it for composite non- pecuniary damages including future prospects, making a total of Rs. 6,87,371.60p.
Now coming to the aspect as to which respondent is liable to pay the compensation to the petitioners.
51. As held above, the accident had occurred due to rash and negligent driving of motorcycle which was being driven by respondent no. 1 and the said motorcycle was duly insured with respondent no. 3 at the time of Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 57 /61accident. No evidence has been led by respondent no. 3 in its defence. therefore being, insurer, respondent no. 3 is liable to indemnify the insured/owner and to pay compensation to the petitioners. This issue is decided accordingly in favour of petitioners and against the respondents.
ISSUE NO. 2 (RELIEF)
52. Petition in hands is allowed. Respondent no. 3 is directed to pay Rs. 12,29,000/- to the petitioners failing which respondent no. 3 to pay the interest @ 9% per annum on the amount of Rs. 6,87,371.60p from 24.08.2018, till realization. Interim amount, if any paid to the petitioners be deducted from this amount.
53. Statement of petitioner no. 2 about disbursement of amount of compensation was recorded. Further petitioners have got their bank account opened in terms of modified direction of Hon'ble High Court and filed photocopy of their joint account passbook. Considering circumstances of petitioners, it is directed that the amount of compensation be divided equally to the petitioners and out of the share of petitioners 90% amount Ram Sunehari Vs. Parveen Kumar & Ors.
MACT no5361-16 58 /61be kept in FDRs to be released in a phased i.e. Rs. 10,000/- per month and remaining 10% amount be released to them through their saving bank account, details of which are mentioned in the above proforma and this amount would be allowed to be withdrawn only by way of withdrawal slip and by no other means or by any digital mode i.e. ATM/Credit Card/letter/NEFT/RTGS etc.
54. The salient features as prescribed in the judgment in Rajesh Tyagi Vs. Ramesh Chandra Gupta FAO No. 842/2009 and MAC. APP. No. 422/2009 decided on 07.11.2014 are to be applied: -
1. The fixed deposit be renewed automatically till the period prescribed by the Court.
2. The interest on the fixed deposit be paid monthly.
3. The monthly interest be credited automatically in the saving account of the claimant.
4. Original fixed deposit receipt be retained by the bank in safe custody. However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
5. The original fixed deposit receipt be handed over to the claimant at the end of the fixed deposit period.
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6. Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
7. No cheque book and debit / credit card shall be issued to the claimant without permission of the Court.
8. No loan, advance or premature withdrawal or premature encashment shall be allowed on the fixed deposit without permission of the Court.
9. The amount would be directly credited in the bank account of the petitioner, without any necessity of visiting her to court, where FDRs are kept.
10. The bank of the petitioner would make necessary endorsement on the passbook of the petitioner and in its own record as "MACT case" and amount to be disbursed only in terms of the order of the court.
11. Bank manager concerned to inform the court in writing prior to releasing of any amount to the petitioner, to the effect that compliance of the order of the Hon'ble High Court has been made with respect to disbursement. In no case, amount of award can be released without filing a compliance report in the court and the amount, which the respective petitioner would be withdrawing can only be allowed through withdrawal slip and by no other Ram Sunehari Vs. Parveen Kumar & Ors.
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mode or any digital mode i.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc.
55. Respondent no. 3 is directed to deposit entire amount of compensation with this tribunal within 30 days, with advance notice to Digitally signed by SUKHVIR SUKHVIR SINGH petitioner.
SINGH MALHOTRA
Date: 2018.07.18
MALHOTRA 15:31:45 +0530
ANNOUNCED IN THE OPEN (S.S. MALHOTRA)
COURT ON 18.07.2018 PO:MACT-ORTH,ROHINIDELHI
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