Delhi District Court
Juban @ Jawanya S/O Sh. Latoo @ Ladu @ Ladu ... vs Raj Pal (Driver ) S/O Shri Jage Ram on 20 January, 2015
IN THE COURT OF SH. ARVIND KUMAR : PRESIDING OFFICER: M.A.C.T
(SHAHDARA) : KARKARDOOMA COURTS : DELHI
M.A.C. Petition No: 769/10
Unique Case ID No. : 02402C0353262009
1. Juban @ Jawanya S/o Sh. Latoo @ Ladu @ Ladu Ram
2. Smt. Sawali W/o Juban @ Jawanya
Both are Permanent Resident of :
Village Naya Baans, P.S. Nagal
Distt. Dosa, Rajasthan
Both are presently residing at :
House No. B-66, Gali No. 15,
New Jagatpuri, Delhi-110093 ... Petitioners
VERSUS
1. Raj Pal (Driver ) S/o Shri Jage Ram
R/o Village Munda Khera, P.S. Bahadurgarh,
Distt. Jhajhar (Haryana)
Also at :
WZ 1465, Nangal Raya, New Delhi-110046
Official Address :
Delhi Jal Board
Through :
E.E SDW - II, DWS & SD-IV, MCD WS TP
MCD, WS TP, Keshopur, New Delhi
2. Delhi Jal Board, (Owner of offending vehicle
bearing no. DL-4CC-2220)
Through :
E.E SDW - II, DWS & SD-IV, MCD WS TP
MCD, WS TP, Keshopur, New Delhi .... Respondents
Presented on : 04.12.2009 Reserved for judgment on : 20.12.2014 Judgment delivered on : 20.01.2015 JUDG MENT
1. The present petition is filed by the petitioners claiming compensation towards the death of Master Jeetu, aged 6 years, in the road side accident dt. 13.11.2007.
2. The brief facts as stated by petitioners, are that on 13.11.2007, the M.A.C. Petition No: 769/10 Page No. 1/17 petitioners were crossing the road near Red Light pullia, Jagatpuri, Delhi along with their son Master Jeetu and a Maruti Gypsy bearing no. DL-4CC- 2220 came from the side of Karkardooma Court and hit the son of the petitioners. It is stated that Maruti Gypsy was being driven at a high speed and negligently and the driver of the Gypsy had stopped it near Red Light and noticed about the incident and ran away from the spot after seeing the incident and one Sh. J.P. Bansal, Advocate had noted down the registration number of the offending vehicle on a piece of paper and handed over the same to the petitioner no. 1. It is stated that petitioner no. 1 went to Dr. Hedgewar Hospital but the doctor referred his son to GTB hospital and a MLC number A-5926/07 was prepared and the doctor on duty in GTB hospital advised to get CT Scan of his son and the petitioner no. 1 went to Focus Imaging & Research Centre Pvt. Ltd. situated in IHBAS Hospital and after getting CT scan of the brain of deceased, the petitioner no.1 noticed that his son had expired and he came back to GTB hospital but he was not allowed to enter in the hospital by the police man and was advised to cremate the dead body and on the next day the petitioner approached the police station, Anand Vihar and gave information but the police official did not entertain his complaint and on 12.12.2007, the petitioner no.1 approached DCP East and gave written complaint and on the instructions of the DCP an FIR No. 693/07 was registered u/s 279/304A IPC with PS Anand Vihar but the police did not take any action against offending vehicle and driver and the Hd. Constable Surender Pal had filed untraced report bearing no. 13/R dt. 01.01.2008 and on 02.01.2008, the petitioner sent a written complaint to the Commissioner of Police and reinvestigation orders were passed and statements of various persons u/s 161 Cr.P.C were recorded and the case was pending in the trial court. It is stated that deceased was 6 years of age.
3. Respondent no. 1 and 2 filed written statement stating that claim of the petitioners was based on false and fabricated story and on 13.11.2007 no accident had taken place with the vehicle of the answering respondent no. 2 and there was delay of one month in lodging of FIR No. 693/07. It is also stated that answering respondent was the registered owner of the Gypsy M.A.C. Petition No: 769/10 Page No. 2/17 (White Colour) bearing registration no. DL-4CC-2220 and same was being used by the undersigned in the West Delhi and the said vehicle was not plying at Jagatpuri on 13.11.2007. It is also stated that a notice dt. 16.12.2007, u/s 133 of MV Act mentioned the vehicle as Black Esteem Car while the vehicle of the Delhi Jal Board was Maruti Gypsy. It is stated that there could have been mistake by any person while taking down the number of the vehicle. It is also stated that one Sh. J.P. Bansal advocate has given the statement to the IO that offending vehicle was DL-4CC-2222 while the number of the vehicle of answering respondent was DL-4CC-2220. The respondent no. 1 and 2 stated that accident had taken place with some unknown vehicle. It is also stated that a hand written slip was in the criminal case record mentioning the number of the offending vehicle as DL-4C-2220 while the number of the respondent's vehicle was DL-4CC-2220. It is also stated that on 13.11.2007 the said vehicle was on official duty with the undersigned in the area of Raghuvir Nagar, Subhash Nagar, Delhi for checking the pump sets installed with Executive Engineer Mr. A.K. Aggarwal. The respondent no. 1 and 2 denied almost all the material contents of the petition.
4. On the basis of the pleadings following issues were framed :-
1. Whether the deceased Master Jeetu suffered fatal injuries in the accident occurred on 13.11.2007 due to rash and negligent driving of vehicle no. DL-4CC-2220 (Maruti Gypsy) being driven by respondent no. 1? OPP.
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom?
3. Relief.
5. The petitioner No. 1 examined himself as PW-1. The petitioners also examined Dr. Sanjeeta Behera, CMO, GTB hospital as PW-2, Sh. Sanjeev Kumar, Statistical Assistant, GTB hospital as PW-3 and Sh. J.P. M.A.C. Petition No: 769/10 Page No. 3/17 Bansal @ Jai Prakash as PW-4. On the other hand, respondent no. 1 examined himself as R1W1. The respondents also examined Sh. Kamlesh Prashad Tiwari, JE (E&M), Office of Executive Engineer as R1W2, Sh. Arvind Kumar Aggarwal, Retired Superintendent Engineer from Delhi Jal Board as R1W3 and Sh. R.L. Meena, Additional District and Sessions Judge as R1W4.
6. I have heard counsels for the parties and gone through the material on record. My findings on issues are as under : -
ISSUE NO.1
7. The petitioner no. 1 examined himself as PW-1 and deposed that on 13.11.2007, he along with his son Master Jeetu was crossing the road near Red Light pullia, Jagatpuri, Delhi and a Maruti Gypsy bearing no. DL- 4CC-2220 came from the side of Karkardooma Court and hit his son. The PW-1 stated that Maruti Gypsy was being driven at a high speed and negligently and the driver of the Gypsy had stopped it near Red Light and noticed about the incident and ran away from the spot after seeing the incident and one Sh. J.P. Bansal, Advocate had noted down the registration number of the offending vehicle on a piece of paper and handed over the same to the petitioner no. 1. The PW-1 stated that he went to Dr. Hedgewar Hospital but the doctor referred his son to GTB hospital and a MLC number A- 5926/07 was prepared and the doctor on duty in GTB hospital advised him to get CT Scan of his son and he went to Focus Imaging & Research Centre Pvt. Ltd. situated in IHBAS Hospital and after getting CT scan of the brain of deceased, he noticed that his son had expired and he came back to GTB hospital but he was not allowed to enter in to the hospital by the police man and was advised to cremate the dead body and on the next day he approached the police station, Anand Vihar and gave information but the police official did not entertain his complaint and on 12.12.2007, he approached DCP East and gave written complaint and on the instructions of the DCP an FIR No. 693/07 was registered u/s 279/304A IPC with PS Anand Vihar but the police did not take any action against offending vehicle and M.A.C. Petition No: 769/10 Page No. 4/17 driver and the Hd. Constable Surender Pal had filed untraced report bearing no. 13/R, dt. 01.01.2008 and on 02.01.2008, the petitioner sent a written complaint to the Commissioner of Police and reinvestigation orders were passed and statements of various persons u/s 161 Cr.P.C were recorded and the case was pending in the trial court. The PW-1 exhibited the attested copies of criminal case record as Ex.PW-1/1, copy of his voter I-card as Ex.PW-1/2 and photographs as Ex.PW-1/3. The PW-1 also marked the copy of complaint dt. 02.01.2008 as Mark A, copy of complaint sent to DCP dt. 12.12.2007 as mark B and copies of news paper clips as mark C. During cross-examination, the PW-1 stated that he did not know English language and he was present at the time of accident of his son and it was a White Gypsy which caused the accident of his son and his statement was recorded by the police at the instruction of DCP, East in his office and he had stated about the offending vehicle to the police in his statement and he had no knowledge about the speed of the offending vehicle but it was driven at fast speed and the red light was situated near to the place of accident and the light was green at the time of accident and they were crossing the road when the accident occurred. The PW-1 stated that traffic was thin on the road at the time of accident. The petitioner stated that he did not have any document with regard to his earning but he was doing the business of incense sticks.
8. The PW-2, Dr. Sanjeeta Behra, CMO, GTB hospital produced the treatment record of Master Jeetu and exhibited the same as Ex.PW-2/1. The PW-2 stated that Ex.PW-2/1 was prepared by Dr. Murtaza Khan (Jr. Resident) and the treating doctor had referred the patient to room no. 251 (Neuro Surgery) and was then advised for CT Scan (head) and as per the record the patient had absconded from the hospital on 13.11.2007 at 1.45 p.m. and the photocopy of the absconded patient report was exhibited Ex.PW-2/2. During cross-examination, the PW-2 stated that she had no knowledge about the injuries suffered by the patient. The PW-2 also stated that the patient had loss of consciousness which indicated that patient had suffered head injury and no external injury was visible on the body of patient except abrasions and the neuro surgeon had given his opinion on Ex.PW-2/1.
M.A.C. Petition No: 769/10 Page No. 5/179. The PW-3 Sh. Sanjeev Kumar, Statistical Assistant, GTB hospital, Delhi produced the MLC register and exhibited the photocopy of the MLC No. 5926/07 as PW-3/1. The PW-3 also produced the original emergency card along with original absconded report, Ex.PW-3/2.
10. The PW-4, Sh. J.P. Bansal, deposed that on 13.11.2007 at about 11 a.m he was coming to the KKD Courts from Jagatpuri Red Light on feet and when he reached opposite office of Delhi Jal Board situated near the Nala, before Jagatpuri Red Light he saw a white colour Maruti Gypsy driven by its driver at a high speed and negligently, came from the side of Garg Nursing Home Chowk. The PW-4 stated that he saw the driver of the said Gypsy and when the said Gypsy reached in front the office of the Delhi Jal Board, it hit a boy who was crossing the road from back side from its left front side and the said boy fell down on the road. The PW-4 stated that he tried to stop the driver of the said vehicle but the driver escaped from the spot and he immediately noted down the registration number of the offending vehicle on the back of his visiting card and the registration number of the vehicle was DL-4CC-2220. The PW-4 stated that he lifted the boy from the spot and the driver fled away from the place of accident along with the vehicle and parents of the injured arrived at the place of the accident and some other persons who gathered at the place of the accident also noted down the number of the offending vehicle. The PW-4 further stated the boy has suffered injuries on his back and the parents of the boy took the boy to Hedgedwar Hospital in a rickshaw and he had given his visiting card bearing number of the offending vehicle on its back side, to the parents of the boy and besides the said visiting card he gave one more visiting card to the parents of the boy. The PW-4 further stated that Sh. Juban met him on 16.02.2008 and told him that Sh. Juban was searching for him and the police had not been helping Sh. Juban and son of petitioner had already expired and also stated that police officials were saying that the visiting card was forged and the PW-4 had executed an affidavit on stamp paper and gave to Sh. Juban and the said affidavit was addressed to the SHO to the effect that he had witnessed the accident. The PW-4 further stated that he had also made a phone call to the SHO in this M.A.C. Petition No: 769/10 Page No. 6/17 regard and IO of the case called him in the DCP Office, East and recorded his statement there and he had identified the driver of the offending vehicle out of five similar persons and he had also identified the offending vehicle in the DCP Office. The PW-4 stated that his statement was recorded U/s 164 Cr.PC by Sh. R.L Meena, Ld. MM. During cross-examination, the PW-4 stated that he was on foot and was coming to court from temple and it was Tuesday and there was no heavy traffic on the road and the traffic was normal.
11. The PW-4 further stated that the vehicle number as told by him before Sh. R.L. Meena, Ld. MM was DL-4CC-2220. The PW-4 stated that the vehicle number was DL-4CC-2220 and was written as DL-4CC-2222 by mistake and he had stated the vehicle number to be DL-4CC-2220. The PW-4 stated that he did not call the police and police had not arrived at the place of accident.
12. On the other hand, the respondent no. 1 examined himself as R1W1 and deposed that on 13.11.2007 no accident had taken place with the vehicle of the respondent no. 2 and there was delay of one month in lodging of FIR No. 693/07. The R1W1 also stated that respondent no. 2 was the registered owner of the Gypsy (White Colour) bearing registration no. DL- 4CC-2220 and was being driven by the undersigned in the West Delhi and the said vehicle was not plying at Jagatpuri on 13.11.2007. The R1W1 stated that a notice dt. 16.12.2007 u/s 133 of MV Act mentioned the vehicle as Black Esteem Car while the vehicle of the Delhi Jal Board was Maruti Gypsy and there could have been mistake by any person while taking down the number of the vehicle. The R1W1 also stated that one Sh. J.P. Bansal advocate had given the statement to the IO that offending vehicle was DL-4CC-2222 while the number of the vehicle of answering respondent was DL-4CC-2220. The R1W1 stated that accident had taken place with some unknown vehicle and a hand written slip placed in the criminal case record mentioned the number of the offending vehicle as DL-4C-2220 while the number of the respondent's vehicle was DL-4CC-2220. The R1W1 stated that on 13.11.2007 the said vehicle was on official duty with the undersigned in the area of Raghuvir Nagar, Subhash Nagar, Delhi for checking of the pump sets installed with M.A.C. Petition No: 769/10 Page No. 7/17 Executive Engineer Mr. A.K. Aggarwal. The R1W1 stated that IO had seized the vehicle of respondent no. 2 on 18.11.2008 after 1 year of the accident and has arrested the respondent no. 1 on 18.11.2008. The R1W1 marked the copy of notice under section 133 of M. V. Act as mark A, reply of the notice under section 133 of M. V. Act as mark B. copy of reply of the notices, dated 22.01.2008 and 24.12.2007 as mark C, copies of statement recorded under section 164 Cr. P. C as mark D. During cross-examination, the R1W1 stated that he was a permanent driver to drive the white Gypsy bearing registration no. DL-4CC-2220 since 1999 and on 13.11.2007, he was on duty and the above mentioned Gypsy was under him. The R1W1 stated that the log book of the vehicle was filled by the driver and verified by the Executive Engineer or the concerned officer of the department and the log book of the vehicle was generally filled once in a day in the evening time and signed by the concerned officer on duty. The R1W1 stated that he filled the entry in the log book in Hindi language and the log book of the above mentioned vehicle which was used in the year 2007, was not in use at the relevant period because it had already been submitted with the department. The R1W1 stated that on 13.11.2007 his duty was with the then Executive Engineer, Sh. A.K. Aggarwal. The R1W1 stated that first of all in the morning at about 8.30 am, he took the above mentioned Gypsy from Uttam Nagar Plant of Delhi Jal Board and went to C-2, Janak Puri, Delhi, at the residence of his above named officer to pick him and then proceeded to Subhash Nagar and then to Ramesh Nagar and then to Kesho Pur, Plant at around 11.30 -12.00 in the morning and remained there till evening at around 6.30-7.00 pm. The R1W1 stated that he had made all the entries in the log book of the above mentioned vehicle and got it signed by his officer. The R1W1 stated that he had never seen the Trans Yamuna Area before registration of this case and he had received a notice from P.S. Anand Vihar but he did not remember the date, month or year of the same. The R1W1 stated that FIR bearing no. 693/07 was registered against him with P.S. Anand Vihar u/s279/304 A IPC and he was called by the police of P.S. Anand Vihar and during course of investigation he was formally arrested and was released on bail on the very same day and the above mentioned Gypsy was also called by the police in M.A.C. Petition No: 769/10 Page No. 8/17 the P.S. Anand Vihar and the same was also taken into custody and later on released on superdari. The R1W1 stated that he had given a complaint to the higher authorities of police department against his false involvement in the present case bearing FIR no. 693/2007 but he had not placed on record any copy of the same. The R1W1 stated that the criminal proceedings in the above mentioned case was also pending in the trial court situated in the Karkardooma Court complex and he was appearing there. The R1W1 stated that he had filed a criminal writ petition before the Hon'ble High Court of Delhi against the present criminal case pending against him. The R1W1 stated that he had not filed any appeal till date against the dismissal of his above mentioned criminal writ petition.
13. The R1W2, Sh. Kamlesh Prashad Tiwari, (E&M), Office of Executive Engineer, SDW-6, WSTP, Keshopur deposed that he had brought log book of vehicle no. DL-4CC-2220 dt. 13.11.2007 and exhibited the copy of same containing the date from 10.11.2007 to 13.11.2007 as Ex.R1W2/A and original log book register as Ex.R1/W2/B. During cross-examination, the R1W2 stated that he was not posted in the said office when the log book was maintained in the year 2007. The R1W2 stated that R1W2/A was not having serial number on its page and he could not identify signatures appearing at point X on Ex. R1W2/A and there was no signature of the officer using the car in column 10 of Ex.R1W/2A but signatures were in column 11. The R1W2 stated that officer using the car need to sign in column 10 if the vehicle was used on working days and the column 11 was meant for overtime and holidays. The R1W2 stated that he had brought the log book of vehicle no. DL-4CC-2220 and the pages of log book did not contain the number of vehicle but the number of the vehicle was written on cover of the log book. The R1W2 stated that in Ex.R1W2/A specific column for ministry / department for which the vehicle was used, and staff car number, were blank.
14. The R1W3, Sh. Arvind Kumar Aggarwal, Retired Superintendent, Delhi Jal Board, deposed that on 13.011.2007, he was working as Executive Engineer and was posted at Keshopur, Severage Plant, Delhi Jal Board and M.A.C. Petition No: 769/10 Page No. 9/17 Gypsy no. DL-4CC-2220 was alloted to him for official use. The R1W3 stated that on 13.11.2007, Sh. Rajpal came to his residence around 9 a.m. and he alongwith Maruti Gypsy no. DL-4CC-2220 went to the plant around 10 a.m. and inspected the plant and remained there till 1.00 p.m. and during afternoon he inspected Raghubeer Nagar, Subhash Nagar sites and thereafter again went to Keshopur Plant and from Keshopur Plant he reached to his residence around 5.30 p.m. alongwith said Gypsy. The R1W3 stated that the log book, Ex.R1W2/A bear his signatures at point X and he used to counter sign daily on the log book during his service and his area was restricted to West Delhi connected sewerage rising mains which were connected to Keshopur plant wherein the sewerage was treated. The R1W3 stated that his head office was situated at Jhande Walan and his Chief Engineer's Office was situated at Lajpat Nagar hence his Gypsy never crossed Trans Yamuna Area including Jagat puri and as per the log book Gypsy was not plying in Jagat Puri, Delhi and no accident had taken place with the said vehicle on 13.11.2007. During cross-examination, the R1W3 stated that the log book, Ex. R1W2/B was maintained for Gypsy bearing registration no. DL-4CC-2220 and the page containing the detail of dt. 10.11.2007 to 13.11.2007 bear his signatures at point X, Y and Z. The R1W3 stated that on 10.11.2007 to 13.11.2007, the signatures were made in column 11 in place of column 10 by mistake. The R1W3 denied the suggestion that he put his signatures at points X, Y and Z in column 11 later on. The R1W3 stated that the details in the log book, Ex.R1W1/A were filled by the driver in his hand writing and the driver put his signatures in front of him. The R1W3 stated that the said Gypsy remained under his control from 29.08.2007 till date of his retirement i.e. 30.04.2012. The R1W3 stated that he could not tell in whose writing vehicle number at point E on Ex.R1W2/A was written and R1W3 stated that it was also used by two official prior to him. The R1W3 stated that he came to know about registration of FIR in the present case later on. The R1W3 stated that he had written various letters to the concerned police authorities in respect of false implication of the vehicle in the present case. The R1W3 stated that he replied to the Deputy Commissioner of Police, East on 08.08.2008 and same was marked as Mark B and the other letter dt. 22.01.2008 was mark C. The M.A.C. Petition No: 769/10 Page No. 10/17 R1W3 stated that they had only written letter to the DCP with regard to the false implication of the vehicle no. DL-4CC-2220 and they had not filed any protest petition.
15. The R1W4 Sh. R.L. Meena, Additional District and Sessions Judge deposed that on 21.03.2009, he had recorded the statement of Sh. J.P. Bansal u/s 164Cr.P.C and the signature of Sh. J.P. Bansal was at point A on Ex.PW-4/R-1.
16. I have gone through the material on record and heard counsels for the parties. Contention of counsel for petitioner is that accident was caused with the vehicle no. DL-4CC-2220 Maruti Gypsy because of negligence of its driver therefore respondent no. 1 and 2 are liable to pay compensation. Ld. counsel for respondent no. 1 and 2 contended that no accident was caused with the vehicle no. DL-4CC-2220 and the said vehicle was plying in Keshopur, Delhi at the time when the alleged accident has occurred and the petitioner has got some wrong number of the vehicle and the aforesaid vehicle had been falsely implicated. Ld. Counsel for respondent no. 1 and 2 also contended that there is nothing on record to show that deceased died because of the injuries suffered in the accident as no postmortem report is there on record nor the treatment record to show the nature of injuries suffered by the deceased.
17. The petitioner has examined himself and one Sh. J.P. Bansal to prove the involvement and negligence of the driver of the vehicle no. DL-4CC- 2220. On the other hand, the respondent no. 1 examined himself and Sh. Arvind Kumar Aggarwal, Retired Superintendent Engineer, Delhi Jal Board to prove his case.
18. The PW-1, Sh. Juban, the petitioner no. 1 stated that his six years old son was crossing the road on 13.11.2007 and a Maruti Gypsy bearing registration no. DL 4CC-2220 hit his son. The testimony of PW1 is reliable and consistent. An FIR has already been lodged on the statement of the PW1 M.A.C. Petition No: 769/10 Page No. 11/17 and the criminal proceedings are pending in the criminal court. Nothing contrary could be elicited during the lengthy cross-examination of PW1.
19. The PW-4, Sh. J.P. Bansal has stated on oath that deceased was crossing the road when he was hit by vehicle no. DL-4CC-2220 and he had noted down the registration number of the offending vehicle on the back of his visiting card and the registration number of the vehicle was DL-4CC-2220. The PW-4 when confronted with his statement recorded u/s 164 Cr.P.C. Ex. PW-4/R1 stated that the vehicle no. DL-4CC-2222 was written by mistake. In the present matter, FIR has been registered. The PW4 is an independent witness and stated about accident and has also stated that he had identified the driver of the Gypsy amongst five persons who were present in the DCP office and he had also identified the Gypsy which was involved in the accident. The PW4 is not cross-examined on this aspect nor even a single suggestion is given to the said witness in this regard. The testimony of PW4 is consistent and reliable and nothing material could be elicited during the cross- examination of PW4.
20. On the other hand, testimony of respondent no. 1 is self-serving and based on denial of accident. The respondent no. 1 has denied the accident and stated that he was in the Uttam Nagar Area at the time of alleged accident. The respondent no. 1 has relied upon a Log book, Ex. R1W2/B. The log book R1W2/B is not a reliable document as many of its column are left blank, some of its pages are not bearing signature of the competent person. It is noted that the entries made in the log book after 25.12.2007 till the end of log book, had not been signed by any person. The respondent No. 1 stated that he was filling log book. The said log book was being filled by the respondent no. 1 but some of the entries from date 06.03.2007 to 24.08.2007 regarding place visited do not appear to be in the handwriting of respondent no. 1. All these entries appears to have been made with the same pen. For the following reasons the log book Ex. R1W2/B cannot be relied upon. Further it is noted that the respondent no. 1 did not disclose in his written statement or in his affidavit that he had filed a writ M.A.C. Petition No: 769/10 Page No. 12/17 petition for quashing of FIR before Hon'ble Delhi High Court and the same was dismissed by Hon'ble High Court. During cross-examination, the respondent no. 1 admitted of his having filed writ petition before Hon'ble High Court but denied about its dismissal and stated that directions were issued to approach the IO of the case. The respondent no. 1 in the next sentence admitted that he has not filed any appeal against dismissal of his writ petition. The respondent no. 1 was reluctant in admitting the dismissal of the writ petition. It is also noted that the respondent No. 1 has stated that on 13.11.2007 first of all in the morning at about 8.30 am, he took the above mentioned Gypsy from Uttam Nagar Plant of Delhi Jal Board and went to C-2, Janak Puri, Delhi, at the residence of his above named officer to pick him and then proceeded to Subhash Nagar and then to Ramesh Nagar and then to Kesho Pur, Plant at around 11.30 -12.00 in the morning and remained there till evening at around 6.30-7.00 p.m. While R-1 W3 Sh. Arvind Kumar Aggarwal stated that on 13.11.2007, Sh. Rajpal came to his residence around 9 a.m. and he along with Maruti Gypsy no. DL-4CC-2220 went to the plant around 10 a.m. and inspected the plant and remained there till 1.00 p.m. and during afternoon he inspected Raghubeer Nagar, Subhash Nagar sites and thereafter again went to Keshopur Plant and from Keshopur Plant he reached to his residence around 5.30 p.m. alongwith said Gypsy. There is difference in the version of respondent No. 1 and R-1W3 Sh. Arvind Kumar Aggarwal. The testimony of R-1W1 is not reliable.
21. The R1W3 Sh. Arvind Kumar Aggarwal retired Superintendent stated that on 13.11.2007, Sh. Rajpal was driving the Gypsy no. DL4CC2220 and they were at Keshopur Plant and during that day they had visited different plants. The R1W3 also relied upon the log book Ex. R1W2/B. It has already been discussed that the said log book is not worthy of credence. The R1W3 should have placed on record documents/records regarding his visit to different plants. The R1W3 stated that he inspected the plant and remained there till 1 pm and thereafter inspected Raghuvir Nagar, Subhash Nagar sites and then he again went to Keshopur Plant. The R1W3 must be having record/document pertaining to the various inspections done by him but failed M.A.C. Petition No: 769/10 Page No. 13/17 to place on record any such document/record. The contradictions in the testimony of R-1W1 and R-1W3 has already been discussed in earlier para. For the aforesaid reason, the testimony of R1W3 cannot be relied upon.
22. At this stage, it is also relevant to refer the testimony of R1W4 Sh. R.L. Meena, Additional District and Sessions Judge, who appeared as a witness and exhibited the statement recorded by him under section 164 Cr. P. C. , Ex. PW-4/1 and stated that his signature were at point A. The R1W4 recorded statement of PW4 Sh. J. P. Bansal under Section 164 Cr.P.C. and in the said statement the vehicle number was written as DL-4CC-2222. The said discrepancy regarding number of the vehicle has already been explained by PW4 when he was confronted with his statement with 164 Cr.P.C. The FIR, site-plan and testimony of petitioner witnesses taken together fully establish that the injuries were sustained by petitioner involving vehicle bearing registration No. DL-4CC-2220 (Maruti Gypsy), in a road accident. There is nothing on record to dispel the inference that petitioner sustained injuries in a road accident which occurred on 13.11.2007 because of rash and negligent driving of vehicle bearing No. DL-4CC-2220 (Maruti Gypsy) being driven by the respondent No. 1.
23. Now the next point to be considered is whether the death of Master Jeetu resulted because of the injuries suffered by him in the accident. The treatment record/MLC shows that deceased suffered abrasions on the arm, forearm, back, buttock. The PW-1 has stated that the deceased was taken to Focus Imaging and the deceased expired there and thereafter they went to the hospital but were not allowed to enter inside the hospital. The version of the PW-1 on this aspect does not inspire confidence. It is highly unlikely that petitioner whose son has suffered injuries and expired was not allowed to enter inside the hospital by police officials. The treatment record of GTB hospital shows that petitioner was referred to room no. 251 and there is one more report regarding absconding patient report which shows that deceased was admitted in the ward no. NTW and had left the hospital at 1.45 a.m. and the treatment record shows that petitioner approached the hospital at about M.A.C. Petition No: 769/10 Page No. 14/17 12.55 p.m. The photocopy of CT head report issued by Focus Imaging and Research Center shows that there was no abnormality and no internal injury and the report was normal. The petitioners did not get the postmortem conducted on the body of the deceased nor there is any death certificate of deceased. Therefore under the facts and circumstances when Master Jeetu has suffered only abrasions, it cannot be said that Master Jeetu died because of the injuries suffered in the accident. The petitioners failed to establish that the deceased died because of the injuries suffered in the accident. T he issue no. 1 is decided accordingly.
ISSUE NO. 224. The petitioner PW1 stated that deceased was his son and was six years old and had suffered injuries and was taken to Dr. Hedgewar Hospital and the doctor on duty referred him to GTB Hospital and an MLC no. 5926/07 was prepared and the Doctor advised the petitioner to get CT scan of the brain of his son and the petitioner went to Focus Imaging and Research Centre Pvt. Ltd. situated in IHBAS Hospital Complex but his son expired in the Focus Imaging and Research Centre Pvt. Ltd. and then he went into the hospital but was not allowed to enter into the hospital.
25. The PW2 Dr. Sangeeta Behera, CMO of the GTB Hospital deposed that the treatment record Ex. PW2/1 was prepared by Dr. Murtaza Khan and the treating Doctor has referred the patient to room no.-251 (Nuero surgery) and then he was advised for CT Scan (head) by the treating doctor and as per the record the patient had absconded from the hospital on 13.11.2007 at 1.45 pm and did not turn up. The PW2 exhibited the photocopy of the absconding patient report as PW2/2. During cross-examination the PW2 stated that she had no personal knowledge regarding the injuries of the patient. The PW2 further stated that as per the treatment record there was loss of consciousness which meant that the patient had suffered head injuries. The PW2 stated that no external injuries were present on the body of patient and the nuero surgeon has given his opinion on Ex. PW2/1.
M.A.C. Petition No: 769/10 Page No. 15/1726. I have gone through the material on record. The treatment record Ex. PW2/1 shows that petitioner suffered loss of consciousness and there were abrasion on arms, forearms, back and buttock and he was referred to room no. 251. The deceased was advised NCCT Head. The CT Scan of the deceased Sh. Jeetu is on record but the same has not been exhibited. The copy of the CT Scan of the head of Master Jeetu does not show any internal injury. The patient absconding report PW2/2 is already on record. Except these documents, there is nothing on record to suggest about the injuries suffered by Master Jeetu. There is no bill on record. Keeping in view the facts and circumstances and the nature of injuries suffered by Master Jeetu, I consider Rs. 25,000/- to be just compensation to the petitioners on all allowable heads.
27. For the aforesaid reasons, I pass the following award:-
LIABILITY
28. The respondent no. 1 & 2 being the driver and owner, are jointly and severally liable to pay the compensation amount.
RELIEF
29. In view of the above, the respondent No. 1 and 2 are liable to pay the compensation of Rs. 25,000/-. the respondent no. 1 & 2 are directed to pay compensation of Rs. 25,000/- to the petitioners. I further direct that the respondent No. 1 & 2 shall also pay interest @ 7.5% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
30. For the aforesaid reasons, I pass the following award :-
M.A.C. Petition No: 769/10 Page No. 16/17AWARD
31. In view of the above the petition is allowed. The respondent No. 1 and 2 are liable to pay the compensation of Rs. 25,000/-. The respondent no. 1 & 2 are directed to pay a compensation of Rs. 25,000/-, within one month. The respondent no. 1 & 2 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner.
32. The award amount along with interest be deposited by respondent no. 1 & 2, within 30 days in the court itself.
33. The respondent no. 1 & 2 are directed to give notice regarding the deposit of the amount to the petitioners at the address mentioned in the memo of parties and will also sent copy of notice to the counsel for petitioners at the address mentioned in the vakalatnama.
34. List for reporting compliance on 21.03.2015. The respondent no. 1 & 2 are directed to place on record the proof of deposit of the award amount, notice of the deposit and calculation of interest on the next date of hearing.
35. The respondent no. 1 & 2 shall deposit the award amount with interest up to the date of notice of deposit to the claimants with copy to their counsel. A copy of this order be given dasti to concerned parties.
ANNOUNCED IN THE OPEN ( Arvind Kumar )
COURT ON 20.01.2015 Presiding Officer: MACT:
Karkardooma Court
Delhi
M.A.C. Petition No: 769/10 Page No. 17/17