Delhi District Court
Sh. Parveen Kumar vs Mr. Naresh on 19 July, 2018
IN THE COURT OF S.S. MLAHOTRA
PO:MACT-1 (NORTH): ROHINI: DELHI
MACT No. 176/17
FIR no. 201/09
PS Bawana
Sh. Parveen Kumar
S/o Sh. Raghu Nath,
R/o Village & PO Kundal,
Tehsil Kharkhoda, Distt. Sonipal,
Haryana.
.........Petitioners
VERSUS
1. Mr. Naresh
S/o Sh. Puran Mal
R/o Ward no. 2, Kharkhoda,
District Sonepat, Haryana.
2. Mr. Govind Garg
S/o Sh. Bhoj Raj
R/o 401, Ward No. 6,
Sant Colony, District Sonepat,
Haryana.
3. IFFCO TOKIO Gen. Ins. Co. Ltd.
TDI Centre, Unit A & B 4,
3rd Floor, Jasola,
New Delhi.
........Respondents
Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 1 /36
DATE OF INSTITUTION : 21.02.2017
JUDGMENT RESERVED ON : 16.07.2018
DATE OF AWARD : 19.07.2018
FINAL ORDER : DISMISSED.
Since no compensation has been awarded to the petitioner and
petition was dismissed, no proforma is being filled up.
JUDGMENT
1. Vide this order I shall dispose of the claim petition under Section 166 and 140 of M.V. Act filed by the petitioner Mr. Parveen.
2. Brief facts of the accident as per petitioner are that on 22.10.2009 he was driving his motorcycle no. HR19E 8935 at a normal speed and on his correct side of the road while observing the traffic rules and Mr. Ashish (deceased in connected case) was sitting on his motorcycle as pillion rider and at around 5.30-5.45 pm when they reached Bawana Auchandi Road near Harevli More, suddenly a tempo bearing no. HR69A 0417, which was being driven by its driver in a very high speed and in a rash and negligent manner without blowing any horn and in contravention of the traffic rules came from Auchandi Boarder side and hit their motorcycle with a great force. Due to such accident, petitioner as well as pillion rider Mr. Ashish sustained grievous injuries on all over their body. He was however removed to Maharishi Valmiki Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 2 /36Hospital, Pooth Khurd for treatment.
3. Contending that said accident took place, due to rash and negligent driving of above said offending vehicle no. HR69A 0417 (driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3), the petitioner has filed the present claim petition thereby claiming a sum of Rs. 50 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. 25,000/- has also been claimed for.
4. The claim of petitioners was contested by all the respondents. In their joint written statement filed by respondents no. 1 and 2 they have taken the preliminary objection inter alia stating that petitioner has not disclosed the true facts and circumstances of the case. It is further stated that the connected matter Ram Sunehari Vs. Parveen Kumar is pending before the court and respondents no. 1 and 2 have already filed compliant against Mr. Ram Sunehari and Parveen before the Registrar, Hon'ble Supreme Court. It is further stated that in the connected case Ram Sunehari Vs. Parveen, the petitioner therein (Ram Sunehari) himself stated the fact that accident had occurred due to rash and negligence driving of Mr. Parveen (petitioner herein) and as per the report of police their vehicle was out of Delhi i.e. at Sonepat, Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 3 /36Haryana. All the other facts of petition have been denied and involvement of their vehicle in the present accident is vehemently denied by the respondents no. 1 and 2.
5. It its written statement filed by respondent no. 3, it has not disputed the fact that vehicle of respondent no. 2 is duly insured with it on the date of accident, however it has denied its liability by stating inter alia that as per respondent no. 1, his vehicle was not involved in the accident at all and therefore it denied its liabilities to pay compensation. It has denied its liabilities on technical grounds as well.
6. From the pleadings of the parties, following issues were framed vide order dated 28.04.2017: -
1. Whether petitioner suffered injuries in a vehicular accident occurred on 22.10.2009 between 5.30-5.45 p.m near Harevli Mor, Bawana Auchandi Road, Delhi due to rash or negligent driving of tempo no. HR69A 0417 by Naresh (respondent no. 1)? OPP.
2. Whether the petitioner is entitled to compensation if yes, what amount and from whom of respondents? OPP.
3. Relief.
7. In order to prove the claim, petitioner examined himself as PW1 and filed his affidavit Ex. PW1/A in evidence. None of the respondents opted to lead any evidence. However, the petitioner Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 4 /36in connected case.
8. Vide order dated 21.09.2017 cases bearing MACT no. 176/17 (present case) and MACT 5361/16 were consolidated for the purpose of evidence.
I have heard Ld. counsels for parties and gone through the entire record.
9. Before coming to the issues, it is pertinent to mention here that a case titled as Rajesh Kumari & Ors. Vs. Parveen & Ors. having MACT no. 5361/16 was filed by the parents of victim Ashish, who suffered fatal injuries due to the accident in question and the petitioner in the present case is the respondent no. 1 in that case.
Therefore the whole matrix of this accident and the facts & evidence involved in both these cases is inevitable and would be discussed herein.
10. In the case titled as Rajesh Kumari & Ors. Vs. Parveen & Ors.
having MACT no. 5361/16 filed by the parents of victim (Ashish), Sh. Ram Sunehari (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. 5 examined five witnesses. He examined himself as R5W1, Sh. Vijay Kumar as R5W2, Sh. Amit Mann as R5W3, Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 5 /36Sh. Sunil Kumar as R5W4 and ASI Ramesh Chand as R5W5.
Respondent no. 6, examined one witness Sh. Mohit Nagar, as R6W1. The petitioner (herein) has not led any evidence in the connected case and has examined himself herein as PW1, the evidence which has come on record is being discussed now.
11. The relevant paras of the judgment passed in case titled as Rajesh Kumari & Ors. Vs. Parveen & Ors. having MACT no. 5361/16 filed by the parents of victim Ashish are reproduced as under:
12. "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 answered: -
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 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 6 /36motorcycle 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 involved 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 Rajinder Singh reached Harewali Road where one motorcycle having no. HR 19B 8935 (Splender) in accidental condition was found and on Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 7 /36information 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 by 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 8 /36of 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 was 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 9 /36his 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, Narela 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 properly and simultaneously took the cognizance of the Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 10 /36offence 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 taken 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 11 /36moved 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 offending 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 12 /36matter.
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 Bawana. 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 13 /36authorities in this matter and informed and even demanded Rs. 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 above 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 14 /366.12 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.
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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 15 /36stating 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 grievous 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 16 /36Sh. 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. Sunil 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 tempo 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 17 /36vehicle 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 control 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 18 /36by 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 but 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.
Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 19 /3628. 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. Dalel 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 relevant to be considered.
30. There is a statement / complaint of petitioner on record dated 01.01.2010 i.e. Ex.
Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 20 /36PW1/1, wherein he states that he is resident 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 IO 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 21 /36and 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.
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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 22 /36some 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 Kumar 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. 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.
Parveen Kumar Vs. Naresh & Ors.MACT no. 176-17 23 /36
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 knows 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 24 /36police, 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.
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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 25 /36about 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 and 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 26 /36police 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 confirmed 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 27 /36otherwise 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 not 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 28 /36Ld. 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.
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 counsel Sh. A.C. Mittal, Advocate, same is Ex. R6W1/1, post receipts about sending of said Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 29 /36legal 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 Mr. 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 30 /36visited 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 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 motorcycle 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 31 /36rent 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 the 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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 32 /36nothing 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.
47. 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 of 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.
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 Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 33 /36differently 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.
12.I have also gone through the cross examination conducted by respondents no. 1 and 2 to this witness in his own case, which has been conducted separately in this matter and which has been read in the connected matter. In the entire evidence, this witness has deposed that he never never received any notice from the ACP, Bawana Circle and ACP, Asaf Ali Circle with respect to the vigilence inquiry. He did not recollect when the said ntoice was recieved by him from PS Bawana i.e. one year back, two years back or even three years back. Police did not record his statement in PS. Although, he has given evidence in that case, which he was confronted with his statement Ex. R5W/9. He came to know about the offending vehicle Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 34 /36no. HR69A 0417 in the hospital initially and then when he came to the court of Ld. MM from Pardeep. He also cannot recollect as to when Pardeep met him in the hospital. He came to know about the death of Ashish after 20-22 days of accident and this fact came to his knowledge during routine course of coversation. He has made certain statement before IO under Section 161 CrPC and when that statement was confronted with the statement made by him before the Ld. MM he replied that it is not correct but statement made today is correct. Therefore, there is no specific time with respect to coming to knowledge with respect to offending vehicle by this witness i.e. on the spot or at any time prior to his deposition before the court of Ld. MM and as such he himself is not able to prove that offending tempo is involved in the accident or not. From the testimony of respondent no.
1 and 2 in the connected case and this witness in that case ( Rajesh Kumari & Ors. Vs. Parveen & Ors. having MACT no. 5361/16) as well as in this case, nothing material has come on record which may reflect that offending tempo was involed in the accident and after going through the facts, the court has reaches the conclusion that the petitioner, herein has not been able to prove involvement of tempo bearing registraion no. HR69A 0417 in the present accident.
13.Once it is held in the connected case titled as Rajesh Kumari & Ors.
Vs. Parveen & Ors. having MACT no. 5361/16 filed by the parents of victim (Ashish) vehicle i.e. tempo bearing registration no. HR69A Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 35 /360417 was not involved in the accident there is no questions arises to discuss the rash and negligence on the part of driver of said tempo no.
HR69A 0417.
This issue is decided accordingly holding that vehicle i.e. tempo bearing registration no. HR69A 0417 was not involved in the accident and the petitioner has not suffered any injury on account of the accident with offending vehicle No. HR69A 0417.
Issue no. 2 Whether the petitioner is entitled to compensation if yes, what amount and from whom of respondents? OPP.
14.In view of the findings of issue no. 1, petitioner is not entitled to have any compensation from any of the respondents.
This issue is decided accordingly in favour of respondents and against the petitioner.
Issue No. 3 (Relief)
15.Once it is held that petitioner is not entitled to have any compensation, he is not entitled to any relief as well.
The petition is accordingly dismissed. SUKHVIR Digitally signed by
SUKHVIR SINGH
File be consigned to record room. SINGH MALHOTRA
Date: 2018.07.19
MALHOTRA 15:04:37 +0530
ANNOUNCED IN THE OPEN (S.S. MALHOTRA)
COURT ON 19.07.2018 PO:MACT-ORTH,ROHINIDELHI
Parveen Kumar Vs. Naresh & Ors.
MACT no. 176-17 36 /36