Delhi District Court
Kalpeshari Devi vs Raj Kishore on 28 October, 2024
Kalpeshwari Devi vs. Raj Kishore and Anr.
IN THE COURT OF MS. SHAMA GUPTA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
MACT no. 50385/16
UNIQUE ID No.: DLNW01-000314-2011
1. Smt. Kalpeshwari Devi W/o late Sh. Dhani Lal
2. Rachna D/o Late Sh. Dhani Lal
3. Babita D/o Late Sh. Dhani Lal
4. Ajay Prakash S/o Late Sh. Dhani Lal
All R/o H. No. 216, Old Darshani Bagh,
Mani Mazra, Chandigarh.
........ Petitioners/claimants
Versus
1. Raj Kishore
S/o Sh. Shakal Shah
R/o 70, Unchi Gali Jato Wali,
Sarai Pipal Thala, Delhi
....... Driver-cum-Owner/R1
2. National Insurance Company Ltd.
Hero Honda Vertical,101 106, BMC,
Connaught Place, New Delhi.
....... Insurance Company/R2
..... Respondents
DATE OF INSTITUTION : 26.07.2011
DATE OF RESERVING JUDGMENT : 28.10.2024
DATE OF PRONOUNCEMENT : 28.10.2024
MACT no. 50385/16 Page 1 of25
Kalpeshwari Devi vs. Raj Kishore and Anr.
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED
CLAIMS TRIBUNAL AGREED PROCEDURE TO BE
MENTIONED IN THE AWARD AS PER FORMAT
REFERRED IN THE ORDER PASSED BY THE HON'BLE
DELHI HIGH COURT IN FAO 842/2003 RAJESH TYAGI Vs.
JAIBIR SINGH & ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident 31.05.2011
2. Date of intimation of the accident by the 26.07.2011
investigating officer to the Claims
Tribunal
3. Date of intimation of the accident by the 12.08.2011
investigating officer to the insurance
company.
4. Date of filing of Report under section Not mentioned in
173 Cr.P.C. before the Metropolitan the DAR as well
Magistrate as petition
5. Date of filing of Detailed Accident 12.08.2011
Information Report (DAR) by the
investigating Officer before Claims
Tribunal
6. Date of Service of DAR on the 12.08.2011
Insurance Company
7. Date of service of DAR on the claimant 26.07.2011
(s).
8. Whether DAR was complete in all Yes
respects?
9. If not, whether deficiencies in the DAR No
removed later on?
10. Whether the police has verified the Yes
documents filed with DAR?
11. Whether there was any delay or No
MACT no. 50385/16 Page 2 of25
Kalpeshwari Devi vs. Raj Kishore and Anr.
deficiency on the part of the
Investigating Officer? If so, whether
any action/direction warranted?
12. Date of appointment of the Designated 12.08.2011
Officer by the insurance Company.
13. Name, address and contact number of Sh. V.K. Gupta,
the Designated Officer of the Insurance Ld. Counsel for
Company. the insurance
company
14. Whether the designated Officer of the Yes
Insurance Company submitted his
report within 30 days of the DAR?
(Clause 22)
15. Whether the insurance company No
admitted the liability? If so, whether the
Designated Officer of the insurance
company fairly computed the
compensation in accordance with law.
16. Whether there was any delay or No
deficiency on the part of the Designated
Officer of the Insurance Company? If
so, whether any action/direction
warranted?
17. Date of response of the claimant (s) to N/A
the offer of the Insurance Company.
18. Date of the Award 28.10.2024
19. Whether the award was passed with the No
consent of the parties?
20. Whether the claimant(s) were directed Yes
to open saving bank account(s) near
their place of residence?
21. Date of order by which claimant(s) were 21.05.2019
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
MACT no. 50385/16 Page 3 of25
Kalpeshwari Devi vs. Raj Kishore and Anr.
this effect on the passbook(s).
22. Date on which the claimant (s) 17.01.2020
produced the passbook of their saving
bank account near the place of their
residence along with the endorsement,
PAN Card and Aadhar Card?
23. Permanent Residential Address of the As mentioned
Claimant(s) above
24. Details of saving bank account(s) of the Petitioner
claimant(s) and the address of the bank Kalpeshwari
with IFSC Code Devi savings
bank A/c No.
11830001011366
10, Petitioner
Babita-
bank A/c No.
11830001011365
95, Petitioner-
Rachna bank A/c
No.
11830001011366
29, Petitioner
Rachna bank A/c
No.
11830001011367
71
with PNB, Mani
Mazra,
Chandigarh
Branch,
IFSC :
PUNB0118300
25. Whether the claimant(s) saving bank Yes
account(s) is near his place of
residence?
26. Whether the claimant(s) were examined Yes
at the time of passing of the award to
ascertain his/their financial condition.
27. Account number/CIF No, MICR 41065170303,
MACT no. 50385/16 Page 4 of25
Kalpeshwari Devi vs. Raj Kishore and Anr.
number, IFSC Code, name and branch 110002427,
of the bank of the Claims Tribunal in SBIN0010323,
which the award amount is to be SBI, Rohini
deposited/transferred. (in terms of order Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High
Court in FAO 842/2003 Rajesh Tyagi vs
Jaibir Singh.
JUDGMENT
1. The present claim proceeding have been filed by the legal heirs/legal representatives of the deceased (hereinafter referred as LR's of the deceased/petitioners/claimants), on 11.05.2012, under Section 166 and 140 of Motor Vehicle Act, 1988 (hereinafter referred as M.V. Act), seeking compensation in the sum of Rs. 50,00,000/-, with interest at the rate of 12% per annum, in respect of demise of Dhani Lal, in a road traffic accident. Perusal of the record further reveals that Detailed Accident Report (hereinafter referred to as DAR), was also filed by the IO, on 26.07.2011, with reference to FIR No. 163/11, registered at PS Jahangir Puri, Delhi. As per DAR, the offending vehicle was not traceable and the IO has produced Raj Kishore S/o Sh. Shakal Shah (herein after referred as R1), as driver cum owner of motorcycle bearing registration no. DL-8SAW-3664, on which, the deceased was stated to be sitting as a pillion rider, at the time of accident. The said DAR was accordingly filed as untraced.
2. However, after filing of the untraced DAR, the petitioners MACT no. 50385/16 Page 5 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
herein have preferred a separate claim petition under Section 166 r/w Section 140 of M.V Act, alleging therein that on 31.05.2011, at about 4:00 a.m, at Traffic Signal Point, Ring Road Wazirabad, towards Rohini Outer Ring Road, Bhalaswa, Delhi, the accident has taken place, as the deceased was hit by motorcycle bearing registration no. DL-8SAW-3664, which was driven by R1, at a very fast speed, as well as rashly and negligently. It was further alleged that at the time of accident, the deceased Dhani Lal was knocked down by R1, with his motorcycle bearing registration no. DL-8SAW-3664, after jumping the red light. It was further stated that the after the accident, the deceased was taken to Babu Jagjiwan Ram Hospital (hereinafter referred as BJRM Hospital), on 31.05.2011 at 09:15 a.m., where he was treated vide MLC no. 51198 and on the same day, he succumbed to the injuries, sustained by him in the case accident.
3. It was further stated that the postmortem on the body of the deceased was conducted at BJRM Hospital, Jahangir Puri, Delhi, vide PMR No. 511/11, dated 31.05.2011, at 1:00 p.m., wherein it was mentioned that the victim died due to hemorrhagic shock, as a result of laceration of lung, consequent to road traffic accident and all injuries were stated to be ante-mortem in nature.
4. After the accident, FIR bearing no. 163/11, was registered MACT no. 50385/16 Page 6 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
at PS Jahangir Puri, on 31.05.2011, in respect of commission of offence of causing death, not amounting to culpable homicide, by rash and negligent driving, by the driver of an unknown vehicle. The said FIR was registered on the statement of R1, in which, it was mentioned that on the relevant date, time and place, the deceased had taken lift from R1 and thereafter, the motorcycle of R1 met with an accident, due to which, both R1 and the deceased sustained injuries and subsequently, the deceased succumbed to the injuries sustained by him in the case accident. Subsequently, a final report under Section 173 of Code of Criminal Procedure, 1973 (herein afterwards referred as Cr.P.C), was also filed as untraced.
5. As per claim petition filed by the petitioners, motorcycle bearing registration no. DL-8SAW-3664, was the offending vehicle, which was driven as well as owned by R1 and the same was insured with National Insurance Co.
Ltd. (herein after referred as insurance
company/Respondent no. 2/R2), vide policy no.
35100731106201428567, valid for the period 31.10.2010 to 31.10.2011.
6. R1 failed to file any written statement in his defence.
Further, R1 was proceeded Ex-parte, vide order dated 12.04.2018.
MACT no. 50385/16 Page 7 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
7. In its written statement/reply, R2/insurance company admitted that the offending vehicle was insured with R2, at the relevant time. It was further averred that as per DAR, the present case was a hit and run case thus, the averments made by the petitioners in their claim petition, that at the time of accident, the deceased was on foot and was hit by motorcycle bearing registration no. DL-8SAW-3664 were false, so as to claim compensation from the insurance company.
8. From the pleadings of the parties, following issues were framed by the Learned Predecessor, vide order dated 24.01.2014:-
1. Whether on 31.05.2011, at about 4:00 a.m., at Traffic Signal Point, Ring Road, Wazirabad towards Rohini Outer Ring Road, Bhalswa, Delhi, Dhani Lal was hit by motorcycle bearing registration no. DL-8SAW-
3664, which was being driven rashly and negligently by Raj Kishore who was driver-cum-owner of the said motorcycle and caused the death of Dhani Lal? OPP.
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP.
3. Relief.
9. After framing of issues, opportunities were given to all the parties, to prove their respective averments, by leading evidence in support of the same.
MACT no. 50385/16 Page 8 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
10. In support of their claim petition, the petitioner no. 1 namely Kalpeshwari Devi, got herself examined as PW1. She has led her evidence by way of affidavit Ex. PW1/A. Her deposition qua the accident in question is reiteration of the contents of her claim petition. PW1 further deposed that the deceased has retired from Army i.e. Garhwal Rifles, as Subedar and was getting family pension of Rs. 10,145/- and besides the family pension, he was also doing a private job. She further deposed that earning of her husband was Rs. 20,000/- per month, including pension. She further deposed that the deceased left behind her, two unmarried daughters, as well as one unmarried son, as his only legal heirs. In her evidence, PW1 has placed reliance upon the attested copy of pension certificate of the deceased as Ex. PW1/1, photocopy of her ration card as Ex. PW1/2 (OSR), photocopy of high school certificate of the deceased as Ex. PW1/3 (OSR), photocopy of mark sheets of petitioners no. 2 and 3 as Ex. PW1/4 (OSR), photocopy of discharge pension book of deceased as Ex. PW1/5 (OSR), photocopy of Aadhar card of petitioner no. 1 as Ex. PW1/6 (OSR), copy of DAR as Ex. PW1/7 and attested copy of mark sheet of the petitioner no. 4 as Ex. PW1/8.
11. PW1 was duly cross-examined by Ld. Counsel for R2/ insurance company, wherein she deposed that she is not an eye witness of the accident. PW1 denied the suggestion that no accident has taken place with motorcycle bearing MACT no. 50385/16 Page 9 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
registration no. DL-8SAW-3664 or that the offending vehicle has been falsely implicated in the present matter, just to get the compensation. She further deposed that she is getting family pension of 50%. She further deposed that she has no document to show that her husband was doing job. She further deposed that her husband used to sell copies and books, in front of Army School. She further deposed that she has not filed any record, regarding pension received by her at present. PW1 denied the suggestion that she has not suffered any loss, qua the pension of the deceased or that the deceased was not doing any work for gain or that he was not earning any amount, as on the date of accident. She further denied the suggestion that all her children were working and earning or that they were not financially dependent upon the deceased. She deposed that she was a housewife. She denied the suggestion that her children were married. PW1 was not been cross examined by R1.
12. The petitioners further examined Sh. Mohan Lal, as an eye witness to the case accident, as PW2, by way of evidence affidavit Ex. PW2/A. PW2 deposed that on 31.05.2011, he was going to his residence at Sonipat, Haryana and at about 3:50 a.m, when he reached at Outer Ring Road, Bhalaswa, Delhi, he saw that one person, who was crossing the road, was hit by one motorcycle bearing registration no. DL8-SAW-3664. He further deposed that the said motorcycle came at a very high speed, from MACT no. 50385/16 Page 10 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
Wazirabad side and hit the person, who was crossing the road, with great force. He further deposed that due to the impact of hitting, the pedestrian fell down on the road and sustained injuries. PW2 further deposed that the accident occurred, due to rash and negligent driving of driver of motorcycle bearing registration no. DL-8SAW-3664. PW2 further deposed that PCR van shifted the deceased, as well as the motorcyclist to the hospital.
13. PW1 was duly cross-examined by Ld. Counsel for R2/ insurance company, wherein he deposed that he was not a summoned witness and his affidavit of evidence has been prepared by the counsel for the petitioners. PW2 further deposed that he came to depose, on the asking of brother of the deceased and he is not related to the deceased or his family. PW2 deposed that on the date of accident, he was going on his motorcycle, bearing registration No. HR10- 6083, make Discover, of black colour and he was having a working mobile phone. PW2 further deposed that he has not lodged any police report till date, regarding the case accident, neither by visiting the PS nor through his mobile phone. PW2 further deposed that there was no pillion rider on the offending motorcycle and the deceased was aged about 40-50 years. He further deposed that the deceased was crossing the road, at the time of accident and the road, on which the accident took place was about 80-100 feet wide, having a divider. PW2 further deposed that the deceased was crossing the other side of the road, after MACT no. 50385/16 Page 11 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
divider, having completed the first part of road, before the divider and the deceased had crossed half of the road, at the time of accident. PW2 deposed that the motorcycle came from ISBT side and the said motorcycle had hit its front side, with the legs of the deceased. He further deposed that after the accident, the deceased, the rider of the motorcycle, as well as the motorcycle fell down on the road. He deposed that 4-5 public persons had gathered at the spot, after the accident. PW2 further deposed that he remains at the spot, for about 15-20 minutes, after the accident but, he cannot tell the name and address of the any of the said public persons. He further deposed that one public person had made a call at 100 number, after about 5-7 minutes of the accident but, he does not know his name or address. PW2 further deposed that the PCR Van reached at the spot, after about 10 minutes of the accident, with three police officials and he had told the said PCR officials about the accident but, he cannot tell the name of said PCR officials. PW2 deposed that he had not given any written statement to the police officials and he had given his name and address to the PCR officials, who had noted down his name and address, on paper. PW2 further deposed that the blood was oozing out from the mouth and head of the deceased, after the accident but, he does not know, the damages to the said offending motorcycle, due to the accident. He deposed that he had not given any statement regarding the present case, to any police authority or in any court till day. PW2 further deposed that MACT no. 50385/16 Page 12 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
he does not know whether the police has made the case that the accident has been caused by some unknown vehicle, hitting the said offending motorcycle and that the deceased was travelling on the said motorcycle, as a pillion rider and the accident has been caused only due to rash and negligent driving of the said unknown vehicle. He further deposed that local police officials did not reach at the spot, in his presence but, PCR officials took the injured as well as the driver of the offending motorcycle to the hospital in his presence. PW2 deposed that the police never took him to the spot and he never contacted any police official, regarding the present case nor inquired about the case from anywhere. PW2 further deposed that the injured/ deceased was alive at the spot and the driver of the offending motorcycle had sustained only abrasions but, he cannot tell, as to where he had sustained abrasions. PW2 denied the suggestion that he is not an eye witness of the case accident and that is why, he has not lodged any police report. He denied the suggestion that the injured/deceased was travelling as a pillion rider, on the said motorcycle and the accident was caused by rash and negligent driving of the unknown vehicle. PW2 further denied the suggestion that he had not given his name and address to any of the said PCR officials or that he had not told anything about the accident to any of the PCR officials at the spot.
14. R2/Insurance Company has examined IO SI Vishnu Singh as R2W1, who deposed that he was the second IO of the MACT no. 50385/16 Page 13 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
case. R2W1 deposed that after investigation, first IO ASI Shyam Sunder had prepared final untrace report, as hit and run case and the copy of the same is already on record alongwith DAR Ex. R2W1/1 (colly). He further deposed that the said final untrace report was filed in the court of concerned Ld. MM but, the LR's of the deceased produced one person, namely Mr. Harsh Lal, claiming him to be eye witness of the case and the Ld. MM sent the untrace report to the concerned PS, for proper investigation, vide order dated 06.09.2012 and the copy of the said order is Ex. R2W1/2. R2W1 further deposed that thereafter the case file was handed over to him and he interrogated the said Mr. Harsh Lal and recorded his statement and same is Ex. R2W1/3, which bears signature of Mr. Harsh Lal at Point A. R2W1 further deposed that said Mr. Harsh Lal gave statement to this effect, that no such accident took place in his presence and thereafter, the final untrace report along with statement of said Sh. Harsh Lal was produced before the concerned Ld. MM and the Ld. MM, after taking no objection from the wife of the deceased, to the effect that she was satisfied with the investigation conducted by the IO and that she does not want to proceed further, with the present case, accepted the final report as untrace report, vide order dated 22.11.2012. He has placed reliance upon copy of the order dated 22.11.2012, regarding acceptance of untrace report as Ex. R2W1/4, Status report filed along with the final report as Ex. R2W1/5. He further deposed that no person in the name of Mr. Mohan Lal was ever MACT no. 50385/16 Page 14 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
produced by the LR's of the deceased, as an eye witness nor any such person appeared as an eye witness, during investigation. R2W1 deposed that mechanical inspection report filed with DAR, clearly shows that the motorcycle of the deceased was hit by some other vehicle and the deceased was a pillion rider, on the motorcycle. R2W1 deposed that there was no objection or protest to the final untrace report, as accepted by the Ld. MM till date.
15. R2W1 was duly cross-examined by Ld. Counsel for petitioners, who deposed that he was deputed as a second IO in the case on 08.09.2012. He deposed that he never visited at the spot of incident, after receiving the file for investigation and he was deposing, that the deceased was sitting as a pillion rider, on the motorcycle, on the basis of statement of the complainant and reports of earlier IO. R2W1 denied the suggestion that the police has not properly conducted the investigation, in the present case. He denied the suggestion that the police has not deliberately filed the charge sheet in this case against Raj Kishore/R1. He further denied the suggestion that the police has filed the untrace report, at the instance of the driver of the motorcycle.
16. This Tribunal has heard the final arguments, as advanced by Sh. K.R. Sharma, Learned Counsel for the petitioners and Mr. V.K. Gupta, Ld. Counsel for R2. None has MACT no. 50385/16 Page 15 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
appeared on behalf of R1 to address final arguments. Written submissions has also been filed on behalf of R2/insurance company.
17. On appreciation of evidence as adduced by the parties, in support of their respective versions, the issue-wise findings of this Tribunal are reproduced herein below:
ISSUE No. 1Whether on 31.05.2011, at about 4:00 a.m., at Traffic Signal Point, Ring Road, Wazirabad towards Rohini Outer Ring Road, Bhalswa, Delhi, Dhani Lal was hit by motorcycle bearing registration no. DL-8SAW-3664, which was being driven rashly and negligently by Raj Kishore who was driver-cum-owner of the said motorcycle and caused the death of Dhani Lal? OPP.
18. The onus of proving this issue, on preponderance of probabilities was upon the petitioners/claimants. In the present matter, the petitioners has filed the claim petition U/s 166 r/w 140 of MV Act, as per which, on 31.05.2011, at about 4:00 a.m, at Traffic Signal Point, Ring Road Wazirabad, towards Rohini Outer Ring Road, Bhalaswa, Delhi, the accident has taken place, as the deceased Dhani Lal, was hit by motorcycle bearing registration no. DL- 8SAW-3664, which was driven by R1, at a very fast speed, as well as rashly and negligently. It was further alleged that at the time of accident, the deceased Dhani Lal was knocked down by R1, with his motorcycle bearing registration no. DL-8SAW-3664, after jumping the red MACT no. 50385/16 Page 16 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
light, and as a result of impact of hitting, the deceased Dhani Lal has sustained fatal injuries.
19. Thus, as per the case of the petitioners, the deceased Dhani Lal was walking on the road, when he was hit by the motorcycle bearing registration no. DL-8SAW-3664. In order to prove the said aspect, the petitioners got examined Sh. Mohan Lal as PW2, by way of evidence affidavit Ex. PW2/A. In his evidence affidavit, PW2 deposed that on 31.05.2011, he was going to his residence at Sonipat, Haryana and at about 3:50 a.m, when he reached at Outer Ring Road, Bhalaswa, Delhi, he saw that one person, who was crossing the road, was hit by one motorcycle bearing registration no. DL8-SAW-3664. He further deposed that the said motorcycle came at a very high speed, from Wazirabad side and hit the person, who was crossing the road, with great force. He further deposed that due to the impact of hitting, the pedestrian fell down on the road and sustained injuries. PW2 further deposed that the accident occurred due to rash and negligent driving of driver of motorcycle bearing registration no. DL-8SAW-3664. PW2 further deposed that PCR van shifted the deceased as well as the motorcyclist to the hospital.
20. PW2 was also subjected to cross examination by Ld. Counsel for R2 wherein, he deposed that he was not a summoned witness and his affidavit of evidence has been prepared by the counsel for the petitioners. PW2 further MACT no. 50385/16 Page 17 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
deposed that he came to depose, on the asking of brother of the deceased and he is not related to the deceased or his family. PW2 further deposed that on the date of accident, he was going on his motorcycle, bearing registration No. HR10-6083, make Discover, of black colour and he was having a working mobile phone. PW2 further deposed that he has not lodged any police report till date, regarding the case accident, neither by visiting the PS nor through his mobile phone. PW2 further deposed that there was no pillion rider on the offending motorcycle and the deceased was aged about 40-50 years. He further deposed that the deceased was crossing the road at the time of accident and the road, on which the accident took place was about 80- 100 feet wide, having a divider. PW2 further deposed that the deceased was crossing the other side of the road. after divider, having completed the first part of road, before the divider and the deceased had crossed half of the road, at the time of accident. PW2 deposed that the offending motorcycle came from ISBT side and the said motorcycle had hit its front side, with the legs of the deceased. He further deposed that after the accident, the deceased, the rider of the motorcycle as well as the motorcycle fell down on the road. He deposed that 4-5 public persons had gathered at the spot, after the accident. PW2 further deposed that he remain at the spot for about 15-20 minutes, after the accident but, he cannot tell the name and address of any of the said public persons. He further deposed that one public person had made a call at 100 number after MACT no. 50385/16 Page 18 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
about 5-7 minutes of the accident but, he does not know his name or address. PW2 further deposed that the PCR Van had reached at the spot after about 10 minutes of the accident, with three police officials and he had told the said PCR officials, about the accident but, he cannot tell the name of said PCR official. PW2 deposed that he had not given any written statement to the police officials and he had given his name and address, to the PCR officials, who had noted down his name and address on paper. PW2 further deposed that the blood was oozing out from the mouth and head of the deceased, after the accident but, he does not know, the damages to the said offending motorcycle, due to the accident. He deposed that he had not given any statement regarding the present case, to any police authority or in any court till day. PW2 further deposed that he does not know whether the police has made the case, that the accident has been caused by some unknown vehicle, hitting the said offending motorcycle and that the deceased was travelling on the said motorcycle, as a pillion rider and the accident has been caused only due to rash and negligent driving of the said unknown vehicle. He further deposed that local police officials did not reach at the spot, in his presence but, PCR officials took the injured as well as the driver of the offending motorcycle to the hospital in his presence. PW2 deposed that the police never took him to the spot and he never contacted any police official regarding the present case nor inquired about the case from anywhere. PW2 MACT no. 50385/16 Page 19 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
further deposed that the injured/ deceased was alive at the spot and the driver of the offending motorcycle had sustained only abrasions but, he cannot tell, as to where he had sustained abrasions. PW2 denied the suggestion that he is not an eye witness of the case accident and that is why, he has not lodged any police report. He denied the suggestion that the injured/deceased was travelling as a pillion rider, on the said motorcycle and the accident was caused by rash and negligent driving of the unknown vehicle. PW2 further denied the suggestion that he had not given his name and address to any of the said PCR officials or that he had not told anything about the accident to any of the PCR officials at the spot.
21. In the present matter, it is worthwhile to mention here that initially, in the present matter, the final report as filed by the IO, was submitted as an untrace report. As per the investigation carried out by the IO, no eye witness was found present at the time of accident and the FIR was registered on the statement of R1, who disclosed to the IO, that the deceased Dhani Lal was sitting as a pillion rider, on his motorcycle, after taking lift from him and that his motorcycle was hit by an unknown vehicle, due to which, he as well as the deceased Dhani Lal fell down on the road. Further, the IO has also recorded statement of the person, who had called at 100 number, after the accident. As per the investigation carried out by the IO, the call was made from phone number 9310470810. The said number was MACT no. 50385/16 Page 20 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
found to be registered in the name of Ct. Saurav Malik, whose statement was recorded by the IO U/s 161 Cr.P.C. In his statement, Ct. Saurav Malik stated that in the intervening night of 30-31.05.2011, he was on duty, at Bhalaswa Red Light, vide DD no. 97B, dated 30.05.2011. He further stated that at about 3:50 a.m., he saw a motorcycle being hit by an unknown vehicle, from back side, due to which, the motorcyclist as well as pillion rider fell down on the road and he had made call at 100 number and had went with the injured person, via private vehicle, to BJRM hospital. The statement of Ct. Saurav Malik stands corroborated by the MLC of the deceased bearing no. 51178, as per which, the deceased, was brought to the hospital, by Ct. Saurav Malik. Further, the mechanical inspection report, as annexed with the DAR, also corroborates the statement of Ct. Saurav Malik, that the unknown vehicle had hit the motorcycle, from back. Perusal of mechanical inspection report, as annexed with the DAR, reveals that fresh damages were found on the tale light and plastic body, there were scratch marks on the right side body of the motorcycle, on right side grip end, hand brake, liver end, head light visor and the same was also broken from right side. The said report falsifies the statement of PW2, as per which, the motorcyclist had hit the deceased from front side.
22. Further, perusal of record reveals that after filing of the untrace report, the present petitioners had filed a protest MACT no. 50385/16 Page 21 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
petition, stating that the IO has wrongly filed the final report, as an untrace report, despite the fact that the accident was witnessed by eye witness Harsh Lal S/o Bir Singh R/o C-248, Sector 24, Rohini and after filing of the said protest petition, further investigation was ordered but, during the course of further investigation, the alleged eye witness Harsh Lal stated that he was not an eye witness of the accident. After recording his statement, again the final report was filed by the IO, as untrace and the petitioner no. 1 has accepted the said untrace report, without filing any further objection. The said statement was given by petitioner no. 1 on 22.11.2012, which was exhibited by R2W1 in his evidence as R2W1/4.
23. Perusal of the record reveals that the present petition was filed by the petitioners on 24.02.2012 i.e. prior to acceptance of untrace report, but, even after accepting the untrace report, the petitioners chose to pursue the present petition U/s 166 R/w 140 of MV Act. Though, the petitioners had produced Mohan Lal, as an eye witness but, the presence of the said witness, at the spot of accident and having witnessed the case accident, appears to be highly suspicious, as in his evidence, PW2 deposed that till date, he had not given statement to any police official and that he was not related to the family members of the deceased. Thus, the question which arose for consideration is, how the family members of the deceased has traced out PW2, when his details were not available in any criminal case MACT no. 50385/16 Page 22 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
record. In his evidence, PW2 further deposed that after the accident, the injured was removed to hospital, by PCR staff and that he had given his details, to the PCR officials however, as per the criminal case record, the injured was removed to the hospital by Ct. Saurav Malik and there is no mention of any PCR van or PCR officials, visiting the spot, after the accident or having removed the injured to the hospital. Further, testimony of PW2, as to the deceased being hit by the offending vehicle, from front, also stands falsified by the mechanical inspection report, as already discussed above. Thus, the same proves that PW2 is merely a planted witness, so as to help the petitioners, to seek compensation from the respondent no. 1 and the insurance company, despite the fact that the accident in question had taken place, with an unknown vehicle. Further, there is nothing on record to suggest rashness or negligence on the part of R1, in driving the alleged offending motorcycle. The criminal case record was proved by second IO i.e. R2W1, who has exhibited the DAR as Ex. R2W1/1, copy of order of further investigation as Ex. R2W1/2, statement of Harsh Lal as Ex. R2W1/3, copy of order dated as 22.11.2012, as to acceptance of untrace report as Ex. R2W1/4 and status report filed along with DAR as Ex. R2W1/5.
24. The statement of Ct. Saurav Malik, being an eye witness of the alleged incident stands duly corroborated by document Ex. R2W1/2, as per which, after the accident, he had called MACT no. 50385/16 Page 23 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
at 100 number from his mobile phone. The statement of Ct. Saurav Malik further proves, as to how the respondent no. 1 had sustained injury and how the motorcycle of the respondent no. 1 got damaged. The statement of Ct. Saurav Malik, further proves the defence of respondent no. 2, that the death of the deceased has though taken place in a road traffic accident but, respondent no. 1 was also a victim in the said accident and the alleged accident has not taken place, due to rash and negligent driving of the offending vehicle by R1.
25. Thus, on appreciation of evidence that has come on record, it can be safely concluded that the petitioners failed to prove any rashness or negligence, on the part of R1, in driving the alleged offending motorcycle, resulting in the case accident, even on touch stone of balance of probability. Rather, as evident from criminal case record, the accident has taken place, as a result of the deceased, being hit by an unidentified vehicle.
26. Though, this Tribunal fully sympathizes with the pain and suffering of the petitioners, due to sudden demise of the deceased however, it is equally the responsibility of the Tribunal, to ensure that the process of justice is not abused. Neither, the Insurance company, nor the other respondent can be made liable to pay compensation, in cases, where an insured vehicle is replaced, in place of an unidentified vehicle, which has caused the accident, by planting an MACT no. 50385/16 Page 24 of25 Kalpeshwari Devi vs. Raj Kishore and Anr.
eyewitness, who was not even present at the spot.
27. This issue is accordingly decided in favour of R1 and R2 and against the petitioners.
ISSUE No. 2Whether petitioner is entitled to compensation, if so, to what amount and from whom?OPP
28. In view of findings of this Tribunal, qua issue no. 1, as per which, the petitioners failed to prove involvement of the offending vehicle, resulting in the alleged accident, the petitioners are not entitled to receive compensation or any other relief.
Relief
29. In view of the above mentioned discussion, the claim petition is dismissed.
Amount, if any, deposited by the Insurance company, be released to Insurance Company, with interest, if any, accrued thereupon.
File be consigned to Record Room.
Digitally signed
SHAMA by SHAMA
GUPTA
GUPTA Date: 2024.10.28
16:35:56 +0530
Announced in open court (SHAMA GUPTA)
on 28th October, 2024 P.O. MACT N/W
Rohini Courts, Delhi
MACT no. 50385/16 Page 25 of25