Delhi District Court
Sandeeep Mittal vs Suraj Prakash & Ors. Page No. 1 Of 33 on 13 May, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.129/14
Date of Institution: 24.02.2007
IN THE MATTER OF:
Sandeeep Mittal
A70, Ground Floor Back
Ashoka Enclave2, Sec3
Faridabad. ...Petitioner
Suit No.122/14
Date of Institution: 24.02.2007
IN THE MATTER OF:
Prathiba Mittal
A70, Ground Floor Back
Ashoka Enclave2, Sec3
Faridabad. ...Petitioner
Suit No.121/14
Date of Institution: 24.02.2007
IN THE MATTER OF:
Baby Anusha Mittal
Through her mother Mrs. Prathiba Mittal
A70, Ground Floor Back
Ashoka Enclave2, Sec3
Faridabad. ...Petitioner
Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 1 Of 33
Suit No. 129/14
Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14
Baby Anusha Mittal Vs. Suraj Prakash
Suit No. 121/14
Versus
1. Shri Suraj Prakash
S/o Shri Harish
Damtan Sahib
Narwana,
District Jind, Haryana.
2. Desein Private Limited
Desein House
Greater KailashII,
New Delhi110048.
3. National Insurance Company Limited
2nd Floor, Jeevan Vikas Building
3031 Asaf Ali Road
New Delhi110002. ....Common Respondents
Final Arguments heard : 29.04.2014 Award reserved for : 13.05.2014 Date of Award : 13.05.2014 AWARD
1. Vide this common judgmentcumaward, I proceed to decide three petitions filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended upto date (hereinafter referred to as the Act) for grant of compensation in a road accident being suits No.129/14, 122/14 and 121/14.
Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 2 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14
2. In Suit No.129/14 the case of the petitioner is that on 21.6.2006 near the spot of accident i.e. near M/s Ashish Agro Oil Extracts, Hissar Road, Uklana, at about 6.00 a.m. when the petitioner was going from Hissar to Narwana a stray animal (neel cow) appeared in front of the vehicle suddenly and rammed into the car, resulting in the vehicle becoming unbalanced, going below the road, striking with Babul and Suranam tree and going below the road into ditches. The car was owned by the employer of the petitioner. The passengers were badly injured and sustained multiple damages. It is averred that the petitioner as a result of the accident had been permanently disabled and was leading a very painful and bed ridden life and had become completely disabled. It is stated that the petitioner had spent Rs.3,49,735/ on treatment from 21.6.2006 till the date of filing the petition and he would have to continue the treatment throughout his life as he was permanently disabled. It is stated that the petitioner is well qualified engineer (BE and MBA) and he was well employed and had very bright future prospects. He was working as Principal Engineer with the respondent No.2 and earning Rs.36,699/ per month. The accident had put an end to a bright career and had transformed the petitioner into a dependent from an earning member. The accident had shattered his life and career which had caused mental trauma and life long dependence on others to do even daily chores. It is averred that the respondent No.1 was driving the vehicle at the time of the accident and the respondent No.2 is the registered owner of the vehicle, which is duly insured with the respondent No.3 Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 3 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 and all the respondents were jointly and severally liable to compensate the petitioner for the accidental injuries sustained. It is prayed that an amount of Rs.3,28,46,331/ be awarded in favour of the petitioner and against the respondents.
3. In Suit No.122/14 the case of the petitioner is that on 21.6.2006 she alongwith her husband and daughter were going in car bearing No.DL3CZ 3920 owned by respondent No.2 who is the employer of the husband of the petitioner which was driven by respondent No.1. Near the spot of accident i.e. near M/s Ashish Agro Oil Extracts, Hissar Road, Uklana, at about 6.00 a.m. a stray animal (neel cow) appeared in front of the vehicle suddenly and rammed into the car, resulting in the vehicle becoming unbalanced, going below the road, striking with Babul and Suranam tree and going below the road into ditches. The passengers were badly injured and sustained multiple damages. It is averred that as a result of the accident the petitioner was badly injured and had to undergo surgery which shall not only reduce her working efficiency but also create hindrance in all walks of life. It is averred that she could not pursue her career which led to great financial loss and her whole family was also injured in the accident and as such her mental agony and hardships due to the accident were manifold. It is averred that the respondent No.1 was driving the vehicle at the time of the accident and the respondent No.2 is the registered owner of the vehicle which is duly insured with the respondent No.3 Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 4 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 and all the respondents were jointly and severally liable to compensate the petitioner for the accidental injuries sustained due to the rash and negligent driving by the respondent No.1. It is averred that the petitioner was treated in Dr. Anant Ram Janta Hospital Pvt. Ltd., Barwala, Hissar and N.C. Jindal Institute of Medical Care and Research, Hissar from 21.6.2006 to 30.6.2006 and she was advised complete bed rest for further 60 days. She had spent Rs.16,672/ on the treatment. It is also stated that the petitioner was 33 years old and had worked as Senior Research Fellow with Department of Microbiology, University of Delhi and as Lecturer (Microbiology) in Institute of Home Economics, University of Delhi and had done M.Sc. (Botany) and was NET qualified and also SRF. It is prayed that an amount of Rs.5 Lakhs be awarded as compensation in favour of the petitioner and against the respondents.
4. In Suit No.121/14 the case of the petitioner is that on 21.6.2006 she alongwith her mother and father were going in car bearing No.DL3CZ3920 owned by respondent No.2 who is the employer of the father of the petitioner which was driven by respondent No.1. Near the spot of accident i.e. near M/s Ashish Agro Oil Extracts, Hissar Road, Uklana, at about 6.00 a.m. a stray animal (neel cow) appeared in front of the vehicle suddenly and rammed into the car, resulting in the vehicle becoming unbalanced, going below the road, striking with Babul and Suranam tree and going below the road into ditches. Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 5 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 The passengers were badly injured and sustained multiple damages. It is averred that as a result of the accident the petitioner suffered accident injuries and had sustained fracture of shaft femur (l) which for a child of 3 years was a horrible experience and caused great deal of pain and suffering and which shall not only reduce her working efficiency but also create hindrance in all walks of life. It is averred that the respondent No.1 was driving the vehicle at the time of accident and the respondent No.2 is the registered owner of the vehicle which is duly insured with the respondent No.3 and all the respondents were jointly and severally liable to compensate the petitioner for the accidental injuries sustained due to the rash and negligent driving by the respondent No.1. It is averred that the petitioner was treated in Dr. Anant Ram Janta Hospital Pvt. Ltd., Barwala, Hissar and N.C. Jindal Institute of Medical Care and Research, Hissar from 21.6.2006 to 08.9.2006. She had remained admitted and had spent Rs.22,440/ on the treatment. It is also averred by the petitioner that she was 3 years old. It is prayed that an amount of Rs.5 Lakhs be awarded as compensation in favour of the petitioner and against the respondents.
5. Written statement was filed on behalf of the respondent No.3 in all the 3 cases taking the preliminary objections that the petitioners had not come before the Court with clean hands rather the petitioners had filed a false, frivolous and bogus claim petition just to extract money from the respondent Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 6 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 No.3 by abusing the process of law. The whole story was concocted in collusion with the respondent No.1 and the petitioners had tried to show the accident as road side accident to bring the matter within the purview of this Court. It is averred that the respondent No.1 was the driver of Shri Sandeep Mittal and the car involved in the alleged accident was given to Shri Sandeep Mittal by his company for his use and he was just like the owner of the car sitting in the car. As such the petitioner Sandeep Kumar Mittal could not be termed as third party and claim compensation by filing the present petition. It is averred that the respondent is the driver of Shri Sandeep Mittal hence it was established that there was collusion between the claimants and the respondents No.1 and 2 It is averred that the compensation claimed is very high, exorbitant and without any basis. There is no FIR in the matter and as such the question of police investigation does not arise at all. It is averred that it is concealed by the petitioners that the respondent No.1 had filed the claim petition at Jind in which Shri Sandeep Mittal had been made respondent No.2 and the story of alleged accident described by the respondent No.1 in his petition at Jind was different from the story narrated by the petitioners in respect of the same accident. It is averred that respondent No.3 can be held liable either jointly or severally only if the respondent No.1 was having an effective and valid driving licence at the time of the accident and the vehicle had valid and effective insurance policy and permit issued by the concerned authority. The averments made in the claim petitions were denied. It is Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 7 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 however admitted that the vehicle bearing registration No.DL3CZ3920 was insured with the respondent No.3 i.e. National Insurance Co. Ltd. vide policy No.350300/31/05/6100002482 valid from 01.12.2005 to 30.11.2006 in the name of M/s Desein Pvt. Ltd. It is averred that it is not the case of the petitioners that the respondent was driving the vehicle in rash and negligent manner. It is averred that the nonregistration of the FIR and closing of the case proves that the petitioners were not entitled for any compensation.
6. The petitions were dismissed in default vide order dated 16.4.2007 of my Ld. Predecessor and thereafter, an application was filed for restoration of the petitions and vide order dated 07.8.2009 of my Ld. Predecessor, the matters were restored. However, again vide order dated 10.5.2010 of my Ld. Predecessor, the petitions were dismissed in default. An application was again filed for restoration of the cases and the same was also dismissed in default vide order dated 15.12.2010 of my Ld. Predecessor. Thereafter, an application was filed for restoration of the application which was allowed vide order dated 05.5.2011 and the petitions were also restored vide order of the said date. Vide order dated 19.12.2011 of my Ld. Predecessor Suits No.129/14, 121/14 and 122/14 were directed to be consolidated.
7. From the pleadings of the parties, the following issues were framed by order of my learned predecessor on 19.9.2011:
Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 8 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.Suit No. 122/14
Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14
1. Whether the petitioner sustained injuries in the accident which occurred on 21.06.2006 at about 6:00 AM near Ashish Agro Oil Extracts, Hisar Road, Uklana, Haryana, due to rash and negligent driving of vehicle No.DL3CZ3920 by respondent No.1, owned by respondent No. 2 and insured with respondent No. 3?
OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
Vide order dated 20.3.2012 of my Ld. Predecessor, respondents No.1 and 2 were proceeded exparte. RE was closed vide order dated 18.7.2012. Vide order dated 24.8.2012 of my learned predecessor the respondent No.3 was proceeded exparte. Thereafter, an application under Order 9 Rule 7 CPC was filed on behalf of the respondent No.3 and the same was dismissed as withdrawn vide order dated 03.12.2012. Another application was filed under Order 9 Rule 7 CPC for setting aside the order dated 24.8.2012 vide which the respondent No.3 was proceeded exparte and the same was allowed vide order dated 21.2.2013 of my Ld. Predecessor.
8. On behalf of the petitioners (in the three cases) Shri Sandeep Kumar Mittal appeared in the witness box as PW1 and led his evidence by way of Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 9 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He stated that he was a Principal Engineer and aged 33 years at the time of accident. He stated that on 21.6.2006 at about 6.00 a.m. he was travelling in Maruti car 800 bearing registration No.DL3CZ3920 along with his wife and minor daughter from Hissar to Narwana after attending a family marriage function. The said car was driven by the respondent No.1 in a negligent manner. When the vehicle reached near M/s Ashish Agro Oil Extracts, Uklana within the jurisdiction of PS Hissar, a stray animal (neel cow) crossed the road and rammed into the car as a result, the vehicle lost its control and capsized from the road and struck with Babul and Suranam tree and went below the road into ditches. Due to the accident he was badly injured and sustained multiple injuries. He stated that the impact of the accident was so great that he is disabled permanently and it put him to lead a painful and bed ridden life. He stated that the respondent No.1 was the driver of the offending vehicle which is owned by his employer i.e. the respondent No.2. He stated that the matter was reported to Dayanand, Head Constable of Uklana Police Station on 21.6.2006 vide report No.19 dated 21.6.2006 of Uklana Police Station.
9. PW1 further deposed that he is a well qualified engineer (BE and MBA) and prior to this accident he had very bright future prospects and the company was planning to send him out of country for business alliance. Due to the Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 10 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 accident he had sustained fracture supracondylar femur (right) with segmental fracture femoral shaft (left) with fracture clavicle (left) with fracture bilateral superior public rami and at present he was suffering from Myopathy which was not curable due to which he was put into 80% physical disability and he was having permanent physical impairment in relation to his four limbs. He further stated that the accident had put an end to a bright career and had transformed him into a dependent person. He being highly qualified had a large scope for promotions and substantial increase in income and bright chance to visit out of India but due to the accident he had lost all the chances of success in career due to permanent disability. He further stated that he was having good physique and good health before the accident. In case he would not have met with the accident due to rash and negligent driving of the respondent No.1, he would have lived good healthy life without any disability and have bright future. He also stated that at the time of accident he was earning Rs.35,661/ per month after deductions of Provident Fund of Rs.1,038/. He would have got more achievement in his life in the contribution of finance to his family and success in future if he had not met with the accident due to the rash and negligent driving of the respondent No.1 resulting in 80% permanent physical impairment in relation to all four limbs. He stated that he would have more future prospects in the field of power plant engineering and success in career if he had not met with the accident.
Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 11 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14
10. PW1 further deposed that after the accident he was admitted at Sir Ganga Ram Hospital, New Delhi and Rs.3,66,417/ had been spent till the date of filing of the complaint. Even at present he was under treatment for Myopathy and taking medicine as it was incurable throughout his life as he was permanently disabled. The copy of his passport is Ex.PW1/1, his salary certificate is Ex.PW1/2, medical bills are Ex.PW1/3, copy of his disability certificate is Ex.PW1/4, certified copies of criminal case record are Ex.PW1/5 and driving licence of the driver of the offending vehicle is Ex.PW1/6.
11. PW2 Dr. Gita Handa, Additional Professor PMR, AIIMS stated that she had examined the petitioner Shri Sandeep Mittal on 21.3.2011 alongwith Dr. Dhiraj, Senior Resident and Dr. U. Singh, Head of Department and issued a certificate of disability which is Ex.PW1/4. She further stated that as per Ex.PW1/4 there is 80% disability in relation of all four limbs to Shri Sandeep Mittal. She stated that PMR OPD No. is 14352/2010 and certificate No. is DC4328. She stated that the Disability Certificate Ex.PW1/4 bears her signatures and she also identified the signatures of the medical board. She stated that Ex.PW1/4 also bears the seal of AIIMS and was counter signed by the Medical Superintendent.
12. PW3 Mr. Yogesh Sinha, General Manager HRD, Desein Pvt. Ltd., GKII, New Delhi proved the office copy of appointment letter of Shri Sandeep Mittal Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 12 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 Ex.PW3/A and the salary certificate. He stated that Shri Sandeep Mittal does have prospects to go abroad and take up big responsibility as he is 80% disabled. He stated that at present the salary of Shri Sandeep Mittal is Rs.59,235/ and salary certificate for the month of December, 2011 is Ex.PW3/B. He stated that Shri Sandeep Mittal had remained on desk work and had lost lot of big opportunities due to the disability.
13. PW2 (ought to be PW4) ASI Karamvir Singh PS Uklana, District Hissar, Haryana had not brought the record of DD No.19 dated 21.6.2006 P.S. Uklana and stated that the same had been destroyed. He had brought the copy of the order dated 01.6.2012 Mark A regarding destruction of Register No.2 Daily Diary. He stated that DD No.19 dated 19.6.2006 Ex.PW1/5 had been issued from their PS and it bore the stamp of their PS. He was not crossexamined on behalf of the respondent No.3.
14. PW3 (ought to be PW5) ASI Dayanand, Haryana Police deposed that on 21.6.2006 he was posted at P.S. Uklana, District Hissar and he got recorded DD No.19 dated 21.6.2006 PS Uklana through Duty Officer Lachhman Singh, PS Uklana and copy of the same is Ex.PW1/5. He stated that the driver of the vehicle was unconscious. He stated that there was no requirement of recording the statement of the driver of the vehicle as Shri Sandeep Kumar Mittal had stated that he did not want any police action. Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 13 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14
15. In Suit No.122/14 the petitioner Smt. Prathiba Mittal appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. She deposed regarding the manner of the accident to the same effect as PW Shri Sandeep Mittal. She stated that she had done M.Sc.(Botany) and was NET qualified SRF and prior to the accident she had very bright future prospects and due to injury in her spine and her husband Shri Sandeep Kumar Mittal being badly injured with multiple fracture due to which he had 80% physical disability and permanent physical impairment in relation to his four limbs she could not pursue her career, which led to great financial loss and mental agony. She stated that she was having good health before the accident and she would have lived a good healthy life and had bright future if she had not met with the accident due to the rash and negligent driving by the respondent No.1. She stated that she had spent Rs.18,677/ for the treatment and expenditure from 21.6.2006 till the date of filing of the complaint. Copy of her passport is Ex.PW1/1 and treatment record and medical bills are Ex.PW1/2(colly).
16. Smt. Prathiba Mittal also appeared in the witness box as PW1 in Suit No.121/14 and led her evidence by way of affidavit which is Ex.PW1/A. She stated that she is the mother and natural guardian of the claimant and the claim petition had been filed through her as the petitioner is a minor. Photocopy of school identity card of Anusha is Ex.PW1/1 and original medical Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 14 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 bills are Ex.PW1/2 (colly). PE was closed on 16.3.2013. RE was closed again vide order dated 16.3.2013.
17. I have heard the Learned Counsel for the petitioners as well as the Learned Counsel for the respondent No.3 and perused the record. Written submissions were also filed on behalf of the petitioners and the respondent No.3 which I have perused. The petitioners were also examined on 5.12.2013 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
18. My findings on the specific issues are as under:
Issue No. 1
19. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that they sustained injuries in an accident caused due to rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 15 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.Suit No. 122/14
Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt.
20. The case of the petitioners is that on 21.6.2006 the petitioners were going in car bearing No.DL3CZ3920 owned by respondent No.2 who is the employer of Sandeep Kumar Mittal which was driven by respondent No.1. Near Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 16 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 the spot of accident i.e. near M/s Ashish Agro Oil Extracts, Hissar Road, Uklana, at about 6.00 a.m. when the petitioners were going from Hissar to Narwana a stray animal (neel cow) appeared in front of the vehicle suddenly and rammed into the car, resulting in the vehicle becoming unbalanced, going below the road, striking with Babul and Suranam tree and going below the road into ditches. The passengers were badly injured and sustained multiple damages. In paras 3 to 5 of their affidavit Ex.PW1/A the petitioners Sandeep Kumar Mittal and Prathiba Mittal in suits No.129/14 and 122/14 respectively had stated that on 21.6.2006 at about 6.00 a.m. they were travelling in Maruti car 800 bearing registration No.DL3CZ3920 from Hissar to Narwana after attending a family marriage function. The said car was driven by the respondent No.1 in a negligent manner. When the vehicle reached near M/s Ashish Agro Oil Extracts, Uklana within the jurisdiction of PS Hissar, a stray animal (neel cow) crossed the road and rammed into the car as a result, the vehicle lost its control and capsized from the road and struck with Babul and Suranam tree and went below the road into ditches. Due to the accident the petitioners were badly injured and sustained multiple injuries. They stated that the respondent No.1 was the driver of the offending vehicle which is owned by the employer of Sandeep Kumar Mittal i.e. the respondent No.2. They stated that the matter was reported to Dayanand, Head Constable of Uklana Police Station on 21.6.2006 vide report No.19 dated 21.6.2006 of Uklana Police Station.
Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 17 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14
21. The petitioners have filed certified copies of the criminal record consisting of copy of DD No.19 dated 21.6.2006 PS Uklana which is Ex.PW1/5. They had further produced ASI Karamvir Singh in the witness box who stated that he had not brought the record of DD No.19 dated 21.6.2006 PS Uklana as the same had been destroyed though he stated that the copy of DD No.19 Ex.PW1/5 had been issued from their PS. ASI Dayanand to whom the matter was reported as per the testimony of Sandeep Kumar Mittal and Prathiba Mittal was also produced in the witness box and he had stated about getting DD No.19 dated 21.6.2006 PS Uklana recorded through the Duty Officer HC Lachhman Singh.
22. As per the DD No.19 PS Uklana Ex.PW1/5 the same was recorded on the basis of statement of Shri Sandeep wherein he had stated that on 20.6.2006 he had come for the marriage of his brother Ritesh with his wife and daughter in car No.DL 3CZ 3920 Maruti Suzuki 800 to Hissar. The car was being driven by Suraj Prakash. He had stated that in the morning of 21.6.2006 when the baraat was going back to Narwana when the car reached near Silwana plant, Surajwala chowk at about 6.00 a.m. all of a sudden a neel gai came in front of the car and as it struck against the car the car became unbalanced and went towards the right side where it struck against kikar and shisham trees due to which he, his wife, his daughter and the driver sustained injuries and the workers from the plant and the people from the locality got Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 18 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 them admitted in Janta Hospital, Barwala. He had stated that the car was completely destroyed and the accident had taken place due to the neel gai coming and the car losing its balance and no one was at fault and he did not want any police action. Thus the petitioner Sandeep Kumar Mittal in his statement to the police on the basis of which DD No.19 was recorded on 21.6.2006 had stated that the accident had taken place due to the neel gai coming in front of the car all of a sudden and striking against their car due to which the car lost its balance and struck against kikar and shisham trees. He had also stated that he did not want any action and no one was at fault. It was further mentioned in the DD that on the basis of the statement no offence was found to be made out as the accident had taken place due to neel gai coming in front of the car all of a sudden and the car losing its balance and striking against trees and no one was at fault. It was also recorded that the driver was unfit for statement so his statement was not recorded. It is pertinent that ASI Dayanand had also stated during his examination that the driver of the vehicle was unconscious and there was no requirement of recording the statement of the driver of the vehicle as Shri Sandeep Mittal had stated that he did not want any police action.
23. It is thus seen that as per the DD Shri Sandeep Kumar Mittal had not attributed the accident to the fault of anyone and there was not a whisper in the same that the accident had taken place due to the negligence of the Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 19 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 respondent No.1. In fact it was categorically stated by him that no one was at fault. There is also nothing to show that the petitioners had thereafter asked for any police action to be taken in the matter and for FIR to be registered. Further even when the claim petitions were filed after more than 8 months of the accident there was not even a whisper about the respondent No.1 being negligent or the accident taking place due to his fault and it was merely stated in the claim petitions that near M/s Ashish Agro Oil Extracts, Hissar Road, Uklana, at about 6.00 a.m. when the petitioners were going from Hissar to Narwana a stray animal (neel cow) appeared in front of the vehicle suddenly and rammed into the car, resulting in the vehicle becoming unbalanced, going below the road, striking with Babul and Suranam tree and going below the road into ditches and the passengers were badly injured and sustained multiple damages. As such even in the claim petitions it was not the case put forth that the accident had taken place due to the negligence of the respondent No.1.
24. The respondents No.1 and 2 were proceeded exparte and did not appear either to file their written statement or to crossexamine the witnesses. In its written statement the respondent No.3 had taken the objection that the whole story in the claim petitions was concocted in collusion with the respondent No.1 and the petitioners had tried to show the accident as road side accident to bring the matter within the purview of this Court. It was stated Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 20 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 that there was no FIR in the matter and as such the question of police investigation did not arise at all. It was stated that it was concealed by the petitioners that the respondent No.1 had filed the claim petition at Jind in which Shri Sandeep Mittal had been made respondent No.2 and the story of alleged accident described by the respondent No.1 in his petition at Jind was different from the story narrated by the petitioners in respect of the same accident. It was also stated that it is not the case of the petitioners that the respondent was driving the vehicle in rash and negligent manner and the nonregistration of the FIR and closing of the case proved that the petitioners were not entitled for any compensation. Thus in the written statement it was specifically stated by the respondent No.3 that it was not the case of the petitioners that the respondent was driving the vehicle in rash and negligent manner and the non registration of the FIR proved that the petitioners were not entitled for any compensation.
25. The petitioners had thereafter filed their evidence by way of affidavit in which they had stated the manner of the accident. It is significant that for the first time Sandeep Kumar Mittal and Prathiba Mittal in their affidavits had stated that the car was driven by the respondent No.1 in a negligent manner. However it was a bare statement and when the manner of the accident was described again it was merely stated that when the vehicle reached near M/s Ashish Agro Oil Extracts, Uklana within the jurisdiction of PS Hissar, a stray Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 21 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 animal (neel cow) crossed the road and rammed into the car as a result, the vehicle lost its control and capsized from the road and struck with Babul and Suranam tree and went below the road into ditches and due to the accident the petitioners were badly injured and sustained multiple injuries.
26. During crossexamination on behalf of respondent No.3 PW1 (Sandeep Kumar Mittal) stated that a vehicle No.DL3CZ3920 was given to him by his employer for his private use. On the date of the accident the said vehicle was being driven by Suraj Prakash a friend of his brother. He stated that on the date of the accident he was going from Hissar to Narwana. He stated that he was not on official duty on the date of the accident. He admitted that a neel gai had all of a sudden come in front of their vehicle and the driver saved the neel gai diverted the car and in that process the accident occurred. He admitted that no FIR had been lodged with regard to the said accident. He admitted that he gave a statement to the police stating that the accident did not occur due to the fault of any person but as a neel gai came in front of their car. He stated that the accident occurred due to the negligence of the car driver who did not promptly avoid the accident. He admitted that the driver had filed a claim petition. Thus PW1 had stated about the vehicle being given to him by his employer for his private use and on the date of the accident the said vehicle was being driven by Suraj Prakash a friend of his brother. It is pertinent that PW1 Sandeep Kumar Mittal admitted that a neel gai had all of a sudden come Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 22 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 in front of their vehicle and the driver saved the neel gai diverted the car and in that process the accident occurred. He admitted that no FIR had been lodged with regard to the said accident and that he gave a statement to the police stating that the accident did not occur due to the fault of any person but as a neel gai came in front of their car which is also borne out by the copy of DD No.19 and he also admitted that the driver had filed a claim petition. It is only during crossexamination PW1 (Sandeep Kumar Mittal) stated that the accident occurred due to the negligence of the car driver who did not promptly avoid the accident.
27. Similarly during crossexamination by learned counsel for the respondent No.3 Prathiba Mittal admitted that a neel gai all of a sudden came in front of their vehicle and the driver and in order to save the neel gai diverted the car and in that process the accident occurred. She admitted that no FIR had been lodged with regard to the said accident. She stated that the accident occurred due to the negligence of the car driver who did not promptly avoid the accident. Thus Prathiba Mittal also admitted that a neel gai all of a sudden came in front of their vehicle and the driver and in order to save the neel gai diverted the car and in that process the accident occurred. She also admitted that no FIR had been lodged with regard to the said accident. Again only during crossexamination Prathiba Mittal stated specifically for the first time that the accident occurred due to the negligence of the car driver who did not Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 23 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 promptly avoid the accident.
28. It is thus seen that only during crossexamination Sandeep Kumar Mittal and Prathiba Mittal had for the first time stated that the accident occurred due to the negligence of the car driver who did not promptly avoid the accident. Clearly the same was an afterthought and an improvement, perhaps on legal advice, after a specific objection had been taken by the respondent No.3 in the written statement that it was not the case of the petitioners that the respondent was driving the vehicle in rash and negligent manner and the nonregistration of the FIR proved that the petitioners were not entitled for any compensation. Once it was realised that the petitions under Section 166 MV Act would not be maintainable without proving rashness and negligence on the part of the respondent No.1 it was stated in the evidence by way of affidavit that the car was driven by the respondent No.1 in a negligent manner and thereafter in crossexamination it was stated that the accident occurred due to the negligence of the car driver who did not promptly avoid the accident. The same is also not supported by any record as Sandeep Kumar Mittal had himself stated as recorded in DD No.19 that no one was at fault and he did not want any action which is corroborated by the copy of DD No.19 on record and the statement of ASI Dayanand and by what was stated by Sandeep Kumar Mittal in his own crossexamination wherein he admitted that no FIR had been lodged with regard to the said accident and that he gave a statement to the Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 24 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 police stating that the accident did not occur due to the fault of any person but as a neel gai came in front of their car.
29. It was argued on behalf of the respondent No.3 that admittedly the claim petition had been filed by the petitioners under Section 166 MV Act and for the entitlement of claim under Section 166 MV Act the petitioners had to prove that the accident was caused by the rash and negligent act of the driver of the vehicle and the first issue was also in that respect. It was argued that the onus of proof was laid upon the petitioners to prove the issue No.1 and if they failed to prove the same the petitions deserved to be dismissed. It was argued that nowhere in the petition the petitioners had even uttered a single word of any rashness or negligence on the part of the respondent No.1. The petitioner proved his statement recorded by the police of PS Uklana as Ex.PW1/5 i.e. DD No.19 dated 21.6.2006 and summoned two police officials from Hissar to give more strength to his statement recorded in DD No.19 i.e. Ex.PW1/5. Reliance is placed on the testimony of ASI Dayanand. It was argued that later on the petitioners tried to improve their case by falsely mentioning the word negligent in the affidavit filed in evidence which has no value and cannot be taken into account as being contrary to records. It was argued that the Indian Evidence Act says that the documentary evidence excludes oral evidence and the documents of the petitioners themselves say that the respondent No.1 was neither rash nor negligent. It was argued that as Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 25 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 such the petitioners had completely failed to prove issue No.1 in their favour and the petitions were liable to be dismissed straightaway.
30. It is not in dispute that the petitions were filed by the petitioners under Section 166 MV Act and for the entitlement of claim under Section 166 MV Act the petitioners have to prove that the accident was caused by the rash and negligent act of the driver of the vehicle and the first issue was also in that respect. As observed above in the claim petitions the petitioners had not said a word about the accident being caused by any rash or negligent act on the part of the respondent No.1. The document i.e. DD No.19 which was got proved by the petitioners themselves also does not have a word about the respondent No.1 being rash and negligent. There is merit in the contention of the learned counsel for the respondent No.3 that it was only in the evidence by way of affidavit that it was stated that the car was being driven by the respondent No.1 in a negligent manner. It is seen that there was further improvement during crossexamination by the petitioners who stated that the accident had occurred due to the negligence of the driver who did not promptly avoid the accident which was not stated anywhere earlier and was also contrary to the documents of the petitioners themselves.
31. Per contra it has been argued on behalf of the petitioners that the accident was immediately report to the local PS on 21.6.2006 which was Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 26 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 registered at PS Uklana and Ex.PW1/5 had been proved by the evidence of the petitioner and the evidence of ASI Karamvir and ASI Dayanand. It was argued that the vehicle was insured with the respondent No.3 and the petitioners having suffered injuries while travelling in the insured vehicle as passengers were entitled to get compensation and relief. Reliance has been placed on the judgment of the Hon'ble Supreme Court in Bimla Devi and Ors. v. Himachal Transport Corporation and Ors. (2009) 13 SCC 530 where it was held that in a claim petition under Section 166 of the Act the negligence has to be proved on the touchstone of preponderance of probability. It was observed:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
32. Reliance has further been placed on behalf of the petitioners on the judgments in Parmeshwari v. Amir Chand and others Supreme Court of India Civil Appeal No.1082/2011; Chandan Prakash and another v. Vidya Devi and others Delhi High Court MAC.APP. 790/2011 and New India Assurance Company Limited and another v. Baby Pandey and another Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 27 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 Delhi High Court, MAC.APP 569/2011, MAC APP 287/2011 where also reliance was placed on Bimla Devi's case. It is settled law that the claimants are merely to establish their case on the touchstone of preponderance of probability but in the instant case there is no evidence whatsoever to show rashness and negligence on the part of the respondent No.1. The petitioner Sandeep Kumar Mittal himself had taken the stand in the DD No.19 that no one was at fault for the accident and he did not want any action and further even in the claim petitions no negligence was attributed to the respondent No.1. A party cannot be allowed to approbate and reprobate and once having taken the stand that no one was at fault the petitioners cannot at a subsequent stage plead otherwise and take the stand that the accident was caused due to the negligence of the respondent No.1. While the claimants are merely to establish their case on the touchstone of preponderance of probability, it does not do away with the requirement of pleading or showing the negligence on the part of the driver at all. In Shri Rajendra Jha v Ms. Arti Rohatgi And Anr. decided by the Hon'ble High Court of Delhi on 27 February, 2008 by J. Kailash Gambhir it was observed:
"7. It is a settled legal position that proof of negligence is essential to maintain a claim for compensation as envisaged under Section 166 of the Motor Vehicles Act. It is only under Section 163A, the use of the offending vehicle but not negligence on the part of the offending vehicle is required to be established. Unlike Section 163A, proof of negligence is Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 28 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.Suit No. 122/14
Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 sine qua non to claim compensation under Section 166 of the Motor Vehicles Act. In this regard, the Hon'ble Apex Court has, in Oriental Insurance Co. Ltd v. Meena Variyal observed as under: We think that the law laid down in Minu B. Mehta v. Balkrishna Ramchandra Nayan was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by introducing Section 163A of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of a motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under Subsection (1) of Section 163A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned. Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle.
8. The appellant in the present case is an Advocate by profession and as per his own case set up in the claim Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 29 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.Suit No. 122/14
Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 petition, he was accompanied by his client Mr. Ramesh Kumar Jha who in his deposition as PW 2, did not utter a single word attributing any negligence on the part of respondent No. 1 in driving her vehicle. Shri Ramesh Kumar Jha was the only independent witness, and therefore, his evidence is very material to test veracity of the case set up by the appellant in the claim petition. It is no doubt true that the FIR was lodged by the appellant and even Superdari of the offending vehicle was taken by respondent No. 1 but the same in itself would not be enough to prove negligence on the part of respondent No. 1, more particularly, when the independent eye witness had not attributed any kind of negligence on the part of respondent No. 1. Suffering of injuries due to the accident is a consequential act of accident and the same in itself cannot be a pointer to hold the respondent No. 1 as rash and negligent driver of her vehicle. The appellant has also failed to disclose correct colour of the car which was being driven by respondent No. 1."
In the said case the FIR was duly registered. However the independent witness had not attributed any kind of negligence on the part of the driver and it was held that the petitioner had failed to prove rash and negligent driving. In the instant case there is even no FIR and consequently no police investigation or documents as referred to in Pushpa Rana's judgment above. The petitioner Shri Sandeep Kumar Mittal himself had stated that he did not want any further action and thereafter had also not pursued the matter with the police authorities. Further there was nothing about the negligence of the driver either in the DD No.19 or in the claim petitions and only in evidence by way of Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 30 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 affidavit filed in 2012 after almost 6 years of the accident and during cross examination was any negligence sought to be attributed to the driver of the car i.e. the respondent No.1.
33. As regards the petition filed by Sandeep Kumar Mittal it was argued on behalf of the respondent No.3 that Sandeep Kumar Mittal had admitted in cross examination that the vehicle was given to him for his private use and he was not on official duty on the day of the accident which established that he himself was the owner of the vehicle as the same was given to him for his private use and he could not be termed as a third party. An objection to that effect had also been taken by the respondent No.3 in its written statement. In the instant case the petitioner Sandeep Kumar Mittal himself had stated that the car bearing No.DL3CZ 3920 was given to him by his employer for his personal use and he had also deposed that the car was owned by his employer i.e. the respondent No.2. During crossexamination on behalf of respondent No.3 PW1 (Sandeep Kumar Mittal) stated that a vehicle No.DL 3CZ3920 was given to him by his employer for his private use. On the date of the accident the said vehicle was being driven by Suraj Prakash a friend of his brother. He stated that on the date of the accident he was going from Hissar to Narwana. He stated that he was not on official duty on the date of the accident. Thus the vehicle had been given to him by his employer for his private use and he was not on official duty on the date of the accident and Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 31 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 even the vehicle was being driven by a friend of his brother and not by any driver employed by the respondent no. 2. In Dhanraj v. New India Assurance Co. Ltd. (2004) 8 SCC 553 it was observed as under:
"8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any peron (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of the third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle."
In United India Insurance Co. Ltd. v. Davinder Singh (2007) 8 SCC 698 it was observed:
"10. It is, thus, axiomatic that whereas an insurance company may be held to be liable to indemnify the owner for the purpose of meeting the object and purport of the provisions of the Motor Vehicles Act, the same may not be necessary in a case where an insurance company may refuse to compensate the owner of the vehicle towards his own loss. A distinction must be borne in mind as regards the statutory liability of the insurer vis a vis the purport and object sought to be achieved by a beneficent legislation before a forum constituted under the Motor Vehicles Act and enforcement of a contract qua contract before a Consumer Forum."
Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 32 Of 33 Suit No. 129/14 Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14Baby Anusha Mittal Vs. Suraj Prakash Suit No. 121/14 To similar effect is the judgment of the Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Sadanand Mukhi and ors. Civil Appeal No.7402 of 2008 decided on 18.12.2008.
34. In the instant case it is true that the respondents No.1 and 2 were proceeded exparte and the respondents have also not adduced any evidence to prove any other version of the accident but in view of the material on record, it cannot be said that the negligence of respondent No.1 has been shown even prima facie on the touchstone of preponderance of probability. Accordingly the petitions are dismissed.
An attested copy of the award be given to the parties (free of cost). Copy of the judgment/ award be placed in suits No.121/14, 122/14 and 129/14. File be consigned to record room.
Announced in open court
on this 13th day of May, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Sandeep Mittal Vs. Suraj Prakash & Ors. Page No. 33 Of 33
Suit No. 129/14
Pratibha Mittal Vs. Suraj Prakash & Ors.
Suit No. 122/14
Baby Anusha Mittal Vs. Suraj Prakash
Suit No. 121/14