Delhi District Court
Smt. Sanju Chaudhary (Wife Of The ... vs Jitender Kumar (Driver) on 12 April, 2022
IN THE COURT OF Dr. KAMINI LAU : JUDGE (MACT)01
(CENTRAL) TIS HAZARI COURTS, DELHI
MACT No. 213/2019
CNR No. DLCT010033922019
1. Smt. Sanju Chaudhary (Wife of the deceased)
W/o Late Sh. Dhirender Singh
2. Deeksha Chaudhary (Daughter of the deceased)
D/o Late Sh. Dhirender Singh
3. Rajat Chaudhary (Son of the deceased)
S/o Late Sh. Dhirender Singh,
4. Smt. Sukhpali Devi (Mother of the deceased)
W/o Sh. Satvir Singh,
5. Sh. Satvir Singh (Father of the deceased)
S/o Sh. Ghasi Ram
All Residents of:
86/9, Devi Pura,
1, Near Dhan Ki Chakki,
Bulandshahar, Uttar Pradesh.
......Petitioners
Versus
1. Jitender Kumar (Driver)
S/o Sh. Rajinder Kumar,
3A/33, W.E.A. Sat Nagar,
Karol Bagh, Delhi110005.
2. Netrapal Singh (Owner)
S/o Sh. Balaveer Singh,
Near Hanuman Mandir,
Bhangel, Noida, Uttar Pradesh.
Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019
Judgment dated 12.04.2022 Page No. 1 of 40
3. The Oriental Insurance Co. Ltd. (Insurance)
Through Regional Manager,
BC Noida Behind State Bank of India,
Admin Block, NSEZ, PhaseII,
Noida, Uttar Pradesh.
......Respondents
Date of filing of claim petition: 14.03.2019
Arguments heard on: 06.04.2022
Date of Judgment: 12.04.2022
JUDGMENT:
(1) The present Claim Petitioner has been preferred under Sections 166 & 140 of the Motor Vehicles Act by the Legal Heirs of the deceased claiming a compensation of Rs.70,00,000/ (Rupees Seventy Lacs Only) in respect of death of deceased Sh. Dhirendra Singh in a motor vehicular accident which took place on 19.09.2018 at about 12:00 Hrs. near Kadirabad Chowki, P.S. Modi Nagar, Uttar Pradesh.
BRIEF FACTS:
(2) The Facts in Brief as emerged from the claim petition that on 19.09.2018 Dhirender Singh (since deceased) was posted at Police Station Modi Nagar, Uttar Pradesh and was travelling on his motorcycle bearing registration No. UP13AW7146 with due precaution and care.
Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 2 of 40 When he reached near Chowki, Kadirabad, Uttar Pradesh, at that time a vehicle bearing registration No. UP16DT4129 which was being driven at a very high speed in a rash and negligent manner by its driver, hit the vehicle of the deceased with great force. Due to the impact, the deceased fell down on the road alongwith the vehicle and sustained grievous injuries. The injured was then shifted to Yashoda Hospital, Uttar Pradesh but during treatment he expired on 01.10.2018. The postmortem of the deceased was conducted by the doctors of the Govt. Hospital, Uttar Pradesh. A criminal case was registered vide FIR No. 917/2019 dated 01.10.2018 at Police Station Modi Nagar, Uttar Pradesh under Section 279/337/304A/427 IPC against the driver of the offending Car bearing No. UP16DT4129 who hit the motorcycle of the deceased bearing no. UP13AW7146. According to the petitioners, the offending vehicle was being driven by respondent no.1 Jitender Kumar, offending vehicle was owned by respondent no.2 Netra Pal Singh and the same was insured with the respondent no.3 Oriental Insurance Company Ltd. and hence, all the respondents are jointly and severally liable to satisfy the claim of the petitioners in entirety. (3) A common joint written statement to the claim petition has been filed by the respondent no.1 Jitender Kumar and respondent no.2 Netra Pal Singh wherein preliminary objections have been raised that the petition is based on false, concocted and frivolous facts and the petitioners have concealed the material facts from this Tribunal at the time of filing the present petition; that the compensation claimed by the Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 3 of 40 petitioners is very highly excessive and not in accordance with the provisions of the Motor Vehicles Act; that the respondents no.1 and 2 are not liable to pay any compensation since the respondent no.1 is not responsible for any accident as alleged in the present petition and the respondent no.2 has been falsely implicated in the present case. It is pleaded that without prejudice to the rights of the respondents, the offending vehicle was duly insured with the respondent no.3 at the time of alleged incident and the respondent no.1 was having a valid and effective driving license at the time of the alleged accident. It is further pleaded that the petitioners have filed the present petition just only to harass and torture the respondents as the petitioners want to extort huge amount by filing this false petition. On merits, it is pleaded that the respondents are not liable to pay any compensation or even a single penny to the petitioners in any manner, as the respondent no.1 is not responsible for any accident as alleged in the present petition and the respondent no.2 has been falsely implicated in the present case. (4) A detailed written statement to the claim petition has been filed on behalf of the respondent no.3 Oriental Insurance Company Ltd. wherein preliminary objections have been raised that this Tribunal does have proper jurisdiction to try and entertain the present petition which is liable to be Dismissed since the accident took place near Kadirabad Chowk, Police Station Modi Nagar, Uttar Pradesh and all the investigations took place at Modi Nagar, Uttar Pradesh. It is pleaded that the Policy Issuing Office is also situated at Noida, Uttar Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 4 of 40 Pradesh and the petitioners are residents of Bulandsahar, Uttar Pradesh and hence, the petitioners have no locus standi to file the present claim petition as against the respondent no.3. It is further pleaded that the deceased Dhirender Singh aged about 48 years, was not holding any valid driving license nor was wearing proper helmet at the time of the accident and the petitioners have not been able to plead the cause of accident i.e. on account of whose negligence the said accident took place. It is further claimed that the deceased was driving the motorcycle rashly and fast speed without observing the traffic rules. It is further pleaded that there is a delay in lodging of FIR since the accident took place on 19.09.2018 whereas the first information to the police was given on 01.10.2018 and no proper documents have been filed in the Court alongwith the petition nor the same have been supplied to the respondent no.3 which is a violation of the judgment of Hon'ble Supreme Court in case of "Rehamni Begum and Iters Vs. Krisan Pal & Ors'. It is also pleaded that the petitioners have not disclosed the registration number of the offending vehicle in the police complaint despite lodging the complaint after 11/12 days of accident and there is no reference of alleged vehicle in the FIR, nor there is any source of information of the offending vehicle has been pleaded in the petition. It is also pleaded that the FIR had been registered under the registration number of the motorcycle only and no cause of action has arisen in respect of the vehicle being driven by the respondent no.1 (i.e. car), the copy of driving license as filed with the petition of deceased is bearing Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 5 of 40 the date of birth as 08.12.1971 whereas the Aadhar Card shows the date of birth of the deceased as 01.01.1979 therefore, the present petition is liable to be dismissed under Order VII Rule 11 of CPC read with Section 151 CPC. It is also pleaded that the contract of the Insurance is a contract of utmost good faith and as such the respondent no.3 cannot be asked to indemnify the insured/ respondent no.2 unless & until certain terms and conditions of the Insurance Policy are complied with by the insured. It is further pleaded that the insured/ respondent no.2 must prove that he is registered owner of the vehicle involved in the alleged accident on the date of accident and the respondent no.1 driver of the said vehicle was holding a valid and effective driving license as on the date of accident and / or was not disqualified from holding the same. The respondent no.3 denied the liability to pay any compensation in the absence of establishment of negligence on the part of the alleged offending driver which clearly reflected from the petition that there is a collusion in between the deceased, driver, owner who had colluded with each other to give the details of the vehicle so that liability could be fastened upon the respondent no.3. It is further pleaded that the petition and investigation as conducted by the Investigating Officer of Police Station Modi Nagar is totally silent on the point that offending vehicle was having a valid permit and fitness certificate on the date of the accident, nor the petitioners provided the same. It is also pleaded that the amount of compensation claimed by the petitioners is very high, exaggerated, arbitrary and without any basis and documents on record.
Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 6 of 40 It is further pleaded that the deceased was 48 years old at the time of the accident but no document pertaining his status of age, income, education, qualification has been filed nor the same has been provided to the Insurance Company. It is also pleaded that the liability of the respondent no.3, if any, though not admitted is limited as per provisions of the Motor Vehicle Act and the terms and conditions and exceptions of the Insurance Policy. It is further pleaded that the vehicle involved in the accident was not having a valid permit and fitness certificate nor the driver was holding a valid license to drive vehicle as on the alleged date of accident and claims right of recovery. It is also pleaded that the respondent no.1 and 2 i.e. driver & owner of the offending vehicle had not sent any intimation about the occurrences of the accident with vehicle which on the date of accident the vehicle should have been driven in public with utmost care. The respondent no.3 has taken the defence of contributory negligence since the deceased was not wearing the helmet at the time of accident which is a clear cut violation of the Motor Vehicle Act. It is conceded that the vehicle bearing registration No. UP16DT4129 was insured with the respondent no.3 vide policy cover bearing No. 272591/31/2018/2637 in the name of respondent no.2 from 29.12.2017 to 28.12.2018. It is further pleaded that in case the owner and driver of the insured vehicle failed to contest the present petition or in collusion with the petitioners then the respondent no.3 be permitted to defend the petition on all the other grounds and merits as provided under Section 170 of the Motor Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 7 of 40 Vehicle Act, 1988.
ISSUES SETTLED:
(5) On the basis of the pleading of the parties, vide order dated 27.02.2020, this Court/ Tribunal settled the following issues:
i. Whether this court has the territorial jurisdiction to try the present case? (OP Parties) ii. What is the age of the deceased? (OPP) iii. Whether the petitioner is entitled to the compensation as claimed? If yes, to what extent and from whom? (OPP) iv. Relief.
EVIDENCE:
(6) In order to prove their case, the Legal Heirs of the deceased have examined two witnesses. Smt. Sanju Chaudhary the wife of the deceased has examined herself as PW1 and one Pawan Kumar as PW2. In so far as the respondents are concerned, they have not led any evidence.
(7) For the sake of convenience, the testimonies of the witnesses examined by the petitioner are is put in tabulated form as under:
S. Witness Deposition No. 1. Smt. Sanju PW1 Smt. Sanju Chaudhary is the wife of deceased Sh.
Chaudhary (PW1) Dhirendra Singh in the present case who in her examinationinchief by way of affidavit Ex.PW1/A has Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 8 of 40 corroborated what has been earlier stated in the claim petition. She has placed her reliance on the following documents:
1. Aadhar Card of Sh. Rajat Choudhary which is Ex.PW1/1A (OSR).
2. Aadhar Card of Ms. Deeksha Chaudhary which is Ex.PW1/1B (OSR).
3. Aadhar Card of Ms. Sanju Chaudhary which is Ex.PW1/1C (OSR).
4. Aadhar card of Sh. Satvir Singh which is Ex.PW1/1D (OSR).
5. Aadhar Card of Smt. Sukhpali Devi which is Ex.PW1/1E (OSR).
6. Aadhar Card of the deceased Dhirendra Singh which is Ex.PW1/2 (OSR).
7. Copy of PAN Card of the deceased Dhirendra Singh which is Ex.PW1/3 (OSR).
8. Photocopy of driving license of the deceased which is Mark A.
9. Photocopy of salary slip of the deceased which is MarkB.
10. Certified copy of charge sheet of criminal case registered against the driver of the offending vehicle which is Ex.PW1/6 (running into 23 pages).
In her cross examination by the Ld. Counsels for the respondents, the witness has deposed as under: ➢ That she has got the proper date of birth of her deceased husband.
➢ That she has filed the PAN Card already Ex.PW1/3 in respect of age of her husband.
➢ That she has also brought the Aadhar Card of her deceased husband which is already Ex.PW1/2.
➢ That the date of birth of her deceased husband in Aadhar Card is 01.01.1979.
➢ That she is not the eyewitness to the accident. ➢ That her husband used to pass over his entire salary to her i.e. Rs.48,000/ per month approximately.
Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 9 of 40 ➢ That her parents in law stays with her and they are not contributing anything as they are not getting any pension.
➢ That her daughter Deepa Choudhary is still a student and she is not married.
➢ That her both children are totally dependent upon her.
➢ That it is wrong that her husband was not contributing his entire salary i.e. Rs. 48,000/ approximately.
➢ That it is wrong that this Court has no Territorial Jurisdiction to try the present petition as the accident took place near Kadrabad Chowk, Modi Nagar, Uttar Pradesh.
➢ That they are residents of Bulandhahar and policy issuing office of the insurance company is situated at Bulandshahar, Uttar Pradesh.
2. Sh. Pawan Kumar PW2 Sh. Pawan Kumar is the alleged eyewitness of the (PW2) accident who in his examinationinchief by way of affidavit Ex.PW2/A has deposed on the following aspects:
1. That on 19.09.2018 he along with one Satindra was going on a Motorcycle from Modi Nagar towards their village.
2. That when they reached in front of shop of Jain Shikanji and Keshav Garden, they saw a car bearing No. UP16DT4129 being driven by its driver at a high speed, rashly and negligently and hit the motorcycle of one police man (Deewan Ji).
3. That the deceased fell down on the road and suffered grievous injuries and the driver of the car also stepped down from his car.
4. That he along with Satinder reached the spot of accident and while they removing the injured towards side of the road, the driver of the offending vehicle fled away from the spot.
5. That he along with Satinder cahsed the offending car but they failed to catch him.
6. That when they returned to the spot of accident, they found that the police officials have already taken the injured to the hospital.
Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 10 of 40
7. That the accident in question had taken place on account of the sole rash and negligent driving of the driver of car bearing No. UP16DT4129.
8. That copy of his Aadhar Card is Ex.PW2/1 (OSR).
In his cross examination by the Ld. Counsels for the respondents, the witness has deposed as under: ➢ That he was present at the time when accident took place.
➢ That he was on his motorcycle, number of which he does not remember and was proceeding from Ghaziabad side towards Meerut and he was a pillion rider.
➢ That there was a distance of about 100 meters between their motorcycle and the two vehicles which were involved in the accident.
➢ That they stopped near the place of accident, few people also gathered and in the meantime, the driver of the offending vehicle had ran away.
➢ That he was able to note the registration number of the offending vehicle on the spot.
➢ That their motorcycle was running at a speed of 3545 KMPH.
➢ That the offending vehicle was being driven at a speed of 70 KMPH.
➢ That he did not inform his counsel regarding the speed of the offending vehicle at the time of preparation of his affidavit of evidence.
➢ That the affidavit Ex.PW2/A was signed by him on 14.01.2021 and the same was got attested on the same day from the Oath Commissioner.
➢ That his counsel had also countersigned the same.
➢ That it is wrong that he was not coming from Ghaziabad side and proceeding towards Meerut side and has voluntarily explained that he was just hundred meters behind from the place of accident.
➢ That the offending vehicle was being driven at a rash and negligent manner and had overtaken Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 11 of 40 their motorcycle also.
➢ That there is a divider in between the road.
➢ That the offending vehicle i.e. car while overtaking the motorcyclist had hit by his right side on the left hand side of the motorcycle of the deceased.
➢ That it is wrong that he is not an eyewitness to the accident.
➢ That it is wrong that the offending vehicle was not running at a speed of 70 KMPH.
➢ That it is wrong that they were also driving their motorcycle at a fast speed.
➢ That they had left the spot in the process of chasing the offending vehicle but they were unsuccessful and thereafter, when they reached at the spot and it was revealed that the injured had been taken away by the police officials to some nearby hospital.
FINDINGS & OBSERVATIONS:
(8) I have heard the arguments advanced before me and considered the documents on record. My findings on the various issues are as under:
Issue No.1: Whether this court has the territorial jurisdiction to try the present case? (OP Parties) (9) Onus of proving the above issue was upon the parties. The present claim petition has been filed on 14.03.2019 in respect of an accident which took place on 19.09.2018 near Kadrabad Chowki, Police Station Modi Nagar, Uttar Pradesh. The petitioners are residents of Bulandsahar, Uttar Pradesh; the Respondent No.1 is Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 12 of 40 stated to be a resident of Karol Bagh, Delhi; the Respondent no.2 is a resident of Bhangel, Noida, Uttar Pradesh and the Policy Issuing Office of Insurance Company is situated at Noida, Uttar Pradesh.
The respondent no.3 Oriental Insurance Co. Ltd. has in its written statement raised a preliminary objection that this Court/ Tribunal has no jurisdiction to try the present claim petition whereas the case of the petitioners is that this Court/ Tribunal has the jurisdiction since one of the respondent i.e. Respondent No.1 Jitender Kumar who is the Driver of the offending vehicle is a resident of Karol Bagh, Delhi which falls within the jurisdiction of this Court.
(10) I have considered the submissions made before me. I may observe that as per the provisions of Section 166 (2) of Motor vehicles Act it is option of the claimant to file claim petition either to the Claims tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides. The provisions of Section 166 of Motor Vehicles Act are reproduced as under:
166. Application for compensation.--
(1) An application for compensation arising out of an accident of the nature specified in subsection (1) of section 165 may be made
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 13 of 40 or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
(2) Every application under subsection (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(3) Omitted.
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of section 158 as an application for compensation under this Act.
(11) The photocopy of the Driving License of the respondent no.1 Jitender Kumar has been placed on record which shows that his address is 3A/33, WEA, Sat Nagar, Karol Bagh, Delhi - 100005 which falls within the jurisdiction of this Court/ Tribunal. The respondent no.1 Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 14 of 40 being a resident of Karol Bagh, I hold that this Court/ Tribunal has the jurisdiction to try the present case.
(12) Issue is accordingly decided in favour of the petitioners and against the respondents.
Issue No.2: What is the age of the deceased? (OPP) (13) The case of the petitioners is that the deceased Dhirendra Singh was aged about 48 years at the time of his death. The respondent no.3 Oriental Insurance Company Ltd. has in its written statement raised a preliminary objection that the copy of the Driving License of the deceased filed with the petition shows the date of birth of the deceased as 08.12.1971 and as per the Aadhar Card of the deceased his date of birth was 01.01.1979 and hence, the present petition is liable to be dismissed under Order VII Rule 11 CPC.
(14) I have considered the submissions made before me. I have gone through the documents placed on record. It is evident that as per the Aadhar Card the date of birth of the deceased is 01.01.1979 whereas perusal of his Driving License, PAN Card and office record of the deceased shows that the date of birth of the deceased was 08.12.1971. In so far as the petitioners are concerned, they have not offered any explanation with regard to the above discrepancy. However, on the basis of various documents placed on record, I hold that the date of birth of the deceased is 08.12.1971 and hence, at the time of accident he was precisely aged 46 years, 9 months and 11 days.
Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 15 of 40 (15) Issue is accordingly disposed off.
Issue No.3: Whether the petitioner is entitled to the compensation as claimed? If yes, to what extent and from whom? (OPP) (16) Onus of proving this issue was upon the petitioners. The case of the petitioners is that on Dhirender Singh (since deceased) was a Constable in Uttar Pradesh and was posted at Police Station Modi Nagar, Uttar Pradesh. On 19.09.2018 Dhirender Singh was travelling on his motorcycle bearing registration No. UP13AW7146 with due precaution and care and when he reached near Chowki, Kadirabad, Uttar Pradesh, a car bearing registration No. UP16DT4129 was being driven at a very high speed in a rash and negligent manner by its driver, hit the motorcycle of the deceased with great force. Due to the impact, the deceased fell down on the road alongwith the vehicle and sustained grievous injuries. The injured was then shifted to Yashoda Hospital, Uttar Pradesh but during treatment he expired on 01.10.2018 and postmortem of the deceased was conducted by the doctors of the Govt. Hospital, Uttar Pradesh. A criminal case was registered vide FIR No. 917/2019 dated 01.10.2018 at Police Station Modi Nagar, Uttar Pradesh under Section 279/337/304A/427 IPC against the driver of the offending Car bearing No. UP16DT4129 who hit the motorcycle of the deceased bearing no. UP13AW7146.
Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 16 of 40 (17) In so far as the respondent no.1 Jitender Kumar and respondent no.2 Netra Pal Singh are concerned, they claimed that the respondent no.1 is not responsible for any accident as alleged in the present petition and the respondent no.2 has been falsely implicated in the present case.
(18) The respondent no.3 Oriental Insurance Company Ltd. has not only raised an objection with regard to the jurisdiction of this Court/ Tribunal to try the present petition but also claimed that the alleged offending vehicle i.e. Car bearing No. UP16DT4129 was not involved in the accident in question and that there is a collusion between the LRs of the deceased and the Driver & Owner of the alleged offending vehicle.
(19) I have considered the arguments advanced before me by the Ld. Counsels and have gone through the records of the case. (20) I may observe that vide order dated 07.02.2022 the petitioners were directed to explain why this claim petition be not put in the doubtful/ suspicious category in terms of the observations dated 16.09.2021 & 16.12.2021 made by the Hon'ble Apex Court in the case of Shafiq Ahmed Vs. ICICI Lombard General Insurance Co. Ltd. Special Leave Petition (Civil) No. 1110 of 2017. The relevant portion of the order dated 07.02.2022 is reproduced as under:
"..... I may note that the present claim petition was filed on 14.03.2019 in respect of an accident which took place on 19.09.2018 near Kadrabad Chowki, PS Modi Nagar, Uttar Pradesh. The petitioners are residents of Bulandsahar, Uttar Pradesh. Respondent No.1 is stated to be a resident of Karol Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 17 of 40 Bagh, Delhi. Respondent no.2 is a resident of Bhangel, Noida, Uttar Pradesh and the Policy Issuing Office of Insurance Company is situated at Noida, Uttar Pradesh.
Of late, it has been noticed that some Advocates have started filing petitions of outstation matters and that too in bulk before different courts by stretching and expanding the jurisdiction of Motor Accident Claim Tribunals on the pretext that the office of the insurance company is situated within the jurisdiction of the court. In a similar practice, in Uttar Pradesh a large number of Advocates were found involved in filing of fake claims pleas and in this regard cognizance was taken by the Hon'ble High Court of Allahabad against such malpractices and an SIT was constituted to investigate the fraud and in this regard the case of Shafiq Ahmed Vs. ICICI Lombard General Insurance Co. Ltd. Special Leave Petition (Civil) No. 1110 of 2017, CC No. 23628 of 2016 arising out of impugned final judgment and order dated 07.10.2015 in Crime No. 49 of 2015 passed by the Hon'ble Court of Jurisdiction of Allahabad, Lucknow Bench, is relevant. In the said case the Hon'ble Supreme Court has taken a note of the Status Report filed by the SIT in its order dated 16.12.2021 according to which out of total 1376 cases of suspicious claims received by the SIT, after completing enquiry of 247 cases of suspicious claims till date, total 198 accused persons have been primafacie found guilty of cognizable offence and accordingly total 92 criminal cases have been registered in various districts. In fact that total 92 criminal cases in various districts have been registered till date, of which, 28 advocates have been named as accused persons in 55 cases and Charge Sheets against 11 advocates in 25 cases have been forwarded to the concerned trial Court till date.
In the above case, the Hon'ble Supreme Court passed a detailed order dated 05.01.2017 reference of which was also made in the order dated 16.09.2021 wherein the Hon'ble Apex Court expressed its serious concerns of the alarming situation in which fake and fabricated claims may be filed under Motor Vehicles Act in all States/ Union Territories pursuant to which directions were issued and the Registrars of all the High Courts were directed to ascertain from the Motor Accident Claim Tribunals such doubtful cases which primafacie may require investigation and to prevent filing of such fabricated cases. The relevant portion of the same is quoted as under:
Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 18 of 40 "...... From the order passed by the High Court of Judicature at Allahabad, it was noticed that 64 fake claim cases were pending in various Districts in the State of U.P. It was also found and noticed that 29 fake claim cases were decided in which compensation of Rs. 1.23 Crores has been paid and claims for over Rs. 6 Crores are still pending. This Court noted that the situation is really alarming and similar scenario cannot be ruled out elsewhere in other States/Union Territories also. Therefore, this Court directed to issue notice to all the States/Union Territories and Insurance Companies as to what steps can be taken to rule out the filing of the fake cases and what remedial measures can be taken. This Court also directed to issue notice to all the High Courts through Registrars to ascertain from MACTs such doubtful cases which prima facie may require investigation and to prevent filing of such fabricated cases....".
In the light of the observations & directions of the Hon'ble Supreme Court and keeping in view the peculiar circumstances of the present case wherein an attempt has been made to invoke the jurisdiction of this Court by expanding the same by application of the principles laid down in the case of Malati Sardar Vs. National Insurance Company Ltd. & Ors. in Civil Appeal No. 10 of 2016 arising out of SLP (Civil) No.27243 of 2015 decided on 05.01.2016.
In the present case, despite the accident having taken place at Modi Nagar, Uttar Pradesh and the parties, particularly the petitioners are residing outside the jurisdiction of this court i.e. Buladsahar, Uttar Pradesh, this Tribunal will have no option but to place this claim petition in doubtful/ suspicious category to rule out any foulplay. The principle of convenience of victims, if applied, primafacie does not appear to be compatible with the facts of the present case. [Reference in this regard is made to the orders of the Hon'ble Apex Court dated 05.01.2017, 16.09.2021 & 16.12.2021 in the case of Shafiq Ahmed Vs. ICICI Lombard General Insurance Co. Ltd. (Supra)]. ...."
Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 19 of 40 (21) It is necessary to mention here that in the case of Shafiq Ahmed Vs. ICICI Lombard General Insurance Co. Ltd. (Supra) vide order dated 16.12.2021 the Hon'ble Supreme Court while dealing with large number of claim petitions involving fraud and fake claims, has taken a serious note of the malpractices and the modusoperandi in claim petitions where large scale siphoning of the insurance amount is involved while instituting fake compensation petitions, which observations I quote as under:
"..... 7. We have also heard at length Shri Atul Nanda, learned Senior Advocate and Shri Vishnu Mehra, learned Advocate appearing on behalf of the two insurance companies and learned counsel appearing on behalf of the State of Uttar Pradesh/SIT on the modus operandi of the advocates for filing fake cases under Motor Vehicles Act and Workmen Compensation Act. Separate notes have been filed pointing out the modus operandi in instituting the fake compensation petitions. Some of the modus operandi adopted are as under:
i) Nonroad accident injurydeath converted into road accident claims;
ii) fraudulent implantation of vehicle;
iii) false implantation of driver;
iv) claimant implantation;
v) multiple claims at various for a at different territorial
locations for compensation out of injury/ death caused arising out of the same accident. Often the claim applications are filed both before various MACT Tribunals as well as the authorities under the Employees Compensation Act, 1923;
vi) fake/fabricated insurance policies; and
vii) fake/ fabricated income documents/ medical documents for exaggerated compensation.
7.1 Investigating Officer of SIT has also filed a short note on modus operandi in instituting fake compensation petitions, which are based on rich experience during investigation/ enquiry of the Criminal Cases/ FIRs/ Complaints, which are as under:
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1. CASES OF HIT AND RUN Such road accidents which are occurred from unknown vehicles, alleged eyewitnesses are prepared therein, on the basis of their affidavit/statements, facts are brought in the light showing accident committed by some other insured vehicle and petition is instituted against owner/driver/insurance company of the aforementioned vehicle.
In the cases of such road accident which have been committed by unknown vehicles, for the purpose of institution of the compensation petitions, in a well designed planning, documents related to vehicle/driver are obtained from some advocates and documents of such vehicles/driver used in some other compensation petitions/cases are used in institution of false petitions.
Such road accidents which are occurred from some unknown vehicles, in that accidents are shown to have been committed by such vehicles which are old and their vehicle owners remain first registered owners. Advocates purchase such aforementioned vehicles as old vehicles, they do not get such vehicles registered in their own names whereas the actual/registered owners of those vehicles have already died. Despite of death of original owner, fake General Power of Attorneys are executed/prepared in the names of such deceased vehicle owners through their companions advocates. Aforementioned vehicles are shown in such road accident, which were occurred from unknown vehicles. Aforementioned vehicles have been shown in accident in many such cases and compensations petitions have been instituted. In the cases of such road accidents wherein First Information Reports are registered against unknown vehicles and when those unknown vehicles are not traced and local Investigating Officers submit their Final Report in the cases before the Hon'ble Courts. In such accidents if a person has died while travelling in those vehicles and second person has injured, then holding that injured person himself to be driver of the aforementioned vehicle, showing his negligence, by impleading as opposite party to the insurance company of his own vehicle for receiving compensation, compensation petitions are also filed for receiving amount of compensation.
2. CASES OF KNOWN VEHICLES WITHOUT INSURANCE If road accident is occurred with known vehicle and not insured at that time, in connivance with owner or driver of other insured vehicle in place of that vehicle, compensation petitions are instituted by showing aforementioned road accident of the said Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 21 of 40 insured vehicle.
3. CASES OF FICTIONAL ACCIDENT AND FALSE PETITIONS Such false compensation petitions have also come into light wherein name and address of the petitioner could not be ascertained and imaginary story is created on behalf of such petitioner and false Claim petitions are instituted.
4. CASES RELATED TO CONNIVANCE OF VEHICLE OWNER/VEHICLE DRIVER/ADVOCATE For the purpose of earning illegal money, some actual vehicle owners and actual drivers of vehicles in connivance with advocates, submits registration certificates of their vehicles and Driver Licences in the unknown motor accident cases for filing fake petitions.
5. IMPLEADING NAME AND ADDRESS OF FAKE PERSONS IN ACTUAL ACCIDENTS Persons of fake names and addresses showing as drivers/cleaners in place of actual and correct injured persons (driver/cleaner) involved in the actual accident cases, compensation petitions are instituted in the W.C.A. courts by showing them injured in the aforementioned accidents.
6. CASES RELATED TO HANDICAPPED/ DECEASED PERSONS DUE TO OTHER REASONS During course of enquiry/investigation, such fake compensation petitions have also come into light wherein petitioner has become handicapped due to some other reason (like chopping off hand from thrasher machine), and second copy of fake handicapped certificates of their being disabled/ handicapped obtained again showing date of accident after date of fake accident and fake compensation petitions have also been instituted. Despite not being injured in the road accidents, after death or injured for any other reasons, his family members or he himself showing him or that person to be the driver/cleaner/labourer who died or injured, compensation petitions are instituted in fake manner.
7. CASES RELATED TO FILING SAME CASE IN MORE THAN ONE COURTS In one road accident, wherein a person has died or injured, his family members or he himself submits compensation petition in the M.A.C.T. court related to aforementioned road accident. If decision of the court is not in his favour, then the same petitioner changes the story and again submits his petition before the W.C.A. Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 22 of 40 court (Workmen's Compensation Act).
After institution of compensation related to a road accident in a court and after receiving its compensation amount, again same accident is shown with other vehicle which is insured with other insurance company and second Claim petition is instituted in the W.C.A. court of any other district for receiving compensation amount again.
8. CASES RELATED TO AFFIXING PHOTOGRAPH OF A SAME PERSON IN THE COMPENSATION AMOUNT CHEQUE DISTRIBUTION REGISTER IN MORE THAN ONE PETITIONS Some compensation petitions were instituted in the W.C.A. Court in the names of different persons. After judgement of the aforementioned court, photograph of the same person is affixed in more than one case/petition, on the Cheque Distribution Register for receiving cheque related to compensation amount and compensation amount was received and thereafter, entire aforementioned amount was got transferred by the concerned advocate in his own bank account or in the bank accounts of his family members.
9. CASES TO GET THE PETITIONS DISMISSED AFTER TRANSFER OF FAVOURING DEPUTY LABOUR COMMISSIONER, RESUBMITTING THE PETITIONS AT HIS NEWLY POSTED PLACE During investigation/enquiry of the compensation petitions, it is also found that petitions related to occurrence of accidents instituted in the W.C.A. court of concerned District. When Deputy Labour Commissioner of W.C.A. court of aforementioned District transferred to some other district, then some advocates of aforementioned district get their compensation petitions dismissed, and thereafter they instituted new petitions again in aforementioned district where the then Deputy Labour Commissioner was transferred by showing fake address in the petitions.
10. INSTITUTION OF PETITIONS IN OTHER DISTRICT INSTEAD OF INSTITUTING PETITIONS IN THE DISTRICT OF ACCIDENT SPOT/PLACE During investigation/enquiry of the compensation petitions, it is also found that some compensation petitions were not instituted in the court of district of place/spot of accident, rather they were instituted in the court of other district by mentioning only temporary address instead of mentioning original address of Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 23 of 40 the petitioner. It is also pertinent to mention here that this temporary address also remains incomplete.
11. CASES RELATED TO FAKE VAKALATNAMA During investigation/enquiry of the compensation petitions related to road accidents, this fact has also come into light that actual/main advocate who has filed the claim petition, does not submit his own Vakalatnama in the concerned court, he submits Vakalatnama on behalf of such Advocate, who does not file the compensation petitions by mentioning his mobile number on the compensation petitions.
During investigation/enquiry of the compensation petitions related to road accidents, this fact has also come into light that advocate who has submitted compensation petition in the concerned court, he mentioned name of such fake person in place of name of Advocate, whose whereabouts could not be ascertained. Whereas such case was pursued by the advocate who submitted this petition in camouflage manner. ...".
(22) It has become necessary for this Tribunal to note that after the Hon'ble Allahabad High Court and the Hon'ble Apex Court took cognizance of the fake and fraudulent claims, there has been a sudden spurt in filing of claim petitions in Motor Accident Claim Tribunal in Delhi relating to accidents which have taken place in other states particularly Uttar Pradesh and Haryana. It is this which makes it obligatory for the Tribunals in Delhi to carefully scrutinize these cases so as to rule out any foul play.
(23) This being the background, the observations made by the Hon'ble Supreme Court in the case of Jai Prakash Vs. M/s. National Insurance Co. Ltd. reported in 2010 (2) SCC 607 become relevant wherein the Hon'ble Apex Court had mandated that the statute must be meticulously followed [which has now been reaffirmed in the case of Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 24 of 40 Bajaj Allianz General Insurance Co. Ltd. Vs. Union of India & Ors. in Writ Petition (Civil) No. 534/2020 vide orders dated 16.03.2021 & 16.11.2021], relevant portion of which is quoted as under:
"..... 4.2) The Legislature tried to reduce the period of pendency of claim cases and quicken the process of determination of compensation by making two significant changes in the Act, by Amendment Act 54 of 1994, making it mandatory for registration of a motor accident claim within one month of receipt of first information of the accident, without the claimants having to file a claim petition. Subsection (6) of section 158 of the Act provides:
"As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officerincharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer".
Subsection (4) of Section 166 of the Act reads thus: "The Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of section 158 as an application for compensation under this Act".
Rule 150 of Central Motor Vehicle Rules, 1989 prescribes the form (No.54) of the Police Report required to be submitted under section 158(6) of the Act. 4.3) This Court in General Insurance Council v. State of A.P. [2007 (12) SCC 354] emphasised the need for implementing the aforesaid provisions. This Court directed:
"It is, therefore, directed that all the State Governments and the Union Territories shall instruct all police officers concerned about the need to comply with the requirement of Section 158(6) keeping in view the requirement indicated in Rule 150 and in Form 54, Central Motor Vehicles Rules, 1989. Periodical checking shall be done by the Inspector General of Police concerned to ensure that Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 25 of 40 the requirements are being complied with. In case there is non compliance, appropriate action shall be taken against the erring officials. The Department of Road Transport and Highways shall make periodical verification to ensure that action is being taken and in case of any deviation immediately bring the same to the notice of the State Governments/Union Territories concerned so that necessary action can be taken against the officials concerned."
4.4) But unfortunately neither the police nor the Motor Accidents Claims Tribunals have made any effort to implement these mandatory provisions of the Act. If these provisions are faithfully and effectively implemented, it will be possible for the victims of accident and/or their families to get compensation, in a span of few months. There is, therefore, an urgent need for the concerned police authorities and Tribunals to follow the mandate of these provisions.
Problem (iv)
5. Courts have always been concerned that the full compensation amount does not reach and benefit the victims and their families, particularly those who are uneducated, ignorant, or not worldlywise. Unless there are builtin safeguards they may be deprived of the benefit of compensation which may be the sole source of their future sustenance. This court has time and again insisted upon measures to ensure that the compensation amount is appropriately invested and protected and not frittered away owing to ignorance, illiteracy and susceptibility to exploitation. [See Union Carbide Corporation v. Union of India 1991 (4) SCC 584 and General Manager, Kerala State Road Transport Corporation v. Susamma Thomas 1994 (2) SCC 176]. But in spite of the directions in these cases, the position continues to be far from unsatisfactory and in many cases unscrupulous relatives, agents and touts are taking away a big chunk of the compensation, by ingenious methods. Reports of Amicus Curiae
6. In this background, to find some solutions, on 9.9.2008, this Court requested Shri Gopal Subramaniam, to assist the Court as Amicus Curiae. The learned amicus curiae with his usual thoroughness and commitment has examined the issues and submitted a series of reports and has also made several suggestions for consideration. He has also referred to and relied on a series of zealous directions issued by a learned Single Judge of the Delhi High Court to expedite and streamline the adjudication of motor vehicle claims and disbursement of compensation.
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7. Having considered the nature of the problems and taking note of the several suggestions made by the learned Amicus Curiae and after hearing, we propose to issue a set of directions to the police authorities and Claims Tribunals. We also propose to make some suggestions for implementation by Insurance Companies and some suggestions for the consideration of the Parliament and the Central Government.
Directions to Police Authorities
8. The Director General of Police of each State is directed to instruct all Police Stations in his State to comply with the provisions of Section 158(6) of the Act. For this purpose, the following steps will have to be taken by the Station House Officers of the jurisdictional police stations:
(i) Accident Information Report in Form No. 54 of the Central Motor Vehicle Rules,1989 (`AIR' for short) shall be submitted by the police (Station House Officer) to the jurisdictional Motor Vehicle Claims Tribunal, within 30 days of the registration of the FIR. In addition to the particulars required to be furnished in Form No. 54, the police should also collect and furnish the following additional particulars in the AIR to the Tribunal:
(i) The age of the victims at the time of accident;
(ii) The income of the victim;
(iii) The names and ages of the dependent family members.
(ii) The AIR shall be accompanied by the attested copies of the FIR, site sketch/ mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and postmortem report (in case of death) or the Injury/Wound certificate (in the case of injuries). The names/addresses of injured or dependent family members of the deceased should also be furnished to the Tribunal.
(iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim.
(iv) The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing.
9. To avoid any administrative difficulties in immediate implementation of sections 158(6) of the Act, we permit such Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 27 of 40 implementation to be carried out in three stages. In the first stage, all police stations/claims Tribunals in the NCT Region and State Capital regions shall implement the provisions by end of April 2010. In the second stage, all the police stations/claims Tribunals in district headquarters regions shall implement the provisions by the end of August 2010. In the third stage, all police stations/Claims Tribunals shall implement the provisions by the end of December, 2010. The Director Generals shall ensure that necessary forms and infrastructural support is made available to give effect to Section 158 (6) of the Act.
10. Section 196 of the Act provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable with imprisonment which may be extended to three months, or with fine which may extend to Rs. 1000/, or with both. Though the statute requires prosecution of the driver and owner of uninsured vehicles, this is seldom done. Thereby a valuable deterrent is ignored. We therefore direct the Director Generals to issue instructions to prosecute drivers and owners of uninsured vehicles under Section 196 of the Act.
11. The Transport Department, Health Department and other concerned departments shall extend necessary co operation to the DirectorGenerals to give effect to Section 158 (6).
Directions to the Claims Tribunals
12. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents receive under Section 158 (6) of the Act as applications for compensation under Section 166 (4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary Registers, forms and other support is extended to the Tribunal to give effect to Section 166 (4) of the Act.
13. For complying with section 166(4) of the Act, the jurisdictional Motor Accident Claims Tribunals shall initiate the following steps:
(a) The Tribunal shall maintain an Institution Register for recording the AIRs which are received from the Station House Officers of the Police Stations and register them as miscellaneous petitions. If any private claim petitions are directly filed with reference to an AIR, they should also be recorded in the Register.
(b) The Tribunal shall list the AIRs as miscellaneous petitions. It shall fix a date for preliminary hearing so as to enable the police to Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 28 of 40 notify such date to the victim (family of victim in the event of death) and the owner, driver and insurer of the vehicle involved in the accident. Once the claimant/s appear, the miscellaneous application shall be converted to claim petition. Where a claimant/s file the claim petition even before the receipt of the AIR by the Tribunal, the AIR may be tagged to the claim petition.
(c) The Tribunal shall enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an accident (by any `Police Officer Advocate
- Doctor' nexus, which has come to light in several cases).
(d) The Tribunal shall by a SUMMARY ENQUIRY ascertain the dependent family members/legal heirs. The jurisdictional police shall also enquire and submit the names of the dependent legal heirs.
(e) The Tribunal shall categories the claim cases registered, into those where the insurer disputes liability and those where the insurer does not dispute the liability.
(f) Wherever the insurer does not dispute the liability under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry or refer the matter to the Lok Adalat for settlement, so as to dispose of the claim petition itself, within a time frame not exceeding six months from the date of registration of the claim petition.
(g) The insurance companies shall be directed to deposit the admitted amount or the amount determined, with the claims tribunals within 30 days of determination. The Tribunals should ensure that the compensation amount is kept in Fixed deposit and disbursed as per the directions contained in General Manager, KSRTC v. Susamma Thomas [1994 (2) SCC 176].
(h) As the proceedings initiated in pursuance of Section 158(6) and 166(4) of the Act, are different in nature from an application by the victim/s under Section 166(1) of the Act, Section 170 will not apply.
The insurers will therefore be entitled to assist the Tribunal (either independently or with the owners of the vehicles) to verify the correctness in regard to the accident, injuries, age, income and dependents of the deceased victim and in determining the quantum of compensation.
14. The aforesaid directions to the Tribunals are without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as provided under Section 169 of the Act. MANY TRIBUNALS INSTEAD OF HOLDING AN Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 29 of 40 INQUIRY INTO THE CLAIM BY FOLLOWING SUITABLE SUMMARY PROCEDURE, AS MANDATED BY SECTION 168 AND 169 OF THE ACT, TEND TO CONDUCT MOTOR ACCIDENT CASES LIKE REGULAR CIVIL SUITS. THIS SHOULD BE AVOIDED. THE TRIBUNAL SHALL TAKE AN ACTIVE ROLE IN DECIDING AND EXPEDITIOUS DISPOSAL OF THE APPLICATIONS FOR COMPENSATION and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation...."
(24) Now coming to the present claim petition, I may note that despite grant of repeated opportunities, no explanation/ clarification offered on the aspect as to why this Claim Petition be not put in the Doubtful/ Suspicious category in terms of the observations of the Hon'ble Apex Court in the case of Shafiq Ahmed Vs. ICICI Lombard General Insurance Co. Ltd. (Supra).
(25) On the basis of the claim petition, various documents placed on record and the evidence adduced, certain glaring aspects have emerged, which I now enumerate as under:
➢ Firstly, the complete set of chargesheet of the criminal case has not been placed on record and only Twelve pages of the certified copies have been placed on record. A perusal of the same shows that the accident had taken place on 19.09.2018 at 12:00 Hours whereas the FIR was registered on 01.10.2018 at 5:22 PM i.e. after a delay of Twelve Days which is despite the fact that the deceased himself was a police officials and was going after attending his duties in the Police Station of the same area where the accident took place. The said FIR was Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 30 of 40 registered on the basis of complaint of Rajat Chaudhary son of the deceased relevant portion of which is reproduced as under:
".... Nivedan hai ki mere pitaji Aarkshi No. 1712 Dhirender Singh thana Modinagar par niyunkt they. Ki 19.9.18 ki praath meri behen ko phone dwara suchna mili ki pitaji ka chowki Kadrabad, Modinagar shetra me kisi agyat vahan ne tezi va laparwahi se vahan chlakar unki motorcycle Hero No. UP13AW 7146 me takkar mar di thi jissey motorcycle shatigrast ho gayi tatha pitaji ko gambhir chot ser me aayi thi. Jiska main apne parivar ke saath Yashoda hospital me ilaz karate rahey. Mere pitaji thane se sarkari karya se ja rahe they. Jinka aaj dinank 1.10.18 ko samay 14:00 baje lagbhag ilaz ke dauran dehant ho gya hai. Main ab tak unke ilaz timardari me laga raha. Aaj ghatna ki report likhane aaya houn. Meri report likhkar kanooni karyawahi karen..."
No explanation is forthcoming with regard to the above delay of Twelve Days in lodging the FIR. The complainant Rajat who is the son of the deceased has not been examined before this Court/ Tribunal.
➢ Secondly, perusal of the certified copy of the chargesheet shows that it was prepared on 26.01.2019 by showing the respondent no.1 Jitender Kumar as the accused/ driver of the offending car bearing No. UP16DT4129. However, the chargesheet is totally silent as to how the alleged offending vehicle was connected to the accident in question. Two officials of UP Police namely HC Rakesh Singh and Ct.
Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 31 of 40 Deepak Kumar of the same Police Station where the deceased was posted and was going back after duty hours, were shown as Eye Witnesses to the accident. However, their statements recorded by the Investigating Agency have not been placed on record nor there is anything on record to connect the alleged offending vehicle to the accident. ➢ Thirdly, after about eight months of filing the initial charge sheet, the Investigating Officer filed a supplementary charge sheet on 16.08.2019 by showing two persons namely Pawan Kumar and Satender as the eye witnesses to the accident. Again, the statements of these alleged eye witnesses recorded by the Investigating Agency, have not been placed on record and withheld from this Court/ Tribunal for which an adverse inference is liable to be taken against the petitioners. There is no reason or explanation forthcoming as to why there is a long delay of Nine Months and Sixteen Days in citing the above two persons as the eye witnesses.
➢ Fourthly, one of the alleged eye witness namely Pawan Kumar has been examined by the petitioners before this Court/ Tribunal as PW2. According to him, he along with Satinder Kumar were going on a motorcycle when they witnessed the accident in question. He claimed that there was a distance of about 100 meters between their motorcycle and the two vehicles which were involved in the accident and he Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 32 of 40 had noted down the number of the offending vehicle. I may observe that the conduct of this witness Pawan Kumar in not above board. Despite claiming himself to be an eye witness to the accident, Pawan Kumar (PW1) did not make a call to the PCR nor accompanied the injured (since deceased) to the hospital. He has tried to explain the same by claiming that they chased the offending car but could not succeed and when they again reached the spot, it was revealed that the injured had been taken away by the police officials to some nearby hospital. This explanation does not appear to be probable since as per the FIR, the accident had taken place on 19.09.2018 at 12:00 Hours i.e. midnight and no explanation/ reason forthcoming why Pawan Kumar along with Satinder were going on the motorcycle at midnight. The witness Pawan Kumar (PW2) claimed that he was on his motorcycle but he does not remember the number of the said motorcycle. What makes the testimony of Pawan Kumar (PW2) more doubtful is the fact that his presence is not reflected in any of the documents placed on record and also the fact that he has been shown as an eye witness after a long delay i.e. Nine Months and Sixteen Days after the accident. Hence, the possibility of Pawan Kumar (PW1) and Satinder having been planted as eye witnesses cannot be ruled out.
Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 33 of 40 ➢ Fifthly, the certified copy of the MLC of the injured/ deceased has not been placed on record and only an attested copy of the same from the Medical Superintendent of Yashoda Hospital, Ghaziabad, U.P. has been placed on record which shows that the injured Dhirendra Singh was brought to the hospital on 19.09.2018 at 5:00 AM with alleged history of "...... RTA with head injury while driving bike, HAD A FALL DUE TO POTHOLE AT 3:45 AM NEAR KADRABAD, GT ROAD, MODINAGAR. Patient was taken to Jeevan Hospital by Police Personnel (Highway 2189, PS Modinagar, Ghaziabad) for primary treatment and then referred here for further treatment and management....". The MLC shows that as per the information given to the attending doctor, the injured had a fall from the bike due to pothole at 3:34 AM which is contrary to the version given by the petitioners in the claim petition, raising a doubt in the mind of the court with regard to the genuineness of the claim petition.
➢ Sixthly, as per the above MLC of Yashoda Hospital the injured had initially been taken to Jeevan (Sic) Hospital by Police Personnel where primary treatment was provided to the injured. This aspect appears to be probable or else there was no reason why so much of time was taken is shifting the injured to Yashoda Hospital, Ghaziabad at 5:00 AM despite Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 34 of 40 the accident having taken place at 3:45 AM. The said MLC of first hospital i.e. Jeevan Hospital has been concealed/ withheld from this Court/ Tribunal by the petitioners who have claimed that the injured was directly taken to Yashoda Hospital. It is this first MLC/ MLR prepared at Jeevan (Sic) Hospital so withheld from this Court/ Tribunal which would have revealed the first information and history provided to the first attending doctor. An adverse inference is liable to be taken against the petitioner.
➢ Seventhly, as per the FIR the accident in question took place on 19.09.2018 at 12:00 hours i.e. midnight whereas the MLC prepared Yashoda Hospital shows the time of accident as 3:45 AM which is a major discrepancy for which no explanation is forthcoming.
➢ Eighthly, the petitioners have also placed on record an attested copy of a document by way of which an information was sent to the Police regarding accident. A perusal of the said document i.e. information sent by Yashoda Hospital reveals that the injured Dhirendra Singh was brought to Yashoda Hospital by his son Rajat. This is contrary to the version given by Pawan Kumar (PW2) who claimed that it was the police officials who had shifted the injured to the hospital.
Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 35 of 40 ➢ Ninethly, the first information given to the local police in the form of Daily Diary or General Diary has not been placed on record which would reveal the details of the person who had informed the police at the first instance. If Pawan Kumar or Satinder were present at the spot, they would have first inform the police or PCR informing them of the details of the alleged accident and also would have accompanied the injured to the Hospital, which is not the case. The material document in the form of PCR Form have been withheld and concealed from this Court/ Tribunal for which an adverse inference is liable to be drawn against the petitioners. ➢ Tenthly, the petitioners have not placed on record the material/ relevant documents i.e. statements of witnesses including eye witnesses recorded by the Investigating Agency reflected on Page 3 & 4 of the chargesheet i.e. HC Rakesh Singh and Ct. Deepak Kumar and also the statements of alleged eye witnesses in supplementary charge sheet namely Pawan Kumar and Satinder. It is these statements which would have revealed the sequence of events but the same have been withheld from this Court/ Tribunal for which an adverse inference is drawn against the petitioners. ➢ Eleventhly, the important/ vital documents i.e. Seizure memo of the offending vehicle; Case Diaries & Statements of witnesses etc. have been concealed from this Court/ Tribunal Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 36 of 40 for which an adverse inference is likely to follow. ➢ Lastly, there is absence of material on record to confirm the satisfactory compliance of provisions of Section 158(6) of Motor Vehicles Act. Neither the status of the Criminal Case instituted before the concerned court at Ghaziabad, Uttar Pradesh has been placed on record nor the status of the proceedings in compliance of provisions of Section 158(6) of Motor Vehicles Act (before the competent Court/ Tribunal) has been placed before this Tribunal [Reference is made to the judgment in the case of Jai Prakash Vs. National Insurance Co. Ltd. reported in 2010 (2) SCC 607 Para 12]. An adverse inference is liable to be drawn against the claimants in this regard.
(26) It is writ large from the above that the present claim petition has been filed before this Court/ Tribunal by overstretching the jurisdiction and by concealing the material documents. The material/ vital documents in the form of first Daily Diary/ General Diary; statements of various witnesses recorded by the Investigating Agency; Seizure memos; Case Diaries etc. have been withheld and concealed from this Court/ Tribunal. Rather, there is a desperate attempt by the petitioners to implicate the respondent no.1 Jitender Kumar by showing him as the driver of the offending vehicle which is despite the fact that as per the MLC prepared at Yashoda Hospital, the injured Dhirendra Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 37 of 40 Singh had sustained injuries on account of a FALL FROM BIKE DUE TO POTHOLE (NON MOTOR ACCIDENT) and the possibility of alleged eye witnesses namely Pawan Kumar and Satinder having been planted cannot be ruled out. Even otherwise, the FIR has been registered after a gap of 12 days in which the details of the offending vehicle have been shown to be Unknown and there is no evidence on record as to how the vehicle i.e. Car bearing No. UP16DT4129 has been linked to the accident. It is this which brings the version of the petitioners as reflected in the Claim Petition within suspicious/ doubtfull category. The reason why the petitioners have filed this Claim Petition before this Court/ Tribunal by concealing the material documents and facts is writ large or else there was no reason why the claim petition was filed in a District/ State other than the District/ State where the accident took place or where the claimants reside. (27) In this regard, I may also observe that despite the same the petitioners could not justify their convenience before this Tribunal situated almost 113 Kms away from their residence. The observations made by the Hon'ble Apex Court in the case of Shafiq Ahmed Vs. ICICI Lombard General Insurance Co. Ltd. (Supra) cannot be ignored. Firstly, there is an unexplained delay of Twelve Days in registration of FIR with no justification forthcoming. Secondly, the offending vehicle was initially Unknown and was later on a Car bearing No. UP16DT4129 was implicated without there being any connecting evidence on record. Thirdly, the complainant Rajat (son of the Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 38 of 40 deceased) has not been examined nor the alleged eye witnesses namely HC Rakesh Singh and Ct. Deepak Kumar as shown in the charge sheet (page 3) have not been examined before this Court/ Tribunal. Fourthly, the alleged eye witnesses namely Pawan Kumar and Satinder as shown in supplementary chargesheet appears to have been planted/ inserted. Lastly, an incomplete chargesheet has been filed without placing on record the certified copy of the statements of witnesses recorded under Section 161 Cr.P.C., first MLC/ MLR of the injured/ deceased, Seizure Memo, Case Diaries etc. which vital documents have been withheld from this Court/ Tribunal and raises a suspicion/ doubt in the mind of the Court/ Tribunal. It is not open for this Court/ Tribunal to carry out a parallel trial and give any findings on facts, on the basis of incomplete material, since the same is likely to come in the way of trial of the criminal case pending before the concerned court at Ghaziabad, Uttar Pradesh. (28) This being the background, I hold that the petitioners have not been able to prove that the deceased Dhirendra Singh had sustained Fatal Injuries in an accident which took place on 19.09.2018 within the jurisdiction of Police Station Modi Nagar, Distt. Ghaziabad, U.P. due to rash and negligent driving of vehicle bearing registration No. UP 16DT4129.
(29) Issue No.3 is accordingly decided against the petitioners.
Sanju Chaudhary & Ors. Vs. Jitender Kumar & Ors., MACT No. 213/2019 Judgment dated 12.04.2022 Page No. 39 of 40 RELIEF:
(30) In view of my findings on the various issues, I hereby hold that the petitioners are not entitled to any relief. (31) The Claim Petition is hereby Dismissed.
(32) A copy of this Judgment is directed to be sent to the Registrar General, High Court of Delhi, New Delhi with a request to forward the same to the SIT constituted at Uttar Pradesh under the directions of the Allahabad High Court (since the accident took place at Uttar Pradesh) and to the Court of Ld. Judicial Magistrate and competent Court/ Tribunal where report under Section 158(6) of Motor Vehicles Act has been filed.
(33) File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 12.04.2022 PO (MACT01), Central
Tis Hazari Court, Delhi
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