Eugna D'Silva vs Ganju Ram And Ors.
1991 Latest Caselaw 117 Del

JUDGMENT

R.L. Gupta, J.

1. This appeal has been filed against the judgment dated 23.10.79 of the learned Motor Accident Claims Tribunal, Delhi by which the claim petition was dismissed without any order as to costs.

2. The facts out of which this accident claim arose are that deceased Mrs. Mary Lobo Noronha, mother of the appellant on 17.12.70 at about 9.15 A.M. was crossing the road in front of King Adward Park, Delhi. When she had already crossed almost the entire road from the Red Fort side towards the middle of Patri, car No. DLJ 3701 alleged to be driven by respondent 1, Ganju Ram rashly and negligently came from Chandni Chowk side at a fast speed and struck against the deceased. It was further the case in the petition that the speed of the offending vehicle was so high that the respondent I, Ganju Ram could not control the vehicle and thus caused the accident. The deceased was removed to Irwin Hospital in an unconscious state, where she succumbed to her injuries within 48 hours without regaining consciousness. Respondent 1 was alleged to be driving the vehicle during the course of his employment under the authority and control of respondents 2 and 4. The vehicle was insured with Anand Insurance Co. at the time of accident and later on taken over by New India Assurance Co.

3. Respondents 1 and 4 were proceeded ex parte while respondents 2 and 3 contested the case. Pleadings of the parties were incorporated in the following issues :

1. Whether Mrs. Mary Lobo Noronha sustained fatal injuries due to rash and negligent driving of car No. DLJ 3701 on the part of respondent 1 ?

2. Whether the petitioners are the legal representatives of the deceased ?

3. Whether Respondent 2 or respondent 4 was the owner of car No. DLJ 3701 at the time of accident ?

4. To what amount of compensation, if any, is the petitioner entitled and from whom ?

5. Whether Car No. DLJ 3701 was insured with respondent 3 at the time of the accident ?

6. Relief,

4. On issue 2 the learned Tribunal held that the petitioner being the daughter of the deceased could maintain the petition. On issue 1, it held that from the evidence examined on behalf of the appellant, it was not proved that the alleged offending car DLJ 3701 was involved in the accident and further that respondent 1 was the driver of the vehicle. On issue 3, it held that Amba Lal was the owner of the vehicle. On issue 5, it found that the aforesaid car was insured at the time of the accident with Anand Insurance Co. On issue 4, it held that the petitioner being the married daughter of the deceased could not be said to be her dependent. Therefore, in view of the findings on various issues, the claim petition was dismissed.

5. I have heard learned counsel for the parties and have perused the record. There are two witnesses examined on behalf of the petitioner as eve witnesses of the accident. PW 3 is Sh. R.C. Rao. He deposed that at the time of the accident, he was District Manager in Colgate Palmolive India (P) Ltd He was living in flat No. 3/39, Rajpur Road at the relevant time. The deceased Marry Lobo was employed as a maid servant with one Mr. Kaul who was also residing in the same flat near him. On the date of accident, he drove for his office in his Standard Herald Car DUC 6256. Marry Lobo had also gone with him in his car. His son Sanjiv Rao was also sitting in that car He dropped Mary Lobo at Edward Park at about 9.00 A.M. After that he proceeded on wards. His son as a matter of chance looked behind and found that Marry Lobo had met with an accident. Therefore, he stopped the car and brought his car back to the scene of accident. But by the time injured had been removed to the hospital. In his examination in chief he did not mention at ail with which vehicle the accident had taken place. His son PW 6 Sanjiv Rao who deposed that while going in the car of his father at about 9.00 A.M on the relevant day, they dropped Mrs. Marry Lobo opposite Jama Masjid. When they had gone to a distance of about 100 yards, he happened to see back and found that a car had hit Mrs. Marry Lobo.

6. Now the only question to be seen is whether from the statement of these two witnesses it is proved that the accident took place with the car allegedly driven by respondent 1. It may be noted that so far as Sanjiv Rao is concerned, according to his own admission, he saw the accident from a distance of about 100 yards when he happened to see by chance towards the back from the car that a car had hit Mrs. Marry Lobo. One has simply, to visualise the area where this accident took place. That area of Edward Park near Jama Masjid is a very congested area. In early hours of the morning like 9.00 A.M. lot of people come and go by that side. It is not possible for me to believe that the witnesses could have seen the accident while looking back from the car from a distance of about 100 yards. On their own showing, by the time they came back to the site of the accident, the deceased had been removed to the hospital. They would have hardly taken a maximum of 5 to 10 minutes in coming back tn t£> spot. If they had actually come back in that space of time, the injured could not have been removed to the hospital. The only inference, therefore is that they did not see the accident.

7. Learned counsel for to appellant submitted that the respondent driver should have been examined as a witness in this case, even if it was said that there was no evidence examined on behalf of the appellant to prove the rat It was incumbent upon the driver to appear and depose the circumstance in which that accident took place. I do not agree with this contention for the simple reason that there is no evidence to show with which car the accident took place or who was driving that car at the time of the accident Neither the number of the car nor the identity of the driver are established. In these circumstances no adverse inference can be drawn by non examination of respondent 1 who otherwise remained ex parte in the proceedings. Learned counsel for the appellant drew my attention to the cases of Rajat Kumar v. State of M.P., 1982 (Supplementary) ACJ 359, Bhanwar Lal v. Kabul Singh and Ors. 1989 (1)ACJ 189 and George Tharakan v. Kochappi Narayanan and Ors., 1972 ACJ 79. I have carefully perused these authorities. The facts of all these authorities are different and are not at all similar to the facts of the present case. tnne-

8. Therefore, I am in agreement with the findings of the learned Tribunal that the appellant was not able to prove if the accident on account of which her mother Mrs. Marry Lobo unfortunately died took place with car No. DLJ 3701 or that respondent 1 was driving that car.

9 To view of above findings, this court need not go into the question whether the appellant could be called dependent of the deceased or what quantum of compensation which could be allowed to the appellant.

10. Therefore, there is no merit in this appeal and the same is hereby dismissed.