Smt.Rani & Ors. vs Shri Raj Kumar & Ors.
2008 Latest Caselaw 2126 Del

*      HIGH COURT OF DELHI : NEW DELHI

                 MAC App. No. 453 of 2008

%            Judgment reserved on:25th November, 2008

             Judgment delivered on: 2nd December, 2008


1. Smt. Rani
W/o Late Shri Jai Kumar Mittal

2. Master Rohit Mittal, aged 12 yrs.
S/o Late Shri Jai Kumar Mittal

3. Kumari Jyoti Mittal, aged 9 ½ yrs.
D/o Late Shri Jai Kumar Mittal

4. Smt. Roshni Devi
W/o Late Sh. Kishori Lal

    All R/o N-57, Welcome, Seelampur-III
    Delhi.

    (The appellant Nos.2 and 3 being minors
    are represented through their mother,
    next friend and natural guardian the
    Appellant No.1)                       ....Appellants

                      Through: Mr.S.S. Sishodia, Adv.

                            Versus

1. Shri Raj Kumar
S/o Shri Kharkhan Singh,
R/o Village Bali Gaon, P.S.-Behra,
District Darbhanga, Bihar.



MAC App.No.453/2008                              Page 1 of 7
 2. Shri Naveen Malik
S/o Shri Dharambir
R/o A-84, Pocket-I A Block,
Paschimpuri, New Delhi.

3. National Insurance Co. Ltd.
Division No. 18, 1st Floor,
Palika Bhawan, R.K. Puram Ring Road
New Delhi.                          ...Respondents.

               Through:Ms.Rajdeepa Bahura, Adv. for R-3


Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                  Yes

2. To be referred to Reporter or not?               Yes

3. Whether the judgment should be reported
   in the Digest?                                   Yes

V.B.Gupta, J.

By way of the present appeal, filed under Section

173 of the Motor Vehicle Act,1988 (for short as „Act‟),

the Appellants have challenged the judgment dated 5th

July, 2008 passed by Ms. Neena Krishna Bansal, Judge,

MACT (for short as „Tribunal‟), Delhi, vide which the

claim petition filed by the appellants was dismissed.

2. The facts in brief are that on 22nd March, 2006

deceased Jai Kumar Mittal was coming from Pitam

Pura to his residence on two wheeler scooter bearing

No. DL-5SP-6038. At about 2:05 am, the scooter was

hit by vehicle No. DL-1LE-6040 which was being driven

by respondent No.1 at a high speed and in a rash and

negligent manner. Due to this accident the deceased

sustained fatal injuries.

3. Respondent No.1 did not file his written

statement within time and as such his defence was

struck off vide order dated 7th November, 2007 passed

by Tribunal.

4. Respondent No.2, the owner of offending vehicle,

in his written statement took a preliminary objection

that no accident was caused by vehicle. On the date of

alleged accident, his vehicle was standing at A-6-

A,New Slum Quarters, Paschimpuri, Delhi. It has been

further stated that "untraced report" has been sent by

Police.

5. Respondent No.3, Insurance Company in its

written statement has stated that involvement of the

alleged offending vehicle has not been established.

However, the factum of insurance has been admitted

by respondent no.3.

6. It has been contended by Learned Counsel for

appellants that the driver of the offending vehicle had

no defence available to him and therefore he opted not

to file the written statement nor the owner has

produced the driver to prove his defence.

7. The Investigating Officer of the criminal case has

informed regarding the accident and disclosed the

number of the offending vehicle to PW2 Vinod Kumar

Mittal, brother of deceased, who has corroborated this

fact in his evidence. Since the vehicle number has

been mentioned by PW2, the Tribunal wrongly held

that the offending vehicle is not involved in the

accident. It is also contended that strict rule of

evidence are not applicable to proceeding under the

Act.

8. On the other hand, it has been argued by learned

counsel for insurance company that there is no

evidence on record to show that offending vehicle was

involved in accident.

9. In the entire petition, the appellants have not

mentioned what was the offending vehicle-whether it

was two wheeler, three wheeler or four wheeler? It has

been simply stated that the offending vehicle bearing

No. DL-1LE-6040 being driven by respondent No.1 hit

the scooter from behind. In the FIR No. 102/06 also, no

number of the offending vehicle has been mentioned.

10. As per the case of the appellants, the

Investigating Officer has disclosed the number of the

offending vehicle to the brother of deceased, Sh. Vinod

Kumar Mittal, who has appeared in witness box as

PW2.

11. Admittedly, there is no eye witness in this case as

PW2 brother of deceased in his evidence by way of

affidavit has stated that on 22nd March, 2006 his

brother, Jai Kumar Mittal was coming from Pitam Pura

to his house in Two wheeler and when about 2:05 am,

he reached at Outer Ring Road, at Chandigram

Akhada, then offending vehicle driven by its driver

rashly and negligently, hit the scooter of his brother

from behind. In his cross-examination this witness

categorically states that;

"He is not an eye-witness to the accident"

12. The main thrust of argument of learned counsel for

appellants is that, Investigating Officer of this case, ASI

Mahavir Singh has informed the brother of the

deceased, regarding the offending vehicle.

13. Under these circumstances, ASI Mahavir Singh,

was important witness, but he was not examined by

appellants for reason best known to them.

14. The Tribunal has dealt this issue and its findings,

are as under;

"The Petitioners have claimed that the involvement of this vehicle was informed to them by ASI Mahavir Singh on the day of accident but ASI Mahavir Singh has not been examined by the

petitioners as witness. There is nothing on record to show the involvement of the offending vehicle. The petitioners may have filed a protest petition against the untraced report but the fact remains that the involvement of the vehicle has not been proved on record. In these circumstances, it cannot be held that the accident was caused by the alleged offending vehicle owned by Respondent no.2."

15. Since the appellants, have failed to show the

involvement of the offending vehicle in the accident,

the Tribunal rightly dismissed the claim petition filed

by them. There is no ambiguity or infirmity in the

impugned judgment.

16. The present appeal, therefore fails, and the same

is, hereby, dismissed.

17. Parties shall bear their own cost.

18. Trial Court record be sent back.

December 02, 2008                    V.B.GUPTA, J.
Bisht