Delhi High Court
Smt.Kandhai Devi vs Mr.Kamal Kapoor & Anr. on 16 October, 2008
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
MAC App. No.384/2008
% Judgment reserved on: 29th September, 2008
Judgment delivered on: 16th October, 2008
Smt. Kandhai Devi
W/o. Late Shri Kandha,
R/o. House No.682, Sun Light Colony-2,
New Delhi-110014 ....Appellant
Through: Mr. T.A. Francis, Adv.
Versus
1. Mr. Kamal Kapoor,
(Owner of Vehicle No.DL 4 CK 0136)
10173/15, Abdul Aziz Road,
Karol Bagh,
New Delhi
2. Insurance Company
(particulars to be disclosed
By respondent No.1) ...Respondents.
Through: Nemo.
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? No
3. Whether the judgment should be reported
in the Digest? No
MAC App. No.384/2008 Page 1 of 6
V.B.Gupta, J.
The appellant, who is an injured in this case has filed
the present appeal under Section 173 of the Motor Vehicles
Act, 1988 (for short as „Act‟) against the judgment dated
17th December, 2007, passed by Sh. J.P.S. Malik, Presiding
Officer, MACT (for short as „Tribunal‟), New Delhi vide
which the claim petition filed by the appellant was
dismissed.
2. The facts in brief are that on 15th November, 2003, at
about 9.00 a.m., appellant was going for her work as she
was working as a maid servant. When she reached near
Nehru Stadium, she was hit by a Maruti Car No. DL-4CK-
0136, coming from behind being driven at a high speed and
in a rash and negligent manner.
3. It is stated that appellant was taken to Mool Chand
Hospital by the driver of the offending vehicle. The
appellant received grievous injuries due to the accident.
Later on, appellant was informed by the police that the
driver of the offending vehicle has expired as he was
suffering from cancer.
4. The claim petition was filed against respondent
No.1/the owner of the offending vehicle and the Insurance
Company was to be impleaded as respondent No.2 in case
the particulars were provided by respondent No.1.
5. Before the trial court, the owner was served by
affixation but none appeared for the owner and he was
provided ex-parte. Particulars of the Insurance Company
could not be found.
6. It has been contended by learned counsel for the
appellant that the Tribunal has erred in dismissing the
petition on the ground that the accident caused could not
be linked to the vehicle bearing No.DL 4CK 0136, when in
fact there is over whelming evidence linking the maruti car
bearing No.DL 4CK 0136 to having caused the accident
and subsequent injuries.
7. The Tribunal also erred in not taking into account
that the driver of the offending vehicle had himself taken
the appellant and got her admitted in Mool Chand Khairati
Ram Hospital, where the appellant had made a statement
to the police.
8. Other contention is that FIR registered in this case
could not be further proceeded with since, the driver of the
offending vehicle expired on account of cancer.
9. The Tribunal has held that;
"In the petition filed, petitioner has
stated that someone had noted the
number of the offending vehicle but in
the affidavit of evidence filed by her, she
has not disclosed by whom the number
of the vehicle was communicated to the
petitioner. There is no evidence on
record to link the vehicle No.DL 4CK
0136 in the alleged accident which had
taken place on 15.11.2003 at about 9AM
near Nehru Stadium and there is no
evidence on record that vehicle in
question was being driven by the said
driver who has since died as per the
testimony of the petitioner in a rash and
negligent manner. Petitioner has failed
to make out a case for any liability for
the injuries suffered by her as against
R1."
10. As per averments made in the claim petition, the
appellant has stated that the driver of the offending vehicle
had taken her from the spot and admitted her in Mool
Chand Khairati Ram Hospital, Lajpat Nagar-III, New Delhi.
Further, the case of appellant is that an unknown person
had noted the number of offending vehicle (Maruti Car)
and told the same to the appellant.
11. The appellant has placed various documents on the
record of the Trial Court. However, the initial MLC
prepared in this case showing the date of admission and as
to which person has brought her to hospital, has not been
placed on record.
12. Under these circumstances, since the initial medical
record, pertaining to admission of appellant in Mool Chand
Khairati Hospital on the date of accident which was very
material and the appellant for the best reasons known to
her, has not produced that initial medical record, inference
has to be drawn against her.
13. Moreover, in the evidence by way of affidavit, she has
not disclosed the name of person by whom the number of
the offending vehicle was communicated to her.
14. Thus, under these circumstances, I do not find any
infirmity or illegality in the impugned judgment of the
Tribunal.
15. The present appeal filed by the appellant is hereby,
dismissed.
16. No order as to costs.
17. Trial court record be sent back.
16th October, 2008 V.B.GUPTA, J.
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