Madan Lal vs Sangeeta Verma & Ors.
2011 Latest Caselaw 3641 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+               MAC.APP.116/2009

MADAN LAL                                      ..... Appellant
                       Through:   Mr. Yogender Vashisth, Advocate for
                                  the appellant.
              versus

SANGEETA VERMA & ORS.              ..... Respondents
            Through:   Mr. K. L. Bhandari, Advocate for the
                      respondents No.1 to 5.

%                           Date of Decision : August 01, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                            JUDGMENT

: REVA KHETRAPAL, J.

1. By way of this appeal, the appellant seeks to assail the

judgment and award of the Motor Accident Claims Tribunal dated

18.10.2008.

2. At the outset, the facts relevant for the decision of the appeal

may be briefly delineated. On 06.06.1996 at about 11:00 p.m., one

Shri Anil Kumar Verma was going to his house from Munirka on his

scooter bearing No. DL-4-SG-7033. When he reached near the

Dhaula Kuan Petrol Pump via Ring Road, the offending car bearing

registration No. DDQ-7388 came from Dhaula Kuan Crossing

towards Gurgaon at a very fast speed and hit the scooter of the

deceased from behind. Resultantly, the deceased sustained grievous

injuries to which he succumbed. A claim petition was filed under

Section 166 read with Section 140 of the Motor Vehicles Act, 1988

for the grant of compensation by his widow, two minor children and

parents, wherein an award of ` 18,00,000/- was prayed for. The

Claims Tribunal, after considering the evidence adduced by the

parties, held that the accident was the outcome of the rash and

negligent driving of the offending vehicle being Maruti Car bearing

No. DDQ-7388 and held the appellant, who was the owner of the

offending vehicle, in the absence of the said offending vehicle being

insured, liable to pay compensation to the legal heirs of the deceased

in the sum of ` 5,72,383/- with interest thereon at the rate of 7.5%

per annum from the date of the filing of the petition till the date of

realization.

3. Aggrieved by the aforesaid award, the present appeal has been

preferred by the appellant for setting aside the impugned award on the

ground that no accident had taken place involving the vehicle owned

by him being Maruti Car bearing No. DDQ-7388, as was also stated

by him in the written statement filed by him before the Claims

Tribunal.

4. Mr. Yogender Vashisth, the learned counsel for the appellant,

contended that the Claims Tribunal failed to take into consideration

the fact that the car of the appellant was out of order, it had a

defective engine and was not in working condition; it was in the

garage for the last two years, it had no battery and was not

roadworthy. According to the learned counsel, the learned Tribunal

also failed to take note of the fact that as per the DD entry recorded

by the police, it was an Ambassador Car bearing No. DDQ-7388

which had hit the scooter of the deceased, whereas the car of the

appellant bearing No. DDQ-7388 was a Maruti car. It was precisely

for this reason that the appellant, though challaned vide FIR

No.280/1996 under Sections 279/304-A IPC registered at Police

Station Delhi Cantt, was subsequently acquitted in the said criminal

case by the Metropolitan Magistrate, New Delhi. It was also

contended that the Tribunal, in passing the impugned award, lost sight

of the fact that the police had thoroughly investigated the matter and

had found no eyewitness of the alleged accident, however, the

claimants in the course of their evidence produced PW2-Sh. Sanjay,

who claimed to be an eyewitness of the accident. In such

circumstances, the Tribunal ought to have held that in view of the fact

that the statement of this witness was not available on the police

record and he was not cited as a witness in the criminal case, the

evidence of the witness was not trustworthy.

5. The aforesaid contentions of the learned counsel for the

appellant were sought to be rebutted by the counsel for the

respondents by relying upon the findings arrived at by the learned

Claims Tribunal.

6. After hearing the learned counsel for the parties and

scrutinizing the records, this court is inclined to agree with and

uphold the findings of the learned Claims Tribunal for the reasons set

out hereinbelow.

7. In this case, the DD entry bearing No. 46 (Exhibit PW1/J) was

recorded by Police Post, Dhaula Kuan on telephonic information

received regarding the accident of an Ambassador car No. DDQ 7388

with scooter No. DL 4SG 7033. It is not in dispute that the number

recorded in the DD entry is the number of the car of the appellant.

The only controversy is with regard to the make of the car. As noted

by the learned Claims Tribunal, the person who had reported about

the accident may not necessarily be aware of the make of the car. The

person on whose information the DD entry was recorded has not been

examined by the appellant to prove that the informant was aware

about the make of the offending car and he had correctly reported the

same. There is also no evidence forthcoming on the record to prove

that there is an Ambassador car registered as DDQ 7388 and as a

matter of fact there is no controversy about the fact that there cannot

be two cars of different make with the same registration number.

Therefore, what is important is the number of the car and not the

make of the car. If the number of the car is correct then the make of

the car becomes irrelevant.

8. Judicial notice may also be taken of the fact that the DD entries

recorded over the wireless set by police officials are not always

correctly recorded in their entirety. More often than not the

information relayed over the wireless is not clearly audible and

therefore not infrequently the number of the car or its colour or its

make is not accurately recorded. This is apart from the fact that the

informants sometimes do not relay the information correctly to the

wireless operators or the wireless operators do not catch the

information correctly.

9. As for the plea of the appellant that his car was out of order as

it had a defective engine and no battery and it had been in the garage

for the last two years, the appellant has not produced an iota of

evidence to support his aforesaid defence. It was for him to produce

the garage owner in the witness box to state that his car was lying at

the garage. It was for him to prove that his car had a defective engine

and no battery, but apart from his bald statement there is nothing on

record to substantiate the same. I find from the record that a notice

under Section 133 of the Motor Vehicles Act was given to the

appellant by the Investigating Officer on 25th June, 1996 and

thereafter again on 29th August, 1996. Had the appellant produced his

car on receipt of the notice dated 25th June, 1996 and a mechanical

inspection report of the car to the effect that the car was not

roadworthy, there might have been something on the record to

support the case of the appellant. As things stand, there is nothing on

record to show that the car of the appellant was not on the road but in

a garage. Significantly also, the learned Tribunal has noted that

during the course of arguments it was contended before the Tribuanl

that the Maruti car No. DDQ 7388 of the appellant was a new car,

which was denied by the appellant and therefore, the learned Tribunal

had directed the appellant to produce the Registration Certificate of

the car so that the court could become aware of the year of the

manufacture of the car. But despite taking opportunities for the

aforesaid, the appellant did not produce the copy of the Registration

Certificate on the pretext that he was unable to trace out the same.

This, in my view, also lends credence to the fact that it was the

appellant's car, which met with the accident and in all probability it

was a comparatively new car with no mechanical defect.

10. Another significant aspect of the matter is that the eyewitness

PW2 - Sanjay categorically deposed that he had witnessed the

accident while waiting for a bus at the Dhaula Kuan Bus Stand, and

had clearly seen that the accident had taken place with a Maruti Car

bearing registration No. DDQ 7388, which came from the Dhaula

Kuan roundabout at a fast speed and hit the scooter of the deceased

from behind. He further deposed that because of the impact, the

scooterist fell down on the road with the scooter and received injuries.

The driver of the car stopped his car for a moment and then ran away

from the spot. The aforesaid testimony of PW2 - Sanjay remained

unshaken after cross-examination. In his cross-examination, PW2 -

Sanjay categorically stated that the police had recorded his statement

on the spot. He also stated that he understood the difference between

a Maruti car and an Ambassador car and denied the suggestion that

the accident had taken place with an Ambassador car. In further

cross-examination, he stated that he had seen the driver of the

offending vehicle, but was not called by the police for his

identification either in the Police Station or in jail or before any

Magistrate.

11. The testimony of PW2 - Sanjay has been rightly believed by

the learned Tribunal to be creditworthy. The only ground left for

discarding his testimony, which is sought to be pressed into service

by the learned counsel for the appellant, is that his name is not

mentioned in the list of witnesses set out in the challan. This to me

does not appear to be a cogent reason for discarding his testimony.

Simply because the Investigating Officer has not cited him as a

prosecution witness does not discredit his testimony at all. The

appellant has failed to produce any evidence on record to show that

PW2 - Sanjay was in any way related to the deceased or the

respondents or that he had any interest in the case of the respondents

or any enmity against the appellant to depose against him. On the

contrary, the challan shows that the Investigating Officer had fixed

the test identification parade of the driver of the offending vehicle,

that is the appellant in this case, but the appellant refused to

participate in the said test identification parade. The only reason for

refusal appears to be that the appellant had an apprehension in his

mind that in the course of the proceedings he would be identified by a

witness of the accident.

12. It also emerges from the record that the appellant has faced

criminal trial for the offences under Sections 279/304A IPC. Much

emphasis has been laid by the learned counsel for the appellant on the

fact that the appellant has been acquitted of the said charges. Relying

upon the said acquittal, it is contended that the involvement of the

appellant in the accident does not stand proved. A bare glance at a

judgment of the learned Metropolitan Magistrate dated 28.08.2002

acquitting the accused, however, shows that the appellant was

acquitted for want of an eye-witness account of the accident and

dearth of evidence against him. In the instant case, however, it stands

proved from the testimony of PW2 - Sanjay that the appellant had

caused the accidental death of Anil Kumar Verma with his Maruti car

bearing registration No. DDQ 7388. As stated above, the testimony

of this witness has withstood the test of cross-examination. No cogent

reason has been assigned for disbelieving his testimony. Merely

because he has not been cited as a prosecution witness by the police is

not reason enough to hold that his testimony is unworthy of credence,

more so, as it is not established on record that he was either a partisan

or an interested witness. Thus, the inescapable conclusion is that it

stands proved on record that the offending vehicle, that is Maruti car

No.DDQ 7388, driven by the appellant was involved in the accident

and that the accident was the outcome of rash and negligent driving of

the appellant. Admittedly, the appellant, who is the owner of the

offending vehicle did not care to get the vehicle insured and,

therefore, must bear the brunt of paying compensation to the legal

representatives of the deceased victim.

13. In view of the aforesaid, I have no hesitation in holding that the

appellant is liable to pay the compensation awarded to the legal

representatives of the deceased by the learned Tribunal. The manner

of computation of the said compensation by the learned Tribunal has

not been challenged before me. Consequently, the award of the

Tribunal is upheld. The appeal fails and is dismissed. The interim

order staying the execution proceedings is hereby vacated.

14. The records of the learned Tribunal be sent back forthwith.

REVA KHETRAPAL (JUDGE) August 01, 2011 ak