Bala & Others vs Virender Singh & Others
2011 Latest Caselaw 4009 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Judgment: 17.08.2011


+                         MAC Appeal No.825/2010



BALA & OTHERS                                       ...........Appellants
                              Through:   Mr. S.N. Parashar, Advocate.

                      Versus


VIRENDER SINGH & OTHERS                             ..........Respondents
                  Through:               Mr. V.S. Yadav, Advocate for
                                         respondents No. 1 & 2.
                                         Mr. K.L. Nandwani, Advocate
                                         for respondent No. 3.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

    2. To be referred to the Reporter or not?                     Yes

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

INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the Award dated 19.08.2010

whereby the claim filed by the claimants had been dismissed; the

Tribunal after examination of the entire gamut of evidence was of

the view that the involvement of tractor No. HR-10-H-3286 had

not been proved; the said vehicle has been falsely involved; the

evidence led having failed to establish that the deceased Prem

Singh had died because of the rash and negligent act of the driver

of the aforenoted vehicle, the claim petition filed by the claimants

of deceased Prem Singh had been dismissed.

2 This is the subject matter of appeal before this Court.

3 The vehement contention of learned counsel for the

appellants is that the evidence has not been appreciated in the

correct perspective.

4 This has been vehemently countered by learned counsel for

the respondents.

5 Record has been perused. Record shows that on 11.12.2006

at about 07:30 pm Prem Singh was going on foot towards Narela

from Safiyabad Village when a tractor bearing No. HR-10-H-3286

hit him in a rash and negligent manner as a result of which Prem

Singh fell down; he succumbed to his injuries; claim petition

under Section 166 of the Motor Vehicle Act (MVA) had

accordingly been preferred by his legal representatives. Record

further shows that an FIR had been registered on the same date

i.e. on 11.12.2006. This FIR has been registered pursuant to DD

No. 28-A recorded at 10:20 PM wherein it had been recorded that

a man was lying dead on the road towards Narela from Safiyabad

Village; blood was oozing from his head; it had further recorded

that no eye witness was present. Before the Tribunal, an eye

witness had been produced by the claimants; he was one Pawan

Sharma examined as PW-2; he had admittedly surfaced only on

07.01.2010 itself when he was produced by the claimants; his

statement under Section 161 of Cr.PC had never been recorded

although PW-2 in his examination in chief had clearly stated that

PCR officials had recorded his name and address and inquired

from him about the accident. Although no cross-examination of

this witness had been conducted yet his statement on oath cannot

be accepted as the gospel truth in view of the record that the

accident had occurred four years ago i.e. on 11.12.2006 and there

has been no cogent explanation as to why and in what

circumstances the eye witness suddenly surfaced four years later

on 07.01.2010. This fact had been considered by the Tribunal. The

Tribunal had also noted that the statement of Shiv Lal (brother of

the deceased) had been recorded under Section 161 of the Cr. PC

on 19.05.2007 i.e. again after a gap of almost five months from

the date of the accident; he was admittedly not an eye witness; he

had in fact stated that the details of the involvement of the

offending vehicle i.e. tractor No. HR-10-H-3286 are not known to

him. As per the criminal record i.e. the FIR and the charge-sheet

which had been placed on record, one eye witness namely one

Rajesh Kumar had on 22.05.2007 revealed the number of this

offending vehicle which had caused the accident on the fateful

date; his statement was recorded on 22.05.2007 pursuant to

which further investigation had been conducted. After Rajesh

Kumar had revealed himself as an eye witness, nothing prevented

the claimants from producing him in the witness box instead of

Pawan Sharma whose statement had never been recorded before

any police officer. The Tribunal had also appreciated that the

statement of PW-2 Pawan Sharma was contrary to the version of

Shiv Lal (brother of the deceased); the purported eye witness

(never examined). The vehicle had also been seized five months

later; the mechanical inspection report of the vehicle obviously did

not reveal any involvement of the vehicle; it was fit for road. This

entire gamut of evidence had been weighed by the Tribunal to

hold that the accident of the victim Prem Singh was not the result

of the involvement of tractor No. HR-10-H-3286. No one had been

able to explain as to how and in what circumstances the number

of the vehicle HR-10-H-3286 had suddenly surfaced five months

later; Rajesh Kumar (never examined before the Tribunal) had

after 5 months suddenly appeared as a purported eye witness

before the Investigating Officer; his statement under Section 161

of the Cr.PC was rightly not relied upon.

6 Shiv Lal brother of the deceased was admittedly not an eye

witness; Pawan Sharma was set up as an eye witness; he had

deposed that the PCR had recorded his statement but the DD

entry shows that although information about the accident had

been given to the local police station but the name of Pawan

Sharma nowhere figured in this DD entry.

7 The findings of the Tribunal suffer from no infirmity. Claim

petition was rightly dismissed; the involvement of the insured

vehicle has not been established qua the death of Prem Singh.

Appeal has no merit.

8      Dismissed.



                                            INDERMEET KAUR, J.
AUGUST 17, 2011
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