Ganga Sagar Sharma & Anr. vs Savitri Bansal And Ors.
2011 Latest Caselaw 4041 Del

                                        REPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   MAC APP. No. 382/2007

GANGA SAGAR SHARMA & ANR.                   .... Appellants
               Through: Mr. Randhir Jain, Ms. Ruchika Jain and
                        Mr. Gulshan Sharma, Advocates.
         Versus

SAVITRI BANSAL AND ORS.                      ..... Respondents
              Through:  Mr. Dinesh Chander Yadav and
                        Mr. A.S.Yadav, Advocates for the
                        respondents No.1 to 5.

                          Date of Decision : August 19, 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. This is an appeal filed under Section 173 of the Motor Vehicles

Act, 1988 against the judgment and award dated 27.02.2007 passed

by the Motor Accident Claims Tribunal, Delhi in Claim Petition

No.226/2004.

2. The facts may be briefly recapitulated as follow:

On 20.09.2004, the respondents No.1 to 5 filed a claim petition

under Section 166 of the Motor Vehicles Act, 1988 against the

appellants claiming compensation in the sum of ` 10,00,000/- on

account of the demise of the husband of the respondent No.1 and the

father of the respondents No.2 to 5 in a road accident on 06.04.2004

near Hanuman Mandir Road, Shiv Ram Park, Delhi with scooter No.

DL-2S-J-3250 driven by the appellant No.2 and owned by the

appellant No.1. In the written statement filed by them, the appellants

denied the factum of accident and involvement of the offending

vehicle. All other facts alleged by the respondents No.1 to 5 were

also refuted. It was submitted by the appellants that the appellant

No.2 had taken the injured to the hospital in order to save his life, but

he had been falsely implicated in the case by the police of Police

Station Nangloi, which was inimical to him as he had instituted a suit

for damages against them.

3. In the course of evidence before the learned Tribunal, the

claimants/respondents No.1 to 5 examined four witnesses in all,

namely, PW1-Smt. Savitri Bansal, the wife of the deceased, who was

not a witness to the accident, PW2-Shri Radhey Shyam, who deposed

about the salary of the deceased, PW3-Shri Vinay Kumar, who

claimed to be an eyewitness to the accident and PW4-Constable

Sanjiv Kumar, who proved the First Information Report

No.287/2004. To counter the evidence of the aforesaid witnesses, the

appellants examined five witnesses in all, namely, RW1-Shri

Bhupender, who deposed about the pendency of a Civil Suit for

damages filed by the appellant No.2 against the police, RW2- Shri

Randhir Singh from the Transport Authority, who deposed from the

records about the make of the cars bearing Nos. DL-2CD-3249 and

3250, RW3-Jagmer Singh, who proved the DD Entry No.19 A as

Exhibit RW-3/A, RW4 Shri Pankaj Kumar Verma, the appellant

No.2, who was allegedly driving the offending vehicle at the time of

the accident and RW5-Shri Ganga Sagar Sharma, the appellant No.1-

the owner, who deposed about the impounding of the offending

scooter by the police on 12.04.2004.

4. After analyzing the evidence on the record, the learned Claims

Tribunal passed an award of ` 4,25,000/- (Four lakhs and twenty five

thousands only) in favour of the respondents No.1 to 5 and against the

appellants with interest at the rate of 7.5% per annum from the date of

the filing of the petition till the date of the realisation. The

respondents were directed to jointly and severally satisfy the award

within a month of the date of the passing of the judgment.

5. Aggrieved by the aforesaid judgment and award, the present

appeal has been preferred by the appellants praying for setting aside

of the award. Mr. Randhir Jain, the learned counsel for the

appellants, at the outset, contended that the claim petition ought to

have been dismissed by the learned Tribunal in view of the clear

evidence on record that the scooter of the appellants was not involved

in the accident. Learned counsel referred to DD Entry No.19-A dated

06.04.2004 (Exhibit RW3/A), which for the sake of convenience is

reproduced hereunder:

Copy of DD No. 19-A dated 06.04.2004 of P.S.Nangloi, Delhi.

A.S.I. Satyapal Singh Information of receipt Time 5.28 P.M. It is of W.T. message and recorded that wireless dispatch operator came to D.O. Room and got it recorded that information has been received from H.C.Jitender No.1404/PCR that near Hanuman Mandir, Nangloi Road, Scooter No. DL-2CD-3249 has hit a person and ran away. This information has been recorded in daily diary having been received as WT message and copy of the report is sent to S.I. Kulbeer Singh by the hand of Constable Narveer No.1132/W.

Sd/- A.S.I.D.O.

6. On the basis of the aforesaid DD Entry made at Police Station,

Nangloi, the learned counsel for the appellants contended that the

number of the offending vehicle was DL-2CD-3249 as given in the

said DD Entry and the said vehicle was an ambassador car. The

attention of this Court was then invited by Mr. Jain to the site plan

prepared by the Investigating Officer during the course of

investigation of the case in which the offending vehicle is mentioned

as DL-2C-J-3250, which according to the counsel for the appellants is

a Maruti car. The learned counsel pointed out that as against this, the

number of the offending vehicle in the first information report is

mentioned as a scooter bearing No. DL-2S-J-3250.

7. Mr. Randhir Jain, counsel for the appellants, next referred to

the testimony of RW2-Shri Randhir Singh, Record Clerk from the

Transport Authority, New Delhi Zone, who, on the basis of the

summoned record testified that as per the record, vehicle No.DL-

2CD-3249 was an Ambassador Car registered in the name of National

Engineering Industries, Prakash Deep Building, Tolstoy Marg, Delhi

and vehicle No.DL-2CJ-3250 was a Maruti 800 car registered in the

name of one Shri Surinder Singh Rathi, resident of 35, Sector - 3,

Type-IV, Sadiq Nagar, New Delhi. The statement prepared on the

basis of the computer record of the above said vehicles, was proved

by the witness as Exhibit RW2/A. On the basis of the aforesaid

documentary evidence, it was contended by the learned counsel for

the appellants that if DD Entry No.19-A, which was recorded

immediately after the accident is to be believed, the accident was

caused by an Ambassador car, but if the number mentioned in the site

plan is taken to be correct the accident was caused by a Maruti car, in

view of the fact that „CD‟ and „CJ‟ indisputably denote a car while

„SJ‟ denotes a scooter.

8. Adverting next to the testimony of RW1, an Ahlmad from the

court of learned Additional District Judge, who was summoned with

the file of Suit No.269/2003 instituted by the appellant No.2 (Shri

Pankaj Kumar Verma) against Head Constable Ramdhari for recovery

of damages in the sum of ` 4,38,670/-, Mr. Randhir Jain contended

that on account of the institution of the said suit the police of the

Police Station, Nangloi was inimical to the appellant No.2, and in

order to settle scores with him had falsely implicated him in the

present case. He further contended that the appellant No.2 at one

point of time had to be taken into protective custody by the Bihar

Police, as the police of this particular police station had threatened to

eliminate him. He stated that though the aforementioned suit had

since been dismissed on the technical ground of non-compliance with

Section 140 of the Delhi Police Act, an appeal filed by the appellant

No.2 against the said dismissal was still pending.

9. An attempt was also made by the learned counsel for the

appellants to create a dent in the testimony of the eyewitness, PW3-

Shri Vinay Kumar on the ground that he had not been cited by the

police as a witness. It was further contended by the counsel that

PW1-the wife of the deceased in the course of her testimony had

admitted that she had met the appellant No.2 at the hospital. If this be

so, the learned counsel contended, the appellant No.2 could have been

arrested then and there on the identification of PW3. He pointed out

that the case of the police was that the appellant No.2 had run away

from the spot, which was wholly contrary to the statement made by

PW1-Smt. Savitri Devi before the learned Tribunal to the effect that

she had met him when she went to the hospital on hearing about her

husband having been hit in the accident, and her further statement that

while she was present in the hospital, the appellant No.2 had tendered

an apology to her for having caused the accident. The learned counsel

further contended that though the accident took place on 06.04.2004,

it was on 10.04.2004 that notice was given to the appellant No.1 by

the police to produce his scooter at the police station and it was on

12.04.2004 that the appellant No.2 was eventually arrested.

10. Rebutting the aforesaid arguments of the learned counsel for

the appellants, Mr.Dinesh Chander Yadav, the learned counsel for the

respondents, contended that the impugned judgment and award

deserved to be maintained. He stated that though initially the police

did create some confusion on account of the vehicle number indicated

in the FIR, which at one place, recorded the number as DL-2CD-3249

and at another place as DL-2CJ-3250, but in the course of

investigation, the confusion was cleared and the correct number was

recorded in the FIR as DL-2S-J-3250. He submitted that the evidence

on record amply bears out the case of respondents No.1 to 5 that it

was the vehicle driven by the appellant No.2 and owned by the

appellant No.1 that had resulted in fatal injuries on the person of the

deceased.

11. After hearing the parties at length and scrutinizing the records,

I am unable to agree with the contentions raised by the learned

counsel for the appellants for the following reasons.

12. The first and foremost is that though the number mentioned in

DD Entry No.19-A, which was recorded at 5:28 P.M. immediately

after the accident is DL-2CD-3249, the said DD Entry clearly

mentions that it was a scooter which had caused the accident.

Indisputably, this information had been recorded in the Daily Diary

after having been transmitted by wireless message and it is well

known that the wireless messages are at times not clearly relayed and

at times not properly audible. Secondly, the rukka which was

dispatched for recording of the First Information Report in this case

clearly mentions that the accident was caused by a scooter bearing

No.DL-2S-J-3250. The said rukka was recorded by S.I. Kulveer

Singh, who was entrusted with the investigation of the case and, it is,

for all practical purposes, the first information recorded in respect of

the accident. Thirdly, in the site plan "Exhibit P-1", which is heavily

relied upon by the counsel for the appellants, the offending vehicle is

again clearly mentioned to be a scooter, though the number given is

DL-2CJ-3250, which is neither the number given in the DD Entry

No.19-A nor the number given in the „Asal Tehrir‟ and is clearly

reflective of the careless and haphazard manner in which the

investigation was handled in the instant case.

13. I also see no reason to discard the testimony of PW3 - Vinay

Kumar, who has given a vivid description of the accident, merely on

account of the fact that the police did not cite him as a witness in the

charge-sheet. PW3 - Vinay Kumar, in the course of his testimony,

deposed that on the date of the accident at about 5:15 P.M. while

returning from Hanuman Mandir, he saw the deceased who was

residing in the same locality, that is, Shiv Ram Park, crossing the road

when a scooter bearing No. DL-2SJ-3250 coming from the Najafgarh

side towards Nangloi at a very fast speed hit against him. He further

deposed that the deceased had received serious head injuries and

injuries on other parts of his body. He stated that the person driving

the scooter was driving at a high speed and the said accident had been

caused due to the fast driving of the aforesaid scooter. He had gone

to inform the family members of the deceased and had accompanied

the wife of the deceased Smt. Savitri Bansal (PW-1) to the hospital.

He further deposed that he did not see any person at the hospital, but

the police had come to the hospital and inquired from him and he had

told the police whatever facts he knew. In cross-examination, he

categorically denied the suggestion that the deceased was not hit by

scooter No. DL-2SJ-3250, but was hit by car No. DL-2CD-3249 or

that he had given the number of the offending scooter as DL-2SJ-

3250 at the instance of the respondents/claimants. He stated that he

was not related to the deceased or to the respondents nor he was on

visiting terms with them but was merely residing in the same locality.

14. The testimony of PW1 - Smt. Savitri Bansal, the wife of the

deceased, is also significant. This witness testified that though she

was not an eyewitness to the accident, she had been informed about

the occurrence of the accident in front of Hanuman Mandir in which

her husband had been hit by a two-wheeler scooter, and on receipt of

this information about accident she had gone to the hospital where her

husband was admitted, and where she found the PCR Police and the

appellant No.2. She stated that she could identify the appellant No.2,

who had apologized to her for having caused the accident. Though,

extensively cross-examined by the counsel for the appellants, the

testimony of this witness remained unshaken. She categorically

denied the suggestion put to her that the appellant No.2 had not

caused the accident and instead had taken the injured to the hospital,

and that she had falsely deposed that the appellant No.2 had

apologized to her about the accident.

15. No cogent reason could be pointed out by the learned counsel

for the appellants as to why this Court should disbelieve the

testimony of PW1-Smt. Savitri Bansal, who had no axe to grind with

the appellants, or the testimony of PW3-Shri Vinay Kumar, who was

a natural witness to the accident, being a resident of the same locality

in which the deceased was residing. Also, no motive could be

imputed to PW-3 to enable me to discard his testimony as that of an

interested witness or a partisan one. Merely because his name does

not find mention in the list of witnesses drawn up by the Investigating

Officer does not appear to me to be reason enough to disregard the

statement made by this witness which has withstood the test of cross-

examination.

16. As regards the defence plea raised by the appellant No.2, the

same as elaborated in his affidavit by way of evidence was that

certain police officers posted at Police Station, Nangloi were inimical

to him and had fabricated a false case against him under Section 381

IPC, while acting at the behest of the one Shri Harish Singhla. If his

version is to be believed, the Dehi Police wanted to pick him up from

Bihar in an illegal manner and liquidate him. Apprehending danger

to his life, he had requested the C.J.M, Chapara by moving an

application on 05.08.2003 to take him in protective custody till he

was granted anticipatory bail by the Delhi High Court. The

anticipatory bail was granted to him on 21.08.2003 by this High

Court and thereafter, he had filed a suit for recovery of damages

against H.C.Ramdhari of P.S. Nangloi. It was out of vengeance and

animosity that the police of P.S. Nangloi had allowed the real culprit

in the present case to escape and had called him to the Police Station

on 12.04.2004, where he was arrested and falsely implicated in this

case.

17. The cross-examination of this witness is significant in that it

completely demolishes the version given by him in his examination-

in-chief. In his cross-examination, he admitted that he was driving the

two-wheeler scooter bearing No. DL-2SJ-3250 on 06.04.2004. He

further admitted that on the said date he was coming from the

Najafgarh side towards the Nangloi side on the said two wheeler

scooter. He, however, denied that he had hit a person with his

scooter, but stated that he had taken the injured from the accident spot

to the hospital on a cycle rickshaw, and again stated that the injured

was taken in the cycle rickshaw and he had followed the said cycle

rickshaw on his scooter. He admitted that he had met the police at

the hospital, but stated that the police did not inquire from him about

the accident at the hospital. In further cross-examination he stated

that he was called to Police Station, Nangloi on 12.04.2004 and was

falsely implicated in this case, but admitted that he did not make any

complaint to any senior officer regarding his false implication in the

case.

18. The appellant No.1 - Shri Ganga Sagar Sharma, who appeared

in the witness-box as RW5, in the course of his cross-examination,

corroborated the fact that on 06.04.2004, the appellant No.2 had taken

his scooter from him. He also stated that on 13.04.2004 he got the

aforesaid scooter released on superdari.

19. Thus, in my view, it stands established on record that on the

date of accident the appellant No.2 - Shri Pankaj Kumar Verma, who

was driving the scooter of the appellant No.1 near Hanuman Mandir

had hit the deceased with his aforesaid scooter. The record also shows

that he did not take the deceased to the hospital as the M.L.C. reflects

that it was the P.C.R. Police which took him to the hospital. There is,

however, no manner of doubt that he went to the hospital where he

tendered an apology to the widow of the deceased for having caused

the accident and furnished his name, address etc. to the police

officials present there. PW1-Smt. Savitri Bansal has clearly stated that

she can identify the person who had tendered an apology to her at the

hospital. The DD entry being Entry No. 19-A clearly mentions that it

was a scooter which had caused the accident though the number of

the scooter is incorrectly mentioned in the said D.D. entry. The „Asal

Tehrir‟ however mentions the correct number of the scooter, which

was subsequently requisitioned by the police and taken into custody,

and thereafter released to the owner of the scooter on superdari. The

latter has corroborated that he had given the scooter on the date of the

accident to the appellant No.2. The learned counsel for the appellants

has also in my view failed to establish any nexus between the suit

instituted against Head Constable Ramdhari, and the investigation of

FIR No.287/2004 pertaining to the present case. I, therefore, see no

reason to interfere with the findings of the learned Claims Tribunal

with regard to the involvement of the offending vehicle in the

accident.

20. Although, a number of grounds were taken into the appeal, the

only ground urged by the learned counsel for the appellants was with

regard to the non-involvement of the offending vehicle in the

accident. Since I have held that the offending vehicle was involved in

the accident, nothing further survives to be considered in the present

appeal.

21. The appeal is accordingly dismissed as being devoid of merit.

The appellants are directed to deposit the award amount in this Court

within thirty days from the date of the passing of this order.

22. Records of the learned Tribunal be sent back to concerned

Tribunal forthwith.

REVA KHETRAPAL (JUDGE) August 19, 2011 ak