Naresh Kumar Kataria vs Rakesh & Ors.
2011 Latest Caselaw 298 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+              MAC. APP. 60/2007

NARESH KUMAR KATARIA                        ..... Appellant
                Through:                Mr. H.R. Jha, Advocate
        versus
RAKESH & ORS.                                ..... Respondents
                Through:                Mr. Manoj R. Sinha, Advocate
                                        for the respondent No.3
%                         Date of Decision : January 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?
                          J U D G M E N T (ORAL)

: REVA KHETRAPAL, J.

CM No.1431/2007

This is an application praying for condonation of delay in filing the

appeal. In view of the ground given in the application, the delay is

condoned.

The application stands disposed of.

MAC. APP. 60/2007

1. This appeal is directed against the judgment dated 21.09.2006

passed by the Motor Accident Claims Tribunal, Delhi dismissing the

claim petition of the appellant seeking compensation under Sections

166 and 140 of the Motor Vehicles Act, 1988 against the respondents.

2. The facts leading to the filing of the claim petition in a nutshell

are that the appellant Naresh Kumar Kataria sustained grievous

injuries in a road accident, which took place on 09.02.2004, within

the jurisdiction of Police Station Bawana, when he was hit by the

offending motorcycle bearing No.DL-8SW-7876. Allegedly, the said

motorcycle was being driven by the respondent No.1 - Rakesh

Kumar, was owned by the respondent No.2 - Krishan Pal and was

insured with the respondent No.3 - Insurance Company. The

respondents No.1 and 2 in the written statement filed by them to the

claim petition however denied the factum of accident, though the

respondent No.3 admitted that motorcycle owned by the respondent

No.2 was insured with it from 06.07.2003 to 05.07.2004.

3. After the parties had marshalled their respective evidence, the

Motor Accident Claims Tribunal dismissed the petition on the ground

that the appellant had failed to establish that the accident was caused

by the respondent No.1 while driving motorcycle No.DL-8SW-7876.

Aggrieved against the dismissal of his claim petition, the appellant

has preferred the present appeal, on which I have heard his counsel

Mr. H.R. Jha, Advocate as well as the counsel for the respondent

No.3 - Insurance Company, Mr. Manoj R. Sinha, Advocate.

4. At the outset, Mr. H.R. Jha, the counsel for the appellant

pointed out that initially in Column No.10 of the claim petition, the

number of the motorcycle was correctly set out as DL-8SW-7876, but

by an inadvertent typographical error in Column No.14 thereof, the

number of the motorcycle was mentioned as DL-8SW-8776. This

inadvertent error had been corrected by moving an amendment

application, which amendment application was allowed by the Motor

Accident Claims Tribunal. He submitted that in the aforesaid

scenario, the observation made by the Tribunal that after about a year,

changes were made in the registration number of the vehicle was

stricto senso not correct, inasmuch as though the vehicle number was

amended in Column No.14, in Column No.10 of the very same claim

petition, the number had been correctly mentioned as DL-8SW-7876

in the first instance. This fact was altogether lost sight of by the

Tribunal. He further submitted that the outright denial of the

respondents No.1 and 2 of the involvement of their motorcycle in the

accident could not stand scrutiny in view of the oral and documentary

evidence on record.

5. Mr. Jha pointed out that though the registration number of the

offending vehicle viz., No.DL-8SW-7876 was not mentioned in the

First Information Report, the same finds mention in the seizure memo

of the motorcycle and in the superdiginama, on the basis of which the

motorcycle was released to the respondent No.2. He has also drawn

the attention of this Court to the notice under Section 133 of the

Motor Vehicles Act dated 10.02.2004, which refers to the number of

the offending vehicle as DL-8SW-7876, and bears out the stand of the

appellant that on 09.02.2004 itself the number of the offending

vehicle was made known to the police. The mechanical inspection

report also shows that the mechanical inspection of motorcycle No.

DL-8SW-7876 had been carried out.

6. Mr. Manoj R. Sinha, the learned counsel for the respondent

No.3, on the other hand, contended that the Tribunal had rightly held

that the appellant had failed to establish that the accident was caused

by the respondent No.1 while driving motorcycle No.DL-8SW-7876.

He submitted that in the initial statement made by the appellant to the

investigating officer, he simply mentioned that his vehicle was hit by

a motorcycle and he fell down and sustained injuries. The number of

the motorcycle was not given by him to the investigating officer nor

in fact he produced in the witness-box the person who had noted

down the registration number of the offending vehicle. Reference

was also made by Mr. Sinha, the learned counsel for the respondent

No.3 - Insurance Company to the testimony of RW-1 Rakesh Kumar,

who claimed that he had never driven motorcycle No. DL-8SW-8776

or DL-8SW-7876 on 09.02.2004. Mr. Sinha also relied upon the

testimony of RW-2 Krishan Pal (the respondent No.2 herein), who

claimed that he is the owner of motorcycle No. DL-8SW-8776 and he

did not know anything about motorcycle No. DL-8SW-7876. Finally,

Mr. Sinha contended that the mechanical inspection report of the

motorcycle No. DL-8SW-7876 clearly showed that there was no sign

of any damage on the motorcycle and this, as observed by the

Tribunal, raises a doubt on the version of the appellant regarding the

involvement of the aforesaid motorcycle in the accident.

7. Having heard the learned counsel for the parties and gone

through the evidence on record, I am of the view that there is clear

evidence which conclusively proves that motorcycle No. DL-8SW-

7876 was the motorcycle which had caused the accident and which,

on the day of the accident, i.e., on 09.02.2004, was being driven by

the respondent No.1 and was owned by the respondent No.2. Though

RW-2 Krishan Pal in the course of his testimony stated that he was

the owner of motorcycle No. DL-8SW-8776, the aforesaid statement

made by him on oath is clearly belied by the registration certificate of

the said motorcycle, which shows that the respondent No.2 is in fact

the owner of motorcycle No. DL-8SW-7876. This fact is

corroborated by the endorsement made and signed by the respondent

No.2 on the notice under Section 133 of the Motor Vehicles Act dated

10th February, 2004 issued to the respondent No.2 for production of

motorcycle No. DL-8SW-7876 and the driver of the said motorcycle,

upon which the respondent No.2 has made an endorsement that on

09.02.2004 the motorcycle in his name bearing No. DL-8SW-7876

was being driven by Rakesh, son of Anoop, who was a resident of

Ishwar Colony and who caused the accident and that he (Krishan Pal)

would attempt to produce him in the police station on 13.02.2004.

The aforesaid endorsement is duly signed by the respondent No.2

Krishan Pal and is dated 10.02.2004.

8. As regards the reliance placed on the mechanical inspection

report by the learned counsel for the respondent No.3, the same is

wholly misplaced. A bare glance at the said mechanical inspection

report of motorcycle No. DL-8SW-7876 shows that the mechanical

inspection of the said motorcycle was carried out on 18.03.2004, i.e.,

more than a month after the accident had taken place. There is, on

record, in this regard, an application made by the Investigating

Officer, Samunder Singh of Police Station Bawana to the Court of the

Metropolitan Magistrate, for legal action to be taken against the

accused for non-production of the motorcycle No. DL-8SW-7876,

which is dated 11.03.2004. It need hardly be stated that during the

period intervening 09.02.2004 to 11.03.2004, the respondent No.1

and the respondent No.2 had ample time to have the motorcycle

repaired, and thus the Motor Accident Claims Tribunal ought not to

have relied upon the mechanical inspection report in the instant case.

9. For the aforesaid reasons, I am of the view that there is

overwhelming evidence on record which conclusively establishes the

involvement of motorcycle No. DL-8SW-7876 in the accident which

resulted in the appellant sustaining grievous injuries. The order of the

Tribunal holding otherwise is, therefore, unsustainable and is set

aside. The appeal is, therefore, allowed with the direction to send

back the records to the learned Tribunal. The claim petition is

remanded back to the learned Tribunal to be decided afresh on its

merits. Notice shall be issued by the Tribunal to the counsel for the

parties for appearance before it on a convenient date for further

proceedings.

REVA KHETRAPAL (JUDGE) January 19, 2011 km