Ravindra Malhotra vs Vijender Singh & Another
2011 Latest Caselaw 320 Del

                                    UNREPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    MAC. APP. 349/2004

RAVINDRA MALHOTRA                            ..... Appellant
                Through:             Ms. Sonali Malhotra and
                                     Mr. Amit Sanduja, Advocates
         versus
VIJENDER SINGH & ANR.                        ..... Respondents
                  Through:           Ms. Arati Mahajan Shedha,
                                     Advocate

%                         Date of Decision : January 20, 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.

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

judgment dated 17th February, 2004 passed by the Additional

Sessions Judge in MACT No.101/2002 whereby and whereunder the

learned Sessions Judge has opined that the appellant had not been

able to prove that he had suffered injuries due to rash and negligent

driving of vehicle No. DEP 9343 driven by the respondent No.1 and

owned by the respondent No.2, the Delhi Transport Corporation, and

there was no evidence on record to link the respondent No.1 - driver

and Bus No. DEP 9343 owned by the respondent No.2 with the

alleged accident.

2. Briefly stated, the facts of the case are that the appellant had

filed a claim petition under Section 166 and 140 of the Motor

Vehicles Act, 1988 for grant of compensation for the injuries

sustained by him in a motor vehicular accident. The case of the

appellant was that while he was waiting for a bus at Gurudwara

Bangla Sahib bus stop to go to the ITO, Bus No. DEP 9343 plying on

route No.330 came and stopped at the bus stop, behind another bus

which was already stationary at the bus stop. The appellant tried to

board the offending bus and had gripped the iron rod of the bus, but

the driver started the bus with the big jerk without ensuring that the

passenger had boarded the bus. Resultantly, the appellant was

dragged with the bus and pressed between the offending bus, i.e., Bus

No. DEP 9343 and the stationary bus standing ahead of it. He

suffered compound fracture of right forearm, fracture of left clavical

bones, dislocation of ribs bones, defacement of face and right ear and

other multiple injuries on various parts of the body, which rendered

him permanently handicapped. He remained under treatment from

AIIMS hospital over a protracted period of time and incurred

considerable expense on his treatment. The claim petition was

accordingly preferred by him on 29th August, 1995.

3. The respondents No.1 and 2 filed a joint written statement

taking the preliminary objection that the Bus No. DEP 9343 was not

at all involved in any accident and no accident had taken place with

the said bus on the aforesaid day and hence the respondents were not

liable to pay compensation. On the pleadings of the parties, the

following issues were framed for consideration:

"(i) Whether the petitioner Ravinder Malhotra received injuries in a road accident when he was hit by DTC bus No. DEP 9343 being driven rashly and negligently by R1 and owned by R2? OPP

(ii) Whether the respondent are not liable in view of the preliminary objections taken by them in their written statement? OPR

(iii) Whether the petitioner is entitled to compensation? If so, to what amount and from whom? OPP

(iv) Relief."

4. The appellant examined himself as PW1 while the respondents

adduced the evidence of RW1, the driver of the offending bus. RW2

Shri Harish Chand, an official of the respondent No.2 was also

examined.

5. The learned trial court after hearing the parties and noting that

it was the case of the petitioner in the claim petition filed by him that

the offending bus was Bus No. DEP 9343 plying on route No.330,

noted as under:

"The respondents have denied the factum of accident alleged to be caused by bus DEP 9343. While appearing as PW1, Petitioner has reiterated the above mentioned facts. In cross- examination, he admitted that Ex.PW1/D is the copy of the FIR registered on his statement. He has stated that he told the police that the bus route number was 330 but he does not know under what circumstances it was written as 320 in his statement and FIR. He came to know for the first time in February 1995 that the number had been mentioned wrongly but the police officials expressed their helplessness to rectify the same so he made an oral complaint to the

concerned DCP and necessary rectification was carried out.

(c) As per PW1, registration number of the bus was verified by him from Patparganj Depot. The witness was not aware about the destination of the bus and he had stated that he had to go only up to ITO. As per this witness, since he was in severe pains at AIIMS so he was unable to notice the difference between route No.320 and 330 in his statement. He had denied the suggestion that no accident had taken place with bus No. DEP 9343 plying on route No.330.

(d) No other eye witness has been examined to prove the factum of accident with bus No. DEP 9343. The respondents have examined RW1 who was the driver of the Bus No. DEP 9343. He has stated that he was plying the said vehicle on route No.330 which started at about 11.30 a.m. from Kendriya Terminal to Shalimar Park. No accident had occurred with the said bus on the said date. He came to know only on 8.3.95 regarding the alleged accident and he had given his explanation to Depot Manager denying the factum of the accident. As per his version, he was falsely implicated by the police in case FIR No.267/94 Police Station Parliament Street and was acquitted by the Trial Court vide Judgment Ex.RW1/B. The Conductor of the bus had already died.

(e) In cross examination RW1 admitted that the route No.330 passes through Gurudwara Bangla Sahib Ashok Road, New Delhi. He has further stated that it takes about 5 to 10 minutes from Kendriya Terminal to reach Bangla Sahib bus stand. He denied that any such accident

took place. He has also denied that the petitioner was struck with another stationery bus causing him various injuries.

(f) I have gone through the FIR Ex.PW1/D, wherein the offending vehicle has been mentioned as DTC route No.320 and the time of the accident has been mentioned as 12.00 noon. This FIR was lodged on the basis of DD No.11A dated 1.9.94 recorded at 4.40 p.m. i.e., soon after the accident. No correction had been made in the FIR in respect of route number at any stage because trial before the Criminal Court had also taken place against the present respondent No.1 on the basis that bus route No. was 320 and he was acquitted in the said trial on the ground that the Investigating Officer had failed to explain that how he reached to the conclusion that the respondent No.1 was the offender. The contradiction regarding bus route number in the statement of present petitioner recorded in the court and FIR had gone in favour of the accused resulting in his acquittal.

(g) In the MLC Ex.PW1/E, it is mentioned that the petitioner was taken to the hospital by his brother Sh. Bipin Malhotra, meaning thereby the said Sh. Bipin Malhotra was with the petitioner at the time of the accident. This material witness has not been examined in this case due to the reasons best known to the petitioner. Sh. Bipin Malhotra was the only available eye witness to the accident.

(h) As far as registration number of the bus is concerned, the petitioner has himself stated that he got the registration number from the Patparganj Depot on making inquiries,

meaning thereby that the registration number was not noted down at the time of the accident. Respondent No.1 has stated in his evidence that he had started the trip at 11.30 a.m. and it generally takes 5 to 10 minutes to reach Gurudwara Bangla Sahib from Kendriya Terminal. It means that the bus No. DEP 9343, driven by respondent No.1 on route No.330, had reached bus stand Gurudwara Bangla Sahib between 11.35 to 11.40 a.m. whereas the time of the accident has been mentioned as 12.00 noon. Under these circumstances, the petitioner has not been able to prove that how this bus was at the bus stand Gurudwara Bangla Sahib at 12.00 noon, since it had left Kendriya Terminal at 11.30 a.m. No question was asked in the cross examination in this regard. Even a suggestion has not been made to this witness that he had not started the trip at 11.30 a.m. and had started the same much later from Kendriya Termina so that the bus was at Bangla Sahib bus stand at 12.00 noon i.e. at the time of the accident as narrated by PW1.

(i) In view of the above contradictions in the evidence of the petitioner and facts stated herein above, I am of the opinion that the petitioner has not been able to prove that he had suffered injuries due to rash and negligent driving of vehicle No. DEP 9343 by respondent No.1, which is owned by respondent No.2. There is no evidence on record to link Respondent No.1 Driver and Bus No. DEP 9343 owned by Respondent No.2 with the alleged accident. Issue No.1 is decided against the petitioner."

6. In view of the aforesaid findings rendered on Issue No.1, the

claim petition of the appellant was dismissed. Aggrieved from the

aforesaid dismissal, the present appeal has been filed, on which I have

heard Ms. Sonali Malhotra, the learned counsel for the appellant and

Ms. Arati Mahajan Shedha, the learned counsel for the Delhi

Transport Corporation. Ms. Sonali Malhotra, the learned counsel for

the appellant in the first instance contended that though in the FIR the

route number of the offending bus was wrongly mentioned as route

No.320 instead of route No.330 by the Investigating Officer, it was

the case of the appellant that he had told the police that the bus route

number was 330 and being in considerable pain at the time of the

registration of the FIR on account of the injuries sustained by him, he

did not know how route No.320 was recorded in the FIR. However,

on receipt of the FIR, a representation was made by the appellant to

the Deputy Commissioner of Police for correction of the route

number which was duly corrected as route No.330. This fact was

apparent from a perusal of the charge-sheet where Route No.330 is

mentioned at several places and there is no mention of route No.320

at all.

7. Ms. Malhotra, the learned counsel for the appellant also invited

my attention to the duty slip of the respondent No.1 Driver, which

appears in the trial court record. The said duty slip, which is dated

01.09.1994, certifies that the respondent No.1 - driver, Vijender

Singh was on duty on Bus No. DEP 9343, plying at route No.330.

Her contention is that both the charge-sheet and the duty slip have

been completely ignored by the learned trial court while rendering its

finding on Issue No.1 and instead the trial court had been swayed by

the judgment of the criminal court acquitting the respondent No.1

from all criminal liability on the ground of confusion in the route

numbers. She contends that the judgment of the criminal court is not

binding on the civil court leave alone the Motor Accident Claims

Tribunal and hence there was no justification for the learned trial

court to have held on the basis of the judgment of the criminal court

that there was no involvement of the respondent No.1 in the accident.

8. The learned counsel for the appellant further points out that in

the course of his cross-examination RW1 Vijender Singh Bhatti had

admitted that he was the driver of DTC bus bearing No. DEP 9343

plying on route No.330, and had undertaken a trip on the aforesaid

route at 11.30 a.m. on the morning of 01.09.1994, on which day the

appellant met with the accident at 12.00 Noon. The learned counsel

has also drawn my attention to the application for release of the bus

filed by the Delhi Transport Corporation on 8th March, 1995 wherein

the Delhi Transport Corporation has clearly stated that the said bus

was taken into police custody on account of an accident involving

Bus No. DEP 9343.

9. Ms. Arati Mahajn, the learned counsel for the Delhi Transport

Corporation, on the other hand, sought to support the judgment of the

learned trial court on the ground that the respondent No.1 had been

acquitted in the criminal case and that as per the FIR the route number

was recorded as 320 and not as 330. She submitted that there was no

evidence on record to link the respondent No.1 Driver with Bus No.

DEP 9343 owned by the Delhi Transport Corporation, the respondent

No.2 herein.

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

through the evidence on record, I am of the view that the trial court

was not justified in throwing out the petition on the ground that the

appellant had failed to establish that the respondent No.1 - driver was

not the driver of the offending bus at the time of the accident. There

is no dispute to the fact that DTC Bus No. DEP 9343 was being

driven by the respondent No.1 - driver at 11.30 a.m. on route No.330

on the day of the accident, i.e., 01.09.1994 and the accident took

place immediately thereafter, i.e., at 12.00 noon. There is also no

dispute to the fact that in the charge-sheet, the route number has been

specifically corrected to read as route No.330. Apart from this, I find

from the record that no evidence has been produced by the Delhi

Transport Corporation to show which bus of the Delhi Transport

Corporation had caused the accident on the day in question. The

Delhi Transport Corporation was in possession of all the duty

registers and records and could have easily produced the same to bear

out its contention that DTC Bus No. DEP 9343 driven by the

respondent No.1 on route No.330 was not the offending bus. It is

settled law that where a party fails to produce or withholds evidence

in its possession which is material for deciding the controversy

between the parties, adverse inference must be drawn against the said

party.

11. It is also trite that the decision in a criminal case resulting in

the acquittal of the accused cannot be used for throwing out a claim

petition filed under the Motor Vehicles Act and as a matter of fact this

proposition was not even sought to be disputed at the time of hearing.

12. In view of the aforesaid, the appeal succeeds. The matter is

remanded back to the trial court for decision of the remaining issues,

i.e., Issues No.2 to 4. Parties are directed to appear before the trial

court on 14th February, 2011. There will be no order as to costs.

Record be sent back to the Court concerned.

13. The appeal stands disposed of accordingly.

REVA KHETRAPAL (JUDGE)

January 20, 2011 km