Smt. Madhu Bala & Ors. vs Sh. Surender Kumar & Ors.
2011 Latest Caselaw 3464 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Judgment: 21 July, 2011

+             MAC Appeal No. 94/2010


SMT. MADHU BALA & ORS.                              ...........Appellants

                              Through:   Mr. S.N. Parashar, Advocate.

                         Versus

SH. SURENDER KUMAR & ORS.                          ..........Respondents

                 Through:                Mr. Pankaj Seth, 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 dated 11.11.2009 whereby

the claim of the claimants had been rejected; issue No. 1 had

been decided against the claimants; on the evidence which had

been led before the Tribunal which included testimony of PW 2,

the court had held that the petitioner had failed to prove that

Car No. DL-4CS-1022 was involved in the accident which was

being driven in a rash and negligent manner pursuant to which

it had hit Narender Kumar and because of which he had died.

No compensation was accordingly awarded in favour of the

claimants.

2. Appeal has been filed against the impugned judgment.

Learned counsel for the appellants has pointed out that PW 2

was eye witness and his testimony had been wrongly ignored by

the Trial Court. He was the brother of the victim and the learned

Tribunal had placed emphasis upon the certain submissions

which have been elicited in his cross-examination but the

entirety of the evidence in the correct perspective has not been

considered. It is pointed that the criminal record i.e. FIR which

had been lodged against the driver and the owner of the

offending vehicle, MLC prepared on the same of the victim

Narender Kumar; his postmortem report; the charge-sheet were

all documents which had been filed before the Tribunal which

had not been considered. They were illegally ignored. Learned

counsel for the appellant has placed reliance upon a judgment

of the Apex Court reported in 2009 (5) Scale 706 titled as Bimla

Devi & Ors vs. Himachal Road Transport Corpn. & Ors. to

substantiate his submission that the claimants in a petition

under Section 166 of the Motor Vehicles Act (MVA) have to

establish their case on the touchstone of preponderance of

probabilities; standard of proof beyond reasonable doubt cannot

be applied. Reliance has also been placed on 2009 ACJ 287

National Insurance Co. Ltd. v. Pushpa Rana & Ors. to

substantiate the submission for certified copy of the record of

the criminal record that is FIR, recovery and medical inspection

report are documents which can be sufficient proof to conclude

that the driver was negligent. There is no dispute to this fact.

The record of the criminal proceedings i.e. the FIR, the

statement recorded by the Investigating Officer of the eye

witnesses which include that the PW-2 (the brother of the

victim) and PW Praveen and Devender who had taken the

deceased to the hospital were recorded on the same day of the

accident i.e. 02.11.2006. The said record has been perused. The

MLC of the Victim Narender Kumar also shows that he had been

taken to the hospital by Parveen, his MLC also mentions the

name of Davender as the other person who had brought the

victim to the hospital. Statements of Parveen and Davender had

recorded by the Investigating Officer on the same day. Both

Praveen and Davender in their statement also state that while

they were coming from Madhuban Chowk on the left side of

outer ring road and when reached at the C Block, Red Light

outer ring road, Saraswati Vihar, the offending vehicle santro

Car No. DL-4CS-1022 came from Madhuban Chowk/back side in

a rash and negligent manner and hit the deceased from the back

side; the brother of the injured asked them to remove the

injured to the hospital; they had taken him to the Baba Saheb

Ambedkar Hospital. This version of Parveen and Davender is

in conformity with the version of PW-2 (Arvind Alag) who was

brother of the deceased who was an eye witness, he had also in

his statement recorded before the IO on 02.11.2006 stated that

his brother had suffered the accident because of negligence of

the driver of the aforenoted Santro Car; he had asked passerby

to remove his brother to the hospital Baba Saheb Ambedkar. The

postmortem had also noted that the death of Narender was

because of the impact of the accident. This documentary

evidence had been illegally ignored by the Tribunal. Testimony

of PW-2 was in conformity that this documentary evidence.

Testimony of PW-2 had been rejected by the Tribunal primarily

for the reason that it is difficult to believe that an eye witness

brother would have gone to the house to fetch money first and

would have asked passerby to remove his brother to the

hospital; this is an unnatural behaviour. However, keeping in

view the entire evidence on record which includes version of

PW-2 as also the documentary evidence (discussed supra), it is

clear that it has been established that the death of Narender

Kumar was caused because of the rash and negligent act of the

driver of the offending Santro Car. The claim of the claimants

could not have been rejected on this account. This is a fit case

for remand. Appeal be remanded back to the Tribunal to

calculate the compensation which is awarded in favour of the

claimant.

The parties are directed to appear before the Tribunal on

02.08.2011.

(INDERMEET KAUR) JUDGE July 21, 2011 rb