Shiv Prasad Maurya vs Radhika & Ors
2013 Latest Caselaw 1766 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment delivered on:18th April, 2013

+                           MAC.APP. No. 151/2011

SHIV PRASAD MAURYA                                           ..... Appellant
                 Through:              Mr.S.N.Parashar, Advocate.

                       Versus

RADHIKA & ORS                                          ..... Respondents
                            Through:   Mr.Vinod K.Gandhi, Advocate for
                                       Respondent Nos. 1 and 2.
                                       Mr.Rajat   Brar,      Advocate    for
                                       Respondent             No.3/Insurance
                                       Company.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. The present appeal is directed against the impugned judgment dated 03.11.2010 passed by the learned Tribunal, whereby the claim petition filed by the appellant has been dismissed.

2. The learned Tribunal has arrived on the decision mentioned above by recording that the petitioner had proved the FIR as Ex.PW1/2, wherein number of the offending vehicle was mentioned as DL-3CJ-5153, whereas in his examination-in-chief filed by way of affidavit, he stated that the accident was caused by a vehicle bearing No. DL-3CT-5153. The appellant in his cross-examination by respondent Nos. 1 and 2 admitted that in the FIR,

number of the offending vehicle got recorded as DL-3CJ-5153. He further stated that on verification from the Transport Authority, he came to know that number of the offending vehicle was DL-3CT-5153 and not DL-3CJ- 5153. He further stated that he had given an application for verification of the vehicle to RTO, Sheikh Sarai, New Delhi, who gave the reply in writing. He had not handed over the copy of the application regarding verification of the vehicle and reply of the RTO to the police and informed his lawyer about the same, who gave the said record to the police. He further stated that he had not placed on record the verification report received from the RTO in respect of the vehicle number with his petition. He also stated that he had not told the colour of the offending vehicle to the police.

3. The learned Tribunal has opined that it was incumbent upon the claimant/appellant that the accident was caused by the vehicle bearing No. DL-3CT-5153, driven by respondent No. 1 in a rash and negligent manner to claim compensation from the respondents as onus of proving that the accident was caused by the driver of the offending vehicle No. DL-3CT- 5153 was on the appellant. However, he did not lead any evidence in support thereof. Moreover, he did not examine any witness from the office of Registering Authority in support of his contention that he had moved an application before the RTO, Sheikh Sarai for verification of the number of the offending vehicle and the RTO had given report to the same in writing.

4. Learned counsel appearing on behalf of the appellant has submitted that, inadvertently, the number of the offending vehicle has been recorded as DL-3CJ-5153. However, a notice U/s 133 of the Motor Vehicles Act, 1988 (for short 'Act') was issued by the Investigating Officer of the case to the

owner of the vehicle bearing No. DL-3CT-5153 and not to the DL-3CJ- 5153.

5. Moreover, Pradeep Kumar, father of the driver of the offending vehicle in response to the aforesaid notice, wrote a letter dated 11.12.2007 to Mr. Vijay Prakash, ASI of P.S. Chanakyapuri, New Delhi informing that he had received a notice sent by him U/s 133 of the Act and he could not attend the Police Station due to the examination of his daughter. He had informed the aforesaid ASI through this communication that on 12.10.2007, at the time of the accident, at about 12:20 hours, his daughter named Radhika, aged 21 years, was driving his car bearing No. DL-3CT-5153 (Wagon R).

6. Learned counsel has drawn the attention of this Court to the order dated 13.12.2007, whereby the learned Metropolitan Magistrate directed the SHO, P.S. Chanakyapuri, New Delhi to release the vehicle No. DL-3CT- 5153 to Sh. Pradeep Kumar S/o Girdhari Lal on furnishing superdari in the sum of Rs.2,00,000/- to the satisfaction of the IO/SHO with condition that he will not sell the same without prior permission of the Court and will produce the same as and when required by the Court.

7. Learned counsel further submitted that in view of the above, the vehicle involved in accident was DL-3CT-5153, Wagon R and not DL-3CJ- 5153, Opel Astra and the learned Tribunal had ignored all the material facts/documents on record.

8. In view of the above, I find force in the submissions of the learned counsel for the appellant as the learned Tribunal has not conducted any inquiry on the documents available on record and dismissed the petition filed

by the claimant merely on the conclusion whether DL-3CT-5153 or DL- 3CJ-5153 was the offending vehicle.

9. Without commenting on the impugned order dated 03.11.2010, I set aside the same order and direct the learned Tribunal to conduct a fresh inquiry and pass the order accordingly.

10. Resultantly, all the parties are at liberty to lead any evidence in support of their defence.

11. Parties are directed to appear before the concerned Tribunal on 02.05.2013 for directions.

12. In view of the above, the instant appeal is allowed.

13. TCR be send back along with a copy of this Order to the learned Tribunal for compliance.

SURESH KAIT, J.

APRIL 18, 2013 sb