Delhi High Court
Phulkaria Minz & Ors. vs Bina Kambo & Ors. on 1 May, 2013
Author: Suresh Kait
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 1st May, 2013
+ MAC.APP. 883/2010
PHULKARIA MINZ & ORS. ..... Appellants
Through: Mr. Satish Tamta and Mr. Rajesh
Saxena, Advs.
Versus
BINA KAMBO & ORS. ..... Respondents
Through: Mr. Kanwal Chaudhary, Adv. for
R3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Instant appeal has been preferred against the judgment of the ld.
Tribunal dated 19.07.2010 whereby, the claim petition filed by the
appellant was dismissed.
2. In the instant case accident in question took place on
02.05.1999 and the claim petition under Section 166/140 of Motor
Vehicles Act, 1988 was filed on 31.08.2001.
3. It is pertinent to mention here that the said claim petition was
dismissed in default on 22.11.2003 and was restored thereafter.
4. I note, ld. Tribunal framed issues as under:
"1. Whether injured Smt. Irmina had received injuries
in motor vehicle accident due to rash and negligent
driving of vehicle no. DDC-7600 by R1, owned by R2
and insured with R3 on 02.05.1999? OPP
2. If issue no. 1 is proved in affirmative, whether
petitioner is entitled for any compensation, if yes from
whom and to what amount?
3. Relief."
5. Since issue nos. 2 & 3 are not necessary to be discussed,
however, on issue no.1, which is relevant for adjudicating the instant
appeal, ld. Tribunal has recorded that at the time of filing of the
affidavit the appellant / claimant could neither speak anything nor
respond to court question when she had put her appearance.
Resultantly, it was observed by the ld. Tribunal that the witness was
not in a position to make any statement and was discharged
unexamined.
6. During pendency of the claim petition, appellant / claimant
expired and thereafter her legal heirs were brought on record. PW1
Phulkaria Minz, daughter of deceased / appellant admittedly was not
an eye witness. The copy of the FIR filed along with the claim
petition was not legible. Copy of DD No. 8 dated 02.05.1999, Police
Post-R.K. Puram was also filed. As per the said DD, it was informed
over telephone by Constable Sunil from Safdarjung Hospital to Police
Post-R.K.Puram that an unknown lady aged 60 years, wife of Francis
Urain, resident of Gumla, Jharkhand was admitted in accidental
condition by one Bina. In Tehrir there is no mention of any offending
vehicle. In the MLC dated 02.05.1999 also there is no mention of any
offending vehicle.
7. It is pertinent to mention here that the offending vehicle was
seized on 09.09.2005 which had registration no. DDC-7600. Same
was produced by Smt. Bina Kambo, W/o Sh.Kulbir Singh. Whereas,
accident took place on 02.05.1999.
8. Since name of Bina was mentioned as a person, who got the
victim admitted in the hospital, ld. Tribunal has observed that only
one presumption could be drawn that either Beena who subsequently
produced the offending vehicle in a Criminal Case being FIR No.
359/1999 was the accused / driver or she removed the injured to the
hospital.
9. The appellants / claimants have not examined even the IO of
the aforementioned case to prove that the said Beena was accused or
driver of the offending vehicle. Since the appellant did not produce
any document of the criminal record, therefore, ld. Tribunal suo moto
called the criminal case file from the record room.
10. The bad luck of the appellants / claimants was that the said file
was destroyed on 18.06.2005 as per the Rules. Since there was no
evidence on record to prove that the accident was caused due to the
rash and negligent driving of respondent no.1, therefore, in the
absence of any evidence, ld. Tribunal did not grant any amount of
compensation.
11. Moreover, even at this stage, appellants are showing their
helplessness to lead additional evidence or to produce any document
in support of the case. In the absence of the same, present appeal is
devoid of merit.
12. In view of above, the instant appeal is dismissed with no order
as to costs.
SURESH KAIT, J.
MAY 01, 2013
Jg/ sb
