Asha Nainwal & Ors. vs Harbir Singh & Ors.
2014 Latest Caselaw 1011 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment delivered on: 24th February, 2014

+             MAC.APP. No.25/2010 & CM No. 1225/2010


ASHA NAINWAL & ORS.                                       ..... Appellants
            Represented by:            Mr.Sanjeev Mehta, Advocate.

                    Versus

HARBIR SINGH & ORS.                                        ..... Respondents
             Represented by:           Mr.Abhishek Kumar, Advocate for
                                       Respondent No.3/Insurance
                                       Company.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. The present appeal has been preferred against the impugned order dated 29.11.2007, whereby the learned Tribunal has dismissed the claim petition filed by the appellant.

2. The case of the appellants is that on 25.04.2001 at about 11.30 am, Mr. Pitambar Nainwal was crossing the road in front of Ritz Cinema, Mori Gate. When he reached near Central Patri, a bus bearing No.DL 1PA 5273 plying on route No.118 came from behind at a high speed and struck against Pitambar Nainwal, who sustained fatal injuries.

3. Respondent No.1, driver of the bus slowed down the bus, but after seeing the public coming towards his vehicle accelerated the speed. The accident was witnessed by a number of persons including a TSR driver, namely, Raj Kumar.

4. Since no one came forward to tell that aforesaid vehicle hit the deceased and even the number of the vehicle was not with the appellants, therefore, appellant No.1 got printed the pamphlets and pasted the same near the place of the accident. Accordingly, TSR driver, Mr. Rajkumar contacted to Mr.Dhani Ram, who alongwith family members of the deceased took the TSR driver to P.S. Kashmeere Gate, where his statement was recorded. Thereafter, the Investigating Officer informed the appellants that he did not register the case as the vehicle belonged to the relative of the police officer and the said TSR driver was asked to give another number. Accordingly, the case was closed as untraced.

5. During pendency of the claim petition, the appellant No.1 had moved an application to convert the claim petition from Section 166 of the Motor Vehicles Act, 1988 (for short 'MV Act') to Section 163-A MV Act, however, the same was dismissed by the learned Tribunal. The appellant No.1 did not challenge the same and continued with the trial. Since the said TSR driver Rajkumar was not coming forward, she moved another application for leading additional evidence to examine another witness without mentioning the name of the witness. Hence, the same was also dismissed by the learned Tribunal vide order dated 16.07.2005.

6. Being aggrieved, the appellant No.1 challenged the same before this Court by filing CM(M) No.2379-80/2005, which was dismissed by this

Court for non-prosecution vide its order dated 24.08.2006. Thereafter, the said order was challenged before the Supreme Court by filing SLP (Civil) No. 7973/2007, that was also dismissed vide order dated 11.05.2007.

7. The present appeal has been filed with delay of 664 days. Moreover, the issue of leading additional evidence has already been closed by the Tribunal, this Court and the Supreme Court as well. Therefore, the present appeal cannot be allowed, especially when the appellants have no witness to prove the involvement of the said vehicle in the accident.

8. Even if the claim petition was converted under Section 163-A MV Act, then also the claimants were required to establish that the said vehicle was involved in the accident. In the present case, the claimants have failed to do so.

9. In view of the facts and circumstances of this case, I do not find any merit in the instant appeal. The same alongwith pending application is dismissed.

SURESH KAIT, J.

FEBRUARY 24, 2014 Sb/jg