Delhi High Court
Shish Pal & Ors vs Suresh Chand & Ors on 21 November, 2014
$~A-53
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 21.11.2014
+ MAC.APP. 520/2012
SHISH PAL & ORS ..... Appellants
Through Mr.R.S.Mishra, Advocate.
versus
SURESH CHAND & ORS ..... Respondents
Through Mr.L.K.Tyagi, Advocate for R-3.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
1. By the present appeal the appellants seek to impugn the award dated
25.02.2012 by which award the Tribunal concluded that the appellant has
failed to show that the death of Smt. Gasna Devi occured due to a road
traffic accident and hence, dismissed the claim petition.
2. The brief facts which led to filing of the claim petition are that on
30.04.1999 Smt. Gasna Devi was being shifted from GTB Hospital to
Jeevan Nursing Home. She was being shifted in an Ambulance. Inside the
Ambulance she was accompanied by her husband Shish Pal, her brother
Chandan Singh and other relatives. The Maruti Van Ambulance when it
reached near Sarai Kale Khan at Outer Ring Road, was hit by an offending
tanker said to be plying rashly and negligently. It is stated that because of
this accident Smt.Gasna Devi suffered injuries. She was removed to Jeevan
Nursing Home through some other private car where she died within two
hours from the accident. Hence, the present claim petition was filed.
3. The Tribunal famed the following issues:-
"1. Whether Smt.Gasna Died due to fatal injuries sustained in
the accident on 30.4.99 due to rash and negligent driving of
vehicle No.HR 46 8891 on the part of R-1, Suresh Chand?
2. To what amount of compensation, are the petitioners
entitled and from whom?
3. Relief."
4. On issues No.1 and 2 the Tribunal noted that initially the FIR was
registered under Sections 279/337 IPC and later on Section 304 A was
added. The Tribunal also noted that 304A IPC is nowhere mentioned in the
chargesheet and a bare reading of the chargesheet reveals that the cause of
the death could not be ascertained. The Tribunal noted that the deceased was
hospitalised in unconscious state with a history of loose motion and
vomiting. The Tribunal noted that even as per the document prepared under
the signatures of Dr.B.K.Grami the cause of death is stated to be TBM i.e.
brain fever. It is further pointed out that neither the IO nor the appellants
have brought on record any material to show that the death occurred on
account of the accident. Neither MLC was drawn nor post-mortem of the
deceased was carried out. On the basis of the documents on record and the
evidence placed on record by the respondent Insurance Company of medical
investigator Dr.R.K.Karwa, the Tribunal concluded that the death did not
take place due to a road traffic accident.
5. Learned counsel for the appellants points out to the charge sheet and
FIR to contend that the connection with the motor accident and the death of
the deceased is obvious.
6. I will first look at the evidence placed on record by the parties. PW-1
who was an eye witness and the husband of the deceased has filed his
affidavit by way of evidence. He states that on the said date Smt.Gasna Devi
was being shifted in a Maruti Van Ambulance to Jeevan Nursing Home
from GTB hospital and in the accident it is stated that she suffered serious
injuries. Thereafter, she was taken to the nursing home where she died
within two hours. In his cross-examination, he admits that his wife was
suffering from fever. He states that he was not satisfied with the treatment at
GTB hospital and hence, he decided to shift her to Jeevan Nursing Home.
He confirms that his wife was under drip in the Maruti van.
7. The FIR was registered for the offences punishable under Section
279/337 IPC. The relevant part of the chargesheet which was dated
19.04.2000, translated copy of which reads as follows:-
"The statements of Dr. Ravinder Sabharwal and Dr. Bilgram
were recorded under Section 161 Cr.P.C. and the photocopy
of O.P.D. Card no.4364 and Death Certificate have been
obtained. After the advise, Section 304 A of India Penal Code
has been added in this case as per the statements of the
complainant and his relatives because it is not confirm as to
whether the injured was died due to old disease or due to
accident. Therefore, Section 304 A has been added."
8. I may look at the evidence of RW2 Dr.R.K.Karwa who said that he is
the medical investigator appointed by Oriental Insurance Company Ltd. He
says that he went to contact Dr. Ravinder Sabharwal from Jeevan Nursing
Home who told him that the cause of death of the deceased was not due to
the accident but due to TBM which is a sort of brain fever. He exhibited the
report of Dr.Ravinder Sabharwal as Ex.RW2/2. In his cross-examination he
confirms that Ex.RW2/2 is not signed by Dr. Ravinder Sabharwal himself
and it is signed by his junior.
9. Ex.RW2/2 states that Smt. Gasna Devi was admitted with meningitis
on 30.04.1999. The diagnosis of TBM was made according to the record of
the hospital. Original stamp of Dr. Ravinder Sabharwal is placed on the
document.
10. It is also noteworthy that no MLC was prepared. No post-mortem has
been conducted.
11. The other points which are also noteworthy are that the Ambulance in
which the deceased was being transported, as per PW-1 had other occupants
including the appellant Sh.Shish Pal, the brother of the deceased and other
relatives. If the accident was of such a severe nature so as to cause the death
of the deceased, it is surprising that no evidence is placed on record for any
injuries suffered by any other occupants of the vehicle.
12. Reliance of the appellant upon the statement of Chander Singh, the
driver said to have been made under Section 161 Cr.P.C. is misplaced. The
statement is made almost five to six months after the accident. He nowhere
mentions that he suffered injuries. He does mention that Shish Pal suffered
simple injuries. However, PW-1 Shish Pal in his evidence does not accept
that he received injuries.
13. It was for the appellants to prove that Smt. Gasna Devi died due to the
injuries resulting from the accident. The obvious evidence was the record of
the Jeevan Nursing Home and the doctors who treated her at that time. This
evidence is not filed. The FIR and the Chargesheet do not support the case
of the appellants.
14. In the light of the above, there is no reason to differ with the view
taken by the Tribunal. The appeal is without any merit and is dismissed.
NOVEMBER 21, 2014/rb JAYANT NATH, J
