Pinki & Ors vs Perveen Kumar & Ors
2014 Latest Caselaw 4823 Del

$~A-5
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of decision: 25.09.2014
+       MAC.APP. 460/2007
        PINKI & ORS                                       ..... Appellant
                          Through       Mr.Ashok Popli, Adv.
                    Versus

        PERVEEN KUMAR & ORS                                 ..... Respondent
                      Through:  None.
        CORAM:
        HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present petition seeks to impugn the Award dated 20.04.2007. The brief facts are that the appellant had filed the claim petition pursuant to an accident on 11.09.2004. Shri Naresh Kumar the deceased was driving his motorcycle for going to his house. At Ghoga Road near Village Harevali he is said to have been hit by a truck from behind. He fell down and sustained fatal injuries.

2. On the pleadings of the parties issues were framed by the Tribunal. The issues No.1 reads as follows:-

"1. Whether the deceased Naresh Kumar son of Shri Naurang sustained fatal injuries in motor accident caused by rash and negligent driving of Tata 407 bearing no.HR-69- 0632 by respondent no.1 on 11.09.04 at about 9.30 pm at Ghoga Road near Village Harveli within the Police Station Bawana Delhi?"

3. The Tribunal based on the pleadings of the parties and evidence on record, however concluded that the appellant had failed to prove that the accident had occurred due to the rash and negligent driving of respondent No.1 while driving his vehicle. Issue No.1 was held against the appellant

and hence the claim petition was dismissed.

4. Learned counsel appearing for the appellant submits that the Award is erroneous and only relies upon the testimony of PW-3 to hold that there are contradictions. He submits that an FIR was registered against respondent No.1 and chargesheet has been filed against respondent No.1. He further submits that as per his knowledge and instructions the criminal proceedings are continuing. Hence, he submits that the Award may be quashed and the finding to exonerate respondent No.1 may be set aside and the matter may be remanded back to the Tribunal for fresh adjudication in accordance with law.

5. A perusal of the Award shows that the Tribunal disbelieved the testimony of the alleged eye witness PW-3. The Tribunal held that the statement of PW-3 is not trustworthy as he claims to have taken the deceased after the accident to his house instead of taking him to some hospital and getting urgent medical treatment for him. The Tribunal also noted that PW-3 has admitted that he knew the deceased because the deceased was earlier working with a gas agency from which he used to refill gas cylinder. The Tribunal also notes that appellant No.1 on the issue of accident maintained silence till 26.10.2004. Her husband had expired on 17.9.2004 and on 26.10.2004 information has been sent to the police that the accident took place due to the offending vehicle. Based on the above observations, the Tribunal concluded that issue No.1 is held against the appellant and as the case was full of contradictions in the given facts and hence dismissed the claim petition.

6. On the issue of the appellant No.1 writing to the police after about one month of the accident we may see the relevant facts. The appellant No.1 has written to the SHO, PS Bawana on 26.10.2004 which is mark B pointing out

that her husband Shri Naresh Kumar died because of the offending vehicle driven by respondent No.1 at the relevant time. She has objected to the FIR recorded based on DD No.7A dated 12.09.2004 where it has been recorded that her husband while driving the motorcycle sustained injuries due to the speed breaker. She states that there is no speed breaker at the place in question and requests that the matter be reinvestigated.

7. In my opinion there is nothing wrong in this communication. To disbelieve this communication on the ground that the accident took place on 11.9.2004 and the letter is written on 26.10.2004 would not be a correct approach. The family had lost its near and dear one. Ms.Pinky the appellant No.1 had lost her husband. It would certainly have taken some time for them to recover and start looking into these issues and correspond with the police.

8. Coming to the testimony of PW-3. He has in his evidence stated that he saw the accident. The TATA truck was being driven rashly and hit the motorcycle from behind. The deceased fell down. Merely because he has not taken the victim to the hospital straightaway, but to the house of the deceased cannot be a ground to disbelieve his evidence.

9. A perusal of the trial court record shows that the FIR and charge-sheet have been filed as Ex.PW1/3. The criminal case is stated to be pending. Reference may be also had to the chargesheet, relevant translated portion of which reads as follows:-

"On 27.10.2004, an applicaton of Smt. Pinki W/o.deceased Naresh R/o.Village & Post Katlupur, Distt. Sonepat, Haryana was received in the Police Station which was marked to SI Yograj for appropriate action. In the application Smt.Pinki W/o Deceased Naresh has claimed that his death had not occurred due to the skidding of his motorcycle but he was murdered by the driver of the tempo bearing Registration No. HR-69-0632

Tata 407 i.e. Praveen Kumar S/o. Sh.Virender Singh R/o. House No.14, Gali No. 10. Swatanter Nagar, Narela Delhi in front of Sh. Devender alias Babloo S/o. Shubhram R/o. Village Jhanjholi, District Sonepat, Haryana. In pursuance of this application, SI Yograj issued notice to witness Devender alias Babloo and involved him in the inspection of the place of this case on 30.11.2004 and prepared a site plan as per his pointing out and recorded his statement. On 23.12.2004, the tempo owner came to the Police Station and produced driver Praveen Kumar S/o. Sh.Virender Singh, R/o. House No. 14, Gali No. 10, Swatanter Nagar, Narela, Delhi along with the tempo bearing Registration No. HR- 69-0632 Tata 407. The SI enquired accused Praveen Kumar, R/o. The aforesaid address and after the collection of the evidence for arrest, apprehended Praveen Kumar as per law in connection with this case and prepared a Seizure Memo and took the tempo into police possession. The SI got both the vehicles mechanically inspected. From the investigation till today and the statement of the witnesses, a lot of evidence has been collected in the file of the case for challan against the accused mentioned at column 4 in case (FIR) No.343/04 date 02.09.2004 under Sections 279/304-A IPC, PS Bawana Delhi. Therefore, the challan under Sections 279/304-A IPC along with the list of witnesses got prepared and is being sent."

The charge sheet shows the negligence of the driver of the TATA Vehicle.

10. Relying on the judgment of Division Bench of Madhya Pradesh High Court in Basant Kaur and Ors. vs. Chatarpal Singh and Ors., 2003 ACJ 369 this Court in the case of National Insurance Company Ltd. vs. Smt.Pushpa Rana and Ors., 2009 ACJ 1287 held that normally an inference can be drawn of rash and negligent driving of the driver of the offending vehicle based on the FIR, Chargesheet and other record of the criminal case.

11. The Hon'ble Supreme Court in the case of N.K.V. Bros. (P) Ltd. vs. M.Karumai Ammal & Ors., AIR 1980 SC 1354 MANU/SC/0321/1980 in para 3 held as follows:

"3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving....."

12. In view of the above legal position, the evidence of PW-3 and the record of the criminal proceedings in my view the inference drawn by the Tribunal against the appellant on issue No.1 is erronewous. The testimony of PW-3 read with chargesheet itself would show that respondent No.1 was guilty of rash and negligent driving of the offending vehicle. Accordingly the present petition is allowed to the extent the award records a finding adverse to the appellant on Issue No.1. That part of the award is set aside. The matter is remanded back to the Tribunal to adjudicate the balance issues and render a finding as per law.

13. The matter may be listed before the Tribunal on 30.10.2014. TCR be sent back.

JAYANT NATH, J SEPTEMBER 25, 2014/N