Delhi High Court
Avtar Singh vs Nasim Ahmed on 24 July, 2019
$~11 & 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 24.07.2019
+ MAC.APP. 1042/2018 & CM APPL. 48854/2018
AVTAR SINGH ..... Appellant
versus
NASIM AHMED ..... Respondent
+ MAC.APP. 1043/2018 & CM APPL. 48870/2018
AVTAR SINGH ..... Appellant
versus
SAEEDA BEGUM & ORS ..... Respondents
Through: Mr. P.S. Sharma, Advocate for
appellant.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. This appeal impugns an award of compensation dated 12.07.2018 in
claim petition numbered as MACT No. 357412/16 & 357406/16. The facts
of the case are that on 18.04.2010, at about 9:30 p.m, a Tavera car, bearing
Registration No. HR-67-3645, struck a motor-cycle bearing no. PB-11-AB-
0752, on which three persons were riding. They all suffered injuries, one
Rashid Ahmed succumbed to injuries on 19.04.2010, the other two injured
persons survived. An FIR bearing no. 89/2010 was registered at Police
Station, Civil Lines, Punjab for offences punishable under sections 279, 337,
338, 427, 304A IPC. The impugned order found the appellant's vehicle to be
the cause of the accident.
2. According to the testimony of the parties, including that of one of the
injured viz. Naseem Ahmed, they were returning from a mosque after
offering their prayers, on the aforesaid date and time, they were hit from
behind by the offending vehicle which was being driven in a rash and
negligent manner; because of the violent impact, the rider sustained major
injuries while Rashid was mortally wounded and later succumbed to his
injuries.
3. It is the appellant's case that his vehicle was not involved in the
accident but by a strange quirk of fate, it had struck against an electric pole,
earlier, at some distance on another road. There is, however, no proof of the
earlier accident against an electric pole. Much stress is laid on the fact that
the motor-cycle of the claimants was never seized. However, the Court
would note that the injured persons i.e. Nasim Ahmed and Mohd. Irfan had
both deposed that the offending vehicle was the Tavera bearing No. HR-67-
3645. Furthermore, the police had seized the offending vehicle.
4. The impugned order has dealt with this issue as under:-
"10. Now coming to the next limb of arguments as to
whether there is any evidence to show that the accident in
question had taken place due to rash or negligent driving of
respondent no.1. In this regard, the testimony of PW Nasim
Ahmed and respondent No.1 are relevant.
(i). Before analysing the testimony of above said witnesses,
it is pertinent to state that the police had filed the
chargesheet against the respondent no.1 and he was
held guilty for the offence punishable under Section
279/337/338/304A IPC by the court of Ld. Judicial,
Magistrate-I Class, Patiala vide judgment dated
14.10.2013. This fact is admitted by respondent no.1 In
his cross-examination. He also testified that he did not
challenge the said judgment. This itself shows that the
accident in question had taken place due to the rash and
negligent driving of respondent no.1 and it further
establishes that the accident was caused by the
offending vehicle. Apart from that PW1 Nasim Ahmed in
his examination-in-chief categorically deposed that
when they reached near Fatak-23, Patiala, offending
vehicle came at high speed in a rash and negligent
manner and hit their motor cycle from back side.
Consequently, they fell down and sustained injuries.
Though PW1 was cross-examined at length, but nothing
could be extracted which may help the respondents to
show that no accident was caused by the offending
vehicle.
(ii). From the testimony of PW1 Nasim Ahmed, it is clear
that the offending vehicle hit the motor cycle from back side.
This establishes that the accident had taken place due to rash
and negligent driving of respondent no.1.
11. Now I proceed to analysis the testimony of PW1 Nasim
Ahmed to ascertain as to whether there was any contributory
negligence on his part or not?
(i). PW1 Nasim Ahmed in his cross-examination admitted
that three persons were riding on the motor cycle and he was
driving the motor cycle while other two were pillion riders.
Though he was wearing helmet, but other two where not
wearing helmet. He also admitted that the motor cycle was
being driven by him without having a valid insurance.
(ii). Needless to say that riding of three persons on the
motor cycle is in violation of provisions of M. V. Act. Being
the driver and owner of the said motor cycle, Nasim Ahmed
was not supposed to allow others to ride on his motor cycle
without wearing helmet. But he allowed them to ride the
motor cycle as pillion riders without helmet. Similarly, it
wasalso the duty of pillion riders not to ride on the motor
cycle without helmet. Needless to say that the helmet is meant
for the protection of riders, but both the riders preferred to
ride the motor cycle without taking precaution. This shows
that they were not vigilant about their safely. Similarly, PW1
Nasim was also not vigilant about the safety of his pillion
riders.
(iii). Perusal of postmortem report of Mohd. Rashid reveals
that he sustained head injury besides other injuries sustained
on non vital parts of the body. The cause of death is
mentioned as hemorrhage and shock. Had deceased Mohd.
Rashid wearing a helmet, probably he would not have
sustained head injury.
(iv). From the testimony of PW Nasim Ahmed, it is clear that
Mohd. Rashid was sitting in last while Irfan was sitting in the
middle. Since Nasim Ahmed was wearing helmet, he did not
sustain head injury whereas Mohd. Rashid, who was not
wearing helmet sustained head injury which proved fatal. No
doubt, the accident had not taken place due to non wearing of
helmet, but Mohd. Rashid sustained head injury because of
non wearing of helmet. Thus, to my mind, Nasim Ahmed and
deceased Mohd. Rashid, both were negligent to some extent
for causing the death of Mohd. Rashid. Accordingly, I am of
the view that a portion of claim amount is liable to be
deducted towards their contributory negligence in causing
the death of Mohd. Rashid.
(v). Considering the facts and circumstances of the case,
contributory negligence on the part of deceased and Nasim
Ahmed is assessed at 20% each. Resultantly, amount of 20%
each from their compensation is liable to be deducted
towards their contributory negligence. This deduction shall
convey a message to the two wheeler riders that in case they
found to ride the motor cycle/two wheeler, in gross violation
of the provisions of M. V. Act, their conduct shall be
considered at the time of assessment of just compensation.
(vi). In view of above. Issue No.1 is decided in favour of
petitioners and against the respondents in both matters."
5. As discussed above, the learned MACT has conclusively and for good
reason found the appellant to have been involved in the fatality and two
injuries.
6. The learned counsel for the appellant has relied upon an appeal filed
by the appellant before the Punjab & Haryana High Court, in which he has
annexed a site plan prepared by the local police on 19.11.2012. It shows
that the accident happened at Point A and the driver of the vehicle crashed a
little ahead from the site of the accident into an electric pole. Interestingly,
the trajectory of the vehicle is undisturbed i.e. it goes ahead from the site of
the accident and hits a pole across the road. The police have also recorded a
statement of one, Mustakim, son of Yaseen Ahmed which reads as under:-
"Statement of Mustkim S/o Mohammad Yasin R/o H.
No. 187, Bharat Nagar, Near Nabha Road, Patiala
aged about 32 years.
Stated that I am resident of above mentioned address
and working as a painter as private. Yesterday dated
18.4.2010 time at about 9:30 PM I am Mohammad
Rasid son of Mohammad Sharif R/o H. No. 1844 Street
Ira Bhurakman Gate East Delhi 6, Mohammad Naseem
son of Yasin R/o H. No. 187 Bharat Nagar, Nabha
Road, Patiala, Mohammad Irfan S/o Mohammad Hanif
R/o H. No. D-410, West Vinod nagar Mandoli (Delhi).
Who were going to 23 number Phatak on his Motor
cycle bearing no. PB11AB 0752 after reading a Namaz
at Bank Colony and I was going behind him on his own
scooter. When we reached at 23 number Phatak then a
high speed car came behind us, who hit his car in the
motor cycle of my maternal uncle (mama ji), due to hit
in the motorcycle my maternal uncle and my brother
Mohammad Nassem and Mohammad Irfan, who is my
maternal aunt (mama ji) son injured badly and the car
unbalanced and hit in the pole and the vehicle number
was HR-67-3645 Tavera Colour Red and on asked the
driver name knew that his name is Avtar Singh S/o
Inder Singh R/o H. No. 259, New Basti Badungarh,
Patiala and who ran away from the spot and left the
vehicle on the spot and also knew that behind he had
done another accident, who had done the accident with
very high speed and negligently. With the help of
public and Doctor Anita Goyal who came at the spot,
she is working in Amar Hospital Patiala, who had
admitted me in Rajindra Hospital, Patiala. During
treatment my maternal uncle Mohammad Rasid got
expired and my brother Mohammad Nassem and
Mohammad Irfan are under treatment. Statement
recorded to you, do the police proceeding."
7. Quite clearly, what emanates from the above is that there were two
eyewitnesses; that while all three riders on the motor-cycle suffered injuries,
the injuries to Rashid Ahmed was fatal; the other two injured survivors
testified to the nature of the accident; they also indentified the vehicle.
Interestingly, the vehicle was found a little ahead from the site of the
accident, where it had hit a pole across the street. The trajectory of the
motor vehicle moving in the same straight line ahead is undisturbed till it
crashed into an electric pole across the street. Furthermore, the testimony of
Mustakim, who was stated to have been riding his own scooter, behind the
motor-cycle on which the injured persons were riding, is also to the same
effect. The appellant has been found guilty by a Criminal Court in FIR No.
89/2008. His involvement in the death of Rashid Ahmed and injury to the
other persons on account of his rash and negligent driving of the motor
vehicle, Tavera model, bearing Registration No. HR-67-3645, is quite
clearly established.
8. In view of the above, the Court finds no reason to interfere with the
impugned order. The appeal is without merit and is accordingly dismissed.
NAJMI WAZIRI, J.
JULY 24, 2019
AB
