Full Text
HIGH COURT OF DELHI
Date of Decision: 03rd December, 2024
UNITED INDIA INSURANCE CO. LTD.
Regional Office-I, T.P.-Hub, 8th Floor, Kanchenjunga Building, Barakhamba Road, New Delhi. .....Appellant
Through: Mr. Ravi Sabharwal, Advocate.
JUDGMENT
1. SMT ARTI (Wife) W/o Late Sh. Gaurav
2. SMT.
3. SH.
NAND KISHORE (Father) S/o Sh. Raghunath All R/o Gali No.1, Mohalla Vijay Nagar, Govindpuri, Modinagar, District Ghaziabad, Uttar Pradesh.
4. SH.
5. DELHI TRANSPORT CORPORATION Digitally (Govt. of NCT of Delhi) First Floor, Scindia House, K.G. Marg, Connaught Place, New Delhi-110001......Respondents Through: Mr. Munish Kumar Sharma, Advocate for R-1 to 3. CORAM: HON'BLE MS.
JUSTICE NEENA BANSAL KRISHNA JUDGMENT (oral) CM APPL. 70553/2024 (u/S 151 of CPC, 1908)
1. By way of present Application, the Respondent Nos. 1 to 3/Claimants seek release of the award amount in their favour.
2. Though the present Application has been listed today, the Arguments on the Appeal are being heard on the joint request of the learned Counsels for the Parties.
3. The present Appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed on behalf of the Appellant-Insurance Company against the Award dated 20.05.2024 vide which compensation in the sum of Rs.39,70,975/- along with interest @ 7.5% per annum has been granted to the Respondent Nos. 1 to 3/Claimants on account of demise of Shri Gaurav, aged 24 years, in a road accident which took place on 02.12.2020.
4. The main ground of challenge is that while in the FIR bearing NO. 1121/2020 under Sections 279/304-A of the Indian Penal Code, 1860 registered at Police Station Sector-20, Noida, Uttar Pradesh, the number of Digitally the offending vehicle was mentioned as DL IPC 3186, but the Chargesheet got filed against the DTC bearing number DL 01PC 8897. The alleged offending vehicle i.e., this DTC Bus was in fact, not involved in the accident for the reason that there is a discrepancy in the FIR and the Chargesheet in mentioning the number of the Bus which is the offending vehicle. FIR had been registered after three days on the statement of the brother of deceased Shri Gaurav, who was not an eye-witness and could not have given the alleged vehicle number. Further, DTC Bus, the number of which was mentioned in the FIR, was stationary as has been established from the evidence of R3W1/Maya Ram Yadav, Supervisor, Nand Nagri Depot, DTC establishing its non-complicity. Infact, the alleged offending bus was at a distance of about 2 kms. from the scene of accident which took place at 09:26 A.M., when the accident is alleged to have taken place. It is argued that all these circumstances lead to inevitable conclusion of noninvolvement of the alleged DTC Bus in the accident.
5. Learned counsel for the Appellant-Insurance Company has, therefore, asserted that no accident was caused by the alleged offending DTC Bus and the impugned Award dated 20.05.2024 is liable to be set aside.
6. Learned counsel for the Respondent Nos. 1 to 3/Claimants, however, has refuted the arguments made on behalf of the Appellant-Insurance Company. It is submitted that the delay of 3 days in registration of FIR is sufficiently explained from the fact that on account of young death in the family, the family members were unable to make the Complaint immediately after the accident. It is further submitted that though in the FIR, the number of the offending bus had been mentioned incorrectly, but Digitally after due investigations, the correct offending vehicle was identified and the Chargesheet had been filed against Shri Rajvir Singh, Driver, Respondent No. 4 herein.
7. Moreover, the defence of the Appellant-Insurance Company that the vehicle was not at the scene of accident is not tenable for the simple reason that according to them, the bus was present at barely a distance 2 kms. from the spot of accident at about 09:26 A.M. There was an underpass and the bus would have hardly taken any time to reach the scene of accident. Furthermore, the time of accident is stated to be about 09:30 A.M., and a difference of five minutes here and there, is not a circumstance which would establish the non-complicity of the offending Bus. Therefore, to claim that the bus was not at the spot or was not involved in the accident, is clearly fallacious.
8. It is submitted on behalf of the Respondent Nos. 1 to 3/Claimants that the learned Claim Tribunal has rightly held that the offending vehicle is responsible for the accident and has granted compensation.
9. It is, therefore, asserted that there is no merit in the Appeal which is liable to be dismissed.
10. Submissions heard and Record Perused.
11. Briefly stated, on 02.12.2020 at about 9:30 A.M., the deceased, Shri Gaurav was travelling on his motorcycle bearing No. UP-14DK-8891. When he reached in front of the Botanical Garden Metro Station, Near free toilet on the Noida Dadri Main Road, Noida, Uttar Pradesh, the offending bus bearing No. DL-01C-8897 being driven in a rash and negligent manner by Respondent No.1, Shri Rajvir Singh, came from behind and hit Shri Gaurav, Digitally due to which he sustained fatal injuries.
12. FIR No. 1121/2020 was registered under Sections 279/304-A of the Indian Penal Code, 1860 at Police Station Sector-20, Noida, Uttar Pradesh.
13. The first ground of challenge to the Award by the Appellant/Insurance Company is that the FIR has been registered after three days of the accident on the statement of the brother of the deceased, Shri Gaurav, who was not an eye witness. Firstly, it has been explained that because of the trauma of young death, the family members were unable to get the FIR registered on the same day.
14. Further, the factum of accident is not disputed and is corroborated by the MLC/Post Mortem Report of the deceased which reflects that the accident had occurred on the given date. The delay is sufficiently explained as is of little consequence as the accident is not disputed.
15. The Appellant has challenged the involvement of the DTC Bus in the accident by asserting that the Bus, number of which was mentioned in FIR, was standing at Nand Nagri Depot, Delhi, while subsequently the number of the offending DTC Bus has been changed as DL-01PC-8897. It is argued that the impugned bus has been wrongly implicated in the accident.
16. The most material witness examined on behalf of the Claimant was PW-3, Shri Kishan Avtar (auto driver) who was an eye witness to the accident. He has deposed that about 9-9:30 A.M. while he was waiting with his TSR for passengers near Botanical Garden, Officer’s Enclave, Delhi, he saw one red colour Bus DTC bearing No. DL 1PC 8897 on Bus Route NO. 33 being driven in a rash and negligent manner. This bus was coming from Delhi and was going towards Section-37, Noida. It hit the motorcycle being Digitally driven by the deceased, Shri Gaurav from behind.
17. He further deposed in his cross-examination that he did not know the deceased or his relatives. He clarified that the bus route was mentioned as Bhajanpura to Noida and the Route No. was indicated as No. 33. He had taken the injured in his Auto to District Hospital, Noida. Three other Auto drivers had accompanied him in his Auto while a girl along with a boy had accompanied them on her scooty. His statement was recorded at Atta Police Chowki. He admitted that he did not know the Vehicle Number as mentioned in the FIR, but reaffirmed that he has disclosed the correct DTC number in his testimony.
18. The first contention of the Appellant is that the FIR gave the wrong number of the alleged offending Bus. It cannot be over looked that the FIR is the first step in the initiation of the investigations. It is generally recorded as the first information available about the commission of the crime. It is only thereafter, that the investigation machinery is set into motion which conducts the investigation to ascertain the true facts and also the identity of the person who has committed the crime.
19. The FIR number may have got mentioned incorrectly in the FIR, but it cannot be over looked that the FIR has been recorded on the statement of Shri Braj Mohan, the brother of the deceased, who was admittedly not an eye witness. Merely because the incorrect number of the offending bus was mentioned in the FIR, it cannot lead to a conclusion that the offending DTC Bus was not involved in the accident or has been falsely implicated.
20. During the investigations, the eye-witness Shri Kishan Avtar was traced who in his testimony as PW-3 cogently described the manner of Digitally accident and that he along with other fellow Auto drivers had taken the injured to the Hospital. Nothing contradictory could be elicited from his testimony. Much has been argued by the Appellants/Insurance Company, that the Police had recorded his statement 2½ months after the accident, but he has clarified that his statement was recorded after 3-4 visits.
21. To prove its defence, DTC had examined R3W[1], Shri Maya Ram Yadav, Supervisor from Delhi Transport Corporation, Delhi. He proved the record time keeping Register (route details) dated 02.12.2020 pertaining to the alleged offending bus which recorded that the said bus had arrived at 09:26 A.M. at the Bus Terminal, Sector-43, Noida and had started again for Bhajanpura at 09:36 A.M. He deposed that no accident was reported to the Depot Manager either by the driver, conductor or the Marshal. He claimed that no accident was caused by this bus on 02.12.2020.
22. In the cross-examination, Shri Maya Ram Yadav admitted that he was not an eye witness and had no personal knowledge of the accident. He was also not aware if any Departmental Enquiry was initiated against Shri Rajvir Singh, driver of the offending bus. He has further deposed that the journey time between the Bus Terminal, Sector-43, Noida and Botanical Garden, Sector-29, Noida is 8-10 minutes. Admittedly, the offending DTC bus left the Depot Bus Terminal at about 09:26 A.M. and the accident had occurred at around 09:30 A.M. in front of Botanical Garden, Noida. This by and large, matches in timing as has been deposed by the eye witness.
23. Pertinently, the eye witness was not a time keeper who was keeping an eye on the exact time at which the accident took place. From the time frame which is mentioned by R3W[1] himself, it is established that the Bus Digitally which left the Terminal at 09:26 A.M., met with an accident about 8 minutes near Botanical Garden, Sector-29, Noida.
24. It is further contended that as per the FIR, the eye witness named was one Shri Braj Mohan, while the eye witness produced is PW-3, Shri Kishan Avtar. Even if the Claimants had examined PW-3, Shri Kishan Avtar, but his testimony about the accident is cogent. The Insurance Company could have examined Shri Braj Mohan to prove their defence that the offending bus was not involved in the accident, which it has materially failed to do. It cannot be overlooked that as per the testimony of PW-3, Shri Kishan Avtar, there were many persons available at the time of accident; no inference can be drawn that PW-3 was not an eye-witness, even though not cited as witness in the Charge-Sheet.
25. The Appellant has also relied on the testimony of R3W[1] to argue that neither the driver nor the conductor or the Marshal had reported any accident with the offending bus. However, merely because the driver chose not to report about the accident, cannot be a ground to disbelieve the testimony of the eye witness. This is more so when neither the Insurance Company nor the DTC had examined the Driver of the offending bus, to prove otherwise.
26. Pertinently, the DTC which was the owner of the offending Bus, was a party to the present Claim Petition, but they have chosen not to adduce any evidence to the contrary. The driver of the bus (Respondent No.1) who was the most material witness, has not been examined either by DTC or by the Insurance Company. Only an adverse inference can be drawn on nonproduction of the material witness/driver of the offending bus either by the Digitally Insurance Company or by DTC.
27. The learned Tribunal has, therefore, rightly concluded that it is the offending DTC bus bearing Registration No. DL 01PC 8897 which caused the accident resulting in demise of Shri Gaurav. Relief:-
28. There is no infirmity in the impugned Award of the learned Tribunal and the Appeal is hereby dismissed.
29. The statutory amount be returned to the Appellant-Insurance Company.
JUDGE DECEMBER 3, 2024 S.Sharma/va Digitally