ANITA DEVI Vs. MOHINDER SINGH

JUDGEMENT

(1.) THE appellants herein are wife, mother and children of late Mr. Jai Kishan, the deceased. They have filed the present Appeal under Section 173 of the Motor Vehicles' Act, 1988 (hereinafter referred to as the Act, for short) against the impugned award dated 31st July, 1995 dismissing their claim petition on the ground that the appellants had not been able to establish and prove that rash and negligent driving by the driver of bus No. DL -IP -2754 had caused injuries which resulted in the death of the deceased. Learned Tribunal disregarded the statement of PW -3, Mr. Ved Prakash Gupta -alleged eye witness, inter alia, holding that his name did not figure in the FIR and in the list of witnesses filed by the police in the criminal prosecution initiated against the driver of the aforesaid bus viz. Mr. Raj Kumar. Learned Tribunal has held that as there was no eye witness to the accident, it has not been proved and established that late Mr. Jai Kishan had died in the accident due to rash and negligent driving by Mr. Raj Kumar. The claim petition was accordingly dismissed.

(2.) I have heard the learned counsel for the appellants and the insurance company. The other respondents namely the owner and the driver have failed to appear and have been proceeded ex parte. They were proceeded ex parte even before the learned Tribunal. I have also gone through the statements of the witnesses.

(3.) HOWEVER , there is evidence to show that the accident had taken place on 24th April, 1995, when the deceased was going on a scooter. There is also material and evidence to show that bus No. DL -1P -2754 (red line bus) on route No. 1028 from Uttam Nagar to Shahdara was involved in the said accident. The involvement of the said bus is proved and established from the FIR, the charge sheet and certified copies of papers Filed before the criminal court. In the claim petition the bus number and details of the FIR No. 267/1995 registered under Sections 279/337 and 304A of the Indian Penal Code had been mentioned. The insurance company did not deny the involvement of the said bus in the said accident. The registration of the FIR was also not denied. Moreover, statement of Head Constable Ranbir Singh, Police Station Seelampur, Record Clerk was recorded. He duly proved the FIR i.e. FIR No. 267/1995. The FIR states that at about 7.58 a.m., daily -diary entry report was recorded in respect of the accident near ISBT. When the designated police officer reached the spot, he found that a red line bus bearing No. DL -IP -2754 and a scooter bearing No. DL -2SA -8908 had met with an accident. The FIR further states that the scooter driver who had been injured had been taken to GTB hospital in the PCR van. The designated officer thereafter reached GTB hospital and he obtained the medical legal report of the deceased. The deceased was not in a fit condition to give statement and was declared unfit for statement. The police officer did not find any eye witness in the hospital. Thereafter, the police officer came back to the spot but again did not find any eye witness. Thereafter, the FIR was registered. In the criminal prosecution as there was no eye witness, the accused, the driver Mr. Raj Kumar was acquitted. However, the said acquittal by itself will not result in dismissal of the claim petition. (See in this regard N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal, : (1980) 3 SCC 457).