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Judgment
Jayant Nath, J.—By the present appeal the appellant seeks to impugn the Award dated 18.3.2011. The brief facts are that on 3.10.2006 Shri Harjeet Singh while working in front of import and export examination area, ICD, Tughlakabad, Okhla Phase-I, New Delhi was hit by a crane driven by respondent No. 5. On account of the accident he suffered grievous injuries and succumbed to the same.
Based on the evidence on record the Tribunal concluded that the accident took place due to the rash and negligent driving of respondent No. 5.
On compensation a total compensation of Rs. 9,50,000 was awarded, loss of dependency of Rs. 9,00,000 was awarded, Rs. 5,000 towards funeral charges, Rs. 30,000 towards love and affection, Rs. 5,000 towards loss of estate and Rs. 10,000 was awarded towards loss of consortium.
Learned Counsel appearing for the appellant submits that the claimants/respondent Nos. 1 to 3 have failed to prove rash and negligent driving by respondent No. 5 as the cause of the accident. He urges that there is nothing on record to show that the accident took place due to the negligent driving of respondent No. 5.
A perusal of the Award shows that the Tribunal relied upon the evidence of PW-1/claimant i.e. respondent No. 1 who has narrated the accident in detail. The Tribunal also notes that in his cross-examination there has been no inconsistency or contradiction. The Tribunal also relied upon certified copy of the charge-sheet, certified copy of the FIR, site plan, etc. on record and relied upon the judgment of this Court in the case of National Basketball Association and NBA Properties Inc. v. Motorola Inc., 105 F. 3d. 841 (1997) , to hold that the accident took place due to the rash and negligent driving of respondent No. 5.
A perusal of the evidence of PW-1, however, shows that he is not an eyewitness to the accident. PW-1 is the father of the deceased. He narrates that on 3.10.2006 at the relevant place in Okhla, his son was going to check the container in which items meant for export were being packed. At that stage, the crane came in a negligent manner and hit the deceased with great force from the back side. The deceased was crushed under the crane. He was declared brought dead by the hospital. It is obvious that P.W. 1 is not an eye witness. He has further not stated anything about how the accident has taken place.
A perusal of the FIR translated copy of which has been filed on record shows that when the police reached the spot they have noted that no eyewitness could be found on the spot.
Copy of the charge-sheet is on record. It may also be noted that respondent No. 5 was proceeded ex parte and has not even entered the witness box.
This Court has in National Insurance Company Limited v. Pushpa Rana (supra), held that rash and negligent driving can be proved based on the charge-sheet and other connected documents of the Criminal Court. A similar view was expressed by the Madhya Pradesh High Court in National Basketball Association and NBA Properties Inc. v. Motorola Inc., 105 F. 3d. 841 (1997) . This Court in National Basketball Association and NBA Properties Inc. v. Motorola Inc., 105 F. 3d. 841 (1997) , has held that the Court can draw an adverse inference when the driver of the offending vehicle does not enter the witness box.
The driver of the offending vehicle did not enter the witness box. Apart from the above, in my opinion, the accident has not taken place on the highway. The deceased was on his foot in the area concerned. Respondent No. 5 was driving the crane in an enclosed area. While driving the crane he should have been careful so that no injury is caused to any person who may be around in that area. The fact that he managed to crush the deceased under his vehicle itself indicates that the driver of the said crane was grossly negligent in driving his crane. The doctrine of res ipsa loquitur would be squarely applicable to the facts of this case. There is no merit in the contention of the appellant.
Appeal is dismissed. Statutory amount, if any, deposited by the appellant/Insurance Company may be refunded to the appellant/Insurance Company.