Delhi District Court
Sh. Ganesh (Husband Of The Deceased) vs Sh. Rohit Rana on 6 December, 2018
IN THE COURT OF SH. RAJ KUMAR
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL:
(WEST-01):DELHI
MACT Case No. 545/17
1. Sh. Ganesh (Husband of the deceased)
S/o Sh. Gunja
Aged about 45 years
2. Ms. Rajbai Ahirwar (Daughter of the deceased)
D/o Sh. Ganesh
Aged about 25 years
3. Sh. Varun Kumar Ahirwar (Son of the deceased)
S/o Sh. Ganesh
Aged about 22 years
4. Ganga Ahirwar (Daughter of the deceased)
D/o Sh. Ganesh
Aged about 17 years
5. Master Kapil Ahirwar (Son of the deceased)
S/o Sh. Ganesh
Aged about 15 years
(Petitioners No. 4 & 5 being minor are
under guardianship of petitioner No.1 their father, natural guardian)
All R/o 40, Golden Park, Jhuggi Camp, Tri Nagar,
North-West, Delhi-110035.
........Petitioners
Versus
1. Sh. Rohit Rana
S/o Sh. Kender Singh Rana,
R/o H. No. F-6/142, Sector-16, Rohini, Delhi
2. Sh. Indiwar Parijat
S/o Sh. Ravinder Pal Sharma
R/o 6 Miranda House, Teacher Flats, Delhi University,
New Delhi-110007
3. National Insurance Company Ltd.
Issuing Office: DO-8, 2nd Floor,
MACT Case No. 545/2017 Page No. 1 / 27
C-3, Puja House, Milan Cinema Complex,
Karampura, New Delhi-110015
Policy No. 360300311610002491
Valid from 22.11.2016 to 21.11.2017 ......... Respondents
Date of Institution: : 03.08.2017
Date of reserving order/judgment : 19.11.2018
Date of pronouncement: : 06.12.2018
AWARD
FORM-V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 30.05.2017
2. Date of intimation of the accident by the 02.06.2017 Investigation Officer to the Claims Tribunal. (Clause 2)
3. Date of Intimation of the accident by the 31.05.2017 Investigating Officer to the Insurance Company. (Clause 2)
4. Date of filing of Report under Section Date not mentioned 173 Cr. P.C. before the Metropolitan Magistrate. (Clause 10)
5. Date of filing of Detailed Accident 03.08.2017 Information Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the 03.08.2017 Insurance Company. (Clause 11)
7. Date of service of DAR on the claimant 03.08.2017
(s). (Clause 11)
8. Whether DAR was complete in all Yes respects? (Clause 16)
9. If not, whether deficiencies in the DAR ---
removed later on?
10. Whether the police has verified the Yes documents filed with DAR? (Clause 4) MACT Case No. 545/2017 Page No. 2 / 27
11. Whether there was any delay or deficiency on the part of the Investigating Officer ? If so, whether any action/ direction warranted?
12. Date of appointment of the Designated Not mentioned Officer by the Insurance Company.
(Clause 20)
13. Name, address and contact number of Not mentioned the Designated Officer of the Insurance Company. (Clause 20)
14. Whether the Designated Officer of the Legal offer was not filed by the Insurance Company submitted his insurance company report within 30 days of the DAR?
(Clause 22)
15. Whether the Insurance Company No admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
(Clause 23)
16. Whether there was any delay or NO deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to Legal offer was not filed by the the offer of the Insurance Company. insurance company (Clause 24)
18. Date of the award 06.12.2018
19. Whether the award was passed with Yes the consent of the parties? (Clause 22)
20. Whether the claimant (s) were directed Yes to open savings bank account (s) near their place of residence? (Clause 18)
21. Date of order by which claimant (s) 18.01.2018 were directed to open savings bank account (s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s).
MACT Case No. 545/2017 Page No. 3 / 27(Clause 18)
22. Date on which the claimant(s) produced 26.10.2018 the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card? (Clause
18)
23. Permanent Residential Address of the All r/o 40 Golden Park, Jhuggi Claimant(s) (Clause 27) Camp Tri Nagar, North West, Delhi-110035 Also at;
Ward No. 16, Jhinguwan, Baisa Tikamgarh, Madhya Pradesh-
472111
24. Details of savings bank account(s) of The petitioner no.1 Sh. Ganesh is the claimant(s) and the address of the having A/c no. 11301053766 of bank with IFSC Code. (Clause 27) SBI, Tikamgarh Branch, IFSC Code has not been mentioned on the photocopy of passbook of petitioner no.1.
The petitioner no.3 Sh. Varun Ahirwar is having A/c No. 33171837992 of SBI Bank, Baldeogarh Branch IFSC Code: SBIN0002825 The petitioner no.4 Ms. Ganga Ahirwar is having A/c No. 37654898267 of SBI, Baldeogarh Branch IFSC Code: SBIN0002825 The petitioner no.5 Sh. Kapil Ahirwar is having A/c No.37654842101 of SBI Baldeogarh Branch IFSC Code: SBIN0002825
25. Whether the claimant(s) savings bank Yes account (s) in near his place of residence? (Clause 27) MACT Case No. 545/2017 Page No. 4 / 27
26. Whether the claimant (s) were Yes examined at the time of passing of the award to ascertain his/their financial condition? (Clause 27)
1. This judgment -cum- award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred to as the 'Act') filed by petitioners for grant of compensation for the death of the deceased Smt. Kalawati in the road vehicular accident.
2. Brief facts of the case are that on 30.05.2017 at about 8:00 PM, the deceased along with her husband were going on foot towards their residence/Jhuggi from Madan Park on the extreme corner of the road. It has been further stated that when they reached at Rohtak Road and when they were crossing the road going towards their residence/Jhuggi Golden Park, then, suddenly a motorcycle bearing No. DL-8S-BT-1129, which was being driven by the respondent No.1 at a very high speed and in a rash and negligent came from Pillar No. 60 to 61 between Ramapura Red Light and hit the deceased with a great force. It has been further stated that due to the forceful impact, the deceased fell down on the road and sustained grievous injuries on all parts of her body. It has been further stated that after the accident, the deceased was removed to Maharaja Agrasen Hospital, Punjabi Bagh, New Delhi where the concerned doctors prepared the MLC of the deceased. It has been further stated that during the medical treatment, the deceased succumbed to injuries sustained by her in the accident in question on 31.05.2017. It has been further stated that the post mortem of the deceased was conducted in Sanjay Gandhi Memorial Hospital, Mangolpuri vide post mortem report No. 474/17 dated 31.05.2017.
3. It has been further stated that at the time of accident, the deceased was 43 years of age. It has been further stated that the deceased was doing sewing & Stitching work and earning Rs.18000/- per month. It has been further stated that the deceased was also a housewife.
4. It has been further stated that the deceased is survived by her husband, two daughters and two sons. It has been further stated that the MACT Case No. 545/2017 Page No. 5 / 27 petitioner No.1 is the husband of the deceased, the petitioner No.2 is the married daughter of the deceased, the petitioner No.3 is the unmarried son of the deceased, the petitioner no.4 is the unmarried daughter of the deceased and the petitioner no.5 is the minor son of the deceased.
5. In total, the petitioners have claimed a sum of Rs. 50,00,000/- (Rupees Fifty Lacs Only) on account of compensation.
6. As a result of the abovesaid accident, as per the case of the petitioners, FIR No. 244/2017 dated 30.05.2017: P.S. Punjabi Bagh u/s 279/337/304A IPC was registered against the respondent No.1.
7. It has been further stated that the respondent no.1 being the driver of the offending vehicle, the respondent no.2 being the owner of the offending vehicle and the respondent no.3 being the Insurer of the offending vehicle are jointly liable to pay the compensation to the petitioner.
8. Written statement has been filed by the respondent No.1 stating therein that the accident in question has occurred due to the sole negligence of the deceased herself who was crossing the road negligently. It has been further stated that there was no zebra crossing on the road from where the deceased was crossing the road. It has been further stated that the road where the accident had occurred was one of the busiest road of Delhi. It has been further stated that the driver of the motor cycle was driving the motor cycle at a moderate speed by taking adequate precautions. It has been prayed that the present claim petition be dismissed.
9. The written statement has been filed by the present owner of the offending vehicle Sh. Kender Singh stating therein that he had purchased the alleged offending vehicle from Sh. Indiwar Parijat vide sale and delivery letters dated 28.04.2017. It has been further stated that the respondent No.1 i.e. son of the answering respondent had taken the alleged offending vehicle/motor cycle without any information to the parents or relatives at his own risk. It has been further stated that the accident in question took place due to the sole negligence of the deceased herself. It has been further stated that the alleged offending vehicle was duly insured with the respondent no.3 i.e. National Insurance MACT Case No. 545/2017 Page No. 6 / 27 Company Ltd. It has been prayed that the present claim petition be dismissed.
10. The written statement has also been filed by the registered owner of the offending vehicle i.e. Sh. Indiwar Parijat stating therein that he had already sold the alleged motorcycle in question to Sh. Kender Rana S/o Late Sh. Magh Singh Rana vide sale letter and delivery receipt dated 28.04.2017. It has been further stated that Sh. Kender Rana bought the motorcycle for his personal use against a valid sale consideration. It has been further stated that the alleged offending vehicle was insured with the National Insurance Company Ltd. at the time of accident. It has been prayed that the present claim petition be dismissed.
11. Written statement has been filed by the insurance company also wherein it has been admitted that the alleged offending vehicle bearing No. DL- 08-SBT-11129 was insured with it vide policy no. 360300311610002491 valid from 22.11.2016 to 21.11.2017 in the name of Sh. Indiwar Parijat. It has been further stated that the alleged offending vehicle was being driven by a minor who was not capable of holding a driving licence. It has been further stated that the police has also filed the Kalandra u/s 5/181 MV Act against the respondent no.1. It has been further stated that there has been a violation of the terms and conditions of the insurance policy and as such, the insurance company is not liable to pay any compensation.
12. After hearing the arguments and going through the pleadings of the parties, the following issues were framed by this Tribunal on 26.02.2018:-
1. Whether the deceased Kalawati suffered fatal injuries in the accident that took place on 30.05.2017 at about 8 pm due to rash and negligent driving of vehicle bearing No. DL-8ST-1129 by the respondent No.1 Sh.
Rohit Rana, being owned by the respondent No.2 and insured with the respondent no.3? OPP
2. Whether the petitioners are entitled to compensation, if so, at what amount and from whom? OPP
3. Relief.
13. In order to establish their claim, the petitioners have examined the petitioner No.1 Sh. Ganesh as PW-1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the petitioners in the present MACT Case No. 545/2017 Page No. 7 / 27 claim petition. He has filed on record his affidavit as Ex. PW1/A; copy of Voter Election ID Card of his deceased wife namely Kalawati @ Kalo Bai as Ex. PW1/1(OSR); copy of his Aadhar Card and Aadhar Cards of his family members as Ex. PW1/2(colly running into 4 pages) and DAR as Ex. PW1/3(colly).
14. In the cross-examination done by Ld. Counsel for the insurance company, PW-1 states that he is illiterate and his wife was also illiterate. PW-1 has further stated that his wife was doing the sewing and stitching work at the time of accident. PW-1 has further stated that he has not filed on record any document to prove the same. PW-1 has further stated that his wife was a labour.
15. PW-1 has further stated that he was an eye witness to the accident in question. PW-1 has further stated that his daughter Raja bai aged about 25 years is married.
16. PW-1 has further stated that his daughter was married about 10 to 12 years back. PW-1 has further stated that he has not placed on record Aadhar Card or any other identity card showing the age of his son Varun. PW-1 has stated that but he can produce the same on the next date of hearing. PW-1 has stated that Varun was married about 3 years back. PW-1 has further stated that he is residing at Rampura Mor, Golden Park, Rohtak Road, New Delhi. PW-1 has further stated that he is residing with him. PW-1 has further stated that he is doing labour job. PW-1 has further stated that his wife has gone to her parent's home and she is residing there as there are some dispute.
17. PW-1 has further stated that Ganga and Kapil are his unmarried daughter and son. PW-1 has further stated that there was no red light at the place of accident. PW-1 has admitted it to be correct that he has not filed any documents or proof to show the expenditure on funeral and transportation of the dead body. PW-1 has further stated that he went to the hospital alongwith his injured wife. PW-1 has admitted it to be correct that his name has not been mentioned in the MLC of his wife.
18. PW-1 has further stated that the police had taken his statement in the hospital. PW-1 has further stated that he has not signed any statement.
19. In the cross-examination done by ld. Counsel for the respondent MACT Case No. 545/2017 Page No. 8 / 27 no.1, PW-1 has stated that he does not know how to drive a motorcycle. PW-1 has further stated that he is slightly aware about the traffic rules. PW-1 has further stated that he showed his hand to the driver of motorcycle to stop but however, he did not stop and hit his wife who was ahead of him while they were crossing the road. PW-1 has further stated that he cannot tell the specifically exact or approximate speed of the motorcycle at the time of accident but he the motorcyclist was fast. PW-1 has further stated that there was no street light at the site of the accident. By way of volunteer, PW1 states that but there was sufficient light. PW-1 has further stated that at the time of accident, only one person was driving the offending vehicle.
20. PW1 was shown the site plan which is a part of the DAR Ex. PW1/3(colly) at page no.24. PW-1 after seeing the same, states that as per the site plan, accident appears to have occurred in the middle of road. PW-1 further states that however, the site plan was prepared by police at their own without consulting him. PW-1 has admitted it to be correct that they have not lodged any protest with the police against the wrong mentioning of place of accident in the site plan. PW-1 has further stated that the motorcycle driver was not wearing a helmet.
21. PW-1 has further stated that presently, he is engaged in labour job and even at the time of accident, he was doing the same job.
22. The present owner of the offending vehicle Sh. Kender Singh has examined himself as R1W1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the respondent no.1 in the written statement. He has filed on record his affidavit as Ex. R1W1/A; the copy of the attendance register of Miranda House as Mark A and copy of the Exam Duty Slip as Mark B.
23. In his affidavit, R1W1 has stated that the accident in question took place on account of the negligence of the deceased as there was no zebra crossing at the place where the deceased was crossing the road. He has further stated that he had no knowledge or control over the vehicle when it was taken away by his son at the material time.
MACT Case No. 545/2017 Page No. 9 / 2724. In the cross-examination done by ld. Counsel for the petitioner, R1W1 has admitted it to be correct that he has not seen the accident. R1W1 has admitted it to be correct that the matter against his son is pending before Juvenile Court.
25. In the cross-examination done by Ld. Counsel for the insurance company, R1W1 has stated that he is working as Jr. Assistant. R1W1 has admitted it to be correct that on the date of the accident, he was not the registered owner of the vehicle. R1W1 has further stated that at present also, he is not the registered owner. R1W1 has admitted it to be correct that he has not filed any proof of payment for the purchase of the vehicle. R1W1 has admitted it to be correct that till date, he has not filed any papers with RTO regarding transfer of vehicle in his name.
26. R1W1 has further stated that he knows the registered owner of the vehicle for the last 4 years. R1W1 has further stated that his wife is working in Miranda House for the last more than 10 years. R1W1 has further stated that he is working in Miranda House since 1992. R1W1 has further stated that he knows the wife of the registered owner for the last 4-5 years. R1W1 has further stated that she is Lecturer of Geography in Miranda House. R1W1 has admitted it to be correct that the document Mark B does not reflect his name. R1W1 has admitted it to be correct that the document Mark A & B do not contain the signatures of the Principal of Miranda House.
27. The respondent No.1 has examined himself as R1W2 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by him in the written statement. He has filed on record his affidavit as Ex. R1W2/A and copy of photograph of accident site as Mark A.
28. The Driver of the offending vehicle Rohit Rana has also stated that the deceased was at fault as the deceased suddenly attempted to cross the road in the middle of the road. He has further stated that he tried his best to avoid the accident but he could not do so.
29. In the cross examination done by ld. Counsel for the petitioner, R1W2 has admitted it to be correct that the charge-sheet has been filed against MACT Case No. 545/2017 Page No. 10 / 27 him. R1W2 has admitted it to be correct that a criminal case is pending against him in the criminal court. R1W2 has admitted it to be correct that he has not filed any complaint against the pending criminal proceedings. R1W2 has further stated that he cannot say as to whether name of Sourabh and Parash is there in criminal proceedings.
30. In the cross-examination done by Ld. Counsel for the insurance company, R1W2 has stated that his date of birth is 07.12.1999. R1W2 has admitted it to be correct that at the time of accident, he was not having any driving licence. R1W2 has further stated that he has not seen the RC of the motor cycle bearing no. DL-8SBT-1129. R1W2 has further stated that he was studying in 12 th class at the time of accident. R1W2 has admitted it to be correct that the police did not seize his helmet. R1W2 has admitted it to be correct that the police had filed chargesheet against him under Section 279/304A and u/s 5/181 of MV Act. R1W2 has admitted it to be correct that MLC shows the name of the daughter namely Ganga of the deceased as the person who had accompanied the injured to the hospital.
31. R1W2 has further stated that his father is currently employed with Miranda House College as non-teaching staff. R1W2 has further stated that on the date of accident, his father was not present at the home.
32. The respondent No.1 has examined his friend Sh. Saurabh Ramola as R1W3 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the respondent no.1 in the written statement. He has filed on record his affidavit as Ex. R1W3/A.
33. In the cross examined done by Ld. Counsel for the insurance company, R1W3 has stated that the name of his Mamaji is Kender Rana. R1W3 has further stated that the respondent No.1 is the son of his Mamaji.
34. R1W3 has further stated that he was accompanied by his friend namely Parash and his cousin brother from the maternal side namely Rohit. R1W3 has further stated that he and his friend Parash were on the same motorcycle whereas Rohit was not on his motorcycle. R1W3 has further stated that he had left his home for Kishan Ganj for that day. R1W3 has further stated MACT Case No. 545/2017 Page No. 11 / 27 that from Kishan Ganj, he had come to his home. R1W3 has further stated that he was at a distance of 30-40 meters from the motorcycle which met with the accident. R1W3 has further stated that the area where the accident took place was having rush. R1W3 has further stated that in between his motorcycle and the motorcycle which met with the accident, there were only 1-2 vehicles. R1W3 has further stated that there was one car in between his vehicle and a motorcycle which met with the accident. R1W3 has further stated that he was behind the car. R1W3 has denied the suggestion that the accident in question took place on account of the negligence of the respondent No.1 as he was driving his bike at a high speed and he was not able to control the same. R1W3 has admitted it to be correct that he did not accompany the deceased to the hospital.
35. The respondent No.2 i.e. registered owner Sh. Indiwar Parijat has examined himself as R2W1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by him in the written statement. He has filed on record his affidavit as Ex. R2W1/A; the sale letters along with delivery receipts as Ex.R2W1/1(colly) and reply to the legal notice of the insurance company dated 15.07.2018 along with courier receipt as Ex. R2W1/2(colly).
36. In the cross-examination done by ld. Counsel for the insurance company, R2W1 has stated that he is B.A. pass from Delhi University in the year 1991. R2W1 has further stated that he worked in United News of India, Headlines Today, Saakal Times but at present he was unemployed. R2W1 has further stated that he had purchased one scooter in 1994 and he had sold the abovesaid scooter after 5 years from the date of purchase approximately. R2W1 has further stated that the said scooter is in the name of the purchaser. By way of volunteer, R2W1 states that the said scooter was got transferred in his name by the purchaser. R2W1 has further stated that he is not aware whether he had visited the Licensing Authority for transfer of the vehicle. R2W1 has admitted it to be correct that the offending vehicle is still standing in his name. R2W1 has admitted it to be correct that he has executed the Special Power of Attorney in favour of Kender Singh Rana. R2W1 has admitted it to be correct that he has not mentioned anything MACT Case No. 545/2017 Page No. 12 / 27 about the sale of vehicle in the Special Power of Attorney Ex. R2W1/X. By way of volunteer,R2W1 states that the SPA was prepared by the lawyer of Kender Singh Rana. It has been further stated that the SPA was followed by the sale letter and the delivery note which was made on 28 th April. R2W1 has further stated that he did not challenge what the lawyer had written in the said SPA.
37. R2W1 has further stated that he has never visited Mumbai. R2W1 has further stated that he had signed the said SPA in Delhi. R2W1 has admitted it to be correct that it is mentioned in the SPA that the SPA was signed at Mumbai on 29.06.2017. By way of volunteer, R2W1 states that it is wrongly mentioned or the same is a typographical error.
38. R2W1 has further stated that he is having account with Punjab National Bank, Mall Road, Delhi-110054. R2W1 has admitted it to be correct that Ex. R2W1/1(colly) are on record in original regarding the sale of his vehicle. By way of volunteer, R2W1 states that his father passed away on 24.03.2017 and he was disturbed. R2W1 has further stated that he was residing in Delhi. R2W1 has further stated that he was busy in last death ceremony for about 13 days. R2W1 has further stated that he had received the payment in cash. R2W1 has further stated that he cannot recall the sale price. R2W1 has admitted it to be correct that he had received a notice from the Advocate and the same was replied vide letter dated 15.07.2018 posted on 21.07.2018. R2W1 has further stated that reply to the legal notice was prepared by his Advocate on his instructions.
39. R2W1 has admitted it to be correct that he is also having a joint account alongwith his wife with State Bank of India, Delhi University, Delhi. By way of volunteer, R2W1 states that the said account is the salary account of his wife which he does not operate.
40. The Insurance company i.e. National Insurance Company Ltd., has examined its Assistant Sh. Vineet Kumar as R3W1 and this witness has filed on MACT Case No. 545/2017 Page No. 13 / 27 record his affidavit as Ex. R3W1/A; two notices u/o 12 Rule 8 of the CPC together with their postal receipts as Ex. R3W1/1 and the insurance policy as Ex. R3W1/2.
41. This witness has not been cross-examined.
42. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given my thoughtful consideration to the arguments addressed by learned counsels for the parties. I have meticulously perused the written arguments filed by the Driver and the registered owner of the offending vehicle. The petitioners have also been examined under the MCTAP and I have considered the statement of the petitioners under MCTAP as well.
My findings on various issues are as under :-
ISSUE NO. 143. The present petition has been filed by the petitioners u/s 166 & 140 M. V. Act and the onus is upon the petitioners to prove the rash and negligent act of the respondent No.1.
44. The petitioners have examined the petitioner No. 1 as PW-1 and he has well explained the mode and manner of accident. He has reaffirmed and reiterated the averments made in the petition. During his entire cross examination, nothing has come out so as to discredit his testimony.
45. During the course of arguments and in the written arguments also, the respondents have argued that the deceased was crossing the road without any zebra crossing and as such, the deceased was at fault.
46. It it is true that the driver of the offending vehicle and his father Sh. Kender Singh Rana, the present owner of the offending vehicle have examined themselves and they have stated that the deceased was at fault but it has to be seen that in the entire investigation which has been done by the IO, the fault of the driver of the offending vehicle has been pointed out. PW-1 who is the husband of the husband ans who is eye witness also has stuck to the point even in his cross examination that the accident in question was caused on account of the rashness and negligence of the respondent No.1. Admittedly, Kender Singh Rana R1W1 is not the eye witness to the accident in question as has been MACT Case No. 545/2017 Page No. 14 / 27 admitted by him in his cross examination. As such, to my mind, the testimony of PW-1 coupled with the findings recorded by the IO in the DAR, to my mind, carry more weight as compared to the testimony of the Driver of the offending vehicle.
47. As such, I am of the opinion that the petitioners have been able to prove that the accident in question was caused on account of the rash and negligent driving of the offending vehicle by the respondent no.1.
48. Furthermore, in the present case, the police has filed the Detailed Accident Report (DAR) on record pertaining to FIR No. 244/2017 dated 30.05.2017: P.S. Punjabi Bagh u/s 279/337/304A IPC was registered against the respondent No.1.
49. In Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors (2009) 13 SC 530, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, in National Insurance Co. Ltd. vs. Pushpa Rana cited as 2009 ACJ 287, it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
50. In the light of the abovesaid discussion, to my mind, the petitioners have been able to prove issue No.1 in their favour and accordingly, the issue No.1 is decided in favour of the petitioners.
COMPENSATION / ISSUE NO. 251. The petitioner No.1 has filed on record the copy of the Election ID Card of the deceased in the form of Ex. PW1/1(OSR). In Ex. PW1/1, it has been mentioned that on 01.01.1994, the deceased was 28 years of old. The date of accident is 30.05.2017. Accordingly, the deceased was about 51 years as on the date of accident. PW-1 also admits in his cross examination that the defendant was 51 years of age at the time of accident.
52. In the claim petition, the petitioners have claimed that the deceased was doing the work of sewing and stitching work and earning Rs.18,000/- per MACT Case No. 545/2017 Page No. 15 / 27 month but nothing has been placed on record by the petitioners to show that the deceased was doing the work of sewing and stitching work and earning Rs.18,000/- per month. PW-1 also admits the same in his cross examination. As such, I have no hesitation to hold that the petitioners have utterly failed to prove the income of the deceased.
53. As such, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act of an Unskilled person person. The date of accident is 30.05.2017 on which the minimum wages for an Unskilled person for the relevant period were Rs.13,584/- per month (as per notification dated 31.05.2017 bearing Notification No. F.Add.LC/Lab/MW2016/466 of Labour Department, Government of NCT of Delhi).
54. In the claim petition, the petitioners have mentioned that the petitioner No.1 is the husband of the deceased, the petitioner no.2 is the married daughter of the deceased; the petitioner No.3 is the son of the deceased; the petitioner no.4 is the minor daughter of the deceased and the petitioner 5 is the minor son of the deceased.
55. Perusal of Aadhar card of petitioner No.4 Ms. Ganga Ahirwar reveals that the petitioner No.4 has become major on 10.08.2017.
56. In the statement of the petitioners recorded under MCTAP on 26.10.2018, the petitioners have stated that the petitioner No.1 is the husband of the deceased and he is a Labour and earning Rs.12,000/- per month. They have further stated that the rest of the petitioners are not doing anything and pursuing their studies. They have further stated that the petitioner No.2 however, has got married and she is settled in her matrimonial home. They have further stated that the petitioner No.2 was not the dependent upon the deceased on the date of the accident. They have further stated that the deceased used to give her entire income in the household and her entire income was used in running the house.
57. As such, to my mind, only the petitioners no.1, 3, 4 & 5 are to be taken as the dependents upon the deceased on the date of the accident.
58. In terms of the judgment of the Hon'ble Supreme Court of India in MACT Case No. 545/2017 Page No. 16 / 27 'Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08', the deceased might have been spending one-fourth of Rs. 13,584/- on her personal expenses as she had left behind only four dependents on the deceased. Therefore, after deducting one- fourth towards personal expenses, the loss of dependency per month comes out to Rs.10,188/- =( Rs. 13,584/- less Rs. 3396/- (after rounding off Rs. 5489.33).
59. The Hon'ble Apex Court of the land in the latest judgment which has arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Pranay Sethi & ors decided on 31.10.2017 has held as under:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the MACT Case No. 545/2017 Page No. 17 / 27 tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
The Hon'ble High Court of Delhi in MAC Appeal No. 798/2011 titled as Bajaj Allianz General Insurance company Ltd. vs. Pooja & ors decided on 02.11.2017 has held that even in the cases where the income of the deceased is calculated on the basis of the minimum wages,the benefit of future prospects is to be given in accordance with the abovesaid guidelines issued by the Hon'ble Supreme Court of India in the abovestated authority as per the rule applicable to self employed or privately employed persons.
Going by the ratio of the abovestated two authorities, the multiplier has to be selected as per the age of the deceased which is 51 years in the case in hand, accordingly, the multiplier of 11 as per Sarla Verma vs. DTC 2009 ACJ 1298 SC shall be applicable.
An addition of 10% on account of the future prospects has to be given as the age of the deceased was 51 years. Accordingly, the monthly income of the deceased has to be calculated as Rs.11,207/- (Rs.10,188/- + Rs.1019/- after rounding off from 1018.8 which is 10% of Rs.10,188/-).
The appropriate multiplier applicable is '11' ( for the age group of 51 years to 55 years) as mentioned in Sarla Verma's judgment (Supra). Hence, the total loss of dependency comes out to be Rs. 14,79,324/- = (Rs. 11,207x12 x 11).
60. The Hon'ble Supreme Court of India in, "National Insurance Company Ltd. vs. Pranay Sethi & Ors. in Special Leave Petition (Civil) No.25590 MACT Case No. 545/2017 Page No. 18 / 27 of 2014 has granted a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on account of loss of estate, loss of consortium and funeral expenses respectively. The aforesaid amounts are to be enhanced at the rate of 10% in every three years.
61. In view of the abovesaid judgment, I hereby award Rs. 15,000/- towards loss of estate; Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral charges.
62. Therefore, in total, I hereby award a sum of Rs. 15,49,324/- (Rupees Fifteen Lakhs Forty Nine Thousand Three Hundred and Twenty Four Only) =( Rs. 14,79,324/- + Rs. 70,000/-) in favour of the petitioners and against the respondents.
R E L I EF / ISSUE NO.3
63. I award Rs. 15,49,324/- (Rupees Fifteen Lakhs Forty Nine Thousand Three Hundred and Twenty Four Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. 03.08.2017 till the date of the payment of the award amount, in favour of the petitioners and against the respondents on account of their liability being joint and several. The petitioner No.1 shall have 70% share in the award amount and the petitioner no.3 to 5 shall have 10% each share in the award amount.
64. This Tribunal is in receipt of the letter dated 08.11.2017 from Delhi State Legal Services Authority, which is annexed with the latest MCTAP as approved by the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi in Para no. 28 of new MCTAP has held as under:-
"Para no. 28 The Claims Tribunal shall, depending upon the financial status and financial need of the claimant (s), release such amount as may be considered necessary and direct the remaining amount to be kept in fixed deposits in phased manner (for example, if a sum of Rs.5,50,000/- has been awarded to the claimant, Rs.50,000/- may be released immediately and the remaining amount of Rs. 5,00,000/- may be kept in 10 fixed deposits of MACT Case No. 545/2017 Page No. 19 / 27 Rs.50,000/- each for a periods of six months, one year, one and half years, two years and so on till five years or one year, two years, three years and so on till ten years). The Claims Tribunal may also consider imposing following conditions with respect to the fixed deposits:-
(i) The interest on the fixed deposits be paid monthly to the Claimant(s).
(ii) The monthly interest be credited automatically in the saving account of the claimant (s).
(iii) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs be given to the claimant (s) along with the photocopy of the FDR. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant(s).
(iv) No cheque book be issued to the claimant (s) without permission of the Court. However, a photo identity card be issued to the claimant (s) and the withdrawal be permitted upon production of the identity card.
(v) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the Court.
(vi) The Bank shall not permit any joint name (s) to be added in the savings bank account or fixed deposit accounts of the victim.
(vii) Half yearly statement of account be filed by the Bank in the Tribunal".
65. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi, the respondent no.3 is directed to deposit the amount of Rs. 15,49,324/- (Rupees Fifteen Lakhs Forty Nine Thousand Three Hundred and Twenty Four Only) as stated herein above with SBI, Tis Hazari Courts, Delhi, out of which the amount of Rs.1,49,324/- (Rupees One Lakh Forty Nine Thousand Three Hundred and Twenty Four Only) shall be released to the petitioner No.1 keeping in view the submission of the Ld. Counsel for the petitioners and that of the respondents as well and in the entirety of the facts.
MACT Case No. 545/2017 Page No. 20 / 2766. The rest of the amount of Rs. 14,00,000/- (Rupees Fourteen Lakhs Only) shall be kept in 28 equal FDR's for an amount of Rs. 50,000/- each for a period of six month, one year, one and a half years, two years, two and a half years, three years and so on with cumulative interest in the name of the petitioners in the abovesaid shares.
67. The abovesaid conditions as laid down in MCTAP shall be adhered to by SBI, Tis Hazari Courts, Delhi in respect to the FDR's.
68. As stated herein above, since the petitioner No.5 is the minor, the amount of his FDRs shall not be released until he reaches the age of majority.
APPORTIONMENT OF LIABILITY
69. The insurance company has examined its Assistant Sh. Vineet Kumar has proved on record his affidavit as Ex. R3W1/A; two notices u/o 12 Rule 8 of the CPC together with their postal receipts s Ex. R3W1/1 and the insurance policy as Ex. R3W1/2.
70. It has been stated by the Ld. Counsel for the registered owner of the offending vehicle that the registered owner has already sold the vehicle in question to Sh. Kender Singh Rana vide sale letter dated 28.04.2018 Ex. R2W1/1 and as such, the registered owner is not liable to pay the compensation to the petitioners.
71. Ld. Counsel for the registered owner has relied upon the following authorities :-
1. Cited as 2016 ACJ 913 titled as Kalawati Devi & ors. vs. Anil Kumar & ors. Decided on 26.02.2015
2. Cited as 2014 ACJ 660 titled as NIA vs. Rashi Lal
3. Cited as 2016 ACJ 20 titled as ICICI Bank vs. Santosh decided by Hon'ble High Court of Punjab & Haryana
4. Cited as 2013 ACJ 898 titled as Nepal Chand vs. Jalbatibai, decided by Hon'ble High Court of Chhatisgarh.
5. Cited as 2015 ACJ 646 titled as Goodwill Tractors Vs. Mokhan Bai decided MACT Case No. 545/2017 Page No. 21 / 27 by Hon'ble High Court of Chhattisgarh
6. Cited as 2017 ACJ2614 titled as Lakhwinder Singh vs. Seema Devi decided by Hon'ble High Court of Himachal Pradesh
72. In the DAR, the IO has specifically stated that the offending vehicle was being driven by respondent No.1 without any driving license at the time of the accident. The respondent no.1 has also been challened u/s 3/181 of the MV Act.
73. It is true that the Hon'ble High Court of Sikkim and Gangtok in the authority cited as 2016 ACJ 38 titled as Branch Manager United India Insurance Company Ltd. vs. Biresh Giri & ors has held that wilful breach of the terms and conditions of the insurance policy has to be proved even in a case when the minor was driving the offending vehicle without any licence and if the minor drives the vehicles without the knowledge of the owner and without his consent and if it is proved that there is no wilful breach of the terms and conditions of the insurance policy, then, the insurance company is liable. It is also true that in the case in hand, the respondent No.1 was a minor when the accident in question took place. But it has to be seen that the respondent no.1 was on the verge of majority as his age is stated to be 17 ½ years by the IO in the DAR. At the same time, it has to be seen that R1W1 who is the father of the driver has utterly failed to prove the attendance register of Miranda House Mark A and copy of Exam Duty Slip Mark B on record. No witness has been summoned and examined by R1W1 or by the respondent No.1 to prove on record the abovesaid two documents. It has to be seen that the entire defence of respondent No.1 and that of his father, is squarely based on the abovesaid two documents as the father of the respondent no.1 has stated that he was in Miranda House i.e. on his duty in the said college on the date and time of the accident.
74. Since, the abovesaid two documents have not been proved either by respondent No.1 or by his father, to my mind, the respondent No.1 has utterly failed to prove that he took away the offending vehicle on the date and time of the accident without the consent and knowledge of his father or that the father of respondent no.1 was on his duty in his college at the relevant time.
MACT Case No. 545/2017 Page No. 22 / 2775. As such, I am of the opinion that the insurance company has been able to prove that the offending vehicle was being driven by respondent no.1 without any valid DL at the time of accident in breach of the terms and conditions of the insurance policy Ex.R3W1/2.
76. In the claim petition, it has been stated that the respondent Sh. Kender Singh Rana was the present owner of the offending vehicle and the respondent No.2 i.e. Sh.Indiwar Parijat was the registered owner of the offending vehicle. It has to be seen that the insurance policy has been issued in the name of the respondent no.2/registered owner. The respondent No.2/registered owner is the registered owner of the offending vehicle as per the stand of the insurance company.
77. It is true that in the authorities which have been relied upon by the respondents No.1 & 2, it has been held that the present owner and the subsequent purchaser is also liable. But it has to be seen that the Hon'ble Supreme Court of India in the latest judgment titled as Naveen Kumar vs. Vijay Kumar has held that only the registered owner of the offending vehicle is liable. The respondents in their cross examinations have categorically admitted that the respondent No.2 was undoubtedly the registered owner of the offending vehicle on the date and time of the accident.
78. As such, to my mind, in view of the law laid down by the Hon'ble Supreme Court of the Land in the authority tiled as Naveen Kumar Vs. Vijay Kumar and Ors. Cited as Civil Appeal no. 1427 of 2018 decided on 06.02.2018, only the registered owner is liable. The Hon'ble Supreme Court of India in Para no. 12 of the said authority has held as under:-
Para no. 12 .... The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression 'owner' in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the 'owner'. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In the situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of MACT Case No. 545/2017 Page No. 23 / 27 liability. Parliament has consciously introduced the definition of the expression 'owner' in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(3) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trial of successive transfers, which are not registered with the registering authority. To hold otherwise would be defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfillment of the object of the law. In the present case, the First respondent was the 'owner' of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.
79. In the light of the ratio of the abovestated authority of the Hon'ble Apex Court of the Land, the respondent Sh. Kender Singh Rana cannot be held liable. Accordingly, the driver and the registered owner are being held jointly and severely liable to pay the amount of the compensation to the petitioner/injured.
80. In these circumstances, I am of the opinion that the respondent no.3/insurance company is entitled for recovery rights against the respondent no.1 i.e. Rohit Rana and petitioner No.2 i.e. Sh. Indiwar Parijat but only after the payment of the award amount to the petitioners.
81. Since the offending vehicle, was admittedly insured with the respondent No.3, the respondent No.3 is hereby directed to deposit the award amount in favour of the petitioners with SBI, Tis Hazari Courts, Delhi within a period of 30 days from the date of passing of this award together with the interest as stated herein above under the intimation to this court and under intimation to the petitioner No.1. In case of any delay, it shall be liable to pay interest at the rate of 12% per annum for the period of delay.
A separate file be prepared for compliance report by the Nazir and put up the same on 14.01.2019.
A copy of this award be given to the insurance company as well as to the petitioners free of cost.
A copy of this award be sent to the concerned Ld. Metropolitan MACT Case No. 545/2017 Page No. 24 / 27 Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
File be consigned to Record Room.
Announced in the open court
On 6th of December, 2018 (RAJ KUMAR)
P.O.MACT (WEST-01)
Delhi (06.12.2018)
RAJ
KUMAR
Digitally signed
by RAJ KUMAR
Date: 2018.12.11
16:42:39 +0530
MACT Case No. 545/2017 Page No. 25 / 27
FORM -IVA
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident. : 30.05.2017
2. Name of the deceased : Smt. Kalawati
3. Age of the deceased : 51 years
4. Occupation of the deceased : Housewife
5. Income of the deceased : Rs. 13,584/- per month as per Minimum Wages
6. Name, age and relationship of legal representative of deceased:-
S. Name Age Relation
No.
(I) Sh. Ganesh Year of Husband of the deceased
birth : 1964
(ii) Sh. Varun Kumar DOB: Son of the deceased
Ahirwar 25.08.1993
(iii) Ms. Ganga Ahirwar DOB: Daughter of the deceased
10.08.1999
(iv) Sh.Kapil Ahirwar DOB: Son of the deceased
09.10.2002
Computation of Compensation
Sr. No. Heads Awarded by the Claim Tribunal
7. Income of the deceased(A) Rs. 13,584/-
8. Add-Future Prospects (B) 10 %
9. Less-Personal expenses 1/4th deduction has been done
of the deceased(C)
10. Monthly loss of Rs.11,207/-
dependency[(A+B)-C=D]
11. Annual loss of dependency Rs.1,34,484/-
(Dx12) (Rs. 11,207/- x 12)
12. Multiplier(E) 11
13. Total loss of dependency Rs. 14,79,324/- (Rs. 11,207x 12
MACT Case No. 545/2017 Page No. 26 / 27
(Dx12xE= F) x 11)
14. Medical Expenses(G) NIL
15. Compensation for loss of NIL
love and affection(H)
16. Compensation for loss of Rs.40,000/-
consortium(I)
17. Compensation for loss of Rs.15,000/-
estate(J)
18. Compensation towards Rs.15,000/-
funeral expenses(K)
19. TOTAL COMPENSATION Rs. 15,49,324/-
(F+G+H+I+J+K=L)
20. RATE OF INTEREST 9% per annum
AWARDED
21. Interest amount up to the Rs. 1,87,080.87(1 year 4 date of award (M) months and 3 days)
22. Total amount including Rs. 17,36,404.87/-
interest (L + M)
23. Award amount released Rs. 1,49,324/-
24. Award amount kept in Rs. 14,00,000/-
FDRs
25. Mode of disbursement of Mentioned in the award the award amount to the claimant (s). (Clause 29)
26. Next date for compliance 14.01.2019 of the award. (Clause 31) (RAJ KUMAR) P.O.MACT (WEST-01) Delhi (06.12.2018) Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2018.12.11
16:42:47
+0530
MACT Case No. 545/2017 Page No. 27 / 27
New MACT Case No. 545/2017
06.12.2018
Present: None
The award has been passed separately.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 14.01.2019.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
( RAJ KUMAR ) P.O. MACT (WEST-01) Delhi (06.12.2018) MACT Case No. 545/2017 Page No. 28 / 27