Delhi District Court
Sabina & Ors vs Mustaqeem & Ors on 26 February, 2014
IN THE COURT OF SH. AJAY KUMAR JAIN:
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL: SOUTH
EAST DISTRICT/SAKET COURT COMPLEX: NEW DELHI
Suit No. 268/10
FIR no. 86/10
PSJamia Nagar
Sabina & Ors Vs Mustaqeem & Ors
Unique ID No.02406C0327952010
Fatal Case U/s 163A M.V. Act
1. Sabina W/o Late Sh. Minhaz
2. Nazia D/o Late Sh. Minhaz
3. Gulshan S/o Late Sh. Minhaz
4. Altmash S/o Late Sh. Minhaz
5. Anas S/o Late Sh. Minhaz
6. Zenab D/o Late Sh. Minhaz
7. Mohabbat Ali S/o Late Sh. Reham Ali
(petitioner no. 2 to 6 being minors are represented by their natural
guardian and mother namely Sabina i.e petitioner no. 1)
All R/o House no. C282, Abul Fazal EnclaveII,
Shaheen Bagh, Jamia Nagar, Okhla, New Delhi110025
...Petitioners/ claimants
Versus
1. Mustaqeem S/o Sh. Abdul Wahid
R/o Village Garhi, Manewala,
PSAfzalgarh, District, Bijnour, Uttar Pradesh
2. Pawan Mittal & Sons (HUF) (owner of vehicle no. DL1GB2250)
296, Mantola, Pahar Ganj, New Delhi
3. Mohd. Asif S/o Sh. Hasmatullah (owner of vehicle no.DL3CA3229)
R/o House no. C259, Shaheen Bagh,
Suit No. 268/10, Sabina & Ors Vs Mustaqeem & Ors (pg 1 of 13)
Jamia Nagar, Okhla, New Delhi
4. The New India Assurance Company Ltd
124, Jeewan Bharti Building,
5th floor, TowerII, Connaught Place,
New Delhi110001
.....Respondents
Date of institution : 05.06.2010 Date of reserving the judgment : 13.02.2014 Date of pronouncement : 26.02.2014 Judgment:
1. The present claim petition is filed u/s 163(A) MV Act.
2. Claimants in the present petition are Smt. Sabina w/o deceased Minhaz, Nazia d/o deceased, Gulshan s/o deceased , Altmash S/o of deceased, Anas S/o of deceased, Zenab d/o deceased, Mohabbat Ali father of deceased.
3. Brief facts of the case are that on 20.03.2010 at around 06.00am, while deceased was travelling in car bearing no. DL3CA3229 driven by one Mustaqeem and when reached at road no. 13, New Delhi that car hit one water tanker bearing no. DL1GB2250 due to which deceased received fatal injuries and on being taken to AIIMS hospital found dead.
4. An FIR no. 86/10 u/s 279/304A, PSJamia Nagar was registered. During investigation, police prepared site plan of occurrence, seized both vehicles i.e Maruti car and water tanker, conducted their mechanical inspection, collected Suit No. 268/10, Sabina & Ors Vs Mustaqeem & Ors (pg 2 of 13) MLC and postmortem report of the deceased, issue u/s 133 MV act to the owner of the Maruti Car, took photographs of the spot and arrested driver Mustaqeem and on completion of investigation found that the accident caused due to the rash and negligent driving of Mustaqeem driver of the maruti car in which deceased was traveling and filed chargesheet against driver Mustaqeem u/s 279/304A IPC.
5. Present petition was filed initially against R1 Pawan Prakash citing as a driver, R2 Pawan Mittal & Sons (HUF) as owner, R3 New India Insurance Company as insurer of the truck/tanker in question, however, lateron upon direction of this Tribunal amended memo of parties was filed citing Mustaqeem (R1) as driver of the Maruti Car, Pawan Mittal and Sons (R2) owner of the truck/tanker, Mohd. Asif R3 owner of the Maruti Car, R4 the New India Insurance company Limited as the insurer of the truck/tanker. However during proceedings previous R1 stated that he was not the driver of tanker/truck, and driver of the truck/tanker was Om Prakash however same was not impleaded by the petitioner. Maruti car in question is found uninsured.
6. The present claim proceedings initiated on receiving AIR report by this Tribunal on 03.06.2010, thereafter same was checked and registered vide order dated 08.06.2010. In the meanwhile , petitioner filed a claim petition under section 163A MV Act on 05.06.2010. AIR report and the present claim petition u/s 163A MV act were filed in separate Tribunal's of South East Jurisdiction, thereafter Ld. Predecessor of present Tribunal clubbed both these petitions vide order dated 05.07.2010. The connected claim petition u/s 163A MV Act was Suit No. 268/10, Sabina & Ors Vs Mustaqeem & Ors (pg 3 of 13) transferred from the court of Sh. Prem Bhartwal, POMACT to this Tribunal by the Ld. District Judge vide order dated 07.10.2010, then both the matters clubbed for inquiry Tribunal.
7. In initial petition u/s 163A MV Act, the respondent no. 1 and 2 stated to be driver and owner of the offending truck/water tanker. Vide order dated 06.07.2011, R1 and R2 proceeded exparte. Issues were framed on the strength of reply of insurance company. Issues on aspect of negligence and compensation were framed vide order dated 06.07.2011. An application u/s 170 MV Act filed by the insurance company was allowed vide order dated 10.10.2011.
8. In the meanwhile insurance company moved an application for impleadment of owner and driver of Maruti car bearing no. DL3CA3229. Vide order dated 26.07.2012, my Ld. Predecessor impleaded the driver Mustaqeem of the car bearing DL3CA3229, thereafter driver Mustaqeem appeared on 02.05.2013.
9. On 23.10.2013 it is observed by this Tribunal that vide order dated 26.07.2012.
Petitioner was directed to implead driver and owner of the Maruti Car, thus amended memo was filed impleading Mustaqeem driver of the Maruti car as R1 and Mohd. Asif owner of the maruti car is R3 and Pawan Mittal and Sons R2 owner of the tanker and R4 insurance company of the offending truck. Ld. Counsel for the petitioner submitted before the court that he do not want to implead driver of the truck /water tanker and ready to face the consequences if any.
Suit No. 268/10, Sabina & Ors Vs Mustaqeem & Ors (pg 4 of 13)
10. On 23.10.2013, Owner Pawan Mittal of the Tanker has filed the driving licence of Sh. Pm Prakash driver of the tanker, gennuity of the same was not disputed by insurance company.
11. During evidence petitioner examined herself as PW1. Sh. Pawan Prakash Owner of the tanker examined himself as R2W1. Driver Mustaqeem and owner of the offending car stopped appearing and not led any evidence. Insurance company also not led any evidence.
12. During proceedings WS were filed by previous R1 (Pawan Mittal) and R2. The main plea of the R1 is that he was not the driver of the truck/tanker at the time of accident, and said truck was driven by one om Prakash. Further, tanker was standing stationery when the offending Maruti car hit the truck/tanker from the backside. After accident driver of the offending car ran away from the spot, thereafter police registered the case against driver Mustaqeem. He also took the plea that the chargesheet was filed against the driver of the Maruti car and there is no fault of his vehicle in the present accident. Further truck is duly insured with respondent no. 3 New India Assurance Company. New India Assurance Company in its WS took the plea that the accident did not caused due to the rash and negligence driving of the truck/water tanker but because of the negligent driving of the Maruti car in question and petitioners not impleaded the driver /owner and insurer of the Maruti car.
13. The present claim petition is filed u/s 163A MV Act . However inadvertently the issue of negligence is framed against the offending tanker whereas the Suit No. 268/10, Sabina & Ors Vs Mustaqeem & Ors (pg 5 of 13) relevant issue for claim u/s 163A MV Act is the use of vehicle, therefore, to facilitate the judgment the following issues are framed. A. Whether the deceased received fatal injuries in the accident caused on 20.03.2010 at around 06.00am involving Maruti Car bearing no. DL3CA3229 and water tanker bearing no. DL1GB2250. Maruti car driven by R1 Mustaqeem owned by R3 Mohd. Asif and the water tanker owned by R2 and insured with R4? OPP B. Whether the petitioner is entitled for compensation? If so, to what amount and against which of the respondents?
C. Relief
14. After hearing the arguments and considering the material on record, my issue wise finding is as below:
Issue no.1 (Use of vehicle):
15. The case in summary is that deceased Minhaz was travelling in Maruti car driven by driver Mustaqeem (R1) , owned by Mohd. Asif (R3) and due to the rash and negligence driving of driver Mustaqeem the said car struck the stationary truck/tanker of R2, insured with R4 New India insurance company from behind. Police during investigation, found the negligence of respondent driver Mustaqeem, thus filed chargesheet u/s279/304A IPC against driver Mustaqeem, further found that the said Maruti car was not insured by owner Mohd. Asif , therefore, added offence u/s 39/192 and 146/196 MV Act. Suit No. 268/10, Sabina & Ors Vs Mustaqeem & Ors (pg 6 of 13)
16. Ld. counsel for the insurance company raised an objection that the insurance company of the truck is not at all liable because there is no negligence on the part of truck in question and the accident caused due to the rash and negligent act of driver Mustaqeem, hence persons liable for compensation are respondent driver Mustaqeem and owner Mohd. Asif.
17. However, Ld counsel for petitioner submitted that the present accident caused between the collusion of two vehicles and for claiming expenses u/s 163A MV Act the petitioner is required to prove the use of vehicle only and there is no need to prove the negligence of the offending track. And it is the choice of the petitioners to seek compensation either from owner and insurer of offending track or the maruti car in question. In this regard, petitioner relied upon the judgment of the Kerala high court in case titled as United India Insurance company Vs Madhawan III(2012) ACC 271 (DB). Ld counsel submits that they are claiming compensation from owner and insurer of truck/tanker.
18. It is settled law that for claiming compensation under section 163A MV Act petitioner has to prove only the use of vehicle and when there is more than one vehicle, it is the choice of the petitioner to claim compensation from the owner or insurer of any of the vehicle.
19. Ld. Counsel for the insurance company (R4) have vehemently argued that the accident was not caused due to the negligence of the truck /tanker in question, but due to the negligence of respondent no. 1 who was driving the Maruti Car in question in which deceased was sitting, therefore, being the insurer of the Suit No. 268/10, Sabina & Ors Vs Mustaqeem & Ors (pg 7 of 13) truck/tanker, insurance company is not liable to compensate the deceased. However this plea of the insurance company is not at all tenable for granting compensation u/s 163A MV Act, though position might be different if the claim was filed u/s 166 MV Act. In view thereof , R4 is liable to indemnify R2 against whom the claim is raised by the petitioner. Hence issue no. 1 is decided in favour of the petitioner and against the respondents. Issue No. 2 (Compensation):
20. Petitioner in his affidavit stated the deceased was 39 of years at the time of accident. In this regard, she relied upon the ration card (Ex. PW1/3) showing deceased Minhaz born in the year 1970, thus found to be more than 40 years on the date of accident i.e 20.03.2010. Petitioner further stated that at the time of accident, deceased was working as helper and earning around Rs. 3300/ per month. Nothing came in cross examination to disbelieve that deceased was not working as a helper, hence the income of the deceased is found to be Rs. 3,300/ per month.
21. Apex court in "National Insurance company Ltd. Vs. Gurumallamma and Anr, (2009) 16 SCC 43", held section 163A MV Act was inserted by act of 1994 as a special measure to ameliorate the difficulties of the family members of deceased who died in use of motor vehicle and it makes the owner of motor vehicle or authorised insurer liable to pay compensation as indicated in second schedule to legal heirs of the deceased. It is further held that age of the deceased is to be considered for calculation of compensation as per second Suit No. 268/10, Sabina & Ors Vs Mustaqeem & Ors (pg 8 of 13) schedule. Hon'ble Delhi High Court in "Oriental Insurance company Ltd. Vs. Usha & Ors., 2012 ACJ 1754", held that claim u/s 163A MV Act is to be calculated on the basis of structured formula provided in schedule II.
22. The deceased is found to be earning income of Rs. 3300/ per month. Further, deceased is found more than 40 years of age on the date of accident. Thus, compensation on the basis of structured formula is Rs. 3300/ X 12 X 2/3 X 15= Rs.3,96,000/. In addition the claimants are also entitled to a compensation of Rs. 9500/ i.e, (2500/ towards loss of estate, Rs. 5000/ towards loss of consortium and Rs. 2000/ towards funeral expenses). Total compensation comes out to (Rs. 3,96,000/ + Rs. 9500 = Rs. 4,05,500/) (Rs. Four lacs five thousand five hundred only).
23. Hence, the petitioners are awarded a total compensation of Rs. 4,05,500/Rs.
Four lacs five thousand five hundred only) Relief:
24. I hereby award an amount of Rs. 4,05,500/Rs. Four lacs five thousand five hundred only) as compensation with interest @ 9% per annum from the date of filing present petition till realization of amount in favour of petitioners and against the respondents.
25. Respondent no.2 being the owner of truck/tanker vehicle and respondent no.4 insurance company of that tanker is liable to indemnify the owner for payment Suit No. 268/10, Sabina & Ors Vs Mustaqeem & Ors (pg 9 of 13) of compensation u/s 163A MV Act to owner.
26. In view of the above discussion, respondent no.4 (New India Insurance company) is directed to discharge the liability of the award amount within a period of 30 days from today, along with interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay. Release of awarded amount:
27. Share of petitioner no.1/Sabina wife of deceased : A sum of Rs. 1,95,500/ alongwith proportionate interest thereon, is awarded to the petitioner no.1 being the wife of the deceased. Out of this amount, Rs. 45,500/ be immediately released to the petitioner no.1 on realization. And for balance amount of Rs. 1.5 lacs alongwith proportionate interest thereon be kept in form of FDR in the following phased manner :
1. Rs. 75,000/ for period of 1 years
2. Rs. 75,000/ for a period of 2 years In the share of petitioner no. 2 to petitioner no. 6:
(Children of deceased )
28. A sum of 40,000/ each alongwith proportionate interest is awarded to petitioner no. 2 to petitioner no. 6 being the minor children of the deceased. This amount shall be kept in form of FDR's till they attain the age of 21years. In the share of petitioner no. 7/Mohabbat Ali /(father of deceased) Suit No. 268/10, Sabina & Ors Vs Mustaqeem & Ors (pg 10 of 13)
29. Balance sum of Rs. 10,000/ each alongwith proportionate interest thereon is awarded to petitioner no. 7 being father of deceased thereon to be kept in form of FDR in the following phased manner :
1. Rs. 10,000/ for period of 6 months Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi
30. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
31. As per orders of Hon'ble High Court in case titled " New India Assurance Co.
Ltd. Vs. Ganga Devi & ors. Bearing MAC. App.135/2008" as well as in another case titled as "Union of India Vs. Nanisiri" bearing MAC Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
32. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit/ savings account by Hon'ble High Court, insurance company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners. Within a period of 30 days from today, failing which respondent Suit No. 268/10, Sabina & Ors Vs Mustaqeem & Ors (pg 11 of 13) no.3 Insurance company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
33. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "Fixed deposit/saving account" in the following manner:
(i) The interest on the fixed deposit be paid to the petitioner/ claimant by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimant/ petitioner after due verification and the Bank shall issue photo identity Card to claimant/ petitioner to facilitate identity.
(iii) No cheque book be issued to claimant/ petitioner without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original pass Book shall be given to the claimant/ petitioner alongwith photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to claimant/ petitioner at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii) Half yearly statement of account be filed by the Bank in this court.
(viii) On the request of claimant/ petitioner, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their Suit No. 268/10, Sabina & Ors Vs Mustaqeem & Ors (pg 12 of 13) convenience.
(ix) Claimant/ petitioner shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, state Bank of India, Saket Courts Complex Branch, New Delhi. Directions for the respondent No. 4
34. The Respondents4 is directed to file the compliance report of their having deposited the awarded amount with the State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
35. The Respondent shall intimate to the claimants/ petitioners about it having deposited the cheques in favour of petitioner in terms of the award, at the address of the petitioner mentioned at the title of the award, so as to facilitate them to withdraw the same.
36. Copy of this award/judgment be given to all concerned.
37. Put up the matter for compliance on 27.03.2014.
Announced in the Open court
on 26.02.2014 (Ajay Kumar Jain)
POMACT02 (SE)Saket, New Delhi
26.02.2014
Suit No. 268/10, Sabina & Ors Vs Mustaqeem & Ors (pg 13 of 13)