Delhi District Court
Raj Kumari vs . Ansar & Ors. on 10 February, 2016
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Raj Kumari Vs. Ansar & Ors.
IN THE COURT OF SH.MOHINDER VIRAT
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL 1, PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
RAJ KUMARI VS. ANSAR & ORS.
MACP NO. 48/15
1. Smt. Raj Kumari
W/o Late Sh. Sajjan Prasad Gupta
R/o Vill. Kahatariya, PO Poli, Distt. Fatehpur,
UP
At present:
H No.38/3, Ground Floor, Vill, Jharoda Majra, Gali no.5,
Sangam Vihar, near Azad Chowk, Delhi. ..... Petitioner
Through Ld.counsel Sh.Pankaj Kumar Deval
Ph. No.01123971417
Versus
1. Sh. Ansar
S/o Sh. Md. Aas Mohd,
R/o Vill. Ranika, Tehsil Nuh, Distt. Mewat, Haryana
2. Sh. Sukhbir Singh,
S/o Sh. Dilbag Singh
R/o H No.11A & B, Vikas Colony,
Kameri Road, Hisar, Haryana
3. The New India Assurance Co. Ltd
Raj Kumari Vs Ansar & Ors. MACP NO. 48/15
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A2/3, Lusa Tower, Azadpur, Delhi
Through Ld.counsel Sh.Manu Luv Shahalia
........Respondents
Date of institution : 09.04.2015
Date of framing of issues : 24.09.2015
Date of hearing final arguments : 10.2.2016
Date of Decision : 10.2.2016
AWARD/JUDGMENT
1. The present petition has been filed by the mother of deceased Sh. Satya Prakash Gupta on 09.4.2015. The offending vehicle was being driven by respondent no.1(in short R1), owned by respondent no.2(in short R2) and insured with respondent no. 3(in short R3).
2. Brief facts of the case are that on 3031.7.2012, Sh. Satya Prakash Gupta (since deceased) was travelling in Indica car bearing no. HR 39T 0430(hereinafter called as offending vehicle) and at about 12.05 AM when they reached at Mahipal flyover, way going towards Gurgaon, NH8, Near Radission Blue Hotel, PS Vasant Kunj (South), Delhi then all of a sudden the driver Raj Kumari Vs Ansar & Ors. MACP NO. 48/15 Page no.2 of Page no.16 ::3::
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of the offending vehicle hit his car into back side of the vehicle no. RJ 32GA 7158 as a result of which deceased sustained fatal injuries. The deceased was taken to AIIMS, trauma centre, Delhi where he was declared brought dead.
3. R1 filed reply thereby denying the averments made in the claim petition. It is stated that the petition is bad for misjoinder and nonjoinder of necessary parties as the driver, owner and insurer of truck/trolla no.RJ32GA7158 have not been made a party. The factum and manner of accident is denied.
4. R2 appeared and filed reply/written statement stating therein that no accident had taken place due to rash and negligent driving of R1. It is also stated that the offending vehicle was insured with R3 at the time of accident. It is stated that the alleged offending vehicle has been falsely implicated in the present case. It is stated that the petition is bad for misjoinder and nonjoinder of necessary parties and the deceased was not travelling in the offending vehicle as alleged. The averments made on merits are denied.
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5. R3 the insurance company filed reply thereby admitting therein that the alleged offending vehicle was insured with it at the time of accident. It is stated that the petition is bad for nonjoinder of necessary parties. It is further stated that the offending vehicle hit the HTV Trolla from behind and the accident occurred due to wrong stopping of the said vehicle without indicating any signal to stop. The averments made on merits are denied.
6. I have heard the Ld. Counsel for the parties and perused the entire material available on record. My issuewise findings are as under:
ISSUE NO.1 "Whether Satya Prakash Gupta sustained fatal injuries in the accident which occurred on 31.7.2012 at about 12.05 am, at Mahipalpur, Flyover, way going towards Gurgaon, NH8, near Radisson Blue Hotel, New Delhi caused by rash and negligent driving of vehicle no. HR 39T 0430 driven by respondent no.1, owned by respondent no.2 and insured by respondent no.3? OPP"
7. In order to prove issue no.1, the petitioner examined Raj Kumari Vs Ansar & Ors. MACP NO. 48/15 Page no.4 of Page no.16 ::5::
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herself as PW1. She tendered in evidence her affidavit Ex.PW1/A. In her affidavit she has reiterated the contents of claim petition regarding rash and negligent driving on the part of R1 and relied on certain documents viz. Copy of ration card Mark A, Copy of election th card Ex.PW1/1, copy of aadhar card Ex.PW1/2, copy of 8 class marksheet of deceased Ex.PW1/3 and copy of matriculation of deceased Mark B. The testimony of PW1 has gone unchallenged.
8. Now coming to the factual matrix of present case it be seen that though the respondents have denied the factum of accident but as per charge sheet R1 has been charged for offences under Section 279/304A IPC which is for causing fatal injuries on the person of deceased due to rash and negligent driving and he has admitted that the accident took place due to his fault. Further the respondents have not cared to crossexamine the PW1 on the rash and negligence allegations against R1. Further R1 has not got himself examined nor brought any witness in his favour for which this Tribunal draws adverse inference against him. Raj Kumari Vs Ansar & Ors. MACP NO. 48/15 Page no.5 of Page no.16 ::6::
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9. In the case titled as Cholamandalam M.S.General Insurance Company Ltd. Vs. Kamlesh: 2009 (3) AD(Delhi) 310 adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
10. Here, it should also be remembered that the standard of proof in a claim petition is not as rigid and as high as in a criminal case. In a criminal case proof beyond reasonable doubt is required, however, in a claim petition it is not so. In Bimla Devi and others Vs. Himachal Road Transport Corporation and others (2009) 13 SC 530, it has been observed by the Hon'ble Supreme Court that in a road accident, the strict principles of proof as in a criminal case are not attracted. Relevant portion of the judgment is reproduced as under: " 15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of Raj Kumari Vs Ansar & Ors. MACP NO. 48/15 Page no.6 of Page no.16 ::7::
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an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
11. These observations were quoted with approval in the latest judgment of the Hon'ble Supreme Court in Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096(Civil Appeal No. 1082 of 2011).
12. In National Insurance Company Limited Vs. Pushpa Rana, 2009 ACJ 287, decided by the Coordinate Bench of the Hon'ble Delhi High Court, it was held that where the claimants filed either the certified copies of the criminal record or the criminal record showing the completion of investigation by the police or issuance of charge sheet under Section 279/304A IPC or the certified copy of FIR or the recovery of the mechanical inspection report of the offending vehicle, then these documents are sufficient Raj Kumari Vs Ansar & Ors. MACP NO. 48/15 Page no.7 of Page no.16 ::8::
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proof to reach to a conclusion that the driver was negligent.
13. Recently in United India Insurance Company Ltd. Vs. Deepak Goel and others, 2014(2) T.A.C. 846(Del.) the Hon'ble Delhi High Court has held that "In a case, where FIR is lodged, chargesheet filed and specially in a case where driver after causing accident had fled away from spot, then the documents mentioned above are sufficient to establish the fact that driver of offending vehicle was negligent in causing the accident Particularly when there is no defence available from the side of driver".
14. In this petition also the petitioner has proved the negligence on the part of R1 vide copies of criminal record and the death of the deceased has been proved vide copy of postmortem report.
15. In the light of aforesaid discussions, observations and findings of this tribunal, the issue no.1 is decided in favour of the petitioner and against the respondents holding that the accident has been caused because of the rash and negligent act of R1. Issue Raj Kumari Vs Ansar & Ors. MACP NO. 48/15 Page no.8 of Page no.16 ::9::
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no.1 is disposed of accordingly.
ISSUE NO.2 " Whether the petitioners are entitled for compensation? If so, to what amount and from whom"
16. As issue no.1 is decided in favour of the petitioner in affirmative, petitioner is entitled for the compensation. Quantum of the compensation however, is required to be calculated. LOSS OF DEPENDENCY
17. Petition has been filed by petitioner being the mother of deceased.
18. It is stated in the claim petition that the deceased was unmarried and was around 24 years of age at the time of accident. In view of latest judgment of Hon'ble Delhi High Court in MAC App. No.622/14 titled as The Oriental Insurance Company Ltd. Vs. Lekharaj @ Lekh Raj & ors., the multiplier is to be applied according to the age of mother of deceased. In order to prove her age the petitioner has filed on record the copy of adhar card which shows his date of birth as 1.1.1954. Hence she was around 58 years of age at the time of accident and the appropriate multiplier Raj Kumari Vs Ansar & Ors. MACP NO. 48/15 Page no.9 of Page no.16 ::10::
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applicable as per Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 shall be of '09'.
19. It is stated in the claim petition that the deceased was working as Security Guard with Sentinels Security Pvt. Ltd. and was getting salary of Rs.15,000/ per month. The petitioner has not filed any document of employment and income of deceased. Hence in the absence of any proof of employment and income of deceased, his income shall be taken as minimum wages as per his avocation/educational qualifications. The petitioner has filed on record the copy of matriculation certificate of deceased. Hence the income of the deceased is taken as Rs.8528/ which were the minimum wages of a matriculate on the date of accident. There shall be no addition towards the future prospects of deceased. Reliance is placed on The Oriental Insurance Company Ltd. Vs. Lekharaj @ Lekh Raj & ors(supra).
20. As the deceased was unmarried ½ is to be deducted towards the personal and living expenses of deceased. The income of the deceased after deduction towards personal and living Raj Kumari Vs Ansar & Ors. MACP NO. 48/15 Page no.10 of Page no.16 ::11::
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expenses shall be Rs.4264/.
21. Keeping in view the above discussions, following sum shall be just compensation:
1. Loss of dependency(Rs.4264x12x9) = Rs.4,60,512/
2. Loss of love and Affection =Rs.1,00,000/
3. Loss of Estate =Rs.10,000/
4. For funeral expenses = Rs.25,000/ Total =Rs.5,95,512/ (Rs. Five Lacs Ninety Five Thousand Five Hundred Twelve only) INTEREST
22. There is no material on record to withhold the interest and as such, the petitioners are awarded interest @ 9% per annum from the date of filing of the petition i.e.09.4.2015 till its realization. RELEASE
23. Out of the award amount, 50% shall be released to petitioner and remaining amount be kept in two FDRs of 25% each in UCO Bank, Patiala House Court, New Delhi for a period of three Raj Kumari Vs Ansar & Ors. MACP NO. 48/15 Page no.11 of Page no.16 ::12::
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and six years respectively.
24. No Loan or advance shall be sanctioned against FDRs without prior permission of this tribunal. However, petitioner can withdraw monthly/quarterly interest, if she so desire. LIABILITY
25. R3 has not pleaded any violation of terms and conditions of insurance policy. However, it is contended that the accident took place due to negligence on the part of driver of trolla. Here it will be suffice to mention that in view of findings on issue no.1(supra) the negligence on the part of R1 has been prima facie proved and there is nothing on record to hold negligence on the part of driver of trolla. Therefore the said contention of insurance company does not inspire any confidence of this tribunal.
26. Admittedly the offending vehicle was being driven by R1, owned by R2 and was insured with R3. Therefore, R1 is principal tort feasor. R3 is vicariously liable. Respondents are held liable to pay the awarded amount. Since the vehicle was insured with R3, therefore, it shall pay the awarded amount. Raj Kumari Vs Ansar & Ors. MACP NO. 48/15 Page no.12 of Page no.16 ::13::
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27. In view of the above discussions, issue no.2 is decided in favour of the petitioners and against the respondents. ISSUE NO.3.
RELIEF
28. In view of findings on issues no.1 and 2, this issue is also decided in favour of the petitioners and against respondents. A sum of Rs.5,95,512/ (Rs. Five Lacs Ninety Five Thousand Five Hundred Twelve only with interest, including interim award, if any is awarded in favour of the petitioner and against the respondents.
29. The R3 shall deposit the award amount directly in the account of petitioner in UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, the R3 fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by Raj Kumari Vs Ansar & Ors. MACP NO. 48/15 Page no.13 of Page no.16 ::14::
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attaching the bank account of the insurance company with a cost of Rs.5,000/.
30. On the request of beneficiaries, Bank shall transfer the Saving Account to any other branch according to their convenience.
31. No cheque book shall be issued to the claimants without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without prior permission of the court.
32. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Account of the beneficiaries.
33. Withdrawal from the aforesaid account shall be permitted to the beneficiaries after due verification and the Bank shall issue photo Identity Card to the beneficiary to facilitate identity.
34. Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimants along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary. Raj Kumari Vs Ansar & Ors. MACP NO. 48/15 Page no.14 of Page no.16 ::15::
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35. Manager, UCO Bank, Patiala House Court Complex, New Delhi is directed not to open joint account or to release the award amount in joint account.
36. The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.
37. The petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account. However, the petitioner is at liberty to approach this court in case of any emergent need of money.
38. R3 shall inform the petitioner through registered post that the cheques of the awarded amount are being deposited so as to facilitate the petitioner to collect her cheques.
39. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi State Legal Services Authority. Further Nazir is directed to maintain the record as per the Raj Kumari Vs Ansar & Ors. MACP NO. 48/15 Page no.15 of Page no.16 ::16::
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directions given by the Hon'ble Delhi High Court in the judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no. 842/2003 dated 12.12.2014 which has been circulated vide Circular No.1028/CivilIV/DHC dated 14.1.2015.
40. File be consigned to Records after due compliance.
41. A separate file be prepared for compliance report and put up the same on 11.5.2016.
Announced in the open court. (Mohinder Virat)
on 10.2.2016 PO/MACT1, New Delhi.
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