Delhi District Court
Sukhdev Raj Mahajan-- vs Bindeshwar Gupta on 23 August, 2023
IN THE COURT OF HARVINDER SINGH, PRESIDING
OFFICER : MOTOR ACCIDENT CLAIMS TRIBUNAL-01,
(WEST), TIS HAZARI COURTS, DELHI
AWARD/JUDGMENT
MACT Case No. 77136/2016
CNR No.-DLWT01-001328-2016
1. Sukhdev Raj Mahajan
(now deceased)
through his LRs
a) Kamlesh Mahajan (wife)
b) Asthool Prakash Mahajan (son)
Both R/o 44B, LIG DDA Flats,
Motiakhan, New Delhi-110055
c) Samta Mahajan (married daughter)
W/o Sh. Neeraj Mahajan
C/o Sh. Vishas Bhandu Mahajan,
Mohalla Radha Swami, Mukerian,
District Hoshiarpur,
Punjab-144211
d) Mukta Mahajan (Married daughter)
W/o Sh. Abhishek Mahajan
R/o D-26, Satyawati Colony,
Ashok Vihar, Phase-III,
Delhi-110052
e) Diksha Mahajan (Married daughter)
W/o Sh. Varun Mahajan
R/o H-601, Swarn Residency,
132, Grand Trunk Road,
Sahibabad, Ghaziabad,
U.P.201005
..............Applicant(s)/Petitioner(s)
Versus
1. Bindeshwar Gupta (Driver)
S/o Sh. Jai Govind
Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
[MACT No.77136/2016] Page No.1 of 30
Digitally signed
HARVINDER by HARVINDER
SINGH
SINGH Date: 2023.08.24
16:43:16 +0530
R/o S-1041, Mangolpuri,
New Delhi-110083
2. Shyam Sunder Bharadwaj (Owner)
S/o Prem Nath Bharadwaj
R/o A-101-102, A Block, H. no. 51-111,
Jain Park, Uttam Nagar, New Delhi-110059
3. IFFCO-Tokio General Insurance Company Ltd.
Through its Divisional Manager,
Corporate Office at
4Th and 5th Floor, IFFCO Tower,
Plot No. 3, Sector 29, Gurgaon-122001
................ Respondent(s)
Date of Institution : 16.05.2016
Date of reserving order/judgment : 23.08.2023
Date of pronouncement : 23.08.2023
FORM-XVII
COMPLIANCE OF THE PROVISIONS OF THE
MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 11.05.2014
2. Date of filing of Form-I - Form-1 (FAR) was not filed First Accident Report (FAR) in the present matter
3. Date of delivery of Form-II Form-II was not filed in the to the victim(s) present matter
4. Date of receipt of Form-III Form-III was not filed in the from the Driver present matter
5. Date of receipt of Form-IV Form-IV was not filed in the from the Owner present matter
6. Date of filing of the Form-V- Form-V (IAR) was not filed Interim Accident Report in the present matter (IAR)
7. Date of receipt of Form-VIA Form VIA & VIB were not and Form-VIB from the filed in the present matter Victim(s) Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
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8. Date of filing of Form-VII - 20.11.2014(filed in the Detailed Accident Report connected MACT Petition (DAR) bearing No. 476661/2016)
9. Whether there was any delay No or deficiency on the part of the Investigating Officer? If so, whether any action/ direction warranted?
10. Date of appointment of the Date not mentioned Designated Officer by the Insurance Company
11. Whether the Designated Yes Officer of the Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay No or deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the Legal offer was not filed by claimant(s) to the offer of the insurance company Insurance Company
14. Date of the award 23.08.2023
15. Whether the claimant(s) Yes was/were directed to open savings bank account(s) near their place of residence?
16. Date of order by which 27.02.2018 claimant(s) was/were directed to open savings bank account(s) near his place of residence and produce PAN Card and Aadhaar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
[MACT No.77136/2016] Page No.3 of 30 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.08.24 16:43:26 +0530 effect on the passbook. 17. Date on which the claimant(s) 17.05.2023 produced the passbook of their savings bank account near the place of their residence along-with the endorsement, PAN Card and Adhaar Card? 18. Permanent Residential Petitioner no.1 & 2 are R/o Address of the claimant(s). 44B, LIG DDA Flats, Motiakhan, New Delhi- 110055 Petition no.3 is R/o Mohalla Radha Swami, Mukerian, District Hoshiarpur, Punjab-144211 Petitioner No. 4 Mukta Mahajan is R/o D-26, Satyawati Colony, Ashok Vihar, Phase-III, Delhi- 110052 Petitioner No.5 Diksha Mahajan is R/o H-601, Swarn Residency, 132, Grand Trunk Road, Sahibabad, Ghaziabad, U.P.201005 19. Whether the claimant(s) Yes savings bank account(s) is/are near his/her/their place of residence? 20. Whether the claimant(s) Yes was/were examined at the time of passing of the award to ascertain his/her/their financial condition?
Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
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SINGH Date: 2023.08.24
16:43:31 +0530
FACTUAL POSITION & PLEADINGS
1. Vide this judgment/award, this Tribunal shall decide claim of compensation on account of injuries sustained by Sukhdev Raj Mahajan (since deceased) in a road vehicular accident which took place on 11.05.2014 at about 6 AM at Near S.P.M College, Rohtak Road, Punjabi Bagh, New Delhi. It is pertinent to mention here that the petition was filed by injured deceased Sukhdev Raj Mahajan, however, he expired during pendency of this petition and his LRs were allowed to pursue present petition on behalf of injured deceased vide orders dated 25.07.2017.
CASE OF PETITIONER SIDE
2. Succinctly, the case put forward by petition is that on 11.05.2014 at about 6 AM, injured Sukhdev Raj Mahajan (since deceased) was waiting for bus at Bus Stop situated near S.P.M College, Rohtak Road, Punjabi Bagh, New Delhi along with other people. In the meantime, one Gramin Seva bearing registration No. DL2W2105 came in rash manner, negligent manner and hit the injured (since deceased) and other pedestrians. Due to same, injured (since deceased) sustained grievous injuries. Injured (since deceased) expired on 06.03.2017. FIR No. 370/2014 u/s 279/337/304A IPC was registered at PS Punjabi Bagh against the respondent no.1. The incident happened solely due to rash and negligent driving of respondent no.1. Injured (since deceased) was a businessman and was earning Rs.37,000/- per month at the time of incident. The petitioners have claimed a sum of Rs.35,00,000/- as compensation from the respondents.
Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
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SINGH Date: 2023.08.24
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MISCELLANEOUS PROCEEDINGS
3. Notice of the application/petition was issued to the respondents, they appeared and filed their WS/reply to the present petition/application. It is pertinent to mention here that no steps were taken by petitioner side to summon to serve notice of petition upon Maruti Suzuki Insurance Agency Ltd. who was arrayed as respondent no.4 in petition at the time of filing of petition. So, said respondent was never served and has never participated in the proceeding of this petition. RESPONSE OF RESPONDENT NO.01
4. In gist, the response of the respondent no.01/Driver as discernible from his reply/written statement is that this petition is abuse of process of law. Claimants have not come before this Tribunal with clean hands. The present DAR is not maintainable and is liable to be dismissed as no accident took place either with vehicle in question or due to negligence of the respondent no.1. The vehicle of the respondent no.1 has been falsely implicated in the present case. The respondent no.1 was having a valid driving license at the time of incident. All other contents of petition were denied by respondent no.1. With these main contentions, respondent no.1 prayed for dismissal of the petition. RESPONSE OF RESPONDENT NO.02
5. No WS/reply was filed by the respondent no.02 despite many opportunities.
RESPONSE OF RESPONDENT NO.03
6. In gist, the response of the respondent no.03/IFFCO Tokio General Insurance Company Limited as discernible from its reply/written statement is that vehicle bearing registration No. Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
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DL2W2105 was not insured with it at the time of incident. The policy bearing no. MII 1212150008999 purportedly issued in the name of Shyam Sunder is fake one. Maruti Insurance Agency Service Ltd was authorized by respondent No.3 IFFCO Tokio General Insurance Company to issue insurance policies in respect of vehicles manufactured by Maruti Suzuki Company only. The said agency was not authorized to issue insurance policy for TATA Magic Gramin Seva or other vehicles. With these contentions, respondent No.03 prayed for dismissal of the present petition.
ISSUES 7.1 After completion of pleadings, the scholarly predecessor of this tribunal framed following issues on 08.08.2018: -
1. Whether the injured Sh. Sukhdev Mahajan (since deceased) suffered injuries in the accident that took place on 11.05.2014 at about 6 am due to rash and negligent driving of vehicle bearing registration No. DL2W2105 driven by the respondent no.1 Sh. Bindeshwar Gupta and being owned by the respondent no.2 and insured with the respondent no.3? OPP.
2. Whether the applicant(s) is/are entitled to compensation, if yes, of what amount and from whom? OPP
3. Relief.
7.2 Thereafter, matter was fixed for evidence of petitioner side.
PETITIONER SIDE EVIDENCE 8.1 The petitioner(s)/claimant(s) examined petitioner No.1 as PW-1 to establish their claim. She tendered her evidence by way of affidavits Ex.PW1/A & Ex.PW1/A reiterating and Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.[MACT No.77136/2016] Page No.7 of 30 Digitally signed by
HARVINDER HARVINDER SINGH SINGH Date: 2023.08.24 16:43:45 +0530 supporting the contents of their application/petition. She relied upon FIR bearing No. 370/14 Ex.PW1/1, copies of various treatment & medical bills of deceased Ex.PW1/2, computer generated copy of ITR for the assessment year 2015-16 of deceased Ex.PW1/3, copy of insurance policy Ex.PW1/4, copy of FIR and insurance policy available in the connected matter titled as Hansi Devi vs. Bindeshwar Gupta Ex.PW1/5, original discharge summary (medical history) of deceased Sh. Sukhdev Raj Mahajan along with medical bills Ex.PW1/6 in her evidence. PW1 was cross-examined at length by Ld. Counsels for respondents which is not reproduced herein for sake of brevity and was discharged.
8.2 Petitioner side has further examined IO ASI Suresh Kumar as PW-2 who deposed that on 11.05.2014, he has registered the FIR bearing No. 370/14 PS Punjabi Bagh, West Delhi. He registered the case on the basis of statement of Sh. Satish Kumar who was admitted in hospital vide MLC No. 394/14. Sukhdev Raj Mahajan was shifted to another hospital and was not in a position to given statement. PW2 was cross- examined at length by Ld. Counsels for respondents which is not reproduced herein for sake of brevity and was discharged. 8.3 The petitioner side has also examined petitioner Ms. Mukta Mahajan as PW-3 who deposed that she is daughter of the deceased. She attended the phone call of the police station on 11.05.2014. She along with her mother visited Maharaja Agarsen hospital. In said hospital, she came to know that her deceased father has suffered multiple fractures, head injury, leg injury, rib fractures etc. Her father was absolutely restless and was shifted Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
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to B.L. Kapoor hospital. He remained admitted in B.L. Kapoor hospital for a period of 15 days. The lungs of her deceased father start getting filled on account of injuries suffered by him. He used to become unconscious also. His condition did not improve despite discharge from hospital and he remained in the same condition for period of two years. Her father expired on 06.03.2017. PW3 was cross-examined at length by Ld. Counsels for respondents which is not reproduced herein for sake of brevity and was discharged.
RESPONDENT SIDE EVIDENCE 9.1 The respondent no.01 examined himself as R1W1. He in gist vide his affidavit of evidence Ex.R1W1/A has deposed that no accident took place either with the vehicle in question or due to any negligence on his part. He has been falsely implicated in the present matter. R1W1 was examined, cross-examined and discharged.
9.2 The respondent no.03 IFFCO Tokio General Insurance Company Ltd has examined Sh. Archit Ashwani, Deputy Manager, Legal Department, Maruti Suzuki India Ltd as R3W1. He in gist has deposed that no details of insurance of vehicle No. DL-2W-2105 or of policy no. MI1121215000899 in the name of Shyam Sunder Bhardwaj is available in their records. Maruti Insurance Agency Services Ltd. used to deal only with Maruti manufactured vehicles. Maruti Insurance Agency Services Ltd. has merged with Maruti Suzuki India Ltd. R3W1 was examined, cross-examined and discharged. 9.3 The respondent no.03 IFFCO Tokio General Insurance Co. Ltd. has also examined Sh. Sidhant Jaiswal, its Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
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Assistant Manager(Legal) as R3W2. He in gist vide his affidavit of evidence Ex.R3W2/A has deposed that vehicle bearing No. DL-2W-2105 was not insured with respondent no.3 at the time of incident. Maruti Insurance agency Service Ltd was authorized by respondent no.3 to issue insurance policies in respect of vehicles manufactured by Maruti Suzuki Company only. R3W1 relied upon copy of notice under Order XII Rule 8 CPC Ex.R3W2/1, its postal receipt Ex.R3W2/2, returned undelivered envelope Ex.R3W2/3 and copy of insurance policy Ex.R3W2/4 in his evidence. R3W2 was examined, cross-examined and discharged. FINAL ARGUMENTS/SUBMISSIONS/CONTENTIONS 10.1 Submissions/contentions of the petitioner side are that the petitioner side has positively proved that the incident took place due to rash and negligent driving of the respondent no.01. The deceased was 69 years of age, was a businessman and was earning Rs.37,000/- per month at the time of incident. He expired due to injuries sustained in the incident. Award may be passed by this Tribunal as per entitlement/claim of applicant(s)/claimant(s)/LR(s).
10.2 Submissions/contentions of the respondent no.01 are that the petitioner side has failed to prove that incident in question took place due to rash and negligent driving of respondent no.1. No accident took place with the vehicle in question. Respondent no.1 has been falsely impleaded in the present matter. With these contentions, respondent no.01 has prayed for dismissal of the present claim petition. 10.3 Submissions/contentions of the respondent no.03 IFFCO Tokio General Insurance Co. Ltd. are that the petitioner Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
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side has failed to prove that incident in question took place due to rash and negligent driving of respondent no.1. Vehicle bearing registration No. DL2W2105 was not insured with respondent no.3 at the time of incident. The policy bearing no. MII 1212150008999 issued in the name of Shyam Sunder is fake one. It was not issued by Maruti Insurance Agency Service Ltd. as it was authorized by respondent No.3 IFFCO Tokio General Insurance Company to issue insurance policies qua vehicles manufactured by Maruti Suzuki Company only. The said agency was not authorized to issue insurance policy of a TATA Magic Gramin Seva/vehicle in question. With these contentions, respondent no.03 has prayed for dismissal of the present claim petition.
10.4 No arguments have been addressed by respondent no.2.
ANALYSIS/FINDINGS ON ISSUES 11.1 (1) Whether the injured Sh. Sukhdev Mahajan (since deceased) suffered injuries in the accident that took place on 11.05.2014 at about 6 am due to rash and negligent driving of vehicle bearing registration No. DL2W2105 driven by the respondent no.1 Sh. Bindeshwar Gupta and being owned by the respondent no.2 and insured with the respondent no.3? OPP.
11.2 Before adverting to the facts of the present petition for deciding the above issue, at the very outset, it would be apposite to note here that the procedure followed by an accident claim tribunal is similar to what is followed by a civil court. In civil matters the facts are required to be established by way of preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubt as is required in a criminal Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
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prosecution. The burden of proof in a civil case is not as heavy as it is in a criminal case and in a claim petition under the M. V. Act, this burden is even lesser than a civil case. Reference in this regard can be made to the prepositions of law laid down by the Hon'ble Supreme Court of India in case of "Bimla Devi and others Vs. Himachal Road Transport Corporation and Ors." reported in (2009) 13 SC 530, which were reiterated in the subsequent judgments in the case of "Parmeshwari Vs. Amir Chand and Ors." 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and "Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors.", 2018 Law Suit (SC) 303 etc. 11.3 Now keeping in mind the aforesaid legal principle/preposition for decision of the present issue, this Tribunal has gone through the testimony of the witnesses and entire material available on record. This Tribunal has also given thoughtful consideration to arguments addressed by Ld. Counsels for the parties.
11.4 The Hon'ble Supreme Court of India in its full bench decision in matter "United India Insurance Company Limited Vs. Shila Datta & Ors." (2011) 10 SCC 509 has made following observations about inquiry contemplated under MV Act:-
"5. A claim petition for compensation in regard to a motor accident (filed by the injured or in case of death, by the dependant family members) before the Motor Accident Claims Tribunal constituted under section 165 of the Act is neither a suit nor an adversarial lis in the traditional sense. It is a proceedings in terms of and regulated by the provisions of Chapter XII of the Act which is a complete Code in itself. We may in this context refer to the following significant aspects in regard to the Tribunals and determination of compensation by Tribunals:
(i) A proceedings for award of compensation in regard to a motor accident before the Tribunal can be initiated Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.[MACT No.77136/2016] Page No.12 of 30 Digitally signed
HARVINDER by HARVINDER SINGH SINGH Date: 2023.08.24 16:44:07 +0530 either on an application for compensation made by the persons aggrieved (claimants) under section 166(1) or section 163A of the Act or suo moto by the Tribunal, by treating any report of accident (forwarded to the tribunal under section 158(6) of the Act as an application for compensation under section 166 (4) of the Act.(iii) In a proceedings initiated suo moto by the tribunal, the owner and driver are the respondents. The insurer is not a respondent, but a noticee under section 149(2) of the Act. Where a claim petition is filed by the injured or by the legal representatives of a person dying in a motor accident, the driver and owner have to be impleaded as respondents. The claimants need not inplead the insurer as a party. But they have the choice of impleading the insurer also as a party respondent. When it is not impleaded as a party, the Tribunal is required to issue a notice under section 149(2) of the Act. If the insurer is impleaded as a party, it is issued as a regular notice of the proceedings.
(v) Though the tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. On receipt of an application (either from the applicant or suo motu registration), the Tribunal gives notice to the insurer under section 149(2) of the Act, gives an opportunity of being heard to the parties to the claim petition as also the insurer, holds an inquiry into the claim and makes an award determining the amount of compensation which appears to it to be just. (Vide Section 168 of the Act).
(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to the assist it in holding the enquiry (vide section 169 of the Act).
We have referred to the aforesaid provisions to show that an award by the tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute."
11.5 The Hon'ble Supreme Court of India in matter of "Dulcina Fernandes & ors. Vs. Joaquim Xavier Cruz & Anr." (2013) 10 SCC 646 while relying upon the above full bench decision has held/observed as under:- .
Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
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"8. However, there are certain other features of the case which are more fundamental and, therefore, have to be specifically noticed. CW-2, who was at the relevant time working as the Head Constable of Main Eurtorim, Police Station, had deposed that a criminal case was registered against the first respondent in connection with the accident and that after investigation he was chargesheeted and sent up for trial. Though it is submitted at the Bar that the first respondent was acquitted in the said case what cannot be overlooked is the fact that upon investigation of the case registered against the first respondent, prime facie, materials showing negligence were found to put him on trial.. "
11.6 The Hon'ble High Court of Delhi in matter "National Insurance Company Ltd. Vs. Smt. Pushpa Rana & ors." 2009 ACJ 287 has held/observed as under:-
"11. The last contention of the appellant insurance company is that the respondents claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the Judgment of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. v. Meena Variyal. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (i) certified copy of the criminal record of criminal case in FIR NO. 955/2004, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304-A, IPC against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver.
11.7 Now keeping in mind the aforesaid legal principle/preposition for decision of the present issue, this Tribunal has gone through the testimony of the witnesses and Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.[MACT No.77136/2016] Page No.14 of 30 Digitally signed by
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entire material available on record. This Tribunal has also given thoughtful consideration to arguments addressed by Ld. Counsels for the parties.
11.8 In this matter to prove the rashness and negligence, the petitioner side has examined PW-1 who has specifically deposed that the offending vehicle bearing registration No.DL2W2105 hit her husband. She has also specifically deposed that the incident happened due to rash and negligent driving of respondent no.1. Though, it is correct that PW-1 has admitted in her cross-examination that she has not witnessed the incident but the petitioner side in the connected matter titled as Hansi Devi vs. Bindeshwar Gupta (both matter were clubbed vide orders dated 16.05.2016) has brought on record the records of case file of State vs. Bindeshwar Gupta & Ors. bearing FIR No. 370/2014 PS Punjabi Bagh u/s 279/337/304A/468/471 IPC as Ex.PW9/1 in evidence of PW-9. Ex.PW9/1 also contains the statement of deceased Satish (another injured) on which FIR in question was registered. He has stated in his said statement the place, time, manner of incident, registration number of the offending vehicle and the name of the respondent no.1 as driver of the offending vehicle which he disclosed at the time of incident. Said statement of deceased Satish certainly qualifies to be statement under Section 32(1) of The Indian Evidence Act, 1872. He has stated in his statement that incident happened due to rash and negligent driving of offending vehicle by respondent no.1. The respondent no.1 in the above connected matter has also admitted in his cross-examination that he is accused in criminal case under Section 279 IPC etc. pending before Ld. Magistrate Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
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Court and the owner/respondent no.2 is also facing trial for offences punishable under Section 468/471 IPC before said Court. The factum that driver of vehicle in question/respondent no.1 was challaned under Section 279/304A IPC after conclusion of investigation also supports and affirms the case of the petitioner side that incident happened with vehicle in question No. DL2W2105 and due to rash and negligent driving of same by respondent no.1. In given circumstances, the case of respondent no.1 that incident has not happened with vehicle in question or that he was not driving the vehicle in question at the time of incident cannot be accepted.
11.9 In totality of circumstances, this Tribunal is of the opinion that the claimant side has been able to bring on record such facts which proves almost at the scales of preponderance of probabilities that the incident in question took place due to rash and negligent driving of offending vehicle bearing registration number DL2W2105 by its driver/respondent no.01 on the date and time of the incident. Accordingly, issue no.01 is decided in favour of the petitioner(s)/claimant(s)/applicant(s) and against the respondents.
11.10 Deceased Sukhdev Raj Mahajan suffered fracture of 3, 4, 5, 6, 7 left rib. He was admitted in Dr. B. L. Kapoor Memorial Hospital, New Delhi on 11.05.2014 and was discharged on 23.05.2014. He was again admitted in Delhi Heart & Lung Institute on 31.05.2014 with complaint of left side pleural effusion (Hemothorax Following RTA), hypertension, diabetes Mellitus, CAD-Post PTCA (1999 & 2007) and was discharged on 06.06.2014. He was further admitted in Delhi Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
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Heart & Lung Institute on 17.04.2015 and diagnosed with accelerated hypertension, left contracted kidney, Type II diabetes with nephropathy, CAD, Post PTCA + stent-Lcx/OM1 (1999- DHLI), Post PTCA+Stent-LAD(2007-DHLI), H/o RTA (2014) left sided multiple ribs fractures (healed), left pleural effusion(2014), normal LV systolic function (LVEF-58%), grade II LVDD, CHF, Hypo Albuminemia, LRTI and was discharged on 27.04.2015. He was thereafter, admitted in hospitals w.e.f 01.05.2015 to 15.05.2015, 13.07.2016 to 18.07.2016, 25.09.2016 to 29.09.2016, 11.11.2016 to 15.11.2016, 16.11.2016 to 22.11.2016 and 24.01.2017 to 06.03.2017. He expired on 06.03.2017 due to resuscitated cardiac arrest with hypoxic encephalopathy, mild LV systolic Dysfunction (EF-50%), Sepsis, Acute on Chronic Kidney Disease, Anemia of Chronic Disease with Hypoproteinemia, ARDS, Cardio-Respiratory Arrest. No post mortem of deceased was got conducted to establish relation between the death and the injuries sustained by the deceased in the incident in question. The date of birth of deceased is 13.05.1944. He was certainly around 70 years of age at the time of incident. Since no direct nexus between accident in question and the death of the injured could be established on record by the petitioner side, the deceased/injured died after lapse of considerable time period from the date of incident, therefore, it could not be held that deceased died due to injuries sustained in the incident in question. Moreover, it is mentioned in documents of Delhi Heart & Lungs Institute of treatment from 17.04.2015 to 27.04.2015 that injuries/fractures sustained in the incident have healed. There could be no relation between other ailments of the Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.[MACT No.77136/2016] Page No.17 of 30 Digitally signed
HARVINDER by HARVINDER SINGH SINGH Date: 2023.08.24 16:44:31 +0530 injured deceased and the incident in question. Hence, the claim of the claimant(s)/LRs of deceased would be considered as of injuries sustained by deceased in the incident and not of death due to the incident in question.
Issue No.(ii) : - Whether the applicants are entitled to compensation, if yes, of what amount and from whom? OPP. 12.1 The applicants are certainly entitled for compensation in view of decision of above issue. Since, the present case would be considered only qua injuries sustained by deceased in the incident and the present claim is pursued by LRs of deceased, so the LRs of deceased would not be entitled for compensation of pain & sufferings and would be entitled only for loss of estate as per Section 306 of The Indian Succession Act 1925. Reliance can be placed upon decisions in matter "The Branch Manager vs. Rukumani" C.M.A. No. 278 of 2015 and C.M.P. No.1 of 2015 and in the manner titled as "Narinder Kaur v. State of H. P." II (1991) ACC 206=(1991) 2 ACJ 767 upon said issue. Hence, the claim of the LRs of deceased shall be considered and assessed accordingly.
DETERMINATION OF MEDICAL EXPENSES 12.2 The petitioner side has placed copies of various treatment & medical bills of the deceased as Ex.PW1/2 and original discharge summary (medical history) of deceased Sh. Sukhdev Raj Mahajan along with medical bills as Ex.PW1/6 on record. As per discharge summary dated 27.07.2015 issued by Delhi Heart & Lung Institute, the left side multiple ribs fractures have healed. Hence, petitioners are not entitled for the bills of injured w.e.f. 17.04.2015 till his death as those bills are related to heart ailments and other ailments of deceased which cannot be Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
[MACT No.77136/2016] Page No.18
Digitally of 30
signed
by HARVINDER
HARVINDER SINGH
SINGH Date:
2023.08.24
16:44:35 +0530
said to have any connection with the injuries sustained by injured/deceased in the incident in question. The total medical bills prior to 17.04.2015 comes out to be Rs.1,59,746/-. However, as per records, bills of Rs.1,26,107/- have already reimbursed to the injured/deceased by his mediclaim policy. Accordingly, the petitioners are entitled for Rs.33,639/- qua reimbursement of medical bills of injured/deceased.
DETERMINATION OF LOSS OF INCOME DURING TREATMENT PERIOD 12.3 The petitioner side has claimed that injured (since deceased) was a businessman and earning Rs.37,000/- per month at the time of incident. Petitioner side has placed on record computer generated ITR for the assessment year 2015-16 as Ex.PW1/3. But the said ITRs has been filed on 27.06.2016 i.e. after the incident in question, therefore, same cannot be relied upon as proof of income. Hence, petitioner side has failed to prove any definite profession/work and income amount of injured (since deceased) at the time of incident. The petitioner side has also not filed any educational qualifications documents of injured(since deceased). So, the income of the injured (since deceased) needs to be assessed on the basis of chart available of minimum wages of unskilled person of State of NCT of Delhi as on date of incident. The minimum wages for an unskilled person of State of NCT of Delhi as on date of accident i.e. 11.05.2014 were Rs.8554/-per month.
12.4 Accordingly, the monthly income of the injured (since deceased) needs to be considered as Rs.8554/- per month on the date of accident.
Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
[MACT No.77136/2016] Page No.19 of 30 Digitally signed HARVINDER by HARVINDER SINGH SINGH Date: 2023.08.24 16:44:39 +0530 12.5 Considering the nature of injuries and duration of
the treatment of the injured (since deceased), this tribunal is of the opinion that injured(since deceased) must have not been able to work for about 12 months. Accordingly, this tribunal hereby grant compensation of sum of Rs.1,02,648/- (Rs.8554/- x 12) towards loss of income during treatment period. AWARD QUA SPECIAL DIET 12.6 Though, there is no cogent evidence on record of money spent by the petitioner side upon special diet, yet considering the nature of injuries suffered by the injured (since deceased) and duration of his treatment in the hospitals, this Tribunal is of the opinion that petitioner side must have spent some money under this head. Hence, this Tribunal hereby grant compensation of Rs.20,000/- towards expenses incurred on special diet.
AWARD TOWARDS ATTENDANT CHARGES 12.7 Though, there is no cogent evidence on record of the money spent by the petitioner side upon attendant, yet considering the nature of injuries suffered by the injured (since deceased) and the duration of the treatment of the injured (since deceased) in the hospital, this tribunal is of the opinion that petitioner side must have spent some money under this head also. Hence, this Tribunal hereby grant compensation of Rs.20,000/- towards attendant charges.
AWARD TOWARDS CONVEYANCE CHARGES 12.8 Though there is no cogent evidence on record of money spent by the petitioner side upon conveyance, yet considering the nature of injuries suffered by the injured (since Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
[MACT No.77136/2016] Page No.20 of 30 Digitally signed HARVINDER by HARVINDER SINGH SINGH Date: 2023.08.24 16:44:43 +0530
deceased), this Tribunal is of the opinion that the injured (since deceased) must have been spent some money under this head. Hence, this Tribunal hereby grant compensation of Rs.20,000/- towards expenses incurred on conveyance. IN THE CIRCUMSTANCES OF THE CASE, THIS TRIBUNAL AWARD THE COMPENSATION AS TABULATED HEREIN BELOW : -
S.No. Heads of Compensation Amount in rupees
1. Reimbursement of medical Rs.33,639/-
expenses
2. Compensation on account of NIL future treatment
3. Conveyance 20,000/-
4. Special diet 20,000/-
5. Attendant charges 20,000/-
6. Loss of Income during 1,02,648/-
treatment period Total 1,96,287/-
R E L I E F:-
13. This Tribunal hereby pass an award of Rs.1,96,287/- (Rupees One Lakh Ninety Six Thousand Two Hundred and Eighty Seven Only) as compensation with interest at the rate of 7% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. 16.05.2016 (excluding interest w.e.f. 03.10.2016 to 15.10.2019 which was ordered to be excluded vide order dated 03.10.2016) till the date of the payment of the award amount, in favour of Legal Heirs of injured (since deceased) and against the respondents according to discussion on apportionment of liability. R E L I EF / ISSUE NO.03
14. This Tribunal hereby pass an award of Rs.1,96,287/- (Rupees One Lakh Ninety Six Thousand Two Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
[MACT No.77136/2016] Page No.21 of 30 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.08.24 16:44:48 +0530
Hundred and Eighty Seven Only) as compensation along-with interest @ 7% per annum (including interim award, if any) from the date of filing the DAR/claim petition i.e. 16.05.2016 till the date of the payment of award amount (exluding period 03.10.2016 to 15.10.2019), in favour of the petitioner(s) and against the respondents on account of their liability being joint and several as per orders of apportionment of liability. APPORTIONMENT OF LIABILITY 15.1 In this matter, one copy of insurance policy bearing No. MII 1212150008999 was collected by IO at the time of investigation. The same was found to be fake and consequently, the owner/respondent no.2 was chargesheeted for offences punishable under Section 467/468 IPC by the investigating agency which is clear from the deposition of respondent no.1. The said insurance policy is purportedly issued by Maruti Suzuki Agency Services Ltd. on behalf of respondent no.3 as being its authorized agent. The respondent no.3 has taken stand since inception that said policy is fake one. The authorized agent in question of the respondent no.3 never issued policies qua vehicles other than make Maruti Suzuki Company Ltd. whereas the vehicle in question purportedly insured vide said policy is a TATA Magic. It has come on record in the evidence of respondent no.1 that the owner/respondent no.2 is facing trial for offences punishable under Section 468/471 IPC before Ld. MM Court. Same leaves no doubt that said purported policy was found fake by police during investigation. It was argued by the petitioner side that the respondent No.3 has not taken concrete steps against the alleged persons who have provided fake Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
[MACT No.77136/2016] Page No.22 of 30 Digitally signed by HARVINDER HARVINDER SINGH
SINGH Date: 2023.08.24
16:44:53 +0530
insurance policy, therefore, the respondent no.3 be asked to indemnify on behalf of respondent no.1 & 2. The petitioner side has relied upon judgment in matter of "Iffco Tokio General Inurance Co. Ltd. vs. Ram Naresh & Ors." to buttress their point. This tribunal has considered the totality of circumstances of the present matter and the citation relied upon by the petitioner side in support of their contentions. The judgment relied upon by the petitioner side was passed by the Hon'ble High Court of Delhi in a matter where the police has not challaned the owner for carrying fake policy. In the present matter, police has challaned the owner/respondent no.2 for carrying a fake policy. Hence, ratio of judgment relied upon by the petitioner side is not applicable to the facts and circumstances of this case. 15.2 The Hon'ble High Court of Delhi recently in matter of "Shriram General Insurance Co. Ltd. vs. Kamlesh Jha & Ors." 2023 DHC 3467 in para No. 13 has held as under:-
"13. Given the finding of the Ld. Tribunal that the cover note was fake and thus, the offending vehicle was not insured with the appellant-Insurance company at the time of the accident, coupled with the settled legal position as stated above, the Insurance Company cannot be directed to pay the compensation amount to the claimant and then recover the same from the owner and driver of the offending vehicle, therefore, the appellant-Insurance company deserves to be exonerated in toto and no liability can be fastened upon the insurance company."
15.3 In view of above discussions, the respondent No.3 Insurance Company could not be asked to indemnify respondent no.1 & 2 as insurer in this matter. In this age of computerization, Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
[MACT No.77136/2016] Page No.23 of 30 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.08.24 16:44:58 +0530
preparation of fake electronic documents is very easy. A insurance company cannot be expected to run after each and every scurplus person who has prepared such a fake document. It has taken sufficient steps in the form of making complaint to police and sending letter to R.T.O. qua fake policy in question. Hence, the respondent no. 3 cannot be asked in any manner to indemnify respondent no.1 & 2 in this matter. So, only respondent no.1 & 2 are held jointly and severely liable to pay compensation to the claimants.
15.4 Respondent no.1 & 2 are hereby directed to deposit the whole of award amount in favour of the petitioner(s) with State Bank of India, Tis Hazari Courts, Delhi in MACT Account of this Tribunal having Account No.40711767202, CIF No.90891362578, IFSC Code - SBIN0000726, 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 intimation to this Tribunal and under intimation to the petitioner(s)/claimant(s)/applicant(s). In case of any delay, it shall be liable to pay interest at the rate of 9% per annum for the period of delay.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANT(S) AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP) 16.1 The applicant(s)/petitioner(s) was/were examined under MCTAP on 17.05.2023 and his/her/their statement(s) considered.
16.2 Hon'ble High Court of Delhi in FAO No.842/2003 titled as "Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors." has formulated MACAD (Motor Accident Claims Annuity Deposit Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
[MACT No.77136/2016] Page No.24 of 30 Digitally signed by HARVINDER HARVINDER SINGH
SINGH Date: 2023.08.24
16:45:02 +0530
Scheme) vide its order dated 07.12.2018. The same has been made effective from 01.01.2019. Said order provides 21 banks including State Bank of India as one of the banks which have to adhere to MACAD. The State Bank of India, Tis Hazari Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by Hon'ble High Court of Delhi. 16.3 Keeping in view the entirety of the facts and circumstances of the present case and the above-said guidelines laid down by Hon'ble High Court of Delhi, the respondent no.1 & 2 are directed to deposit the award amount of Rs.1,96,287/- (Rupees One Lakh Ninety Six Thousand Two Hundred and Eighty Seven Only) with interest as stated herein above with State Bank of India, Tis Hazari Courts, Delhi in the MACT Account of this Tribunal having Account No.40711767202 CIF No.90891362578, IFSC Code - SBIN0000726, Tis Hazari Courts, Delhi in favour the petitioner(s)/applicant(s)/claimant(s) as stated herein above.
16.4 Manager, State Bank of India, Tis Hazari, Tis Hazari Court Complex, Delhi is directed to release Rs.1,96,287/- (Rupees One Lakh Ninety Six Thousand Two Hundred and Eighty Seven Only) along-with interest in MACT Account bearing No. 09081000013916 with Punjab & Singh Bank, 3 MM II Panchkuian Road, Delhi Branch of petitioner no.1 Smt. Kamlesh Mahajan, MACT Account bearing No. 09081000013918 with Punjab & Singh Bank, 3 MM II Panchkuian Road, Delhi Branch of petitioner no.2 Ashthool Prakash Mahajan, MACT Account bearing No. 09081000013917 with Punjab & Singh Bank, 3 MM II Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
[MACT No.77136/2016] Page No.25 of 30 Digitally signed by HARVINDER HARVINDER SINGH
SINGH Date: 2023.08.24
16:45:07 +0530
Panchkuian Road, Delhi Branch of petitioner no.4 Mukta Mahajan as mentioned/directed hereinafter in tabulated form.
16.5 The Manager, State Bank of India, Tis Hazari Courts, Delhi is also directed to release/disburse share of award amount of petitioner No.3 Samta Mahajan and petitioner No.5 Diksha Mahajan to be disclosed by the petitioner side vide separate application within 15 days from today as mentioned/directed hereinafter in tabulated form. 16.6 The compensation to the petitioner(s) shall be distributed/disbursed as follows : -
Sr. Name of Age/ Relation Award Amount of Amount kept Period of FDRs No. petitioner DOB/ with Amount in award to be in FDRs in with cumulative / Year of injured/ Rupees released in Rupees interest in claimant birth deceased Rupees Rupees
1. Kamlesh 05.09.19 Wife 1,36,287/- 1,36,287/- + Nil Nil Mahajan 57 1/5th interest accumulated
2. Ashtool 04.08.19 Son 15,000/- 15,000/-+ Nil Nil Prakash 94 1/5th interest Mahajan accumulated
3. Samta Not Daughte 15,000/- 15,000/-+ Nil Nil Mahajan mention r 1/5th interest ed accumulated
4. Mukta 06.12.19 Daughte 15,000/- 15,000/-+ Nil Nil Mahajan 79 r 1/5th interest accumulated
5. Diksha 26.11.19 Daughte 15,000/- 15,000/-+ Nil Nil Mahajan 82 r 1/5th interest accumulated TOTAL Rs.1,96,287/-
16.7 In accordance with the orders dated 08.02.2019 passed by Hon'ble High Court of Delhi in FAO no. 842/2003 in "Rajesh Tyagi and others Vs. Jaibir Singh and Ors.", Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.[MACT No.77136/2016] Page No.26 of 30 Digitally signed by HARVINDER
HARVINDER SINGH SINGH Date: 2023.08.24 16:45:12 +0530 Officer of State Bank of India having Phone No.022- 22741336/9414048606 and e mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted. A copy of this order be sent by e-mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of Hon'ble High Court of Delhi as given in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by Hon'ble High Court of Delhi.
17. The respondent no.1 & 2 shall deposit the award amount with the account of this Tribunal within 45 days. In case, the award amount is deposited by respondent no.1 & 2 within 45 days, Nazir of this Tribunal shall make a report upon this award and shall also make requisite entry in the required register. In case, the award amount is not so deposited within 45 days, Nazir of this Tribunal shall put up a report after 45 days for further needful proceedings.
18. 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).
19. File be consigned to Record Room after due compliance. Digitally signed by HARVINDER HARVINDER SINGH Announced in the open Court SINGH Date: 2023.08.24 today i.e. 23.08.2023 16:45:17 +0530 (HARVINDER SINGH) ADJ-cum-PO:MACT-01, West/THC/Delhi/23.08.2023 Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
[MACT No.77136/2016] Page No.27 of 30FORM-XVI SUMMARY OF THE COMPUTATION OF AWARD AMOUNT IN INJURY CASE
1. Date of accident : 11.05.2014
2. Name of the injured : Sukhdev Raj Mahajan
3. Age of the injured : 13.05.1944
4. Occupation of the injured: Not proved
5. Income of the injured : Rs.8554/-
6. Nature of injury : Grievous
7. Medical treatment taken : 11.05.2014 till 06.03.2017
8. Period of Hospitalization : w.e.f. 11.05.2014 to 23.05.2014, 31.05.2014 to 06.06.2014, 17.04.2015 to 27.04.2015, 01.05.2015 to 15.05.2015, 13.07.2016 to 18.07.2016, 25.09.2016 to 29.09.2016, 11.11.2016 to 15.11.2016, 16.11.2016 to 22.11.2016 and 24.01.2017 to 06.03.2017
9. Whether any permanent disability ?
If yes, give details : Nil
10. Computation of Compensation
S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss :-
(i) Expenditure on treatment Rs.33,639/-
(ii) Expenditure on conveyance Rs.20,000/-
(iii) Expenditure on special diet Rs.20,000/-
(iv) Cost of nursing/attendant Rs.20,000/-
(v) Loss of earning capacity NIL
(vi) Loss of Income Rs.1,02,648/-
(vii) Any other loss which may NIL
require any special
treatment or aid to the
injured for the rest of his
life
12. Non-Pecuniary Loss :-
(i) Compensation for mental NIL
and physical shock
(ii) Pain and suffering NIL
(iii) Loss of amenities of life NIL
(iv) Dis-figuration NA
Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
[MACT No.77136/2016] Page No.28 of 30 Digitally signed by HARVINDER HARVINDER SINGH
SINGH Date: 2023.08.24
16:45:22 +0530
(v) Loss of marriage prospects NA
(vi) Loss of earning, NA
inconvenience, hardships,
disappointment, frustration,
mental stress, dejectment
and unhappiness in future
life etc.
13. Disability resulting in loss of earning capacity :-
(i) Percentage of disability NIL
assessed and nature of
disability as permanent or
temporary
(ii) Loss of amenities or loss of NA
expectation of life span on
account of disability
(iii) Percentage of loss of NIL
earning capacity in relation
to disability
(iv) Loss of future income - NIL
(Income x% Earning
Capacity x Multiplier)
14. TOTAL COMPENSATION Rs.1,96,287/-
15. INTEREST AWARDED 7% per annum
16. Interest amount up to the Rs.58,204/-
date of award (w.e.f. 16.05.2016 to
23.08.2023 excluding
interest w.e.f.
03.10.2016 to
15.10.2019) which
comes to be 4 years 2
months and 25 days
17. Total amount including Rs.2,54,491/-
interest (Rs.1,96,287/- +
Rs.58,204/-)
18. Award amount released Entire award amount
along-with accumulated
interest
19. Award amount kept in NIL
FDRs
20. Mode of disbursement of Mentioned in the award the award amount to the claimant (s).
Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
[MACT No.77136/2016] Page No.29 of 30 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.08.24 16:45:28 +0530 21. Next date for compliance 07.10.2023 of the award. Digitally signed by HARVINDER HARVINDER SINGH SINGH (HARVINDER Date: 2023.08.24 SINGH) 16:45:33 +0530 ADJ-cum-PO:MACT-01, West/THC/Delhi/23.08.2023
Sukhdev Raj Mahajan vs. Bindeshwar Gupta & ors.
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