Delhi District Court
Smt. Anwari Begum vs M/S. Dr. Beli Ram & Sons on 8 July, 2014
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTH-EAST DISTRICT : KKD COURTS : DELHI
MACT No. 576/08/07
Unique Case Identification No:- 02402C0639752007
1. Smt. Anwari Begum
W/o Irshad Alam
R/o H.No. 446, Sunder Nagari,
Delhi (Mother)
Versus
1. M/s. Dr. Beli Ram & Sons
Through its proprietor
42, DLF Industrial Area,
Kirti Nagar, Delhi (Owner)
2. M.M. Jaipuria
S/o Sh. B.S. Ambasta
R/o MIG, Flat No. 24, Site III,
Pocket - 6, Dwarka,
New Delhi - 45
And also:
General Manager (Production)
42, DLF, Industrial Area,
Kirti Nagar, Delhi (Driver)
3.The New India Assurance Co. Ltd. (Insurance Co.)
3-10/11, Asaf Ali Road, Laxman House,
New Delhi - 02
......... Respondents
Through :
Mr.Devender Solanki, Advocate for petitioner Mr. Sanjay Dhawan, Advocate for respondent no. 2 Mr. O.P. Narayan, Advocate for respondent no. 3.
i) Date of Institution of claim petition : 24/09/2007
ii) Date when fixed for Orders : 29/04/2014
iii) Date of Decision : 08/07/2014
APPLICATION U/S 166 & 140 M.V. ACT 1988
FOR GRANT OF COMPENSATION
Kiran Bansal
P.OMACT (NorthEast), 08/07/2014
MACT No. 576/08/07 Page 1/7
AWARD
1. Mother of deceased Mehfooz has filed the present claim petition under Sec.
166 & 140 of MV Act stating that on 10/04/2006 at about 11:00 AM deceased was crossing the road at Bhopura Cheque Post, Sunder Nagri, Delhi, when all of sudden a car bearing registration no. DL 1CE 7169 came from Ghaziabad side in a rash and negligent manner and hit the deceased as a result of which deceased fell down and died on the spot. He was taken to GTB hospital where he was declared brought dead. The FIR No. 262/06 u/sec 279/304-A IPC was also registered at PS Nand Nagri in this respect.
2. Summons of the claim petition were issued to the respondents. WS was filed by respondent no. 1 and 2 denying the accident due to the involvement of offending vehicle.
Respondent no. 3 New India Assurance Co. Ltd. has also filed WS. They have admitted that the vehicle No. DL 1CE 7169 was insured with them for the period from 24/06/2005 to 23/06/2006 bearing Insurance Policy No. 323400/31/05/01279.
3. On the basis of the pleadings of the parties, following issues are framed:-
1. Whether Shri Mehfooz Alam sustained fatal injuries due to rash and negligent driving of car No. DL 1C 7169 by its driver ? OPP
2. Whether alleged accident was not caused by alleged vehicle and if so to what effect ? OPR1
3. Whether petitioners are entitled to get compensation, if so from whom and of what amount?
4. Relief
4. I have heard the counsels for both the parties and gone through the entire evidence on record carefully. My issue wise findings are as below :
5. ISSUE NO. 1Whether Shri Mehfooz Alam sustained fatal injuries due to rash and negligent driving of car No. DL 1C 7169 by its driver ? OPP Kiran Bansal P.OMACT (NorthEast), 08/07/2014 MACT No. 576/08/07 Page 2/7 ISSUE NO. 2 Whether alleged accident was not caused by alleged vehicle and if so to what effect ? OPR1 Both issues being connected are taken up together. Petitioner no. 1 has examined herself as PW1 however, she is not an eye witness to the accident. Petitioner has examined PW2 Sh. Nabi Hassan, an eye witness and he deposed about the facts of the case in his affidavit Ex. PW2/A. He was cross-examined by respondent no. 1 and 2 and during cross-examination nothing has come forward in his testimony to disbelieve the version of PW2. The respondent no.1, owner has not entered into the witness box to state as to how the accident occurred. Respondent no. 2 i.e driver has examined himself as R2W1 and has denied that any accident was caused by his vehicle and Dr. Vivek Mittal is examined as R2W2.
Respondent no. 2 has examined himself and has stated that no accident occurred with him and he is unable to drive though he had DL in his name. DL has been marked as mark A. He has also admitted that vehicle no. DL 1CE 7169 was in his possession but as earlier he had met with an accident he was unable to drive. Though, during his cross-examination he has deposed that on 10/04/2006 he had gone for physiotherapy near his house at Bansal Physiotherapy center but no such documentary proof had been placed on record. During cross-examination also he has admitted that car was in his possession and he had not kept any driver. R2W2 Dr. Vivek Mittal has deposed that the respondent no. 2 was admitted in Sant Parmanand Hospital on 15/09/2006 and was discharged on 16/09/2006. After surgery he has further deposed that when the respondent no. 2 had gone for treatment he could not have driven the car. However, accident is dated 10/04/2006. There is nothing on record to suggest that on 10/04/2006, respondent no. 2 could not drive the car. Moreover, as the driver had fled away from the spot, the probability that respondent no 2 is shielding actual driver cannot be ruled out.
In Maya Azhagar and another Vs. Thangiah and another 2012 ACJ 2529 also Kiran Bansal P.OMACT (NorthEast), 08/07/2014 MACT No. 576/08/07 Page 3/7 it was held that FIR is not a substantive piece of evidence and it cannot be placed on pedestal higher than statement on oath. In the above case of Maya also the mother of deceased could not give correct description about vehicle and it was held that the standard of proof beyond reasonable doubt could not be applied in accident claim cases. The mother of the deceased does not seem to be highly educated enough and she might have given wrong particulars about colour of vehicle.
There is no previous enmity disclosed between the petitioner and respondents. PW2 is independent witness and there is no reason as to why he would falsely implicate the respondents in the present case.
In Judgement Sudershan Singh Vs. Ravinder Uppal and Others 2013 ACJ 742 it has been held that claim petition under Motor Vehicles Act stands on higher pedestal than a civil suit, the same being filed under an Act , the intent of which is to confer benefit on the victims of motor accidents. It has further been observed that procedure and technicalities cannot be allowed to defeat the purpose of the Act. In Judgement Kalpana Devi and Others Vs. Jhagru Pandit and Others, II (2012) ACC 446 also it has been held that merely because name of witness is not mentioned in the FIR, his evidence cannot be outrightly rejected on this ground alone and if the evidence of the witness is just and reasonable and there is no inherent infirmity in evidence of witness, then his evidence should not be rejected.
In both the judgements namely H.S. Swarnalatha and Others Vs. Vice Chairman & Managing Director, Karnataka State Road Transport Corporation, 2011 ACJ 990 and Maya Azhagar and another Vs. Thangiah and another, 2012 ACJ 2529 it has been held that degree of proof before criminal court is beyond reasonable doubt while degree of proof before Tribunal is preponderance of probabilities and that the findings of criminal court are not binding on the Tribunal. It has further been observed that the Tribunal has to independently assess the evidence placed before it.
In a judgment reported as National Insurance Company Ltd. Vs. Pushpa Rana and other, 2009 ACJ 287 the Hon'ble High Court of Delhi has held that certified copies of criminal court, such as FIR, recovery memo and mechanical Kiran Bansal P.OMACT (NorthEast), 08/07/2014 MACT No. 576/08/07 Page 4/7 inspection report of vehicle are sufficient proof to reach the conclusion that driver was negligent. Proceedings under M. V. 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.
Therefore , from the statements of the PW 2 Sh. Nabi Hassan and in view of the criminal case record regarding the accident, it is proved that the deceased Mehfooz Alam sustained fatal injuries in the accident which occurred on 10/04/2006 due to rash and negligent driving of offending vehicle bearing no. DL 1CE 7169 driven by its driver i.e Respondent no. 2. The issue is decided accordingly.
6. ISSUE NO. 3Whether petitioners are entitled to get compensation, if so from whom and of what amount?
As per the mother of the deceased i.e petitioner, the deceased was student of 3rd class in MCD School, Delhi and there is no other legal heir of deceased as the whereabouts of the father of deceased are not known since 03/02/2004. As per the burial receipt Ex.PW1/2, the age of the deceased was 7 years and as per the certificate from Govt. School dated 17/04/2006 issued by the Head Mistress Ex. PW1/3 the DOB of deceased was 11/09/1998. As per the postmortem report, the age of the deceased was 7 years in the year 2006. Thus, the deceased was 7 years old on the date of accident.
PW1 Smt. Anwari Begum, mother of the deceased child has stated in her affidavit Ex.PW1/A that deceased was 7 years of age and possessed sound mind and good health without any kind of ailment or voice at the time of accident.
The law has been well settled that the notional income of the deceased is to be taken to be Rs.15,000/- p.a., and applying the multiplier of 15, petitioners no.1 shall be entitled to a loss of dependency of Rs.2,25,000/-. The petitioner is further entitled to compensation of Rs.75,000/- towards future prospects in terms of the judgment of Hon'ble Supreme Court in "R. K. Malik vs Kiran Pal, 2009, ACJ, 1924 (SC)". The petitioner is also entitled to a further sum of Rs.75,000/- as non pecuniary damages as per the said judgment. Thus, the petitioner is entitled to a total compensation of Rs.
Kiran Bansal P.OMACT (NorthEast), 08/07/2014 MACT No. 576/08/07 Page 5/7 3,75,000/- (Rs.2,25,000/- + Rs.75,000/- + Rs.75,000/-).
7. Liability Respondent no.3 is the insurance company which admittedly has issued a valid insurance policy to the offending vehicle. Respondent no.3 being insurance company in its written statement has admitted that there is valid insurance policy issued from 24/06/2005 to 23/06/2006 forming part of the Insurance Policy No. 323400/31/05/01279 . There is no evidence on behalf of respondent no.3 to show that there was any violation of the rules and terms of policy by the respondents no.1 & 2. Hence, I am of the opinion that respondent no.3 being insurance company is liable to pay the compensation on behalf of respondents no.1 & 2.
8. Relief Award is passed directing Respondent no. 3, M/s New India Assurance Co. Ltd. to pay to the petitioner a sum of Rs. 3,75,000/- (including interim award) by way of depositing cross cheque in favour of petitioner, along with interest @ 7.5% per annum from the date of filing of the claim petition (i.e. 24/09/2007). If award is not complied within 30 days, respondent no.3 shall pay penal interest @ 12% p.a. for the default period. Upon deposit of award amount, cheque be deposited in any nationalized bank and the bank manager of said bank is directed to prepare FDRs of the 50% of the award amount in the name of the petitioner for a period of five years with monthly interest to be credited in her saving bank accounts and the remaining amount be released to petitioner. Branch Manager shall comply with following directions :-
(a) Withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card of petitioners to facilitate identity.
(b) No cheque book be issued to the petitioner without the permission of the court.
(c) The original fixed deposit receipts shall be retained by the bank in the safe custody. However, the original pass book shall be given to the petitioner Kiran Bansal P.OMACT (NorthEast), 08/07/2014 MACT No. 576/08/07 Page 6/7 along with photocopy of the FDRs.
(d) The original fixed deposit receipt shall be handed over to the petitioner on the expiry of the period of the FDRs.
(e) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
(f) Half yearly statement of account be filed by the bank in the court.
(g) The petitioner shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to the Branch Manager, any nationalized bank.
9. Put up for compliance on 08/08/2014.
Attested copies of the award be furnished to the concerned parties from court for compliance.
Pronounced in Open Court on (KIRAN BANSAL)
08/07/2014 P.O. MACT(North-East)
KKD Delhi
Kiran Bansal
P.OMACT (NorthEast), 08/07/2014
MACT No. 576/08/07 Page 7/7