Delhi District Court
Sh. Mukesh Garg (Father Of Deceased) vs Sh.Mandeep Shokeen @ Tippu S/O Sh. Barhm ... on 30 September, 2011
IN THE COURT OF SHRI CHANDRA BOSE : JUDGE :
MACT : DELHI
MACT No. : 182/09
UNIQUE ID NO. : 02404C0087032009
1.Sh. Mukesh Garg (Father of deceased)
2. Smt. Anita ( Mother of deceased)
Both R/o H. No. 1034/70, Deva Ram Park, Tri Nagar, Delhi
.........Petitioners
Versus
1. Sh.Mandeep Shokeen @ Tippu S/o Sh. Barhm Prakash
R/o A1, Hargobind Vihar, Sector4,
Rohini, Delhi
2. Mr. Barhm Parkash S/o Sh. Ram Naraina
R/o A1, Hargobind Vihar, Sector4, Delhi
3. Reliance General Insurance Co. Ltd
Reliance Centre, 19, Walchand Hirachand Marg,
Ballard Estate, Mumbai
.......Respondents
DATE OF INSTITUTION : 10.02.09
DATE OF RESERVING ORDER : 19.07.11
DATE OF PRONOUNCEMENT : 30.09.11
MACT NO. 182/09 1 of 17
A W A R D
1. This claim petition filed u/s 166 & 140 of M.V. Act, 1988 by legal representatives of deceased Tanvi who are his parents seeking compensation to the tune of Rs.10 lacs for his accidental death against Sh. Mandeep Shokeen, Sh. Barhm Parkash and Reliance General Insurance Co. Ltd. (hereinafter to be referred as R1, R2, and R3 respectively).
2. The brief facts of the case of petitioners, as per claim petition, are that on 12.12.08 at about 12:50 night deceased along with his uncle, Aunty and cousin brothers was returning to his residence in car bearing no. DL2CAG3179 which was being driven by her uncle at normal speed and when the uncle of deceased took right turn during green signal at road no. 37, near Kanhaiya Nagar Metro Station Red Light, in the meantime, the offending vehicle Scorpio Jeep No. DL8CJ5582 which was being driven by its driver came from Tri Nagar Side at a very high speed, rashly, negligently without blowing any horn and in the contravention of the traffic rules jumped the red light and hit the car and after that the said offending vehicle dragged the maruti car 2025 meters due to which all the doors of the car opened and the deceased and all other members, as aforesaid, MACT NO. 182/09 2 of 17 fell out of the car and after dragging the car the said offending vehicle got turtled on the road and stopped after colliding with wall near a tree of Peepal. It is further stated that deceased and all other members, as aforesaid, sustained multiple grievous injuries all their body. It is further stated that her uncle and aunty were removed to Trauma Centre and deceased and other passengers i.e. Master Rishab and Mukul were removed to BJRM hospital and all were declared brought dead.
3. Defence of R1 was struck of vide order dt. 31.03.10.
4. WS filed on behalf of R2 wherein it is stated that R1 was not driving the vehicle in question at the time of alleged accident and one Sh. Vijay Singh was driving the said vehicle. It has been further stated that there was no negligence on the part of the said Vijay Singh while driving the offending vehicle and he was driving his vehicle while observing the traffic rules and was holding valid and effective DL for driving the vehicle on the date of alleged accident. It is further stated that vehicle in question was insured with R3 on the date of accident and R3 is liable to pay compensation. All other facts have been denied.
5. Defence of R3 was also struck off vide order dt. 31.03.10.
6. On the basis of the pleadings of the parties, following MACT NO. 182/09 3 of 17 issues were framed on 13.05.10.
(i)Whether on 12.12.08 at about 12:50 night at Tri Nagar, Road no. 37, Near Kanhaiya Nagar, Delhi vehicle no.
DL8CJ5582 which was being driven rashly and negligently hit the maruti car no. DL2CAG3179 in which Ms. Tanvi was traveling and caused her death?OPP
(ii)Whether petitioners are entitled to compensation as prayed, if so, from which of the respondents ? OPP
(iii)Relief.
7. In order to prove their case, petitioners filed affidavit of Sh. Mukesh Garg has been examined PW1. R1 has examined himself as RW1 and was crossexamined on behalf of petitioners.
8. I heard final arguments of counsel for parties. My findings on the issues are as under :
9. FINDINGS ON ISSUE NO. 1 :
10. Certified copies of criminal record has been filed. As per police report filed u/s 173 Cr.PC, involvement of vehicle Mahindra Scorpio No. DL8CJ5582 has been shown. It is submitted by counsel for petitioners that the statement of eye witness Mohd. Alam recorded in case FIR No. 329/08 before MACT NO. 182/09 4 of 17 Juvenile Justice Board has confirmed that Scorpio No. DL8CJ5582 has dashed against maruti car which turned turtled due to striking impact. On the other hand, counsel for R1 and R2 has submitted that there was no negligence on the part of driver of Mahindra Scorpio No. DL8CJ5582. No arguments have been addressed on behalf of R3.
11. I considered the submissions of counsel for petitioners and counsel for R1 and R2. PW1 Mukesh Garg has stated in his affidavit that his deceased daughter along with her uncle, aunty and cousin brothers was returning to her residence in maruti car no. DL2CAG3179 and scoropi no. DL8CJ5582 which was being driven by its driver came from Tri Nagar side at a very high speed, rashly, negligently, without blowing horn and hit the maruti car, due to which all the doors of the car were opened and his daughter and all other family members were fell out of the car and sustained multiple grievous injuries. No cross examination has been conducted on behalf of R1 and R2 regarding rash and negligent driving of vehicle no. DL8CJ5582 and thereby the testimony of this witness is remained unchallenged and uncontroverted. In case law namely NIC, Appellants Vs. Pushpa Rana & Others Respondents 2009 ACJ, 287, it has been held by the Hon'ble High Court MACT NO. 182/09 5 of 17 that Certified copy of criminal court, such as, FIR, Recovery Memo and Mechanical Inspection Report of vehicle are documents of 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.
12. Certified copy of FIR shows that vehicle no. DL8CJ5582 was involved in the accident. FIR has been registered on the statement of one Mohd. Alam. Certified copies of seizure memo of Mahindra Scorpio shows that it was seized from the spot immediately after the accident in damaged condition by the police. It was mechanically inspected and as per certified copy of mechanical inspection report, 21 damages were found. Certified copy of mechanical inspection report of Maruti Car No. DL2CAG3179 also shows that it was also badly damaged. Certified copy of PMR of Tanvi shows that she was already dead when brought by PCR official to the hospital.
13 Counsel for R1 and R2 has relied upon certified MACT NO. 182/09 6 of 17
copies of statement recorded before Juvenile Justice Board of one Mohd. Alameye witness of the case. I perused his statement. He has stated that Scorpio no. DL8CJ5582 came from Inderlok Side and dashed against Maruti Car which turned turtled due to striking impact. He has also stated that maruti car was coming from the side of Ashok Vihar and taking turn. He has also stated that injured person who had fallen on the road from Maruti car were 5 in total and were seriously injured. He has also stated that the persons who were in the scorpio car fled from the spot after living the vehicle. He has also stated that " I can not identify the person who was driving the scorpio at the time accident"
14. When I considered the certified copy of statement of of PW Mohd. Alam recorded before Juvenile Justice Board certified copies of criminal record, it is proved that vehicle scorpio i.e. DL8CJ5582 was negligent and involved in the accident.
15. In view of aforesaid discussions and reasons therein, I am of the opinion that it has been proved on behalf of petitioners that on 12.12.08 at about 12:50 am at Tri Nagar Road no. 37, Near Kanhaiya Nagar, Delhi vehicle No. DL8CJ5582 MACT NO. 182/09 7 of 17 which was being driven rashly and negligenly hit the maruti car no. DL2CAG3179 in which Ms. Tanvi was traveling and her death was caused. This issue is decided accordingly.
16. FINDINGS ON ISSUE NO.2 :
Petitioners are parents of deceased Tanvi being legal representatives, are entitled to file claim petition for her death. In case law namely Manjuri Bera, Appellants Vs. OIC and Anr. JT 2007 (5) SC 78, it has been held that the liability under section 140 of the act does not cease because there is absence of dependency. The right to file a claim application has to be considered in the background of right to entitlement. While assessing the quantum, the multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while assessing the question of entitlement. Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the quantification and Section 166 is primarily in the nature of recovery proceedings. As noted above, liability in terms of Section 140 of the Act does not cease because of absence of dependency.
MACT NO. 182/09 8 of 17
17. Section 165 of the Act also throws some light on the controversy. The explanation includes the liability under section 140 and 163A. Judged in that background where a legal representatives who is not dependent files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act.
Therefore, even if there is no loss of dependency, the claimant if he or she is a legal representatives will be entitled to compensation, the quantum of which shall be not less than the liability flowing from section 140 of the Act.
18. It was further held that " No Fault Liability"
envisaged in Section 140 of the said Act, is distinguishable from the rule of "Strict Liability". In the former, the compensation amount is fixed. It is Rs. 50,000/ in cases of death (Section 140 (2)). It is a statutory liability. It is an amount which can be deducted from the final amount awarded by the Tribunal. Since, the amount is fixed amount/crystallized amount, the same has to be considered as part of the estate of the deceased. In the present case, the deceased was an earning member. The statutory MACT NO. 182/09 9 of 17 compensation could constitute part of his estate. His legal representatives, namely, his daughter has inherited his estate. She was entitled to inherit his estate. In the circumstances, she was entitled to receive compensation under " No fault Liability " in terms of section 140 of the said Act. My opinion is confined only to the "No Fault Liability" under section 140 of the said Act. That Section is a code by itself within the Motor Vehicle Act.
19. Counsel for petitioners has also relied case law namely State of Himachal Pradesh , Appellants Vs. Dola Ram & Ors AIR 1981 (HP) 87. It has been held in the case law State of Himachal Pradesh Vs. Dola Ram (Supra) that brothers and sisters of deceased are also entitled to claim compensation. It has also been held that compensation can be claimed for loss of dependency as well as loss of estate of deceased.
20. In view of case law namely State of Himachal Pradesh Vs. Dola Ram (Supra), I am of the view that petitioners can file claim petition and are entitled to compensation.
MACT NO. 182/09 10 of 17
21. It has been claimed in the petition that deceased Tanvi was teacher in private institution and was earing Rs. 3000/ per month. In his affidavit, his father Mukesh Garg has stated that deceased was unmarried and was working as private teacher in computer centre and was getting Rs. 3000/ per month. Neither in the claim petition nor in the affidavit of Mukesh Garg has been mentioned as to where deceased was serving as teacher. Even the name and address of the employer of the deceased has also not been mentioned in the petition or in the affidavit of Mukesh Garg. Certificate regarding employment and salary of deceased Tanvi has been filed on 13.10.10. I fail to understand if deceased was working with CCMT and was getting Rs. 3000/ per month from August 2008 why this fact was not mentioned in the claim petition in the column of name and address of employer and why this fact was not mentioned in the affidavit of Sh. Mukesh Garg her father. Moreover, why this certificate was not filed with the claim petition. Moreover, no one has been examined on behalf of petitioners from CCMT to prove the fact that such certificate was issued.
22. In view of the above discussions and reasons therein, I am of the view that certificate Ex. PW1/9 is a procured document after filing the petition and the same has also not been MACT NO. 182/09 11 of 17 proved. Therefore, It is held that petitioners have failed to prove the fact that deceased Tanvi was working as private teacher and was earning Rs. 3000/ per month.
23. It has come during crossexamination of PW Mukesh that her daughter was studying through correspondence from Delhi University. In view of my finding that deceased was not working as private teacher and was earning nothing, I am of the view that she was only student and was financially dependent upon the petitioners at the time of accident. In case, she would have married, she would have been dependent on her husband. In my view, petitioners cannot be held to be financially dependent on the deceased and therefore, I of the considered opinion that there is no loss of dependency towards them. Therefore, petitioners are not entitled to compensation on account of loss of dependency. However, they are entitled to the loss of estate. Loss of estate is computed by taking of the savings of the deceased and the quantum of savings can be taken as 1/3 of the income of the deceased. In the present case, since deceased was earning nothing and was rather financially dependent upon the petitioners, loss of estate comes to nil. At the most, petitioners are entitled to compensation only of Rs.
50,000/ in view of case law namely Manjuri Bera, MACT NO. 182/09 12 of 17
Appellants Vs. OIC and Anr (Supra). Therefore, an award of Rs. 50,000/ is passed in favour of petitioners. 24 Now, they are entitled nil as they have already received Rs. 50,000/ as interim award.
25. It is submitted by counsel for R1 and R2 that R1 has been falsely implicated by the police while one Sh. Vijay Singh was driving the vehicle. He further submits that R2 Sh. Brahm Prakash has filed his affidavit to prove this fact. It is further submitted that one Mohd. Alam was the eye witness of the case and was examined before Juvenile Justice Board who has not identified the driver of the offending vehicle. Certified copy of statement of Mohd. Alam recorded before Juvenile Justice Board has been filed. It is further submitted that the said Vijay was having DL Ex. RW1/1 and therefore, R1 and R2 are not liable to pay compensation.
26. I considered the submission of counsel for R1 and R2 has submitted above. Certified copy of criminal record has been filed. It is revealed from the record that offending vehicle was found at the spot by the police and taken into possession. It is also revealed that driver of the offending vehicle had fled away from the spot living the offending vehicle at the spot. It MACT NO. 182/09 13 of 17 also revealed that notice U/s 133 of M.V. Act was given to Sh. Brahm Prakash on 12.12.08 and R2 has given in writing that his son Mandeep Shokeen had taken the vehicle Scorpio No. DL8CJ5582 on 11.12.08 and accident had taken place. He had also informed that his son was driving the offending vehicle at the time of accident and he had also produced Mandeep Shokeen on 13.12.08 before the police. Mandeep ShokeenR1 was arrested by the police and was medically examined on 14.12.08 in Bhagwan Mahavir hospital. On his examination, Dr. found multiple old small abrasion over his left hand, over right knee and swelling on right foot. It shows that Sh. Mandeep Shokeen R1 had sustained injuries in the accident. If R1 Mandeep Shokeen had not been driving the offending vehicle on the date of accident and one Sh. Vijay had been driving the same, R2 owner of the offending vehicle would have produced said Vijay as the driver of the offending vehicle in response to notice given U/s 133 of M.V. Act and not Sh. Mandeep Shokeen. R2 had voluntarily given in writing that his son was driving the offending vehicle on the date of accident. His signature on the notice U/s 133 of M.V. Act and on the foot of his writing and his affidavit filed in the court and on the cross examination recorded on 15.02.11 are similar. The plea taken by MACT NO. 182/09 14 of 17 R2 before this tribunal is false. If eye witness Mohd. Alam had not identified Sh. Mandeep Shokeen during trial before Juvenile Justice Board, it does not mean that he was not driving the offending vehicle at the time of accident, since immediately after the accident, persons who were in the offending vehicle i.e. Scorpio fled away from the spot living the vehicle then and there and it was not possible for Mohd. Alam to see them properly and he was not in a position to identify Sh. Mandeep Shokeen during trial. Therefore, I do not agree with the submissions of counsel for R1 and R2 that since Mohd. Alam had not identified Mandeep Shokeen in the trial before Juvenile Justice Board, so he was not driving the offending vehicle on the date of accident.
27. R2 has stated in his affidavit that son of deponent (R2) was falsely implicated by the police under the pressure of media. I fail to understand as to why police was interested to falsely implicate Mandeep ShokeenR1, son of deponentR2. No reason has shown by R1 and R2 to prove the fact that police was interested to falsely implicate son of the deponent. Even if it is accepted that police was under pressure to solve the case, why R2 had not produced said Vijay Singh before the police in response to notice U/s 133 of M.V. Act and why he had MACT NO. 182/09 15 of 17 produced his son before them. There is no allegations on behalf of R2 that he was forced to give statement in writing that his son was driving the vehicle at the time of accident. He had given in his writing that his son was driving the offending vehicle at the time of accident. Therefore, it can not be accepted that R1 was falsely implicated by the police under any pressure. R2 had given in writing before the police in response to notice u/s 133 of M.V. Act that his son Mandeep Shokeen was driving the offending vehicle at the time of accident and his son had taken the offending vehicle in his absence, while during cross examination , he has stated that on the day of accident Sh. Vijay Singh had taken the vehicle. It shows that he has falsely stated so just to avoid liability to pay compensation. In my view, his testimony is false and cannot be believed.
28. In the light of discussions and reasons therein. I hold that R1 was driving the offending vehicle on the date of accident and not one Vijay Singh as claimed by R1 and R2. Since R1 was minor and offending vehicle was being driven by him without DL, I am of the view that R1 and R2 are jointly and severally liable to pay compensation and R3 is not liable to pay any compensation. This issue is decided accordingly.
MACT NO. 182/09 16 of 17 29. RELIEF
Now, an award of Rs. 50,000/ is passed in favour of petitioners and they are entitled nil as they have already received Rs. 50,000/ as interim award.
30. Since the interim award of Rs. 50,000/ was paid by R3Insurance co. with interest to petitioners, I am of the view that R3 Insurance co. is entitled to recover the said amount with interest @ 8% from the date of payment till the same is recovered from R1 and R2 jointly and severally.
31. Copy of this order be given to parties for compliance.
32. Petition is disposed of on aforesaid terms. File be consigned to record room.
ANNOUNCED IN THE OPEN (CHANDRA BOSE)
COURT On 30.09.11 JUDGE/MACT
ROHINI/DELHI
MACT NO. 182/09 17 of 17