Delhi District Court
Zeenat & Ors. vs . Raghav Sharma & Anr. on 19 December, 2018
IN THE COURT OF SH. M. K. NAGPAL PRESIDING
OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
PATIALA HOUSE COURTS, NEW DELHI
MACP No. 223/13
ZEENAT & ORS. VS. RAGHAV SHARMA & ANR.
1. Zeenat
W/o Late Sh. Nadeem
R/o C3/25 LNJP Colony,
New Delhi.
2. Ayan Khan
S/o Late Sh. Nadeem
R/o C3/25 LNJP Colony,
New Delhi.
3. Misba
D/o Late Sh. Nadeem
R/o C3/25 LNJP Colony,
New Delhi.
......Petitioners/Claimants.
Versus
1. Raghav Sharma (Driver-cum-owner)
S/o A.K. Sharma
R/o 756, New Rajender Nagar,
New Delhi.
2. TATA AIG General Insurance Co. Ltd. (Insurer)
Having registered office at :-
Peninsula Corporate Park, Piramal Tower,
9th Floor, Ganpatrao Kadam Marg,
Lower Parel, Mumbai-400013.
Having office also at :-
Unit Nos. 810-816, 8th Floor, World Trade Tower,
MACP No. 223/13
Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.1 of 23
Plot No. C-001, Sector-16,
Noida-201301. .....Respondents
Date of filing of DAR : 20.05.2013
Date of filing of claim petition : 06.08.2013
Date of framing of issues : 08.02.2017
Date of concluding arguments : 18.12.2018
Date of decision : 19.12.2018
AWARD/JUDGMENT
1. The claim for compensation raised in the present petition relates to death of one Nadeem in an accident that took place on 11.01.2013, at about 1.00 am, i.e. during the night of 10/11.01.2013, at SPM-PSL Red Light, Chanakyapuri, New Delhi, regarding which one FIR bearing No. 11/13 under Sections 279/337 IPC was registered at PS Chanakyapuri. The offending vehicle implicated in this claim petition is a Honda City car bearing registration No. DL-3CBA-6260, which at the relevant time of accident was being driven and owned by R-1 and insured with R-2. It is alleged that R-1 while driving his above car at a fast speed and in a rash and negligent manner had hit against the Maruti Omni/van bearing registration No. DL-1T-3263 being driven by the deceased Nadeem as a taxi.
2. The factual background of this case is that on receipt of one DD about the accident at the above place, the police officials of PS Chanakyapuri had reached at the MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.2 of 23 spot and had found both the above vehicles parked at the spot in an accidental condition. On inquiry, it was revealed that the injured persons have already been taken to Dr. RML Hospital by the PCR officials and the police officials then reached in Dr. RML Hospital and recorded the statement of R-1 Raghav Sharma. R-1 in his above statement had claimed that at the time of accident, he was on way back to his home at Rajinder Nagar from Vasant Vihar in his above Honda City car and he had just crossed the above crossing/Red light of SPM-PSL when the above Maruti van came from the side of Dhaula Kaun at a fast speed and hit his car on its left side and due to impact of this accident, his car turned towards Simon Bolivar Marg. Since he alleged in his above statement that the above accident took place due to rash and negligent driving of driver of the above Maruti van, i.e. the deceased Nadeem, the Investigating Officer (IO) had endorsed a rukka on his statement and had got recorded the above FIR against the deceased.
3. The deceased Nadeem was also found to be admitted in the hospital by the police officials and was declared unfit for giving a statement. He subsequently expired on 18.01.2013 due to the injuries sustained in the above accident, which resulted in addition of Section 304-A IPC in the above criminal case.
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4. After conclusion of investigation of the criminal case, a final report/challan as abated was filed in the Court of Ld. MM concerned on 05.08.2013 due to death of Nadeem, being driver of the offending Maruti van, and the same was also accepted by the Ld. MM as such on that very day. An untrace DAR in the matter was also filed before this tribunal by the IO on 20.05.2013, but subsequently, being dissatisfied with the investigation conducted by the police, the petitioners herein being LRs of the deceased Nadeem had filed the present claim petition before this tribunal on 06.08.2013 and on the same day, the DAR was directed to be clubbed with the claim petition for further proceedings.
5. It is necessary to mention here that in their claim petition, the petitioners had initially implicated three respondents, i.e. R-1 Raghav Sharma as driver, one Rakesh as R-2 being owner and Bajaj Alliance General Insurance Co. Ltd. as R-3 being insurer and had specifically alleged therein that the above said accident took place due to rash and negligent driving of the above Honda City car by R-1.
6. R-1 had duly filed on record his written statement/reply to the claim petition and had specifically denied the allegations of rash and negligent driving levelled against him by the petitioners, though he had MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.4 of 23 admitted the above accident. He also claimed in the said reply that his car was duly insured on the date of accident, but it was not insured with R-3, i.e. Bajaj Alliance Insurance Co. Ltd., and rather it was insured with TATA AIG Insurance Co. Ltd. He also denied his or his car's connection with R-2 Rakesh.
7. It is also necessary to mention here that the above Rakesh/R-2 was infact the registered owner of the above Maruti van driven by the deceased and not of the Honda City car being driven by R-1 and he had also filed his reply to the petition on record on these lines, while further claiming that prior to the date of above accident, he had already sold his Maruti van to one Raj Kumar.
8. During the course of proceedings before this tribunal, three separate applications under Order 1 Rule 10 CPC were moved on behalf of the parties, i.e. one moved by the petitioners seeking impleadment of TATA AIG Insurance Co. Ltd. as a party to this petition, one moved by R-2/Rakesh Kumar seeking impleadment of the above Raj Kumar/subsequent purchaser as a party and the third moved by R-3/Bajaj Alliance General Insurance Co. Ltd. seeking deletion of their name. All these applications were decided by this tribunal vide a common order dated 19.10.2016 and the name of Bajaj Alliance General Insurance Co. Ltd. was directed to be deleted MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.5 of 23 and in its place TATA AIG Insurance Co. Ltd. was permitted to be impleaded as a party and the application moved by R-2 seeking impleadment of Raj Kumar was dismissed. While disposing of these applications, it was observed by this tribunal that deletion of name of Bajaj Alliance General Insurance Co. Ltd. and impleadment of TATA AIG Insurance Co. Ltd. was necessary as the offending vehicle implicated in this petition was not the Maruti van allegedly insured with Bajaj Alliance General Insurance Co. Ltd., but the Honda City car which was admittedly insured with TATA AIG Insurance Co. Ltd. It was further observed that since Raj Kumar and R2/Rakesh were also not connected with the above Honda City car and they were connected with the Maruti van only, their impleadment on record as a party was not necessary and hence, even the name of R-2 was directed to be deleted meaning thereby that this petition was only to proceed further against R1/Raghav Sharma as driver- cum-owner of the above Honda City car and TATA AIG Insurance Co. Ltd. as insurer thereof.
9. It is further necessary to mention here that during investigation of the criminal case, it was revealed that the above Maruti van was though registered in the name of one Rakesh, but he claimed to have sold it to one Raj Kumar, Raj Kumar claimed to have sold it to one MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.6 of 23 Mahesh, who also admitted to have purchased it from Raj Kumar but claimed to have got it financed in the name of his friend Dinesh Kumar from one Narang Leasing & Finance Company. It was also revealed during the investigation that since the above Mahesh and Dinesh were not able to pay the installments of the above financed amount, the vehicle was deposited with the financer, who further sold it to one Ibrar Ahmad, who disclosed that he purchased it jointly with the deceased Nadeem and the deceased Nadeem was driving it as a taxi because he/Ibrar himself was not having a badge number. It further transpired during investigation of the criminal case that though one insurance policy allegedly issued by Bajaj Alliance General Insurance Co. Ltd. in respect of the above Maruti van was seized in this case, but it was found to be fake and one separate FIR No. 38/13 under Section 420/468/471/474 IPC was also got registered by the IO with regard to the same at the same PS Chanakyapuri.
10. After their impleadment as a party to this petition, R-2/TATA AIG Insurance Company has also filed their written statement/reply to the same and it has admitted therein the issuance and existence of a valid policy of insurance by them in respect of the offending Honda City car implicated in this case in the name of R-1 Raghav MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.7 of 23 Sharma. However, likewise R1, they have also claimed that they are not liable to pay any compensation to the petitioners as the above accident took place due to rash and negligent driving of the deceased Nadeem himself. It is necessary to mention here that this written statement/reply of R-2 was filed after incorporation of the above changes in the petition by the petitioners in terms of the order dated 19.10.2018 of this tribunal.
11. After going through the pleadings of the parties, this tribunal had framed the following issues for disposal of the petition :-
1. Whether the deceased sustained fatal injuries in the accident which occurred on 11.01.2013, at about 1.00 am, SPM-PSL Red Light, Chanakyapuri, New Delhi caused by rash and negligent driving of vehicle no. DL-3CAB-6260 driven and owned by respondent no. 1 and insured with respondent no. 2 ? OPP.
2. Whether the petitioners are entitled for compensation ? If so, to what amount and from whom?
12. I have heard the arguments advanced by Sh. Sameer Vijayvargiya, Ld. Legal Aid Counsel (LAC) representing the petitioners, Sh. R.P. Singh, Ld. Counsel for R-1 and Ms. Vandana Kahlon, Ld. Counsel representing R-
2. I have also carefully perused the entire record of the case. My findings on the above said issues are as under :-
MACP No. 223/13Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.8 of 23 13. ISSUE No. 1 Though, the standards of proof required in proceedings before an accident claim tribunal or in a civil court are not the same as those required in a criminal case, where the facts are required to be proved beyond reasonable doubts, but it is well settled that in proceedings U/S 166 of the M.V Act some substantive evidence is required to be led to prove rash and negligent driving of the offending vehicle on the part of driver thereof. The petitioners were duty bound to bring on record some evidence to show, even by preponderance of probabilities, that the above accident resulting into death of the deceased Nadeem took place due to the rash and negligent driving of the above offending car driven and owned by R-1. It is only when this fact is established on record by some satisfactory evidence that R-2 being insurer of the said vehicle can be held liable to indemnify R1 as per the terms and conditions of insurance policy of the said vehicle.
14. In case of Minu B. Mehta and another V. Balkrishna Ramchandra Nayan and Another, 1977 A. C. J. 118, the Hon'ble Supreme Court has held:
"22. The liability of the owner of the cars to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort. Regarding the negligence of the servant the owner is made liable on the basis of vicarious MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.9 of 23 liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of employment and that he was negligent."
15. Further in case of Oriental Insurance Co. Ltd. V. Meena Variyal and others, 2007 ACJ 1284, the Hon'ble Supreme Court has also held:
"23...................On a careful understanding of the decision in Gujarat State Road Transport Corporation (supra) we cannot understand it as having held that in all claims under the Act proof of negligence as the basis of a claim is jettisoned by the scheme of the Act. In the context of Sections 166 and 163A of the Act of 1988, we are persuaded to think that the so called obiter observations in Minu B. Mehta's case (supra) govern a claim under Section 166 of the Act and they are inapplicable only when a claim is made under Section 163A of the Act. Obviously, it is for the claimant to choose under which provision he should approach the Tribunal and if he chooses to approach the Tribunal under Section 166 of the Act, we cannot see why the principle stated in Minu B. Mehta's case should not apply to him. We are, therefore, not in a position MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.10 of 23 to accept the argument of learned counsel for the respondents that the observations in Minu B. Mehta's case deserve to be ignored.
24. We think that the law laid down in Minu B. Mehta & Anr. Vs. Balkrishna Ramchandra Nayan & Anr. (supra) was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by introducing Section 163A of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of a motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under sub-section (1) of Section 163A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned. Therefore, the victim of an accident or his dependents have an option either to proceed under Section 166 of the Act or under Section 163A MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.11 of 23 of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle."
16. Further in case of Lachoo Ram and Others V. Himachal road Transport Corporation, (2014) 13 Supreme Court Cases 254, the Hon'ble Supreme Court has also held:
"10. But simply the involvement of the bus in the accident cannot make the respondent liable to pay compensation unless it can be held on the basis of materials on record that the accident was caused by rash and negligent act of the driver-respondent no.2. On this issue, on comparing the reasons given by the Tribunal while discussing the issue no.1 and those given by the High Court on pages 10 and 11 of the paper book, we find the reasons given by the High Court to be much more cogent and acceptable in coming to the conclusion noted above. Since the MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.12 of 23 bus was standing at the red light and on being asked, soon after starting from the traffic signal it stopped within 100 to 150 yards, it has rightly been reasoned that the bus could not have started on a high speed. The road at the place of the accident was admittedly very narrow and PW.2, who has been found reliable by the Tribunal as well as by the High Court and was present on the spot, has not claimed that the bus driver had given a signal to the deceased motor cyclist to overtake him. This witness could not see the actual accident because at that time the motorcyclist, in an effort to overtake the bus had gone on its right side and was not visible and therefore he could only hear the sound of crash. It is not the case of any witnesses that the bus driver took any sudden turn while proceeding forward from the traffic signal or that he swerved the bus to the right side.
11. In the facts of the case it is not found possible to accept the contention on behalf of the appellants/claimants that the accident was on account of rash or negligent driving by the driver-the respondent no.2. In that view of the matter it is not found possible to give any relief to the appellants."MACP No. 223/13
Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.13 of 23
17. While discussing the propositions of law laid down by the Hon'ble Supreme Court in the above said cases, the Hon'ble Delhi High Court in case of New India Assurance Company Limited vs. Devki & Ors., MAC App. 165/2013 decided on 29.02.2016 has made the following observations :-
"5. It is well settled that in proceedings arising out of a claim petition under Section 166 of MV Act based on fault liability principle, a person cannot be held liable unless he contravenes any of the duties imposed on him by the common law or by the statute. In the case of a motor accident it is imperative that the claimants show by some evidence that the driver of the motor vehicle had been negligent in relation to the said vehicle and thereby had caused an accident resulting in bodily injuries or death or damage to the property so as to be held liable as the principal tort-feasor. The owner's liability arises out of his failure to discharge a duty cast on him by the law, on the principle of vicarious liability. Proof of negligence is necessary before the owner or the insurance company may be held liable for payment of compensation in a motor accident claim case brought under Section 166 MV Act.MACP No. 223/13
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6. The law to above effect declared in Minu B Mehta v. Balkrishna Ramchanra Nayan (1977) 2 SCC 441 was reiterated by Supreme Court in Oriental Insurance Company Ltd. v. Meena Variyal 2007 (5) SCC 428. It appears there was some confusion raised with regard to these principles on account of view taken in the case of Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai (1987) 3 SCC 234. In Meena Variyal (supra) the Supreme Court clarified as under :
"On a careful understanding of the decision in Gujarat State Road Transport Corporation (supra) we cannot understand it as having held that in all claims under the Act proof of negligence as the basis of a claim is jettisoned by the scheme of the Act. In the context of Sections 166 and 163A of the Act of 1988, we are persuaded to think that the so called obiter observations in Minu B. Mehta's case (supra) govern a claim under Section 166 of the Act and they are inapplicable only when a claim is made under Section 163A of the Act. Obviously, it is for the claimant to choose under which provision he should approach the Tribunal and if he chooses to approach the Tribunal under Section 166 of the Act, we cannot see why the principle MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.15 of 23 stated in Minu B. Mehta's case should not apply to him. We are, therefore, not in a position to accept the argument of learned counsel for the respondents that the observations in Minu B. Mehta's case deserve to be ignored."
7. In Pushpa Rana (supra), the learned Single Judge of this Court holding the case of the claimant as duly proved on the basis of the certified copies of the record of the corresponding criminal case, while dealing with identical contention took note of the judgment in Meena Variyal (supra) but proceeded to observe thus:
"13. 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 Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (supra). 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 MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.16 of 23 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."
8. In the facts and circumstances, this Court finds it difficult to follow the view taken in Pushpa Rana (supra). Since the law declared by the Supreme Court in Meena Variyal (supra) is binding, there is no escape from the conclusion that it is the burden of the claimants in a petition under section 166 of MV Act to prove negligence. Should they find it difficult to prove evidence with regard to negligence, the option to have resort to no- fault liability on the structured formula under Section 163A of MV Act is always available to seek just compensation. The case of Bimla Devi (supra) cannot be an illustration MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.17 of 23 to hold otherwise inasmuch as it is clear from the narration of facts noted therein that an eye witness was available and the conclusion on facts had been reached on the basis of his testimony."
18. The above legal propositions have also been reiterated by the Hon'ble Delhi High Court in subsequent cases titled as UOI & Ors. v. Annu Jindal & Ors., MAC App. No. 562/2008, decided on 10.07.2017 and Reliance General Insurance Company Ltd. v. Nirmala Devi & Ors., MAC App. No. 20/2017, decided on 05.07.2017.
19. Coming to facts of the present case, to prove their case, the petitioners have examined on record only the petitioner no. 1 Zeenat as their sole witness and she has tendered on record her examination-in-chief by way of an affidavit Ex. PW1/A. Though in the said affidavit, she is found to have deposed that the above accident between the above Maruti Omni car being driven by her deceased husband Nadeem and the Honda City car being driven by R-1 had taken place due to rash and negligent driving of the said Honda City car by R-1, but admittedly she is not an eye witness of the accident. During her cross examination, she has also specifically admitted that she was not accompanying her husband when the said accident took place and she was at home at that time. Hence, the above depositions made by her MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.18 of 23 in her above affidavit regarding the manner of accident or attributing the rashness or negligence to R-1 can only be termed as hearsay evidence and therefore, cannot be considered and acted upon by this tribunal.
20. Further, though during her cross examination, the petitioner/PW1 has expressed her ignorance about the registration of FIR against her deceased husband for causing the above accident, but it is an admitted fact that the said FIR was registered against the deceased and a final report as abated in the said criminal case was also filed on conclusion of investigation and it was accepted as such by the Ld. MM on 05.08.2013. The said final report was prepared only after the IO had come to a conclusion that the said accident took place due to rash and negligent driving of the deceased himself and not that of R-1 and there is no evidence led on record by the petitioners at all to enable this tribunal to take a different view in the matter or not to accept the conclusions arrived at by the IO in the above criminal case, the record of which has also been filed by the IO along with the DAR of the present case. Further, the record of the above criminal case also suggests that the deceased Nadeem was drunk at the time of accident as his MLC shows that he smelt positive for alcohol at the time of his medical examination. Though, it is a submission made by Ld. Counsel for the petitioners that viscera report of the deceased Ex. P-X on record (which is the admitted MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.19 of 23 document of the parties) shows absence of any ethyl or methyl alcohol contents, but this report can be ignored for the simple reason that the viscera contents of the deceased were sealed only at the time of his post mortem examination on 19.01.2013, i.e. after a week from his death.
21. Ld. Counsel for the petitioners has argued that the principle of res ipsa loquitur is applicable in the present case, which says that the accident or circumstances thereof speak for themselves and lead to a conclusion that the said accident took place due to rash and negligent driving of R-1 and not of the deceased. In this regard, he has also relied upon a judgment of the Hon'ble Supreme Court in case Pushpabai Purshottam Udeshi & Ors. Vs. Ranjit Ginning & Pressing Co. (P) Ltd. & Ors., Civil Appeal No. 2071 of 1968, decided on 25.03.1977, However, the above principle or judgment is not found to be applicable in the facts and circumstances of the present case. The deceased in the case of Pushpabai Purshottam Udeshi & Ors. (supra) was travelling in the car driven by some other person which suddenly dashed against a tree beyond the pavement, whereas in the present case the deceased himself was driver of one of the vehicles involved in the accident and was also made accused in the criminal case pertaining to the said accident. The principle of res ipsa loquitur cannot be applied in the present case for the reasons that the circumstances MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.20 of 23 surrounding the accident also show that the said accident took place due to rash and negligent driving of the deceased Nadeem only and not of R-1. On this aspect, the site plan of place of accident, seizure memo of the two vehicles as well as their mechanical inspection reports make it amply clear that R-1 was almost to take a turn from Panchsheel Marg towards his right at SP Marg when the Maruti Omni van driven by the deceased Nadeem had suddenly hit on its left side at a very fast speed. The positions of the two vehicles as shown in the above site plan, with reference to the actual spot of accident, clearly indicate the speed at which the Maruti Omni van might have hit the car of R-1 on the said turn as the car of R-1 had turned towards Simon Bolivar Marg, though it was to take a turn towards 11 Murti at SP Marg. Even the mechanical inspection reports of these two vehicles corroborate the conclusions drawn by the IO of the criminal case during investigation about the manner of accident as these show extensive damage on the left front portion of the Honda City car of R1 and the front portion of the Maruti Omni van driven by the deceased.
22. Though, Ld. Counsel for the petitioners has also referred to the another judgment of the Hon'ble Supreme Court in case Kamlesh & Ors. Vs. Attar Singh & Ors., Civil Appeal No. 8879 of 2015 (Arising out of SLP(C) No. 24685/2013 to make it out a case of contributory or composite MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.21 of 23 negligence of both the drivers of the above vehicles, but in the considered opinion of this tribunal, even this judgment is not helpful to the petitioners as there is no material on record to draw any such inference of contributory or composite negligence and the facts of the above case can be distinguished from the facts of the present case.
23. Therefore, in view of the above factual and legal discussions, it is held that the petitioners have miserably failed to prove on record even by preponderance of probabilities that the above accident resulting into death of the deceased Nadeem took place due to rash and negligent driving of the above Honda City car by R-1, though, it is proved on record that the said car was owned by R-1 himself and insured with R2. Hence, this issue is accordingly decided against the petitioners and in favour of the respondents.
24. ISSUE No. 2In view of findings on issue no. 1 above, the petitioners herein are not held entitled to any compensation from any of the respondents on account of death of the deceased Nadeem and hence, this issue is also accordingly decided against them and in favour of the respondents.
25. Relief.
In view of the above findings of this tribunal on issues no. 1 and 2, this claim petition filed by the petitioners seeking compensation on account of death of the deceased MACP No. 223/13 Zeenat & Ors. Vs. Raghav Sharma & Anr. Page no.22 of 23 Nadeem is being dismissed.
However, before parting with this judgment it is necessary to state that during the course of proceedings before this tribunal, the issue of maintainability of this petition under the provisions of Section 166 MV Act was also raised by the respondents, but the petitioners still continued to pursue their claim for compensation under the above provisions and never made any request or attempt for consideration or conversion of their claim under Section 163A of the MV Act from Section 166 of the said Act. Though, the requirements governing disposal of a claim under both these petitions have been held to be separate, but still liberty is given to the petitioners by this tribunal to file and pursue their claim under the provisions of Section 163A of the MV Act, if they are advised to do so, and the same will have to be considered separately as per the law governing the said provisions at the relevant time of consideration thereof.
MANOJ Digitally signed
by MANOJ
KUMAR KUMAR NAGPAL
Date: 2018.12.22
NAGPAL 14:58:54 +0530
Announced in the open court. (M.K.Nagpal)
on 19.12.2018 PO/MACT, New Delhi
MACP No. 223/13
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