Delhi District Court
Smt. Bilqees Khan W/O Sh. Mumtaz Khan ... ... vs Indra Singh S/O. Sh. Harbir Singh on 20 January, 2017
IN THE COURT OF MS. RAVINDER BEDI,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS
TRIBUNAL : KARKARDOOMA COURTS : EAST DISTRICT :
DELHI
MAC Petition No.: 366 OF 2016
Unique Case I.D. No.: 02402C0150102013
1. Smt. Bilqees Khan W/o Sh. Mumtaz Khan ... Wife
2. Asif Khan S/o Mumtaz Khan
3. Ms. Shagufta Khan D/o Sh. Mumtaz Khan
4. Ms. Amreen Khan D/o Sh. Mumtaz Khan
All R/o H. No. 1412F,
Laxmi Nagar, JExtn., Delhi92.
5. Ms. Arshi Khan D/o. Sh. Mumtaz Khan
W/o Sh. Shah Alam Khan ... Children
... Petitioners
VERSUS
1. Indra Singh S/o. Sh. Harbir Singh
R/o. H. No. 19, Khanauda,
PS daurala Tehsil, Sardhana,
Distt. Meerut, UP ... Driver
2. R.M. Meerut City Transport Services Ltd.
Off. At : Meerut, UP. ... Owner
... Respondents
Represented by : Mr. Harkesh Nishadraj, Ld. Counsel for Petitioners.
Mr. C.P. Singh, Counsel for R1 and R2.
Date of institution : 15.05.2013
Reserved for orders : 19.01.2017
Date of Award : 20.01.2017
MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12
A W A R D
1. The Petitioners have filed the present Petition U/s 166 & 140 of Motor Vehicles Act and claimed compensation on account of the fatal injuries suffered by deceased Mumtaz Khan in a road accident dated 26.02.2013.
2. The requisite facts to be exposited for adjudication are that on 26.02.2013 at about 3.45 PM, deceased was riding his motor cycle alongwith his nephew Shuheb Khan as pillion rider. They were going to Deoband, UP. Near Village Khadaouli National High Way, the motor cycle was hit from behind by a bus bearing no. UP 15AT5439 (hereinafter referred to as the offending vehicle) driven by its driver in a high speed and negligent manner. Both the motorcycle riders fell down and suffered injuries. They were taken to Reeta Hospital. The injuries however proved fatal upon Mumtaz Khan and he was declared as 'Brought Dead' at the Hospital. A case u/s 279/304A IPC was registered vide FIR No. 104/13 at Police Station Kankarkhera, Meerut against the Respondent no.1.
3. It is stated by the Petitioners that Respondent no.1 is the Driver and the Respondent no. 2 is the Owner and they both are jointly and severally liable to pay the compensation to the Petitioners.
4. The Respondent no.1 and 2 filed their joint Written Statement and alleged their false implication by the Police in collusion with the Petitioners; that it was denied that the accident happened with the offending vehicle.
MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12
5. On the basis of the pleadings, following issues were framed vide order dated 19.09.2013 :
i)Whether petitioners prove that petitioner(s) is/ are the LR of deceased Mumtaz Khan? (OPP)
ii)Whether petitioner proves that Mumtaz Khan suffered fatal injuries in a road accident on 26.02.2013 involving vehicle bus bearing registration no. UP15AT5439 driven allegedly in a rash and negligent manner by R1?
(iii)To what amount of compensation, if any, the petitioner is entitled to and from whom?
(iv)Relief.
6. Asif Khan, son of deceased examined himself as PW1 who filed his affidavit Ex.PW1/A. He relied upon the documents i.e. PM report as Ex.PW1/1, ITR as Ex. PW1/2 (colly 6 pages), certified copy of charge sheet (colly 6 pages) as Ex. PW1/3, voter ID Card Ex. PW1/4 and mark A as Ration Card. The Petitioners also examined PW2 Mst. Bilqees Khan, who tendered her evidence by way of affidavit Ex. PW2/A and relied upon the documents i.e. Ex. PW2/1 as Voter ID Card. The petitioners also examined PW3 Mohd. Arshad Muddasir, Inspector, Income Tax Office, Ward 58 (2) and Shuheb Khan as PW4. The Respondent no.1 examined himself as R1W1 by way of an affidavit.
7. I have heard Ld. Counsels for the parties and have perused the entire material in the light of relevant statutory provisions of law.
MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12 My observations on the issues are as follows : ISSUE NO. 1 :
i) Whether petitioners prove that petitioner(s) is/ are the LR of deceased Mumtaz Khan? (OPP)
8. In support of this issue, Asif Khan, Son of deceased appeared as PW1. He proved the Voter I cards of the Claimants and Ration Card Mark A. The wife of deceased Mst. Bilqees Khan also placed on record her Voter I card and Ration Card. Furthermore, the testimony of witnesses is corroborated by the DAR filed by IO wherein the names of the Petitioners are specified as legal representatives of deceased. The documents on record clearly establish that the Petitioner no.1 is the wife and Petitioner no. 2 to 5 are the children of the deceased. On the other hand, no contra evidence has been brought on record by respondents. In such circumstances, there is no reason to disbelieve the testimony of witnesses. I, therefore, hold that the Petitioners are the only legal representatives of the deceased.
ISSUE NO.
2Whether petitioners prove that Mumtaz Khan suffered fatal injuries in a road accident on 26.02.2013 involving vehicle bus bearing registration no. UP15 AT5439 driven allegedly in a rash and negligent manner by R1?
9. For succeeding in a Petition filed under Section 166 & 140 of MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12 the M.V. Act, it is for the Petitioners to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver. Hon'ble Delhi High Court in a case titled as Sh. Rajendra Jha Vs. Ms. Arti Rohatgi and Anr., 2006 ACJ 2729 observed as under : "It is settled legal position that proof of negligence is essential to maintain a claim for compensation as envisaged under Section 166 of the Motor Vehicles Act. It is only under Section 163A, the use of the offending vehicle but not negligence on the part of the offending vehicle is required to be established. Unlike Section 163A, proof of negligence is sine qua non to claim compensation under Section 166 of the Motor Vehicles Act. In this regard, the Hon'ble Apex Court has, in Oriental Insurance Co. Ltd. vs. Meena Variyal MANU/SC/7265/2007 : AIR 2007SC1609 observed as under : "........ 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 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."
10. In order to prove this issue, PW1 Asif Khan by way of an affidavit testified that on 26.02.2013 at about 3.45 PM, his father was going with his nephew Shuheb on his motorcycle to Deoband. He stated that his father was riding the motor cycle and near village Khadauli, the motorcycle was hit by a bus no. UP15AT5439 from behind, being driven in a negligent manner by its driver. He testified that as a result, his father suffered serious injuries and had expired on the spot. Mst. Bilqees Khan - PW2 testified that her husband died on account of the fatal injuries received in the accident caused by the rash driving of the bus driver. In their cross MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12 examination, however, both the witnesses stated that they did not see the accident.
11. The Petitioners also examined Shuheb KhanPW4, who testified that on the date of accident, he was sitting as a pillion rider on the motor cycle driven by his maternal uncle Mumtaz Khan. He stated that near village Khadauli, Distt. Meerut, the motor cycle was hit from behind by UP Roadways UP15AT5439. He testified that his maternal uncle had expired on account of serious injuries and he himself suffered serious injuries in the accident. He testified that the accident had happened only due to the rash and negligent driving of the offending bus driver.
12. I have carefully examined the testimony of the witnesses and I observe that nothing contrary could be elicited from the cross examination of the eye witness Shuheb Khan. He negated the suggestion that the accident might have taken place with some vehicle other than the offending bus. The testimony of this witness is trustworthy & inspires confidence.
13. The Respondent no. 1 examined himself as R1W1. This witness stated that he was driving the offending bus with due precaution and near Bhola Road stoppage, he saw an unknown car having hit the motorcycle at quite a distance ahead of his bus and the car driver fled from the spot. I have considered his testimony. It is worthwhile to state that the Respondent no.1 has been arrayed as an accused in the criminal case and is facing trial before the court of Ld. Magistrate of PS Kakarkheda in FIR 104/13 u/s 279/304 A MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12 of IPC. Had there been any false implication, the Respondent no.1 should have raised protest or filed his objections against his alleged implication. The defence taken by the driver therefore does not appeal to reason and has to be ignored from consideration.
14. This Court has also considered the criminal proceedings including the FIR, Mechanical Inspection Report and the site plan. Coupled with this is the Chargesheet against Respondent no.1 filed by the Investigating Officer. In a judgment of Hon'ble Delhi High Court in United India Insurance Co. Ltd. Vs. Deepak Goel & Ors., 2014 (2), T.A.C. 846 (Del.), it was held that in a case, where FIR is lodged, chargesheet is filed, then the documents mentioned above are sufficient to establish the fact that the driver of the vehicle in question was negligent in causing the accident.
15. It is noted that there is nothing on record to show that the Petitioners had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case. The issue thus stands decided in favour of Petitioners holding that the accident happened as a result of negligent driving by Respondent no.1 in which the deceased Mumtaz Khan sustained fatal injuries.
ISSUE NO. 3:
To what amount of compensation, if any, the Petitioners are entitled to and from whom?
16. In support of the issue, the wife of deceased - PW2 stated that deceased was doing his own business and was earning Rs.
MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12 3,00,000/ to Rs. 4,00,000/ per annum. She stated that the deceased was an Income Tax Payee but could not divulge the nature of business carried by him. The Petitioners examined Mohd. Arshad Muddassir, Income Tax Officer as PW3 to prove the income of deceased. This witness proved the annual income of the deceased by bringing the Income Tax Returns of deceased for the assessment years 20102011 & 20112012 as Ex. PW3/A. Pertinently, these Returns do not mention the nature of business carried by the deceased. In the absence of any other supporting evidence, an average of the income shown in the Returns for the period 20102011 & 20112012 can be considered and after deducting the income tax, the same comes to Rs. 13,753/ per month (Rs 1,65,036/ per annum).
17. So far future prospects concern, in a recent judgment in HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors., (decided on 12.1.2015), the three Judge Bench Decision of Hon'ble Apex Court in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65 was held to be taken as a binding precedent. It was observed by the Hon'ble High Court of Delhi that till such time the law is clarified by the larger bench of Hon'ble Apex Court on the subject of future prospects for those who are 'self employed' or engaged in gainful employment at a 'fixed salary', the law in Reshma Kumari (Supra) would be taken as the binding precedent. Thus, in absence of any such evidence, the Petitioners are not entitled for future prospects.
MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12
18. As per the Ration Card, the year of birth of deceased is shown as 1951. Thus, his age is taken as 62 years at the time of accident. Ld. Counsel for Petitioners stated that the Petitioner no. 3 & 4 are unmarried daughters of deceased. Ld. Counsel thus urged for compensation on account of the expenses to be incurred on their marriage. In the absence of any record to show that the Petitioner no. 2 was also dependent upon the earnings of the deceased, it is the Petitioner no. 1, 3 & 4 only who would be taken to be dependents in view of the judgment rendered in Sarla Verma & Ors. Vs. DTC & Ors., (2009) 6 SCC 121. Thus it is the 1/3rd from the income of deceased which has to be deducted towards his living expenses. After such deduction, the contribution to the family (dependents) comes to Rs.9,169/ per month [Rs.13,753.00
- (1/3)]. By applying multiplier of 16, the compensation to the Petitioners under the head Loss of Dependency is assessed as Rs.7,70,196/ (Rs.9,169.00x 12 x 7).
19. The petitioner no. 3 & 4 are unmarried daughters of the deceased. They are residing with their mother/ petitioner no.1. I award an amount of Rs.1,00,000/ each towards their marriage expenses. (Ramesh Chand Pasi & Ors. Vs. Sukan Mehto & Ors. decided on 15.04.2014 by Hon'ble High Court of Delhi).
20. Following the view taken in Rajesh & Ors. Vs. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala Vs. Gangalakshmamma, (2015) 9 SCC 150, compensation in the sum of Rs.1,00,000/ each MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12 on account of loss of love and affection and loss of consortium and Rs.25,000/ each towards loss of Estate and funeral expenses are awarded to the Petitioners.
21. The Petitioners are thus entitled for the total amount of compensation towards all the heads, which is as follows : S. No. On Account of Amount (Rs.) 1 Loss of dependency Rs.7,70,196.00 2 Loss of Consortium Rs. 1,00,000.00 3 Loss of Love and affection Rs. 1,00,000.00 4 Loss of Estate Rs. 25,000.00 5 Funeral expenses Rs. 25,000.00 6 Towards Marriage expenses of Rs. 2,00,000.00 unmarried daughters Total = Rs.12,20,196.00 Thus, the Petitioners are entitled to a sum of Rs.12,20,196/ which shall be the just compensation to them.
LIABILITY
22. Since nothing has come on record to show the offending vehicle was insured, it is the Respondents who shall be liable to pay the amount of compensation to the Petitioners; the liability being joint & several.
AWARD
23. Resultantly, the Petition stands allowed. The Respondents are directed to pay the compensation of Rs.12,20,196/ (including MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12 interim award amount, if any) within one month to the Petitioners. The Respondents shall also pay interest @ 9% per annum on the total compensation amount from the date of Petition till realization. The Respondents are directed to deposit the amount with UCO Bank, Karkardooma Courts Complex, Delhi and the same be transferred to the Petitioner's bank on moving application.
24. The entire Award amount shall be kept in the names of all the Petitioners in the form of FDRs as mentioned below in the table with the release of monthly periodical interest in their favour :
S. No. Duration of FDRs In favour of Petitioner no.1 1 6 months Rs.1,00,000/ 2 1 year Rs.1,00,000/ 3 2 years Rs.1,20,196/ 4 3 years Rs.2,00,000/ 5 4 years Rs.2,00,000/ 6 5 years Rs.2,00,000/ 7 6 years Rs.3,00,000/ TOTAL = Rs.12,20,196/
25. Interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of Petitioners.
26. Withdrawal from the said Account shall be permitted to Petitioners after due verification and Bank shall issue Photo MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12 Identity Card to Petitioners to facilitate Identity.
27. The original Fixed Deposit Receipts shall be retained by the Bank in safe custody. However, original Passbook shall be given to the Petitioners with photocopy of FDRs. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
28. No loan, advance, withdrawal shall be allowed on the said FDRs without permission of this court.
29. Half yearly statement of account be filed by the Bank in this court.
30. On request of the Petitioners, Bank shall transfer the Savings Account to any other branch.
File be consigned to record room.
Announced in the open Court (MS. RAVINDER BEDI) th Dated : 20 January, 2017 PRESIDING OFFICER MACT (EAST) KARKARDOOMA COURTS, DELHI.
MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12
MACT NO. 366/16
20.01.2017
Present : Ld. Counsels for the parties.
Vide separate order announced in the open court today, the Petition stands allowed.The Respondents are directed to pay the compensation of Rs.12,20,196/ (including interim award amount, if any) within one month to the Petitioners. The Respondents shall also pay interest @ 9% per annum on the total compensation amount from the date of Petition till realization. The Respondents are directed to deposit the amount with UCO Bank, Karkardooma Courts Complex, Delhi and the same be transferred to the Petitioner's bank on moving application.
The entire Award amount shall be kept in the names of all the Petitioners in the form of FDRs as mentioned below in the table with the release of monthly periodical interest in their favour :
S. No. Duration of FDRs In favour of Petitioner no.1 1 6 months Rs.1,00,000/ 2 1 year Rs.1,00,000/ 3 2 years Rs.1,20,196/ 4 3 years Rs.2,00,000/ 5 4 years Rs.2,00,000/ 6 5 years Rs.2,00,000/ 7 6 years Rs.3,00,000/ TOTAL = Rs.12,20,196/ Interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of Petitioners.
Withdrawal from the said Account shall be permitted to MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12 Petitioners after due verification and Bank shall issue Photo Identity Card to Petitioners to facilitate Identity.
The original Fixed Deposit Receipts shall be retained by the Bank in safe custody. However, original Passbook shall be given to the Petitioners with photocopy of FDRs. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
No loan, advance, withdrawal shall be allowed on the said FDRs without permission of this court.
Half yearly statement of account be filed by the Bank in this court.
On request of the Petitioners, Bank shall transfer the Savings Account to any other branch.
List for reporting compliance on 06.03.2017.
(MS. RAVINDER BEDI) PO MACT (EAST) KKD./DELHI/20.01.2017 MAC NO.:366/16 BILQEES KHAN V/S. INDRA SINGH PAGE NO.: 14/12