Delhi District Court
Zahida Begum & Anr. vs . Mohd. Fahim & Ors. Mact No. 214/13 on 15 March, 2017
Zahida Begum & Anr. Vs. Mohd. Fahim & Ors. MACT NO. 214/13
BEFORE MOTOR ACCIDENTS CLAIMS TRIBUNAL:
NORTH-EAST DISTT. : KARKARDOOMA COURTS COMPLEX: DELHI
Presiding Officer :ANAND SWAROOP AGGARWAL: DHJS
Additional District & Sessions Judge: Delhi
MACT No. 214/13
ID No.:- 15046/15
In the matter of :-
1. Zahida Begum W/o Zahiruddin
2. Jahiruddin S/o Sh. Haji Sami Mullah
Both resident of H. No. B-48, Gali No. 15, Maan Singh Nagar,
Old Mustafabad, Shahadra, Delhi 110094 (P.S. Gokul Puri)
Through:
Mr. Karan Bal & Mr. Dheeraj Kulshreshta, Advocates,
Chamber no. 164-165, Western Wing, Tis Hazari Courts, Delhi 110 054.
( - details given in compliance with Clause 27 of Modified Claims Tribunal Agreed Procedure)
......Claimants
Versus
1. Mohd. Fahim (DRIVER)
S/o Sh. Alimuddin
R/o A-110/A, A-Block, Chaman Park,
Indira Vihar, Delhi 94.
2. Mohd. Rafiq (OWNER)
S/o Shmagaffar
R/o 708, Gali no. 13, E-II Block,
Nehru Vihar, Delhi. 110094
3. ICICI Lombard General Insurance Co. Ltd. (INSURER)
DDA Market, 1st Floor, 101, J & K Market,
Dilshad Garden, New Delhi. ......... Defendants
i) Date of Institution of Claim Petition : 31/10/2013
ii) Date when reserved for award : 02/03/2017
iii) Date of award : 15/03/2017
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APPLICATION U/S 163A Motor Vehicles ACT, 1988
AWAR D
1. CASE AS PER CLAIM PETITION
Claimants, being parents of deceased Mohd. Nazakat Hussain(aged about 25
years), have filed this claim petition under section 163A of Motor Vehicles Act,1988
alleging that on 25/10/2013 at about 10:00 a.m. an accident took place near NH 24,
Sky Lok Hotel, Garmukteshwar, Hapur, UP while deceased Mohd. Nazakat Hussain
was going as a pillion rider on motorcycle bearing registration no. DL 6SAL 3859
and the offending truck ran away from the spot. At the time of accident the
motorcycle was being driven by Mohd. Fahim (defendant no. 1) and the said
motorcycle is owned by Mohd. Rafiq (defendant no. 2) and the same is insured with
defendant no. 3. As a result of the accident Mohd. Nazakat Hussain died due to
injuries received in the accident. FIR No. 259/2013, Crime No. 442/2013 u/s.
279/304-A/427 IPC was registered at P.S Garhmuktetshwar, Hapur, UP. The
deceased was unmarried and was having annual income of Rs. 40,000/-. Postmortem
of deceased was conducted at District Hospital, Hapur, UP.
2. (i) SERVICE OF DEFENDANTS NO. 1 & 2 AND THEIR NON APPEARANCE.
Defendant Nos. 1 & 2 stood served with the summons issued by the court
through Mohd. Tofiq and Mohd. Yameen reported to be brother(s), respectively, of
defendant nos. 1 & 2 FOR NEXT DATE OF HEARING as 23.01.2014 but none of
them appeared at any stage of the proceedings before the court.
(ii) WS OF DESPONDENT NO. 3
Defendant no. 3 in the WS admitted that vehicle bearing no. DL 68AL 3859
(sic) in the name of Mohd. Rafiq is insured with it vide policy no.
3005/77239863/00/000 valid from 28.01.2013 to 27.01.2014. Defendant no. 3 also
pleaded that the truck was offending vehicle which ran away from the spot and there
was no negligence on the part of two wheeler. At the same time defendant no. 3 has
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also pleaded that the vehicle which ran away from the spot was being driven in rash
and negligent manner without obeying the traffic rules and ,moreover, the driver of
the two wheeler was negligent, therefore, he has definitely contributed to the alleged
accident. As per defendant no. 3 contents of column no. 8 -13 are matter on record in
terms of FIR/DD and MLC.
3. ISSUES
Vide order dated 08.05.2014 following issues were framed :
(i) Whether deceased died due to injuries received in motor accident caused by
unknown vehicle which had hit against the motorcycle no. DL 6SAL 3859
which was being driven by respondent no. 1 and on which deceased Mohd.
Nazakat Hussain was a pillion rider and taking place on 25.10.2013 at about 10:00 am at Garhmukteshwar, Hapur, UP within the jurisdiction of PS Garhmukteshwar, Hapur, UP ? OPP
(ii) Whether petitioners are entitled to compensation? If so, to what amount and from whom ? OPP
(iii) Relief.
4. EVIDENCE
(i) Claimant no. 1 appeared in the witness box as PW 1 Ms. Zahida Begum . She was not cross examined on behalf of respondents no. 1 & 2 but she was cross examined by ld. Counsel for defendant no. 3 after application under section 170 of Motor Vehicles Act, 1988 having been allowed. PE was closed on 02.12.2015 on the statement of ld. counsel for claimant.
(ii) Despite opportunity given any of the defendants did not lead any evidence.
(iii) On 27.07.2016 ld. Counsel for claimant filed copy of statement of Mohd. Fahim as recorded by IO in the criminal case, wherein he stated that he was riding (sic) the offending vehicle and the deceased was sitting as a pillion rider. Claimants have also filed on record certified copy of records of criminal case.
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5. STATEMENT OF CLAUSE 26 OF MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE.
On 21.09.2016 statement of Ms. Zahida Begum was recorded under clause 26 of Modified Claims Tribunal Agreed Procedure.
6. ARGUMENTS I have heard Mr. Dheeraj Kulshreshta, Advocate for claimant and Mr. S. K. Sharma, Advocate for defendant no. 3. Ld. Counsel for claimants submitted that this is a claim petition U/s 163A Motor Vehicles Act of 1988 and income of the deceased was Rs. 40,000/- per annum and the claimants being the parents of deceased are entitled to the compensation inasmuch as deceased was riding on motorcycle as a pillion rider owned by defendant no. 2. Ld. Counsel for claimants relied upon case laws reported as (i) M/s National Insurance Co. Ltd. Vs. Bimla Devi & Ors. MAC.App. No. 347/2006 decided by Hon'ble Delhi High Court on 22.08.2013 and (ii) The New India Assurance Co. Ltd. Vs. Santosh Kumari & Ors. MAC. App. 282/2005 decided by Hon'ble Delhi High Court on 18.10.2012. ON THE OTHER HAND, ld. Counsel for defendant no. 3 submitted that PW 1 Zahida Begum in her cross examination admitted that her deceased son was drawing salary of Rs. 3500/- -3600/- per month and, hence, this petition under section 163A Motor Vehicles Act, 1988 is not maintainable as income of deceased was more than Rs.40,000/- per annum (the maximum income as mentioned in THE SECOND SCHEDULE to the Motor Vehicles Act, 1988). Further ld. counsel submitted that it has also come in the cross examination of PW 1 Ms. Zahida Begum that prior to four months of accident they had purchased the motorcycle bearing no. DL 6SAL 3859 but she did not remember the name of the seller. It was submitted that claimants being the owner of the motorcycle are not entitled to any compensation under section 163A Motor Vehicles Act, 1988. Lastly ld. Counsel submitted that record of criminal proceedings filed by claimants also makes the case of the claimants doubtful inasmuch as there is delay in (ANAND SWAROOP AGGARWAL) Page No. 4 of 11 P.O-MACT/NE/KKD/DELHI/15.03.2017 Zahida Begum & Anr. Vs. Mohd. Fahim & Ors. MACT NO. 214/13 lodging the FIR and there is no documentary proof regarding injury to Mohd. Fahim. Ld. Counsel for defendant no. 3 relied upon case law reported as (i) Ningamma & Anr. Vs. United India Insurance Co. Ltd. Civil Appeal No. 3540/09 decided by Hon'ble SC on 13.05.2009; (ii) Iffco Tokio General Insurance Co. Ltd. Vs. Smt. Babita & Ors. MAC. APP. 149/2012 decided on 14 th August, 2012 Hon'ble High Court of Delhi ; (iii) United India Insurance Co. ltd. Vs. Meena & Ors. , III (2012) ACC 870 decided on 16.07.2012 Hon'ble High Court of Delhi.
I have gone through the material available on record very carefully and given a thoughtful consideration to the facts and circumstances of the case as arise on the basis of material on record.
7. MY ISSUEWISE FINDINGS ARE AS UNDER:
ISSUE NO. 1Whether deceased died due to injuries received in motor accident caused by unknown vehicle which had hit against the motorcycle no. DL 6SAL 3859 which was being driven by respondent no. 1 and on which deceased Mohd. Nazakat Hussain was a pillion rider and taking place on 25.10.2013 at about 10:00 am at Garhmukteshwar, Hapur, UP within the jurisdiction of PS Garhmukteshwar, Hapur, UP ? OPP Claimants have filed on record certified copies of the record of criminal case vide FIR No. 259/13, Crime No.442/2013 under sections 279/304A/427 IPC, P. S. Gurmukteshwar, Hapur, U. P. As per FIR recorded on the statement of Shakawat Hussain S/o. Jahiruddin an unknown vehicle had hit the motorcycle no. DL 6SAL 3859 and had caused on the spot death of his brother Mr. Nazakat Hussain, who was going to his village from Delhi on motorcycle DL 6SAL 3859. Postmortem report of Mr. Nazakat Hussain is also on record. Final report (untrace) submitted by the police has also been filed on record. Statement purportedly submitted by one Fahim before Kotwali Thana Garmukteshwar on 28.10.2013 has also been filed on record by the claimants. PW 1 Ms. Zahida Begum in her evidence affidavit has also deposed (ANAND SWAROOP AGGARWAL) Page No. 5 of 11 P.O-MACT/NE/KKD/DELHI/15.03.2017 Zahida Begum & Anr. Vs. Mohd. Fahim & Ors. MACT NO. 214/13 regarding death of Mohd. Nazakwat Hussain in an accident taking place on 25.10.2013 while he was going as pillion rider on motorcycle no. DL 6SAL 3859. In her cross examination by ld. counsel for defendant no. 3 under section 170 Motor Vehicles Act, 1988 the factum of death of Mr. Nazakat Hussain on account of accident taking place on 25.10.2014 by use of motorcycle no. DL 6SAL 3859 has not been disputed.
However, it is pertinent to note that as per claimants deceased Mr. Nazakat Hussain was going on the motorcycle as a pillion rider at the time of the accident on 25.10.2013 at about 10:00 a.m. In this case FIR was recorded at 11:30 a.m. on 25.10.2013 on the basis of statement of Mr. Shakawat S/o. Mr. Jahiruddin, the elder brother of deceased Nazakat Hussain. In the said statement on the date and time of accident brother of Mr. Shakawat aged about 25 years was coming to his village from Delhi on motorcycle Super Splender bearing no. DL6SAL 3859 and, when at about 10:00 a.m. he had reached near Sky Lok Hotel, an unknown vehicle had hit him from behind and deceased Nazakat Hussain died on spot. In this statement there is no mention at all that deceased Nazakat Hussain was a pillion rider on the abovesaid motorcycle and that the said motorcycle was being driven by Mr. Fahim. This FIR suggest that most likely Mr. Nazakat Hussain was himself was driving the motorcycle.
Claimants are further relying upon statement submitted by one Mohd. Fahim submitted before Kotwali Thana Garmukteshwar on 28.10.2013. The said statement is not worth reliance from judicial mind in the totality of the facts and circumstances of the case for many reasons including that (i) in his statement Mr. Fahim has referred to motorcycle no. DL 6SAL 3859 as belonging to him at two places by using the words "apni" but, as per Registration Certificate filed on record, registered owner of motorcycle is Mohd. Rafiq. How Fahim is related to Mohd. Rafiq has not been explained anywhere; (ii) There is no MLC of Fahim on record despite the fact that as per his own statement submitted by him he had suffered injuries on head and knees;
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(iii) It has remained unexplained as to how/why Mr. Fahim disappeared from the place of accident, wherein deceased Nazakat Hussain has died on the spot. FIR has not been recorded on the statement of Mr. Fahim. FIR recorded on the statement of Shakawat Hussain is silent about the presence of Mr. Fahim on the motorcycle at its driver at the time of accident; (iv) There is delay of three days in Mr. Fahim submitting his statement on 28.10.2013 regarding accident taking place on 25.10.2013. As per Mr. Fahim on account of his ill-health he could not come to the police station. But there is no medical paper(s) to show ill-health of Mr. Fahim. ALSO, PW1 Zahida Begum in her cross-examination deposed that, "....... one person whose name I do not know was also accompanying my son at the time of accident. I do not know who was driving the vehicle bearing no. DL 6SAL 3859 at the time of accident....". Thus, on the basis of evidence of PW1 Zahida Begum it cannot be said that deceased Nazakat Hussain was pillion rider at mentioned in claim petition. Thus, it is observed that claimants have failed to prove that deceased Nazakat Hussain was a pillion rider on the motorcycle at the time of accident as mention in statement of Mr. Fahim. In view of above discussion it is observed that deceased Nazakat Hussain died on account of accident but it cannot be said that he was a pillion rider on the motorcycle at the time of accident. ISSUE IS DECIDED ACCORDINGLY.
ISSUE No.2 Whether petitioners are entitled to compensation? If so, to what amount and from whom ? OPP PW1 Ms. Zahida Begum in her cross-examination deposed that, ".... My deceased son was in the business of manufacturing of wallet. Vol. My deceased son was working with the manufacturer. My deceased son was drawing salary of Rs.3500/- - 3600/- per month. It is wrong to suggest my deceased son was not drawing salary of Rs.3500/- - 3600/- per month. ....". The annual income of deceased, thus, comes out to be more than Rs. 40,000/-. Hon'ble Supreme Court of India in case law reported as Deepal Girish Bhai Soni & Ors. Vs. United India Insurance Co. Ltd.
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Baroda AIR 2004 SC 2107 has observed that, "67. ..... In our opinion, the proceedings under section 163A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs.40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act." This case law has been followed by division bench of Hon'ble High Court of Kerala at Ernakulam in National Insurance Co. Ltd. Vs. K.S. Lathika & Ors. 2012 ACJ 930. Also in case law reported as National Insurance Co. Ltd. Vs. Sheela & Ors. IV (2011) ACC 93 Hon'ble High Court of Delhi has held that condition to be fulfilled for applicability of section 163A is that annual income of victim must not be more than Rs. 40,000/-. Income of deceased herein being more than Rs.40,000/- per annum, this claim petition u/s. 163A of the Motor Vehicles Act, 1988 is held to be not maintainable.
FURTHER, it is a settled proposition of law that the liability under section 163A of the Motor Vehicles Act, 1988 is on the OWNER of the Vehicle and a person cannot be both, a claimant as also a recipient with respect to a claim. (Oriental Insurance Company Ltd. Vs. Rajni Devi & Ors. (2008) 5 SCC 736 relied upon). Further Hon'ble Supreme Court of India in case law Ningamma and another Vs. United India Insurance Co. Ltd. 2009 ACJ 2020 has observed as under : "18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others, (2008) 5 SCC 736, wherein one of us, namely, Hon'ble Justice S.B. Sinha is a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that Section 163 A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer (ANAND SWAROOP AGGARWAL) Page No. 8 of 11 P.O-MACT/NE/KKD/DELHI/15.03.2017 Zahida Begum & Anr. Vs. Mohd. Fahim & Ors. MACT NO. 214/13 res integra. The liability under section 163A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163A of the MVA. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and there, he would step into the shoes of the owner of the motorbike.
19. We have already extracted Section 163A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that person like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that even the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163A of the MVA."
PW1 Zahida in her cross-examination deposed that, "...... Prior to four months of accident we had purchased the Motor cycle bearing no. DL 6SAL 3859 but I do not remember the name of the seller....". Deceased is the son of the claimants. It is not at all the case of the claimants that deceased was also an employee of the claimants. Thus, deceased at the time of accident was a representative of the owners/the motorcycle in question/claimants. The claimants being the owner(s) of the motorcycle (ANAND SWAROOP AGGARWAL) Page No. 9 of 11 P.O-MACT/NE/KKD/DELHI/15.03.2017 Zahida Begum & Anr. Vs. Mohd. Fahim & Ors. MACT NO. 214/13 in question are not competent to file this claim u/s. 163A of the Motor Vehicles Act, 1988. In the facts and circumstances of this case it is immaterial that registration certificate of the motorcycle in question is in the name of Mohd. Rafiq inasmuch admittedly as deposed by PW1 Zahida Begum they had purchased the motorcycle four months prior to accident and claimants had, thus, become owners of the motorcycle in law. MATTER CAN BE CONSIDERED FROM ANOTHER ANGLE ALSO. It is not at all the case of claimants that deceased Nazakat Hussain was an employee of Mohd. Rafiq registered owner of the motorcycle in question and/or at the time of accident deceased was performing his duties as an employee of Mohd. Rafiq. In such circumstances deceased Nazakat Hussain can be taken to have stepped into the shoes of the owner/Mohd. Rafiq and, thus, claimants being the LRs of deceased Nazakat Hussain cannot be said to be entitled to file this claim petition u/s. 163A of the Motor Vehicles Act, 1988. It is also pertinent to note that insurance policy in question covers only (a) Compulsory PA Cover (Owner Driver) only and does not cover (b) Optional PA Cover (Un Named Passenger) and (c) Optional PA Cover (Pillion Rider). Case laws relied upon by ld. counsel for claimants have no application in the facts and circumstances of this case. In New India Assurance Co. Ltd. Vs. Santosh Kumari & Ors. deceased was an employee of the registered owner/insured, which is not the case here. The case law National Insurance Co. Ltd. Vs. Bimla Devi and Ors. is also not applicable inasmuch as in the facts and circumstances of this case claimants herein/deceased Nazakat Hussain cannot be said to be a "third party" for the purposes of claim petition u/s. 163A of the Motor Vehicles Act, 1988.
IN VIEW OF ABOVE DETAILED DISCUSSION, this claim petition is found to be not maintainable u/s. 163A of the Motor Vehicles Acts, 1988 and, thus, claimants are not entitled to any compensation.
ISSUE No.3: Relief.
In view of my above findings, claim petition filed u/s. 163A of the Motor Vehicles Act, 1988 is found to be not maintainable in the facts and circumstances of (ANAND SWAROOP AGGARWAL) Page No. 10 of 11 P.O-MACT/NE/KKD/DELHI/15.03.2017 Zahida Begum & Anr. Vs. Mohd. Fahim & Ors. MACT NO. 214/13 this case. The same is, accordingly, hereby dismissed.
8. FORM IV to Modified Claims Tribunal Agreed Procedure is not relevant in this case as this case pertains to accident taking place outside Delhi and, as such, no DAR was filed.
9. Copies of this Award be delivered to parties concerned free of cost and also sent to DLSA.
10. File be consigned to RR after due compliances.
Pronounced in Open Court on (ANAND SWAROOP AGGARWAL) 15.03.2017. P.O. MACT(North-East) KKD Delhi (ANAND SWAROOP AGGARWAL) Page No. 11 of 11 P.O-MACT/NE/KKD/DELHI/15.03.2017