Delhi District Court
Dr. Rajkumar Shyamananda Singh vs Vinay Katara & Ors on 27 April, 2018
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court)
Karkardooma Courts, Delhi.
In the Court of Sh. G. N. Pandey
Motor Accident Claims Tribunal( Pilot Court)
Karkardooma Courts, Delhi.
MACT No. 14710/15
IN THE MATTER OF :
1. Dr. Rajkumar Shyamananda Singh
S/o Late Rajkumar Bhubansana Singh
R/o 9, Corral Court, Whitby Ontario,
LIN 8E7, Canada
2. Ms. Sheetal Rajkumari
D/o Dr. Rajkumar Shyamananda Singh
R/o 9, Corral Court, Whitby Ontario,
LIN 8E7, Canada
3. Ms. Seabird Rajkumari
D/o Dr. Rajkumar Shyamananda Singh
R/o 9, Corral Court, Whitby Ontario,
LIN 8E7, Canada
4. Ms Starry Rajkumari ( Minor)
D/o Dr. Rajkumar Shyamananda Singh
Through her father Dr. Rajkumar Shyamananda Singh
R/o 9, Corral Court, Whitby Ontario,
LIN 8E7, Canada
(Correspondence through counsel)
........... Petitioners
V E R S U S
1. Sh. Vinay Katara
S/o Sh. Jitendra Kumar Katara
R/o B47/3, Top Floor, Dilshad Colony, Delhi.
MACT No. 14710/15 1 of 16
Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court)
Karkardooma Courts, Delhi.
2. Sh. Amit Arora
S/o Sh. Baldev Raj Arora
R/o 1911A, Despiyan Nagar,
Kotwali Bhor, Mathura, UP
3. Reliance General Insurance Co. Ltd.
202210, Second Floor, Mercantile House,
15, Kasturba Gandhi Marg,
Connaught Place, New Delhi01
........ Respondents
Date of Institution of petition : 27.04.2012 Date of Judgment/Order : 27.04.2018 A W A R D:
1. By this order, I shall dispose off the claim petition filed by the petitioner / injured for grant of compensation in view of the provisions of Motor Vehicle Act, 1988.
2. Briefly the facts of the case are that deceased alongwith her daughter i.e. petitioner No. 3 and few other relatives had come to visit Vrindaban. On 19.01.2012 at about 9:30 PM, when the deceased, her daughter and her relatives were walking near Ambh Beauty Parlor at Patharpura, one car Hyundai Verna No. DL 7 CK 9106 came from the wrong side and was driving the vehicle rash and negligent manner and hit the deceased and her daughter. The deceased received grievous injuries and was taken to the nearby Hospital Brij Health Care at Mathura, UP and deceased after taking treatment was immediately removed from the said hospital as the condition of the deceased was serious and she was immediately shifted and admitted to Apollo Hospital, MACT No. 14710/15 2 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Delhi on 20.01.2012 and due to the said injuries from the accident, she died on 21.01.2012 at around 5 PM. Regarding accident, FIR No. 23/12 for offence U/s 279/304 A IPC was registered at PS Vrindaban, Distt. Mathura, UP.
3. The respondent No. 1 and 2 filed WS denying the averments made in the petition contending that this petition is not maintainable and there is no cause of action for filing of the same. As contended, answering respondent have been falsely implicated in the alleged accident while they have nothing to do with the said accident; no accident took place due to the negligence of the respondent No. 2 or the vehicle of respondent No. 1. It is further contended that at the time of accident, the vehicle in question was insured with the insurance company.
Respondent No. 3/ insurance company filed the WS contended that answering respondent had issued a policy No. 1302712311003207 for the period from 11.07.2011 to 10.07.2012 on the representation of Mr. Vinay Katara for vehicle No. DL 7 CK 9106.
4. On the basis of the pleadings of the parties, following issues were framed:
1. Whether deceased Smt. Hijam I Devi died on account of injuries sustained in accident taking place on 19.01.2012 at about 9:30 PM at near Ambh Beauty Parlor and Boutique at Pathar Pura, Mathura, UP within the jurisdiction of PS Vrindaban, Distt. Mathura, UP due to rash and negligent driving of vehicle No. DL 7 CK 9106 by respondent No. 1? OPP
2. Whether petitioners are entitled to compensation ? If so MACT No. 14710/15 3 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
to what amount and from whom? OPP
3. Relief.
5. Husband of deceased filed his affidavit by way of evidence Ex. PW 1/A and examined as PW1. The witness deposed nothing but deposed regarding the contention in the petition. He also deposed regarding the relevant documents i.e:
(i) Photocopy of passport of the LRs of deceased Ex.
PW 1/ 1 is de exhibited as not filed by the deponent.
(ii) Copy of passport of Visa petitioners No. 1, 2, 3, and 4 Ex PW 1/ 2 mark A
(iii) Copy of FIR mark B.
(iv) copy of police complaint of accident by daughter of deceased mark C
(v) Copy of Brij Health Care and research centre mark D
(vi) Copy of bill of Apollo Indraprastha mark E.
(vii) Copy of MLC mark F
(viii) Copy of certificate of embaling mark G.
(ix) Copy of postmortem mark H
(x) Copy of no Objection Certificate mark I
(xi) Copy of register detail of car registration mark J
(xii) Copy of salary certificate issued by the employee deceased at the hospital in Canada mark K
(xiii) Copy of death certificate issued by MCD mark L MACT No. 14710/15 4 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
(xiv) Photocopy of ID proof of deponent Ex PW 1/ 14. Petitioner No. 3 filed her affidavit by way of evidence Ex. PW 2/ A and examined herself as PW2. Witness has relied upon the documents i.e:
(i) Photocopy of the passport of Lrs of deceased Ex. PW 2/ 1 (ii) Copy of FIR Ex. PW 2/ 2
(iii) Copy of police complaint of accident by the daughter of deceased Ex. PW 2/ 3
(iv) Copy of Brij Health Care and Research centre Ex.PW 2/ 4
(v) Copy of bill of Apollo Indraprastha Ex. PW 2/ 5 (vi) Copy of MLC Ex PW 2/ 6
(vii) Copy of certificate embalming Ex PW 2/ 7
(viii) Copy of postmortem report Ex. PW 2/ 8
(ix) Copy of NOC for taking the dead body to her native place Ex. PW 2/ 9
(x) Copy of register detail of the car registration Ex. PW 2/ 10, abovesaid documents mark 2XI
(xi) Copy of salary certificate as well as other certificate issued by employee to the deceased at the hospital in Canada E.x PW 2/ 11
(xii) Copy of death certificate issued by MCD Ex. PW 2/ 12
(xiii) Dead body transport to Imphal Hospital anaylised report and proof of travel Ex PW 2/ 13
(xiv) Copy of marriage certificate of deceased Ex PW 2/ 14
(xv) Copy of birth certificate of starry Rajkumari Ex. PW 2/ 15 (xvi) Copy of passport of deponent Ex. PW 2/ 16.
MACT No. 14710/15 5 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Petitioner also examined other witness i.e. Ms. Rajkumari Rimasana Devi as PW3 by way of affidavit Ex. PW 3/ A. Witness has relied upon the documents i.e:
(i) Photocopy of passport of deceased mark A1 (ii) Copy of FIR Ex. PW 2/2
(iii) Copy of police complaint of accident by daughter of deceased Ex. PW 2/ 3.
(iv) Copy of Brij Health Care and Research Centre Ex. PW 2/
4
(v) Copy of bill of Apollo Indraprastha Ex. PW 2/ 5
(vi) Copy of MLC Ex. PW 2/ 6
(vii) Copy of certificate emblaming Ex. PW 2/ 7
(viii) Copy of postmortem report Ex. PW 2/ 8
(ix) Copy of no objection Certificate Ex PW 2/ 9
(x) Copy of register detail of car registration mark 2X1
(xi) Copy of salary certificate as well as other certificate
issued by the employee to the deceased at the hospital in Canada Ex. PW 2/ 11
(xii) Copy of death certificate issued by MCD Ex. PW 2/ 12
(xiii) Dead body transport to Imphal, Hospital analytical report and proof of travel stay in Delhi and visit to Agra Ex. PW 2/ 13
(xiv) Copy of marriage certificate of deceased Ex. PW 2/ 14
(xv) Copy of birth certificate of starry Rajkumari Ex. PW 2/ 15 (xvi) Copy of passport of Ms. Seabird Rajkumar Ex. PW 2/ 16 MACT No. 14710/15 6 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
(xvii) Photographs of number plat of offending vehicle Ex. PW 3/17.
Petitioners also summoned and examined the witness i.e. Dr. Atul Haritwal, presently posted at Brij Health Care and Research Centre as Orthopedic Consultant, Vrindavan, Mathura, UP as PW4 who deposed that he was working as Orthopedics surgon with aforesaid hospital for more than 9 years. The patient firstly examined by RMO (Resident Medical officer) as the patient was brought due to the accident by sliding vehicle and he was called by the RMO. The RMO told him that patient/attendent disclosed that she was injured due to the sliding vehicle. On 19.01.2012, the patient was brought to the said hospital in the injured condition at around 11.30 pm, the patient namely Mrs. Ibeyaima was complaining of pain in abdomen, chest pain with wound over bilateral ankle. She was given primary first aid and wound were stitched at ankle. The attendents of patient requested to shift their patient to the higher hospital, on their request the patient was referred to higher center for further management.
Petitioner also summoned and examined the witness i.e. ASI A Ajaya Kumar, No. 665/NE, PS Sarita Vihar, Delhi as PW5 appeared with the summoned record from PS Sarita Vihar i.e. DD entry no.8 dated 20.01.2012 regarding admission in Apolo Hospital and preparation of MLC no. 28/12 of the patient Hizam Devi w/o Sh. R.K. Shyamananda which was attended by SI Joginder Singh after going to Apolo Hospital. The DD Entry no.28 dated 23.01.2012 was regarding the handing over of the dead body of the diseased Hizam Devi to the LRs by SI R.S. Dagar. Copy of the MLC no. 28/12 is Ex.PW5/1. The report of SHO Mukesh Kumar of PS Sarita Vihar Ex.PW5/2, MACT No. 14710/15 7 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
the DD entry dated 8 dated 20.01.2012 Ex.PW5/4 and DD entry no. 28 dated 23.01.2012 Ex.PW5/4.
Petitioner also summoned and examined the witness i.e. Dr. Sandeep Guleria, Sr. Consultant Surgon, Inderprastha, Apollo Hospital, Delhi as PW5 who deposed that on 20.01.2012, the patient (name he do not remember) was brought to Apollo hospital from Vrindavan stated to be injured by road accident. The patient was in shock but conscious. She was resusciated, CT scan was done, a chest tube was put for chest injury and she was operated under emergence surgery. She was found to have injury in liver and injury to the small intestine. This was managed, however, in the post operative period, she developed DIC (disseminated Intervascular Coagulation) and died the following day despite our best efforts. The DIC means that she developed bleeding from multiple sites. The postmortem of the said patient was not conducted at Apollo hospital. The photocopy of the medical bills already Mark E was issued by the Apollo Hospital. PE was thereafter closed. 6 Respondent No 2 examined himself as R2W1 by way of affidavit Ex. R2W1/1. Witness has relied upon the documents i.e. copy of DL Ex. R2W1/A, copy of RC Ex. R2W1/B and copy of insurance policy Ex. R2W1/C. RE was thereafter closed.
7. I have heard Ld. Counsels for parties and considered the relevant materials on record. My issue wise findings are as below : ISSUE No. 1.
1. Whether deceased Smt. Hijam I Devi died on account of injuries sustained in accident taking place on 19.01.2012 at about 9:30 PM at near Ambh Beauty Parlor and Boutique at MACT No. 14710/15 8 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Pathar Pura, Mathura, UP within the jurisdiction of PS Vrindaban, Distt. Mathura, UP due to rash and negligent driving of vehicle No. DL 7 CK 9106 by respondent No. 1? OPP
8. To succeed in the claim petition and in view of section 166 of the MV Act, it is for the claimants to prove that vehicle which caused the accident was being driven rashly and negligently by its driver / respondent No. 2. PW2 was examined as an eyewitness of the accident but testimony of witness was totally shattered during her cross examination. PW1 is not an eyewitness of the accident at all. There is no MLC of the injured/ deceased to prove that injury or death was suffered due to the accident. The PW2 failed to depose as to from which direction the offending vehicle had come. Witness further failed to depose who was the driver and she appears to have not seen the accident in view of her testimony that she came at the spot by the car and pulled out her mother / injured. No information of accident was also given to the local police. None of the document relied by PW1 or PW2 are proved as per law including the MLC. During the arguments, Counsel for petitioners stated that there is no MLC of the deceased at the place of accident i.e. Vrindawan, Mathura, UP on records.
9. PW4 who is the doctor from Mathura UP deposed that patient was brought due to the accident by sliding vehicle as disclosed by the injured and as deposed by PW5, there was no intimation from any police station regarding any accident from Vrindavan UP. In nut shell, the petitioners failed to prove rash and negligent driving of respondent No. 2 causing to MACT No. 14710/15 9 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
injury and death. Merely noting in the affidavit that respondent No. 2 by rash and negligent driving caused the accident is not sufficient at all to prove the contentions for grant of compensation.
10. Before adjudicating the facts, it is vehemently argued by the Ld. Counsel for the insurance company that the claim petition filed by the petitioners is not maintainable and this petition should be dismissed as petitioners have not proved the criminal records, any injury/death by way of medical records / medical bills as well as involvement of vehicle driven by respondent No. 2. It is vehemently argued by the counsel for the respondents that the petition is liable to be dismissed as the petitioners failed to prove any negligence of the respondent No.2. The arguments of the ld. Counsel for respondents appears to have substance.
11. It is further argued by ld. Counsel for respondent that, even if the testimony of the PWs is considered alongwith other materials on record, no negligence of the respondent No. 2 is proved on record and therefore, respondents are not liable to make any payment. I have considered the submissions and gone through the relevant judgment of Hon'ble Delhi High Court in MAC App. 334/13 titled ICICI Lombard General Insurance company Limited V/s Jitender Kumar & ors. decided on 24.02.2015 in support of contentions. As held, in order to claim compensation in a petition U/s 166 of MV Act , 1988( the act), the proof of negligence is sine qua non to succeed in the claim petition. In a petition U/s 166 of MV Act, it is a duty of the claimants to prove that the accident was caused on account of rash and negligent driving of the driver of the offending vehicle.
MACT No. 14710/15 10 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
12. The proof of negligence is sine qua non in a petition U/s 166 of the MV Act, 1988. Merely because of registration of a criminal case against the driver of the offending vehicle, negligence cannot be inferred, even on the touchstone of preponderance of probabilities. I have gone through the judgment of Hon'be Delhi high court in re New India Assurance Company Limited V/s Harsh Mishra & Ors.(MAC. App. 592/2011) decided on 29.06.2015. The negligence is failure to take proper care which a reasonable man would have taken under the circumstances. As further noted, the proof of negligence is essential before a person or his master can be held reliable to pay the compensation as consequently held by Hon'ble Supreme Court. As held in Para No.17: "17The question of consideration before me here is whether mere registration of a criminal case is enough to prove the negligence on the touchstone of preponderance of probabilities. To my mind, the answer to this question will be in negative. As stated earlier, negligence is failure to take proper care a reasonable man would have taken under the circumstances. Though it is not always necessary that an eyewitness must be produced to prove negligence, every fact must be proved either by direct or indirect evidence". The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
The judgment of Hon'ble High Court of Delhi in M.A.C. App. No. 20/2017 decided on 05.07.2017 titled Reliance General Insurance MACT No. 14710/15 11 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Company Limited V/s Nirmala Devi & Ors. is also perused to same effect. Similar issue has arisen before Hon'ble Delhi High Court in New Delhi Assurance Company Limited V/s Devki & Ors., M. A. C. App. No. 165/13, decided on 29.02.2016 wherein it was observed that : "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 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 tortfeasor. 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.
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 MACT No. 14710/15 12 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
appears there was some confusion raised with regard to these principles on account of view taken in the case of Gujrat 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 163 A 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 163 A of the Act. Obviously, it is for the claimant to choose under which provisions 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 to accept the arguments 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 MACT No. 14710/15 13 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
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 contentions 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 involving of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet 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 MACT No. 14710/15 14 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
evidence are not required to be followed in this regard. Hence, this contentions 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 the 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 163 A of MV Act is always available to seek just compensation. The case of Bimla Devi ( Supra) cannot be an illustration to hold otherwise inasmuch as it is clear from the narration of facts noted therein that an eyewitness was available and the conclusion on facts had been reached on the basis of his testimony."
13. From the material on record and from the testimony of the witnesses, it is proved that the respondent No. 2 is not responsible for rash and negligent driving. In fact, the petitioners failed to prove any accident causing death due to the rash and negligent driving of respondent No. 2. Therefore, in view of the material on records and testimony of witnesses, this Tribunal is of the considered view that the petitioners have failed to prove that deceased Smt. MACT No. 14710/15 15 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Hijam I Devi died on account of injuries sustained in accident taking place on 19.01.2012 at about 9:30 PM at near Ambh Beauty parlor and Boutique at Pathar Pura, Mathura, UP due to rash and negligent driving of vehicle No. DL 7 CK 9106 by respondent No. 2. The issue No. 1 is decided accordingly against the petitioners.
Issue No. 2: Whether petitioners are entitled to compensation ? If so to what amount and from whom? OPP
14. In view of aforesaid discussion and findings on issue No. 1, the petitioners are not entitled for any compensation. This issue i.e. issue No. 2 is accordingly decided against the petitioners. Award:
15. The claim petition stands dismissed. File be consigned to record room after necessary compliance.
GORAKH Digitally signed by
GORAKH NATH PANDEY
Location: Court No.69,
Announced in open Court
NATH North East District,
Karkardooma Court, Delhi
on this 27th day of April, 2018 PANDEY Date: 2018.04.27
04:39:26 +0530
G. N. Pandey
Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
MACT No. 14710/15 16 of 16 Dr. Raj Kumar Shyamananda Singh & Ors V/s Vinay Katara & Ors.