Delhi District Court
Smt. Meena Kumari vs Sh. Satish Kumar on 6 December, 2022
MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022
IN THE COURT OF SH. VINOD YADAV,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
MAC Petition No. 684/17
UID/CNR No. DLNT010094962017
1. Smt. Meena Kumari,
W/o Late Sh. Jai Singh,
(Widow of deceased)
2. Sh. Aayush Tanwar,
S/o Late Sh. Jai Singh,
(Son of deceased)
3. Sh. Amit Kumar Tanwar,
S/o Late Sh. Jai Singh,
(Son of deceased)
All R/o H.No. 332, Village Rajhari,
District Yamuna Nagar,
Haryana.
.............Petitioners
VERSUS
1. Sh. Satish Kumar,
S/o Sh. Hari Chand,
R/o Village Rampur Majra,
PO Sabapur,
District Yamuna Nagar,
Haryana.
(Driver)
Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 1 of 36
MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022
2. Haryana Roadways,
Through Depot Manager:
District Yamuna Nagar,
Haryana.
(Registered owner)
3. Oriental Insurance Co. Ltd.
A25/27, Asaf Ali Road,
New Delhi.
(Insurer) ...............Respondents
Date of Institution : 17.08.2017
Date of Arguments : 18.11.2022
Date of Decision : 06.12.2022
APPEARANCES:
Sh. U.C. Rai, Ld. Counsel for petitioners.
Sh. B.S. Yadav, Ld. Counsel for registered owner. Sh. S.K. Pandey, Ld. Counsel for insurance co.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. Sh. Jai Singh aged about 55 years (deceased) had suffered injuries in a Motor Vehicular Accident which had occurred on 25.03.2017 at about 11:00 am at Bakhtawarpur Village, near Shani Mandir, Delhi, involving Haryana Roadways Bus bearing registration no. HR58B5490 (offending vehicle) allegedly being driven in a rash and negligent manner by respondent no. 1.
Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 2 of 36MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022
2. According to Detailed Accident Report (DAR), on 25.03.2017, Sh. Jai Singh (deceased) was travelling in offending vehicle which was proceeding towards Delhi from Yamuna Nagar and he was sitting at the last back seat near rear door. It is claimed that the offending vehicle was being driven by its driver/respondent no. 1 at a very high speed in a rash and negligent manner. At about 11:00 AM, when the offending vehicle reached near Bakhtawarpur Village, Delhi, due to high speed offending vehicle jumped over the breaker, as a result of which the deceased fell down from his seat and sustained injuries on his back/spine. He was immediately taken to LNJP Hospital for treatment but he died on 03.04.2017 due to the injuries suffered by him in the accident. FIR No. 108/17 U/s 279/337 IPC was registered at PS. Alipur with regard to said accident. It is claimed that the accident had taken place due to rash and negligent driving of offending vehicle by respondent no.1. The offending vehicle was found to be owned by respondent no. 2 and insured with respondent no. 3/Oriental Insurance Co. Ltd during the period in question.
3. In his WS, the respondent no. 1 i.e. driver claimed that he was having vaild and effective driving licence at the time of accident. It has been further claimed that the offending vehicle was insured with respondent no. 3 at the time of accident. Thus, insurance company is liable to pay the compensation to the petitioners. He has denied the averments made in the DAR and prayed for its dismissal.
Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 3 of 36MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022
4. In its WS, the respondent no. 2 i.e. registered owner claimed that deceased had sustained injuries due to his own fault as he was sitting on the last seat of the offending vehicle putting his legs over the iron grill which was there adjacent to rear door and there was no fault on the part of driver/respondent no. 1. However, it has been admitted that offending vehicle was insured with respondent no. 3 at the time of accident. Thus, it is not liable to pay any compensation to the petitioners. It has denied the averments made in the DAR and prayed for its dismissal.
5. Respondent no. 3/insurance company has raised preliminary objection that present claim petition is not maintainable. It has claimed that no postmortem was conducted on the body of deceased as family members of deceased cremated his body on the same day without giving any information to the Local Police of Yamuna Nagar and IO of the case. Thereafter, prosecution branch of Rohini, Delhi had sought Expert opinion from the Medical Board and as per Expert Medical opinion dated 14.07.2017 of Lok Nayak Hospital, the injury sustained by the deceased in the accident was unlikely to cause death. It has been further claimed that after the accident, injured deceased was got admitted in LNJP Hospital on 25.03.2017 and was discharged on 26.03.2017 and family members of the injured deceased took him to their native village where he died on 03.04.2017. It has been claimed that in the absence of postmortem, the cause of death of deceased could not be ascertained. Thus, it is not liable Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 4 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 to pay any compensation to the petitioners. However, it has admitted that the offending vehicle was insured with it at the time of accident. On merits, it has denied the averments made in the DAR and prayed for its dismissal.
6. From the pleading of the parties, the following issues were framed by Ld. Predecessor vide order dated 26.10.2017:
1) Whether the deceased Jai Singh died in road traffic accident on 25.03.2017 at 11:00 am at road from Shani Mandir towards Bakhtawarpur Road, Delhi within the jurisdiction of PS. Alipur due to rashness and negligence on the part of Satish Kumar/R1 who was driving the Bus bearing registration no. HR58B5490, owned by Haryana Roadways/R2 and insured with The Oriental Insurance Co. Ltd.?OPP.
2) Whether the Lrs of deceased are entitled to any compensation if so to what amount and from whom?OPP.
3) Relief.
7. Ld. counsel for insurance company very vehemently argued that present case is not maintainable as there is no postmortem report on record which could connect the death of deceased with the injuries sustained by him in accident in question. He further argued that death of the deceased had no corelation with the injuries sustained by him in the accident in question and he had expired due to some other reason/disease.
Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 5 of 36MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 On the other hand, Ld. Counsel for petitioners submitted that deceased had expired only due to the injuries sustained by him in the accident in question during the course of treatment.
8. I have heard both the Ld. Counsels for the parties and perused the record.
9. As per the insurance company, the petitioners have placed no medical record or the postmortem report to substantiate their claim that the death of deceased had a nexus with the accident in this case. It is argued that in the absence of any postmortem report, it can not be held that the deceased had died due to accidental injuries moreso when the death had occurred after about 8 days of the accident.
10. Before dealing with the aforesaid submission made on behalf of insurance company, it would be useful to refer to the decision in the case titled as "National Insurance Co. Ltd. Vs. Meenakshi Gupta & Ors.", in MAC APP. 1122/2017 & CM APPL. 46976/207, decided on 19.07.2019, wherein Hon'ble High Court of Delhi has held that nonfiling of postmortem report would not defeat the claimants' case. Similar view has been expressed by Hon'ble High Court of Andhra Pradesh in decision in the case of " Khairullah @ Babu, Lorry Driver & another Vs. Smt. Anita @ Amruthalal Patel & Ors. ", APP against Order No. 452 of 1989, decided Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 6 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 on 24.12.1993.
11. Now adverting to the facts of the present case. Undisputedly, the initial burden lies upon petitioners to prove that deceased had died due to the injuries sustained by him in the accident in question. The petitioners are required to discharge the said burden on the basis of preponderance of probabilities.
12. In case titled as "Klaus Mittelbachert Vs. East India Hotels Ltd., AIR 1997 Del 201, the Hon'ble High Court of Delhi has been pleased to hold as under: xxxxx "128. In words & Phrases, Permanent Edn Vol. 21 at page 448 , „ injury causing death‟ has been defined as under:
" If an employee but for an injury would not have died at the time of which and in the way in which he did die the accident though it merely hastened a deep seated disorder is regarded as resulting in an " injury causing death" within the Workmen‟s Compensation Act."
129. „Death resulting from injury‟ has been defined in Vol. XI page 4647 (CAPP) ibid as follows:
"Death resulting from an injury ..... covers cases in which an injury aggravates or accelerates an existing condition so that death ensues earlier than it would in Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 7 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 the ordinary course, even though the existing condition would have ultimately resulted fatally".
130. In Pegney v. Pointers Transport Services Ltd., 1952 (2) All England Law Reports 307 relying on Re: Polemis & Furnace, 1921 (3) KB 560, 577 LORD PILHER has said:
"if death is directly traceable to the injury in the accident for which the defendants are responsible., the chain of causation is not broken".
131. In plain words, if an injury hastens or accelerates the death, directly and not remotely, then in law the injury in one causing or resulting‟ in death."
By relying upon those paragraphs, learned counsel for the appellants submitted that any injury which forms the nucleus resulting in a death, has to be taken as cause for the death.
xxxxx
13. In case titled as "Ramathal V. Managing Director, Cheran Transport Corporation AIR 2004 SC 3445:(2003) 10 SCC 53, the Hon'ble Apex Court has been pleased to hold as under: xxxxx In that case, the deceased was originally injured on 14.1.1991 and was hospitalized for one week and subsequently, he was discharged from the hospital. Thereafter, after one year he died on 26.2.1992. Originally, the victim filed the claim for compensation. Since, he subsequently died, the Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 8 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 dependants filed amendment application and sought for a sum of Rs. 5,33,000/ as compensation. The Tribunal awarded Rs. 3,59,508/. On appeal, this Court reduced the compensation of Rs. 76,000/. The claimants therein preferred appeal before the Honorable Supreme Court enhanced the compensation of Rs. 2,00,000/ . While reversing the judgment of the High Court, the Honorable Supreme Court in paragraph 15 of the judgment stated as follows:
"15 Unfortunately, the High Court did not discuss the materials on record in detail. It is not in dispute that the deceased was an indoor patient from 1401.1991 to 21.1.1991. fie thereafter was being treated in Government Hospital, Palladama. He died there. The medical certificate shows that the cause of death was due to the primary disease hypoxic encephalopathy and immediate cause of death was due to cardiorespiratory arrest. The doctor examined on behalf of the claimants categorically stated that the accident might have been the cause of death of the deceased. The doctor examined on behalf the behalf of the deceased. The respondent did not bring any material on record to show that there was no link between the accident and the death. The finding of the High Court that there was no proper medical treatment and, therefore, cause of death is not attributable to the accident does not appear to be based on any material on record. In any event, it cannot be said to be the correct approach adopted by the High Court particularly when the Tribunal on the basis of the materials brought on record by the parties came to a contrary finding. No strong and Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 9 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 cogent reason has been assigned by the High Court in support of its judgment reversing the findings of the Tribunal. It accepted the submission made on behalf of the respondent herein without analysing the materials and without arriving at a clear finding of fact."
xxxxx
14. In case titled as "Abdul Rahim & Anr. vs. Sundaresan & Anr. C.M.A. (MP) No. 898 of 2008 decided on 30.07.2009, the Hon'ble High Court of Madras has been pleased to hold as under: xxxxx "In Abdul Rahim (supra) the Court had also referred to the decision of the Andhra Pradesh High Court in Khairullah vs. Amita 1994 ACJ 1017, wherein the injured died 25 days after the accident but no post mortem was done, yet it was held that the accident could be deduced as the cause of death from the Death Certificate as well as evidence of the public witnesses. In effect, failure of the doctors to either perform a postmortem or the same not being issued by the hospital for any reason, cannot be a ground to stop a claim for compensation"
xxxxx
15. In the matter titled as "National Insurance Co. Ltd. Vs. Meenakshi Gupta & Ors." (supra), it has been held by Hon'ble High Court of Delhi in para no. 2 as under: Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 10 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 xxxxxxx " It was argued on behalf of insurance company that in the absence of any postmortem report, it cannot be held that the injured died due to the accidental injuries, more so when the death took place after about six months of the accident. This argument is bereft of merit. It is true that there is no postmortem report on record to show that the death took place due to accidental injuries but the widow of the deceased has stated on oath that the said death was due to the accidental injuries. The insurance company was free to bring any evidence on record contrary to this averment but no such evidence was brought on record by the insurance company and hence, the version of widow of the deceased that the death of her husband took place due to accidental injuries cannot be disbelieved, particularly in the absence of any evidence to the contrary, it, is thus, held that the deceased died as a result of injuries sustained by him in the accident."
xxxxxx
16. The purpose of granting compensation is to ameliorate the sufferings of the victims of Motor Vehicle Accidents and the niceties, hyper technicalities, procedural wrangles and tangles and mystic maybes have no role to play and same should not be any ground to dismiss the claim petitions and to defeat the rights of the claimants. While saying so, I am fortified in my view by the decision rendered by Hon'ble Courts in the cases mentioned supra. It is also relevant to mention here that while deciding claim petition under M.V Act, it is the duty of Claims Tribunal to follow the principles of justice, equity and good conscience and to adopt more realistic, pragmatic and liberal approach. Moreover, Section 166(5) of M.V. Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 11 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 Act also says the same thing which is reproduced as under: xxxxxx "[(5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person to claim compensation for inquiry in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable to or had any nexus with the injury or not.]"
xxxxxx (emphasis supplied to underlying which is mine)
17. The aforesaid provision has been added by way of recent amendment, however, the same appears to be clarificatory in nature and it has just removed the impediment which was felt in the unamended Act because of ambiguity. The real intention of the Legislature appears to be very clear and categorical that if by preponderance of probabilities, the death in an accident case is relatable to or has nexus with the accidental injuries then the same has to be dealt with as a case for compensation in case of death and not of merely injury.
18. There is no substance in the contention raised on behalf of insurance company that since no postmortem was conducted on the body of deceased, present case can not be treated as death case and the same should be decided as injury case. It is admitted position on record that the injured deceased was taken to Lok Nayak Hospital after the accident and Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 12 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 he had received spine injuries in the accident. This fact is duly corroborated by the medical document already filed on record. Moreover, the insurance company had examined R3W2 SI Pradeep Kumar(IO of the case) in order to substantiate its said plea. Before coming to any conclusion, it is relevant to discuss the testimony of R3W2 who deposed in his evidence that during the course of investigation, he took opinion from the doctors of LNJP Hospital regarding the possibility of death in the nature of injuries sustained by the injured Sh. Jai Singh. He exhibited the letter dated 21.05.2017 issued by him to the Medical Director, LNJP Hospital as Ex. R3W2/1. He further deposed that the concerned doctor had given the opinion that as per clinical record and radiologist report, there was fracture L and there was no neurological defect and the same injury can not cause death. During his crossexamination on behalf of respondents no. 2 & 3, he deposed that the Chief Prosecutor after considering the facts of the case had allowed him to move an appropriate application for constituting Medical Board and thereafter, he had requested for constitution of Medical Board and the Medical Board had given its opinion on 14.07.2017. He admitted that vide letter dated 30.05.2017, he had requested the Chief Prosecutor for second opinion through a Medical Board. He further deposed that the aforesaid request of second opinion was allowed and the concerned Medical Board had given its opinion vide report Ex. PW1/R2. He deposed that he had filed the chargesheet u/s. 304A IPC on the basis of statement of witnesses as recorded by him. He admitted that postmortem of deceased was not Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 13 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 conducted. During his crossexamination on behalf of petitioners, he deposed that no previous ailment of deceased was discovered during his investigation of the case. He further deposed that during investigation, he did not receive any information regarding sustaining of any injury by the deceased after the date of accident.
19. It may be noted here that though the Medical Board had given its opinion that the injury sustained by deceased in the accident was unlikely to cause death but it does not mean that deceased had expired due to some other reasons/disease. There is no concrete evidence lead on record by the respondents to this effect. It is relevant to mention here that during his crossexamination, IO has deposed that no previous ailment of deceased was discovered by him during investigation of the present case. He also deposed that deceased had not suffered any other injury after the date of accident. In the present case, deceased had sustained injuries on 25.03.2017 and he had expired on 03.04.2017 i.e. after about 8 days of the accident. It is relevant to note here that neither deceased was suffering from any previous ailments at the time of accident nor he had suffered any other injury after the date of accident. Since, the deceased was not suffering from any previous ailments and had also not suffered any other injury after the accident, I can safely assume that the deceased had died due to the injuries sustained by him in the accident.
Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 14 of 36MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022
20. In support of their claim, the petitioners have examined only three witnesses i.e. PW1 ASI Pradeep Kumar(IO of the case), PW2 Smt. Meena Kumari(widow of deceased) and PW3 Sh. Baljinder Singh (from the office of employer of deceased). On the other hand, no evidence was adduced by respondent no. 1 and his evidence was closed through his counsel on 06.12.2018. The respondent no. 2 has examined one witness i.e. R2W1 Sh. Ram Diya, Clerk, Haryana Roadways, Yamuna Nagar, Delhi. The respondent no. 3/insurance company has examined three witnesses i.e. R3W1 Sh. Harsh Kumar, Clerk, RTA Department, Yamuna Nagar, Haryana, R3W2 SI Pradeep Kumar and R3W3 Sh. Pradeep Kumar Bhardwaj, Senior Assistant, RTO, Jaipur, Rajasthan and its evidence was closed vide order dated 16.07.2022.
21. I have already heard the arguments addressed by Ld. Counsels for the parties. I have also gone through the record. My findings on the issues are as under: Issue No. 1
22. For the purpose of this issue, the testimony of PW1 ASI Pradeep Kumar (IO of the case) is relevant. He deposed in his evidence that on 25.03.2017, the investigation of present case was marked to him and he investigated the case. He further deposed that he had recorded the Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 15 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 statement of deceased namely Sh. Jai Singh on the date of accident and exhibited the same as Ex. PW1/1. He also exhibited the copy of FIR as Ex. PW1/2. He further deposed that after the investigation of the case, he had filed the chargesheet against the driver of offending vehicle. He further deposed that after completion of investigation, he had filed the DAR proceedings in the present case and collectively exhibited the same as Ex. PW1/3(colly). During his crossexamination on behalf of respondents, he admitted that he had written a letter dated 31.05.2017 to the Chief Prosecutor, Rohini, Delhi and exhibited the same as Ex. PW1/R1. He further admitted that on the basis of said letter, Medical Board was constituted at Lok Nayak Hospital. He also admitted that Medical Board had given expert opinion vide report dated 14.07.2017 and exhibited the same as Ex. PW1/R2. He deposed that he had filed the chargesheet against the respondent no. 1 Sh. Satish Kumar for offence u/s. 304A IPC on the basis of statement u/s. 161 Cr. P.C made before him by number of public witnesses wherein they had disclosed that death of Jai Singh was caused due to the injuries sustained by him on account of the accident in question. He denied th e suggestion that he had filed the chargesheet u/s. 304A IPC against respondent no. 1, against the provisions of law or in connivance with the family members of deceased or for any other ulterior motive.
23. Spinal injuries can also be fatal in a motor vehicular accident. I am supported in my aforesaid view from the extracts of Chapter XVI of Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 16 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 Medical Jurisprudence and Toxicology, Revised under the Guidance of By Dr. B.V. Subrahmanyam, 1st Edition 2012, which for ready reference is reproduced hereunder: xxxxx SPINAL INJURIES:
Injuries to the spine and spinal cord are accidental mostly, occasionally homicidal and rarely suicidal.
In both criminal and civil cases these injuries have medicolegal significance.
Fracture of spine and associated injury to the spinal cord in dangerous for life Higher up the cord is damaged, the more dangerous will be result.
Death can occur immediately, if the medulla or upper par of spinal cord is damaged.
Injured to the lower spine may not be immediately fatal and edath may occur even after months or years as sequelae from affection of bowel and bladder apart from other complication such as cystitis pyelonephorities, bed sores etc. xxxxx
24. Ld. counsel for insurance company vehemently argued that PW1 ASI Pradeep Kumar is not an eye witness of the accident and no eye witness has been examined by petitioners during the course of inquiry. He, Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 17 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 therefore, contended that the petitioners have failed to prove that the accident in question was caused due to the negligent act of driver/R1.
25. On the other hand, Ld. Counsel for petitioners has heavily relied upon the criminal case record (which is part of DAR) in order to bring home his point that the accident in question had occurred due to the rash and negligent act of driver/Respondent no. 1. He further argued that respondent no. 1 Satish Kumar was also chargesheeted by police for offences punishable U/s 279/304A IPC, which clearly establishes that the accident had taken place due to rash and negligent driving of offending vehicle by respondent no. 1. (Reliance placed on "United India Insurance Co. Ltd. Vs. Sugandha Devi & Ors", bearing MAC.APP. No. 553/2014 decided on 18.05.2016 by Hon'ble Delhi High Court).
26. Instead of referring to a series of decisions on the point in issue, it may be noted that it is well settled legal position as laid down by Hon'ble Apex Court as well as by various High Courts in plethora of judgments delivered from time to time that in claim petitions preferred U/s 166/140 M.V Act, the claimants have to prove on the basis of preponderance of probabilities that accident was caused due to rash and negligent driving of alleged offending vehicles by its drivers. At the same time, it is no more resintegra that claim petition filed under relevant provisions of M.V Act, is the outcome of social welfare legislation and the Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 18 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 proceedings are summary in nature and do not require strict compliance of rules of evidence and pleadings. It needs no emphasis that in case replies filed by respondents, are evasive then it is deemed that they have admitted the averments made by the claimants. The purpose of granting compensation is to ameliorate the sufferings of the victims of Motor Vehicle Accidents and the niceties, hyper technicalities, procedural wrangles and tangles and mystic maybes have no role to play and same should not be any ground to dismiss the claim petitions and to defeat the rights of the claimants. While saying so, I am fortified by the decisions rendered by Hon'ble Apex Court in the cases titled as " N.KV. Bros (P) Ltd Vs. M. Karumai Ammal", 1980 ACJ 435 (SC); " Sohan Lal Passi Vs. P. Sesh Reddy", 1996 ACJ 1044 (SC) and " Dulcina Fernandes Vs. Joaquim Xavier Cruz", 2013 ACJ 2712 (SC). It is also relevant to mention here that while deciding claim petition under M.V Act, it is the duty of Claims Tribunal to follow the principles of justice, equity and good conscience and to adopt more realistic, pragmatic and liberal approach.
27. The aforesaid issue also came up for discussion before Hon'ble Apex Court in the case of "Vimla Devi & Ors. Vs. National Insurance Company Limited & Ors.", Civil Appeal No. 11042 of 2018, decided on 16.11.18. After referring to the previous judicial precedents on the point in issue and the fact that M.V. Act is a social welfare legislation, Hon'ble Apex Court held in para 29 of its judgment as under: Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 19 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 "xxxxx
29. In our view, what more documents could be filed then the documents filed by the appellants to prove the factum of the accident and the persons involved therein.
Xxxxx"
28. In the above cited decision, the facts were similar and the claimants had not examined any eyewitness and Hon'ble Apex Court held that in view of filing of criminal case record including chargesheet showing that driver of alleged offending vehicle had been chargesheeted for causing the accident due to rash and negligent driving of said vehicle and the driver himself did not enter into witness box, claimants were able to prove the issue of accident being caused due to rash and negligent driving of said vehicle by said driver on the basis of preponderance of the probabilities.
29. Now, reverting back to the facts of the present case. No doubt, the petitioners have not examined any eye witness to prove the negligence on the part of driver of the offending vehicle but nevertheless, there is ample material brought on record during the course of inquiry, which is sufficient to establish that the accident had taken place due to rash and negligent driving of offending vehicle by respondent no. 1.Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 20 of 36
MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022
30. Moreover, the respondent no. 1 /driver of the alleged offending vehicle was the other material witness who could have thrown sufficient light as to how and under what circumstances, the accident had taken place but still he preferred not to contest the claim petition. He did not enter into witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him for not entering into the witness box, to the effect that the accident occurred due to wrong parking of his vehicle in the middle of the road.
31. It is an undisputed fact that FIR No. 108/17 u/s 279/337 IPC was registered at PS. Alipur with regard to the accident in question. Copy of said FIR as also copy of charge sheet filed in said State case, are part of DAR and same have not been disputed by either of the respondents. Even otherwise, deceased himself is the injured having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against respondent no.1. Furthermore, it is an undisputed fact that FIR No. 108/17 u/s 279/337 IPC was registered at PS. Alipur with regard to accident in question. Copy of said FIR (which is part of DAR), would show that same was registered on the statement of deceased himself on the date of accident itself i.e. 25.03.2017. The contents of said FIR would show that the injured deceased had disclosed the same sequence of facts leading to the accident, as deposed by PW2 during the course of inquiry. The registration number of offending vehicle to be Bus no. HR58B5490 is also Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 21 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 disclosed therein. The respondents no. 1 & 2 have failed to substantiate the plea that petitioners had any kind of ill will or enmity against them so as to falsely implicate respondent no. 1 in criminal case or to depose falsely against them during the course of inquiry.
32. Apart from above, copy of MLC (which is part of DAR) of injured deceased prepared at Lok Nayak Hospital, Delhi shows that he had been removed to said hospital immediately after the accident on 25.03.2017 at about 3:15 pm with alleged history of accidental injury in offending vehicle. On his local examination, he was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in a motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.
33. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of pre ponderence of probabilities that deceased had sustained fatal injuries in the Motor Vehicular Accident which had occurred on 25.03.2017 at about 11:00 am near Bakhtawarpur Village, near Shani Mandir, Delhi, due to rash and negligent driving of offending vehicle by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 22 of 36
MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 ISSUE NO. 2
34. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
LOSS OF DEPENDENCY
35. PW2 Smt. Meena Kumari has deposed in her evidence by way of affidavit Ex. PW2/A that deceased (aged about 55 years) was doing government job and was working as Junior Engineer (Elec & Mech) and was earning about Rs. 87,213/ per month at the time of accident. She further deposed that all the petitioners were financially dependent upon the earning of deceased at the time of accident. During her cross examination on behalf of respondents, she admitted that deceased had died while they were taking him to the hospital from his native place i.e. Hayrana. She deposed that deceased had died on 03.04.2017 at about 9:30 pm. She further deposed that she did not inform the local police as well as Delhi Police regarding the death of deceased as she was not having phone number. She admitted that no postmortem was conducted on the body of deceased. She denied the suggestion that deceased did not die because of the injurie sustained in the alleged accident. She further denied the Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 23 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 suggestion that deceased died naturally and his death was not related to the accident. She deposed that deceased was aged about 55 years at the time of accident. She denied the suggestion that deceased was not earning Rs. 87,213/ per month. She further denied the suggestion that both the sons of deceased were working. She deposed that she was getting monthly pension of Rs. 39,000/. She further deposed that she got Rs. 18,00,000/ from the office of deceased after the death of her husband.
36. In order to prove the employment and income of deceased, the petitioners have examined PW3 Sh.Baljinder Singh, LDC, DGBR, Headquarter who produced the entire service book of deceased Sh. Jai Singh. He further deposed that Sh. Jai Singh was posted as JE (Electrical & Mechanical) with Border Road Organization at the time of accident in question i.e. 25.03.2017. He further deposed that deceased had joined the service on 05.07.1985 on the post of Charge Mechanic and he was promoted to the post of Superintendent Indem II w.e.f. 03.08.1990 and thereafter, he was promoted to the post of Superintendent Indem I and was merged with the post of JE in terms of recommendations laid by Sixth Pay Commission which came into force in the year 2006. He further deposed that according to service book, deceased was drawing gross monthly salary of Rs. 88,709/ in the month of March, 2017. He exhibited the copies of relevant documents available in the service book of deceased as Ex. PW3/1(colly). He also exhibited the copies of salary slips of deceased for Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 24 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 the period January 2016 till March 2017 as Ex. PW3/2(colly). He futher deposed that deceased would have got atleast one more promotion in future had he not met with the road accident. He further deposed that the age of superannuation of deceased was 60 years in their Department.
37. Having considered the deposition of PW3 the monthly salary of deceased is considered as Rs.78,468/ (Rs. 88,709/ as per last drawn pay slip for the month of March 2017 minus Rs. 90/ of washing allowance and Rs. 10,151/ of recurring allowances) in order to calculate the loss of dependency. Out of the said amount the income tax payable shall be deducted. PW3 has proved on record the Form 16 of the deceased for the assessment year 201617(period from 01.04.2015 to 31.03.2016) as per which the tax payable is mentioned as 45,304/ i.e. Rs.3775/ per month. Hence, I am inclined to accept the monthly income of deceased to be Rs.74,693/(after deduction of aforesaid income tax) in order to calculate the loss of dependency.
38. It is argued on behalf of respondent insurance company that the LRs of deceased have got Rs. 18,00,000/ from the office of deceased and the widow of deceased is also getting pension of Rs. 39,000/ per month, hence the LRs of deceased have not suffered any financial loss. Here it will be suffice to mention that though the LRs of deceased may have received compensation from the department of deceased and widow of Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 25 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 deceased is also getting pension but the said amount is not liable to be deducted from the compensation to be paid by this Tribunal. The LRs of deceased would have got said benefits if the deceased has died due to the other reasons other then the accidental injuries.
39. As per the case of petitioners, deceased was aged about 55 years at the time of accident. In the copy of PAN Card of deceased, his date of birth is mentioned as 15.02.1962. The date of accident in the present case is 25.03.2017. Thus, the age of deceased is accepted as 55 years at the time of accident. Hence, the multiplier of 11 would be applicable in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
40. Considering the age of deceased at the time of accident, future prospects @ 15% has to be awarded in favour of petitioners in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors."
mentioned supra, as well as in view of decision of Hon'ble High Court of Delhi in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17.
Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 26 of 36MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022
41. PW2 has deposed in her evidence by way of affidavit (Ex. PW2/A) that all the petitioners were financially dependent upon the deceased. Considering all the facts and circumstances, it is held that there were three dependents i.e. widow and two sons of deceased at the time of accident. Hence, there has to be deduction of one third as held in the case of Sarla Verma mentioned supra. Thus, the total of loss of dependency would come out to Rs. 75,58,931.60 (Rs. 74,693/ X 2/3 X 115/100 X 12 X
11). Hence, a sum of Rs. 75,59,000/ (rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
42. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners are not entitled to be compensated under this head. Further Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 27 of 36MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 LOSS OF CONSORTIUM
43. In view of the judgment of Hon'ble Supreme Court in case titled as New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020, dated 07.09.2020 I am of the considered opinion that all the three petitioners are entitled for payment of Rs. 40,000/ each towards loss of consortium. Consequently, a sum of Rs. 1,20,000/ is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
44. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 75,59,000/
2. Loss of consortium Rs. 1,20,000/
3. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 77,09,000/ Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 28 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022
45. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. The insurance company/R3 has taken statutory defence that the offending vehicle was not having valid permit at the time of accident in question. It has been further claimed by the insurance company that respondent no. 1 was not having valid and effective driving licence at the time of accident. For the said purpose, insurance company has examined three witnesses as discussed above.
46. Per contra, Ld counsel for registered owner/insured vehemently argued that there was valid and effective permit at the time of accident. He further argued that respondent no. 1 was also having valid and effective DL at the time of accident and thus, insurance company is liable to pay the compensation amount. For the said purpose, he relied upon the testimony of R2W1 Sh. Ram Diya, Clerk, Haryana Roadways, Yamuna Nagar Depot, Haryana. He therefore, urged that no liability should be fastened upon insured to pay the compensation amount.
47. At this juncture, it would be relevant to discuss, in brief, the testimonies of relevant witnesses in order to appreciate the rival submissions made on behalf of both the sides.
Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 29 of 36MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022
48. As noted above, the respondent no. 2 has examined one witness i.e. R2W1 Sh. Ram Diya. In his evidence, he produced the Certificate of Fitness, State Carriage Permit of offending vehicle and List of vehicles. He exhibited the attested copies of said documents as Ex. R2W1/1 to Ex. R2W1/3 respectively. He also produced Certificate from Licencing AuthorityCumRTA/Yamuna Nagar, Haryana for the renewal of DL No. S128873/86 and exhibited the same as Ex. R2W1/4. During his crossexamination on behalf of insurance company, he deposed that he did not have knowledge if the Yamuna Nagar Haryana Transport Authority had verified from the Jaipur Transport Authority before renewal of said DL.
49. R3W1 Sh. Harsh Kumar produced the permit record of offending vehicle. He further deposed that permit of offending vehicle was issued for period from 13.01.2015 to 12.01.2020 from RTA Department, Jagadhari, Yamuna Nagar, Haryana and exhibited the relevant record as Ex. R3W1/1(colly).
50. R2W1 & R3W1 are the most relevant witnesses for the purpose of deciding the present issue. They produced the relevant record in respect of permit of offending vehicle and DL of respondent no. 1. A bare perusal of aforesaid records produced by aforesaid witnesses, it is clear that offending vehicle was having valid and effective permit at the time of accident. It is also clear that DL of respondent no. 1 was valid and effective Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 30 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 at the time of accident. Thus, the aforesaid contentions raised by the insurance company in respect of validity of permit of offending vehicle and DL of respondent no. 1, is hereby rejected.
51. Having judged the facts of the present on the touch stone of the legal position discussed above and in view of the reasons given herein above, it is held that the insurance co has failed to prove that there was fundamental breach in the terms and conditions of insurance policy on the part of insured or that it is entitled to recovery rights against the insured. Consequently, it is held that insurance company is liable to pay the compensation amount so determined herein above, to the petitioners. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
52. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 77,09,000/ (including interim award amount if any) alongwith interest @ 9% per annum w.e.f date of filing the claim petition i.e. 17.08.2017 till the date of its realization, in favour of Lrs of deceased/petitioners and against the respondents. (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors" bearing MAC. APP. 165/2011 decided on 22.02.2016).
Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 31 of 36MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 APPORTIONMENT
53. Statement of petitioners in terms of Clause 29 MCTAP were recorded on 06.08.2022. In view of their statements and keeping in view the facts and circumstances of the case, It is hereby ordered that out of the award amount, the petitioner no. 1 namely Smt. Meena Kumari (widow of deceased) shall be entitled to share amount of Rs. 57,09,000/ (Rupees Fifty Seven Lakhs and Nine Thousand Only) alongwith proportionate interest and petitioners no. 2 & 3 namely Aayush Tanwar and Amit Kumar Tanwar (both sons of deceased) shall be entitled to share amount of Rs. 10,00,000/each (Rupees Five Lakhs Only) alongwith proportionate interest.
54. Out of share amount of petitioner no. 1, a sum of Rs. 7,09,000/ (Rupees Seven Lakhs and Nine Thousand Only) is directed to be immediately released to her through her saving bank account no. 1170000100013279 with Punjab National Bank, Ambala Cantt., Ajit Nagar, Ambala, having IFSC Code PUNB0117000 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 1,50,000/ each for one month, two months, three months and so on and so forth, having cumulative interest.
Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 32 of 36MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022
55. Out of share amount of petitioner no. 2, a sum of Rs. 5,00,000/ (Rupees Five Lakhs Only) is directed to be immediately released to him through his saving bank account no. 1170000101091526 with Punjab National Bank, Ambala Cantt., Ajit Nagar, Ambala, having IFSC Code PUNB0117000 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 20,000/ each for one month, two months, three months and so on and so forth, having cumulative interest.
56. Out of share amount of petitioner no. 3, a sum of Rs. 5,00,000/ (Rupees Five Lakhs Only) is directed to be immediately released to him through his saving bank account no. 32581627317 with State Bank of India, Mahesh Nagar, Ambala Cantt., Brahm Kumari Chowk, having IFSC Code SBIN0014633 and remaining amount is directed to be kept in the form of FDRs in the multiples of Rs. 20,000/ each for one month, two months, three months and so on and so forth, having cumulative interest.
57. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 33 of 36MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 34 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
58. Respondent no. 3/Oriental Insurance Co. Ltd., being insurer of the offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to release the aforesaid amount immediately to aforesaid petitioners in their respective saving bank accounts, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques.Copy of the award be given dasti to the petitioners and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV & Form XVII in terms of MCTAP are Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 35 of 36 MACP No.684/17; FIR No. 108/17; PS. Alipur DOD: 06.12.2022 annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 06.12.2022 (VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 36 pages and each page is signed by me.
(VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Smt. Meena Kumari & Ors. Vs. Satish Kumar & Ors. Page 36 of 36