Indian Kanoon - Search engine for Indian Law

Delhi District Court

No Memo Of Parties Filed By The vs Mr. Narender Kumar Mukhi on 4 March, 2020

                        IN THE COURT OF S.S. MALHOTRA
                       PO:MACT-1 (NORTH): ROHINI: DELHI

MACT No. 5123
FIR no. 26/14
PS Shahbad Dairy

No Memo of parties filed by the claimants,
the following memo of parties is as per DAR
filed by the police

    1. Smt. Manju Mukhi
       widow of deceased (Narender Kumar Mukhi)
    2. Mr. Pardeep Kumar Mukhi - son
    3. Smt. Prem Devi - mother
       All R/o H. No. 230, Jai Appt.
       Sector-9, Rohini, Delhi.
                                                          .........Petitioner
                                            VERSUS

    1. Mr. Narender Kumar Mukhi
       S/o Sh. G.D. Mukhi
       R/o H. No. 230, Jai Appt.
       Sector-9, Rohini, Delhi.
       (The deceased)

    2. Mr. Radhey Shyam Arora
       R/o H. No. 357, Old Housing Board Colony,
       Sonipat, Haryana.
       (Registered owner)

    3. Relieance Gen. Ins. Co. Ltd.
       60, Okhla Industrial Area,
       Phase-III, Opposite SBI, Delhi.

Manju Mukhi Vs. Radhey Shyam Arora & Ors.
MACT no. 5123/16                                               1 /13
                                                            ......Respondents

                          DATE OF INSTITUTION          :    29.05.2014
                          JUDGMENT RESERVED ON         :    26.02.2020
                          DATE OF AWARD                :    04.03.2020
                          FINAL ORDER                  :    DISMISSED
    JUDGEMENT

Since no compensation has been awarded to the petitioner and petition is being dismissed, no proforma is being filled up.

1. Police has filed the 'detailed accident report' (DAR) in respect of the road traffic accident due to which victim Narender Kumar Mukhi, who is respondent no. 1 as per DAR and who suffered fatal injuries (due to his own negligence, as per DAR). Copy of DAR was supplied to all the parties concerned and LRs of deceased were given liberty to file formal claim petition vide order dated 29.05.2014. It is matter of record that LRs of respondent no. 1 / petitioners have not filed any memo of parties.

2. Brief facts of the accident as per DAR are that during the investigation IO has recorded the statement of eye-witness namely Deepak S/o Naresh Das, who has given the statement that by profession he is cobbler and mends shows/slippers etc. near Shahbad bus stands for the last 10/12 years. On 07.01.2014, he was sitting at his work place and at about 5.20 pm a green coloured DTC bus came and stopped at Shahbad Dairy bus stand and when Manju Mukhi Vs. Radhey Shyam Arora & Ors.

the passengers were de-boarding from the bus, in meanwhile a car, which was being driven by its driver rashly, negligently and at a very high speed came from Shahbad Village side and hit his car on the rear side of the DTC bus. As per the report of IO, the driver i.e. respondent no. 1 has died in that accident.

3. As stated above, police, after the investigating, has filed the DAR inter alia stating the negligence was on the part of deceased himself. It is matter of record that no formal claim petition is filed by the LRs of deceased despite liberty granted to them. The police had indicted respondent no. 1 (the driver of the car, since deceased) and since LRs of the deceased are petitioners, no reply was required from LRs of respondent no. 1. In other words, petitioners and LRs of respondent no. 1 are same set of person and they i.e. petitioners are perusing their DAR against themselves.

4. As far as owner of the car is concerned, no reply has been filed by him. However, respondent no. 3, Ins. Co. of the car bearing no. HR10J 5820 has filed detailed reply inter alia stating that accident has been caused due to the negligence on the part of deceased Narender Kumar Mukhi himself and even police has filed the DAR stating negligence of victim in causing the accident and as such Ins. Co. is not liable to pay any compensation.

5. After going through the pleadings of parties following issues were framed on 28.04.2015 :-

Manju Mukhi Vs. Radhey Shyam Arora & Ors.

1. Whether petitioners are not entitled to any compensation, accident having been taken place due to his (victim) own negligence? OPR-3

2. Whether petitioners are entitled to get compensation if yes, to what amount and from whom of respondents? OPP.

3. Relief.

6. The LRs of victim i.e. widow Smt. Manju Mukhi examined herself as PW1 and filed her affidavit Ex. PW1/A, son of the victim Mr. Pardeep Mukhi examined himself as PW2 and one Ms. Prakash Rani, stated to be eye-witness of accident has been examined as PW3. Admittedly neither PW1 nor PW2 are eye-witness of the accident. No witness has been examined on behalf of respondent no. 2 and respondent no. 3.

7. I have heard the parties and gone through the record. However, before disposing of the issues, the court is of the opinion that chronology with respect to framing of issues is not proper and therefore the first part of the issue no. 2 is taken up first, and remaining part of the issue no. 2 would be taken up along with issue no. 1 thereafter, as the same has been framed in negative form i.e. the same is with respect to liability of respondents. My issue wise findings accordingly is as follows:-

First part of the issue no. 2 i.e. as to whether the petitioners are entitled to get compensation?

Manju Mukhi Vs. Radhey Shyam Arora & Ors.

8. Before the petitioners are held to be entitled for any compensation, it has to be held that the deceased had died on account of rash or negligent driving of some person other than the deceased himself and for this, the facts of the DAR and the evidence, which have come on record are quite material.

9. Admittedly, the petitioners are the LRs of victim Narender Kumar Mukhi, who has been arrayed as respondent no. 1 and neither there is any petition nor any protest petition filed by the petitioners. No doubt, widow and son of victim have examined themselves as PW1 and PW2 respectively but admittedly they are not the eye-witness of accident. PW3 is stated to be sole eye-witness of accident and has been examined by way of affidavit. This witness PW3 has also been cross examined by Ld. Counsel for respondent no. 3 / Ins. Co. at length and in her cross examination PW3 had deposed that: -

"She does not remember when the Diwali was in 2014. She has come to the court of her own to depose. She is not a summoned witness. Again said that she has come to the court on the saying of petitioner's son. She had come to the court earlier. She had filed her affidavit which was prepared on the saying of son of petitioner. She does not know English language. It might have been prepared by the counsel. She cannot say whether it was prepared by the counsel representing the petitioner. Vol. She got it written whatever she saw. She knows the contents of her affidavit. It was explained to her Manju Mukhi Vs. Radhey Shyam Arora & Ors.

by the counsel for petitioner in vernacular. She did not make any complaint to the police with respect to the accident and she has not told any fact to the police at that time when the police came for investigation nor police had asked her about the accident. She had mentioned the registration number of offending vehicle in her affidavit which was told to her by other witness, however she does not know his (witness) name. She works as cooking foods during the marriage function in the houses and name of the person in whose house she was working on that day is Mr. Surender Kumar. The house of Mr. Surender Kumar is far away from the spot of accident but she was present on the bus stand. She further deposed that she is not aware on which bus stand she was present on that day."

10. On the other hand, the statement of Deepak, who admittedly was present on the spot and on whose statement the FIR has been registered reads as follow: -

"at about 5.20 pm, one green coloured DTC bus no. DL1PE 1511, route no. 165 was standing at Shahbad Dairy bus stand and when the passengers were de-boarding, at that time one Alto car no. HR10J 5820 came from back side, which was being driven by its driver at fast speed and in rash and negligent manner came and struck against the said bus from back side and front portion of the car was got damaged and the back bumper of the bus got broken. Many public persons gathered there, CATS vehicle and PCR vehicle came on the spot and took the car driver Manju Mukhi Vs. Radhey Shyam Arora & Ors.

to hospital..................................................."

11. In view of all the evidence, the issues arises as to whether whose statement is nearer to the truth i.e. either the statement of eye- witness Mr. Deepak, whose name is mentioned in the DAR and who undisputedly was present at the spot, or whether PW3 i.e. the witness, who appears, all of sudden on the spot knowing nothing about the case. In similar facts and circumstance of the Hon'ble High Court in Reena & Ors. Vs. Amit Kumar & ors. (M/s United India Assurance Co. Ltd.) MAC App. no. 887/2019 decided on 19.11.2019, it was held in para 4 as under:

"What emanates from the above is that Mr. Deepak Kumar suddenly appears out of the blue and deposes in favour of the claimants. He does not even mention as to how far his so-called workplace was from the spot of the accident and what he did for a living. He neither knew the deceased or any details about him nor did he know any of his relatives. Furthermore, he did not even know Mr. Sunil, who took the injured to the hospital. There is no way in which Mr. Deeapk Kumar could have been contacted by the claimants. He is possibly a person who interloped his testimony which has rightly not been relied on or accepted as being trustworthy by the learned Tribunal"

12. Now coming to the evidence and the fact of the present case, which are almost on similar facts and from the sheer reading of her deposition it is quite clear that this witness PW3 has suddenly Manju Mukhi Vs. Radhey Shyam Arora & Ors.

appeared out of blue and deposes during examination in chief in favour of the claimants, however when she was cross examined, she does not even remember the date of accident. She even does not know at what bus stands she was present. Furthermore, she deposed that she did not make any complaint with respect to negligence on the part of DTC driver and she even had admitted that she was deposing at the instance of petitioner.

13. In view of all these facts, this court is of the opinion that the testimony of PW3 is not worth reliance, particularly when the petitioners themselves have not impleaded any other party from the beginning. The present DAR is only against the respondent no. 1 / deceased, respondent no. 2, owner and the Ins. Co. of the respondent no. 2 / insured. The petitioners have levelled allegations against driver, owner and Ins. Co. of DTC vehicle but in the absence of such person and without impleading them as party. Therefore, such allegation against those persons who are not a party cannot be appreciated. It is matter of record that the facts which have emerged so far are that there is negligence on the part of Narender Kumar Mukhi, who was driving the vehicle i.e. car no HR10J 5820 and the petitioners have not filed any specific claim petition against driver, owner and Ins. Co. of DTC, nor they have been made party right from the beginning and the application filed by them at late stage i.e. at the stage of final arguments, has already been dismissed.

14. Ld. Counsel for petitioners has argued that even if petitioners have Manju Mukhi Vs. Radhey Shyam Arora & Ors.

not been able to prove that respondent no. 1 (Narender Kumar Mukhi) was not driving the vehicle in rash and negligent manner yet death has been caused in road traffic accident and under the provisions of Section 163A of the M.V. Act where rash and negligent is not to be proved and the only fact i.e. involvement of the vehicle was there, is to be proved, they being LRs of the deceased are still entitled for certain compensation at least under the provisions of Section 163A of M.V. Act.

15. Ld. Counsel for Ins. Co. on the other hand has argued that even this contention of Ld. Counsel for petitioner is not having any merit and he has relied upon the judgment Ningamma & Anr vs United India Insurance Co. Ltd on 13 May, 2009 and Ramkhiladi vs The United India Insurance Civil Appeal no. 9393/19 decided on 7 January, 2020 by the Hon'ble Supreme Court of India and it is argued by Ld. Counsel for Ins. Co. that in this matter, the deceased himself was driving the vehicle and was driving the same in rash and negligent manner and although he has made respondent no. 2 (registered owner) as party yet since he has borrowed the vehicle from respondent no. 2, he has entered into the capacity of owner and as such owner cannot be the payee as well as recipient at the same time and as such no case is made even under Section 163A of M.V. Act. The short issue in these circumstances, in the facts and circumstances of this case therefore is as to whether when the driver, Manju Mukhi Vs. Radhey Shyam Arora & Ors.

owner and Ins. Co. of another vehicle involved in the accident have not been made party and the petitioners are claiming compensation only against the owner, Ins. Co. of their own vehicle, which was being driven by deceased, then whether the LRs of the deceased would be entitled to receive compensation or whether Ins. Co. of the vehicle driven by the deceased would be liable to pay compensation under Section 163A of M.V. Act and secondly whether the deceased not being 3rd party , the petition under Section 163A of M.V. Act would be maintainable. After going through the evidence, as led by LRs of deceased, it is no where claimed by any of the LRs that the deceased was in the employment of respondent no. 2 and this part of evidence is missing. There is no evidence to that extent on record. Therefore, the assistance can be taken from the judgment Ningamma & Anr vs United India Insurance Co. Ltd on 13 May, 2009, wherein it was held that:

"In that case, the deceased was driving a motorcycle which was borrowed from its real owner and met with an accident by dashing against a bullock cart i.e. without involving any other vehicle. The claim petition was filed under Section 163A of the Act by the legal representatives of the deceased against the real owner of the motorcycle which was being driven by the deceased. To that, this Court has observed and held that since the deceased has stepped into the shoes of the owner of the Manju Mukhi Vs. Radhey Shyam Arora & Ors.

vehicle, Section 163A of the Act cannot apply wherein the owner of the vehicle himself is involved. Consequently, it was held that the legal representatives of the deceased could not have claimed the compensation under Section 163A of the Act.

16. In view of the judgment relied above, the court is of the opinion that deceased can easily be said to have stepped into the shoe of owner and therefore deceased becomes the owner of vehicle owned by respondent no. 2 and the owner cannot be recipient or payee of the compensation at the same time. In yet another judgment i.e. Ramkhiladi vs The United India Insurance Civil Appeal no. 9393/19 decided on 7 January, 2020, the the Hon'ble Supreme Court of India has held: -

"It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163A of the Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act Manju Mukhi Vs. Radhey Shyam Arora & Ors.

against the owner and insurer of the vehicle bearing registration No. RJ 02 SA 7811. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in the case of Dhanraj (supra), an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle".

In view of all these facts, this court has come to the conclusion that the petitioners have not been able to prove on record that there was any rash and negligent driving of any other vehicle or that deceased was third party qua the victim vehicle and since the deceased himself has been found to be rash and negligent while driving his vehicle and he stepped into the shoe of owner, the Ins. Co. of the insured vehicle Manju Mukhi Vs. Radhey Shyam Arora & Ors.

is not liable to pay any compensation to the petitioners / LRs of the deceased. The first part of the issue is answered accordingly. ISSUE NO. 1 and remaining part of Issue no. 2.

17. Issue no. 1 is with respect to no liability on the part of Ins. Co. and second part of the issue no. 2 is as to who are liable to pay the compensation and to what extent thereof. Keeping in view the answer of first part of issue no. 2, the petitioners are not entitled to any compensation from Ins. Co. of their own vehicle and as such there is no occasion for fixing the liability on any person for payment of compensation. This part of the issue is answered accordingly. ISSUE NO. 3 (RELIEF)

18. In view of above findings, relief to the petitioners is declined and the petition is accordingly dismissed. SS MALHOTRA File be consigned to record room.

S S MALHOTRA Date: 2020.03.04 12:33:09 +0600

ANNOUNCED IN THE OPEN (S.S. MALHOTRA) COURT ON 04.03.2020 PO, MACT- NORTH, ROHINI, DELHI Manju Mukhi Vs. Radhey Shyam Arora & Ors.