Delhi District Court
Neelam Dubey vs . Asfaa Alam @ Soni & Ors. Mact No. 104/14 on 10 March, 2017
Neelam Dubey Vs. Asfaa Alam @ Soni & Ors. MACT No. 104/14
BEFORE MOTOR ACCIDENTS CLAIMS TRIBUNAL:
NORTHEAST DISTT. : KARKARDOOMA COURTS COMPLEX: DELHI
Presiding Officer: ANAND SWAROOP AGGARWAL: DHJS
Additional District & Sessions Judge: Delhi
MACT No: 104/14 FIR No. 627/14
ID No.: 15302/15 P.S. New Usmanpur
U/s. 279/304A IPC
In the matter of:
1. Smt. Neelam Dubey,
W/o. Late Sh. Krishna Kumar Dubey
2. Nitesh Kumar,
S/o. Late Sh. Krishna Kumar Dubey
3. Anjali Dubey
D/o. Late Sh. Krishna Kumar Dubey
4. Jamavanti W/o Late Sh. Ram Lakhan (Mother)
R/o. E67, Gali No. 6, EBlock, Jagjit Nagar, Delhi110053.
ALSO AT:
H. No. 11, Village Pipara Lalach,
PO: Rudragarh Nausi, PS: Moti Ganj, Distt. Gonda, UP.
(Claimant no. 2 & 3 being minor are represented through
Smt. Neelam Dubey, Mother / Natural Guardian / Claimant No.1)
Through:
Mr. Upender Singh, Adv.
Lawyers Chamber No. K56,
Tis Hazari Courts, Delhi - 110054.
( details given in compliance with Clause 27 of
Modified Claims Tribunal Agreed Procedure)
...... Claimants
Versus
1. Asfaa Alam @ Soni S/o. Mohd. Sannam, (DRIVER)
R/o. H. No. 6, Gali No. 1,
She Pur Kawaral Nagar, Delhi110094.
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Neelam Dubey Vs. Asfaa Alam @ Soni & Ors. MACT No. 104/14
A LSO AT
:
Village Saneem Nagar,
P.S. Dogari Jamalpur, Distt. Khagriya, Bihar.
2. Mohd. Shahnawaz S/o Mohd. Yusuf (OWNER)
R/o. 7324, Gali Masjid Kallu Wali,
Quresh Nagar, Sadar Bazar, Delhi.
3. National Insurance Company Ltd. (INSURER)
2E/9, Jhandewalan Extension,
Karol Bagh, New Delhi. ......... Defendants
i) Date of institution of claim petition : 04.07.2014
ii) Date of reserved for award : 27.02.2017
ii) Date of award : 10.03.2017
APPLICATION U/S. 166 & 140 OF THE MOTOR VEHICLES ACT, 1988
AWARD
1.1 CASE AS PER CLAIM PETITION
The claimants, Neelam Dubey (WIFE - aged about 32 years), Nitesh Kumar
(SON - aged about 14 years), Anjali Dubey (DAUGHTER - aged about 9 years) and
Jamavanti (MOTHER aged about 76 years), being legal heirs of deceased Krishna
Kumar Dubey have filed this claim petition under sections 166 & 140 of the Motor
Vehicles Act, 1988 alleging that on 04.07.2014 at about 09:50 a.m. Mr. Krishna
Kumar Dubey (since deceased) was going for his duty at G.B. Road Market, Delhi
from his house on his bicycle at a normal speed on correct side of the road. When he
had reached at 1st Pusta, Main Pusta Road, Khajuri towards Shastri Park, New
Usmanpur, Delhi in the meanwhile a Maruti EECO Car bearing registration no. DL
1LS9164 (White Colour), which was being driven by Asfaa Alam @ Soni, at a very
high speed, rashly, negligently, without taking necessary precautions, without proper
lookouts, violating the traffic rules, in zigzag manner, came from back side and hit
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Neelam Dubey Vs. Asfaa Alam @ Soni & Ors. MACT No. 104/14
the bicycle with great force. As a result of this, deceased fell down on the road
alongwith bicycle and sustained grievous head injury. He was immediately taken to
Jag Pravesh Chandra Hospital, Shastri Park, Delhi 110053, where his MLC
No.4432/2014 was prepared and doctors declared him as "brought dead". His
postmortem was conducted at Mortuary GTB Hospital, Dilshad Garden, Delhi, vide
PMR No.878/2014 dated 05.07.2014 by Dr. Navneet Ateriya. Regarding the accident
FIR No. 627/2014 under sections 279 /304 A IPC was registered at P.S. New
Usmanpur, Delhi. At the time of accident the deceased was 42 years of age and was
possessing sound mind, health and robust physique and was not suffering from any
kind of ailment or addicted to any vice. The deceased was working as a Salesman of
motor parts at G.B. Road, New Delhi and was earning Rs.15,000/ to Rs.20,000/ per
month. Claimants claim a sum of Rs.30,00,000/ as compensation on account of
sudden death of the deceased on account of accident, mental pain and agony, loss of
love and affection, loss of company, loss of consortium, loss of estate, loss of funeral
expenses, loss of income, loss of future income and other general and specific
damages as admissible under the various provisions of the Motor Vehicles Act, 1988
with interest @12% per annum from the date of filing of claim petition till its
realization.
1.2 DETAILED ACCIDENT REPORT (DAR) BY POLICE
Police filed detailed accident report on 29.01.2015 on which date DAR
proceedings were ordered to be tagged with claim petition.
2.1 STAND TAKEN BY DEFENDANTS NO.1 AND NO.2 IN THE WRITTEN
STATEMENT OF DEFENCE.
In their common written statement defendant no.1 and no.2 pleaded that they
have caused no accident and vehicle no. DL1LS9164 has been falsely implicated by
the police in the accident case without any fault.
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2.2 STAND TAKEN BY DEFENDANT NO.3 IN THE WRITTEN
STATEMENT OF DEFENCE.
Defendant no.3 admitted that vehicle bearing no. DL1LS9164 is insured in
the name of Mohd. Yusuf vide Policy No. 35101031136333602433 valid for the
period from 29.08.2013 to 28.08.20114 and its liability is subject to terms and
conditions of the policy. Defendant no.3 further pleaded that vehicle no. DL1LS
9164 was being driven by a person without holding a proper and valid driving licence
and was being used contrary to the terms of the insurance policy, permit, RC &
fitness. The owner of the vehicle was having knowledge about the driver not having
the DL and he has willfully breached the terms and conditions of the policy.
3. ISSUES
Vide order dated 12.12.2014 following issues were framed:
(i) Whether deceased Krishna Kumar Dubey died on account of injuries
sustained in accident taking place on 04.07.2014 at about 9:50 AM at 1 st
Pusta, Main Pusta Road, Khajuri towards Shastri Park, New Usmanpur,
Delhi within the jurisdiction of PS New Usmanpur due to rash and
negligent driving of vehicle bearing no. DL 1LS 9164 by respondent no. 1?
OPP
(ii) Whether petitioners are entitled to compensation? If so to what amount and from whom? OPP
(iii) Relief 4.1 EVIDENCE Claimant no.1 appeared in the witness box as PW1 Smt. Neelam Dubey and also examined PW2 Vinod Kumar Mishra. PE was closed on 23.10.2015 on the statement of ld. counsel for claimants.
4.2 Despite opportunity given, defendant nos. 1 & 2 led no evidence.
4.3 Defendant No.3 examined R3W1 - Mr. Naresh Kumar Bansal, AO and RE Page No. 4 of 12 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 10.03.2017 Neelam Dubey Vs. Asfaa Alam @ Soni & Ors. MACT No. 104/14
was closed by ld. counsel for insurance company on 04.05.2016.
5. STATEMENT OF CLAIMANT SMT. NEELAM DUBEY UNDER CLAUSE 26 OF MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE.
On 23.08.2016 statement of claimant Smt. Neelam Dubey was recorded under clause 26 of MCTAP as under: "23.08.2016 Statement of Smt. Neelam Dubey,W/o Late Sh. Krishna Kumar Dubey, R/o E67, Gali no. 6, EBlock, Jagjit Nagar, Delhi 53.Aged about 32 years.
On SA (examination of the petitioner as per Clause 26 of the Modified Claims Tribunal Agreed Procedure) I am 8th class passed. I am housewife. I have two children i.e one daughter namely Anjali Dubey , aged 12 years & Nitesh Kumar Aged 16 years. My husband was salesman of motor parts and was earning Rs. 15,000/ to Rs. 20,000/ pm. My husband died in road accident at 1st Pusta, Main Pusta Road, Khajuri towards Shastri Park, New Usman Pur, Delhi and his postmortem was conducted at mortury GTB Hospital. I have bank account in Central Bank of India, I T Park, Shastri Park,Delhi. Branch, A/c no. 3360356738 in which the current balance is Rs. 29648/ as per my passbook (OSR). I am residing in a rented accommodation and I am paying a monthly rent of Rs. 2,000/ p.m. I am also receiving widow pension of Rs. 1500/ per month. Out of the compensation to be awarded I intent to buy a house and intend to spend the remaining amount on the upbringing and education of my children. My mother in law is unable to appear before the court as she has suffered a fracture, she is presently 6768 years old."
6. ARGUMENTS I have heard Mr. Upender Singh, Adv. for claimants; Mr. Badam Singh, Adv. for defendant no.1 and no.2 and Kunwar Mohd. Rafi, Adv. for defendant no.3. Ld counsel for claimants relied upon case laws reported as (i) Oriental Insurance Co. Ltd. Vs. Shahnawaz & Ors. MAC. APP. 293/2010 (High Court of Delhi) decided on Page No. 5 of 12 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 10.03.2017 Neelam Dubey Vs. Asfaa Alam @ Soni & Ors. MACT No. 104/14 30.08.2013; (ii) National Insurance Co. Ltd. Vs. Annappa Irappa Nesaria & Ors. 2008 ACJ 721 and (iii) Ashok Gangadhar Maratha Vs. Oriental Insurance Co. Ltd. 2000 ACJ 319. I have gone through the material available on judicial file carefully.
7. My ISSUEWISE findings are as under: ISSUE NO. 1 Whether deceased Krishna Kumar Dubey died on account of injuries sustained in accident taking place on 04.07.2014 at about 9:50 AM at 1 st Pusta, Main Pusta Road, Khajuri towards Shastri Park, New Usmanpur, Delhi within the jurisdiction of PS New Usmanpur due to rash and negligent driving of vehicle bearing no. DL 1LS 9164 by respondent no. 1? OPP Claimants have examined PW2 Vinod Kumar Mishra as eye witness to the accident. In his evidence affidavit he has deposed on the same lines in which averments have been made in the claim petition. PW2 Vinod Kumar Mishra has been cross examined by defendant no.1 and no.2 but his credit has remained unshaken. It has not been suggested by defendant no.1 and no.2 to PW2 Vinod Kumar Mishra that he did not witness the accident or that the vehicle no. DL1LS 9164 was not involved in the accident or that the vehicle has been falsely implicated by police in this case as pleaded by defendant no.1 and no.2 in their common WS. Some what inconsistent with the averments in WS of defendant no.1 and no.2, PW2 Vinod Kumar Mishra in his cross examination has been made to depose that, ".... It is wrong to suggest that the accident took place due to rash and negligent driving by deceased himself as he was riding his bicycle at very high speed and in a zig zag manner...........". However, no corresponding averments have been made by defendant no.1 and no.2 in their common WS.
PW2 Vinod Kumar Mishra has also been cross examined by defendant no.3 but it can be said that his credit has remained unshaken. Merely because PW2 Vinod Kumar Mishra in his cross examination deposed that, "..... It is correct that I Page No. 6 of 12 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 10.03.2017 Neelam Dubey Vs. Asfaa Alam @ Soni & Ors. MACT No. 104/14 have not informed to the police regarding the accident. Police did not record my statement, however police inquired me about the accident.....", does not necessarily, in the facts and circumstances of this case, rule out the possibility of PW2 Vinod Kumar Mishra being eye witness to the accident altogether.
Defendant no.1 and no.2 have not appeared in the witness box to prove the stand taken in the WS. Claimants have been deprived off the opportunity to cross examine the defendant no.1 and no.2. On this account adverse inference is liable to be drawn against defendant no.1 and no.2. It is noteworthy that defendant no.1 has been chargesheeted by the police for the offences u/s. 279/304A IPC.
FURTHER, death, as such, of deceased Krishna Kumar Dubey on the date / time / place of accident has not been disputed. Postmortem Report, which is part of DAR, support the case of claimants. In the cross examination of PW2 Vinod Kumar Mishra by defendant no.1 and no.2, no other cause of death of deceased Krishna Kumar Dubey, other than as pleaded by claimants / deposed by PW2 Vinod Kumar Mishra, has even been suggested. As per MLC dated 04.07.2014 (10.30 a.m.) which is part of DAR, defendant no.1 himself had taken deceased Krishna Kumar Dubey to Jag Pravesh Chandra Hospital, where deceased was declared "brought dead". IN VIEW OF ABOVE DETAILED DISCUSSION ISSUE NO.1 IS DECIDED IN FAVOUR OF CLAIMANTS.
ISSUE NO.2 Whether petitioners are entitled to compensation? If so to what amount and from whom? OPP In view of my finding on issue no.1, claimants who are wife, children and widow mother of deceased Krishna Kumar Dubey are entitled to compensation u/s. 166 of the Motor Vehicles Act, 1988.
Page No. 7 of 12 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 10.03.2017 Neelam Dubey Vs. Asfaa Alam @ Soni & Ors. MACT No. 104/14 PECUNIARY LOSS OF DEPENDENCY OF THE DECEASED As per PW1 Neelam Dubey, her deceased husband was working as a 'Salesman' of motor parts at G.B. Road, New Delhi and was earning Rs.15,000/ to 20,000/ per month. Besides bare averments / depositions there is no material on record to substantiate same. As per Ex.PW1/2 the deceased was 6 th class pass. In my considered opinion the deceased can be taken as earning the minimum wages (Rs.8554.00) of unskilled labour as on date of accident. No evidence has been led to show that the deceased was employed as alleged / deposed or that he was a permanent employee or that he held a stable job. No evidence has been led about future prospects.
THERE ARE FOUR DEPENDANTS / CLAIMANTS. Hence ¼ of the income of the deceased is liable to be deducted towards personal expenses. AGE OF DECEASED / CLAIMANTS AND CORRESPONDING MULTIPLIER As per Ex. PW1/2 date of birth of the deceased is 01.07.1975. As per election identity card Ex.PW1/3 his age as on 01.01.2009 is mentioned as 37 years. As per Postmortem Report his age is 42 years and as per MLC his age is 35 years. As per Aadhar Card year of birth of deceased is 1972. Ex. PW1/2 has been prepared on 10.07.2014 (i.e. after the date of accident) and no witness from school has been examined to prove this document or to show that on what basis this certificate mentions the date of birth of deceased as 01.07.1975. Based on election identity card / aadhar card age of the deceased as on date of death / accident is taken to be about 42 years. Claimant no.1 is aged about 32 years, claimant no.2 about 14 years, claimant no.3 about 9 years and claimant no.4 about 76 years. As claimant no.1, 2 and 3 are youngers to the deceased, multiplier corresponding to the age of the deceased is liable to be taken into account. As per Sarla Verma Vs. DTC 2009 (6) Scale 129, multiplier corresponding to age of 42 is 14.
Page No. 8 of 12 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 10.03.2017 Neelam Dubey Vs. Asfaa Alam @ Soni & Ors. MACT No. 104/14 THUS PECUNIARY LOSS OF DEPENDENCY COMES OUT TO BE:
8554/ X 12 X 14 X ¾ = 10,77804.00 .
NON PECUNIARY DAMAGES CLAIMANTS are also entitled to non - pecuniary damages as under:
1. Loss of love and affection ₹ 1,00,000.00
2. Loss of consortium (Claimant no.1 is wife of deceased) ₹ 1,00,000.00
3. Loss of estate ₹ 10,000.00
4. Funeral expenses ₹ 25,000.00 Thus, total compensation payable to claimants comes out to be ₹ 13,12,804.00 NATURE OF VEHICLE / LICENCE Vehicle no. DL1LS9164 is registered in the name of defendant no.2 and its Vehicle Class is LIGHT GOODS VEHICLE. Unladen Weight is 1000 and Laden Weight is 1540 (Gross Wt. in Kgs.). Model of vehicle is Maruti Eeco Flexi Green. It is having Certificate of Fitness (Applicable in the case of Transport vehicles only). Driving Licence of defendant no.1 is valid for LMV - NT and M. Cycle. Vehicle no. DLILS9164 is insured with defendant no.1 under Package Policy (Commercial Vehicle - Goods Carrying). Driver's clause in the insurance policy (Ex. RW3W1/1) reads as under: "Driver's Clause: Any person including the insured: Provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective learner's license may also drive the vehicle when not used for the transport of goods at the time of accident & that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989."
To prove violation of terms of policy defendant no.3 examined R3W1 Naresh Kumar Bansal. Despite notice Ex. R3W1/2, dispatched vide postal receipts Ex.R3W1/3 and Ex.R3W1/4, defendant no.1 and no.2 have not produced / proved Page No. 9 of 12 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 10.03.2017 Neelam Dubey Vs. Asfaa Alam @ Soni & Ors. MACT No. 104/14 driving licence authorising defendant no.1 to drive the class of vehicle to which vehicle no. DL1LS9164 belonged. Cross - examination of R3W1 Naresh Kumar Bansal by ld. counsel for defendant no.1 and no.2 has been unfruitful. Thus, it is observed that defendant no.3 has been able to prove breach of tenure of policy by defendant no.2. No evidence has been led by defendant no.1 and no.2. Facts of this case are most appropriately covered under the case law reported as ICICI Lombard General Insurance Co. Ltd. Vs. Sajjan Lal 2016 ACJ 221, as per which liability of defendant no.3 qua the claimants / third party is statutory and, as there is breach of terms of policy by defendant no.2, defendant no.3 would be entitled to recovery rights. In this case law there is reference to many case laws of Hon'ble Supreme Court of India. THUS, it is observed that defendant no.3 is liable to pay compensation to the claimants at the first instance and, thereafter, defendant no.3 shall be entitled to recover the same from defendant no.1 and no.2, jointly and severally. ISSUE NO. 2 IS DECIDED ACCORDINGLY.
ISSUE NO.3: Relief.
Claimants are entitled to compensation to the tune of ₹13,12,804.00 (inclusive of amount of the interim award dated 23.10.2015 which, as per order dated 20.05.2016, is 29,482/ X 2). It is held that claimants are entitled to receive the abovesaid compensation with interest @ 9% per annum from the date of filing of claim petition (04.07.2014) till with the date of notice of deposit of awarded amount inclusive of interest by defendant no.3 to claimants with copy of ld. counsel for claimants.
If award is not complied with within 30 days from today, defendant no.3 shall be liable to pay interest @ 12% per annum on the abovementioned sum (i.e. ₹13,12,804.00.) for the default period.
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After complying the award defendant no.3 shall be entitled to recover the awarded amount from defendants nos. 1 (Asfaa Alam @ Soni S/o. Mohd. Sannam, (DRIVER)) and no.2 (Mohd. Shahnawaz S/o Mohd. Yusuf, (OWNER)), whose liability shall be joint and several.
Shares of the claimants in the facts and circumstances of this case are determined as 20%, 30%, 40% and 10% respectively, of the total awarded amount. Defendant no.3 is directed to deposit the share of each of the claimants in above terms by issuing separate cheques for each claimant in the name of UCO Bank, Karkardooma Courts, Delhi C/o. Name of the claimants. Out of the share of claimant no.1, Rs.1,80,000/ shall be kept in 30 monthly FDRs each for Rs.6,000/ with cumulative interest for 1 to 30 months and remaining amount shall be released to her by crediting the same in her account with Central Bank of India, I. T. Park, Shastri Park, Delhi, A/c. No. 3360356738.
FDRs shall be subject to the following conditions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a statement containing FDR number, FDR amount, date of maturity of FDR and maturity amount of the FDRs be given to the claimant.
(ii) The maturity amount of the FDR be credited in the saving account of the claimant(s) near the place of their residence.
(iii) No cheque book be issued to the claimant in the savings bank account without permission of the Court.
(iv) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings bank account of fixed deposit accounts of the victim.
Shares of claimant no.2 and no.3 shall be kept in FDR under Auto Renewal Page No. 11 of 12 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 10.03.2017 Neelam Dubey Vs. Asfaa Alam @ Soni & Ors. MACT No. 104/14 Scheme till they attain majority. Share of claimant no.4 be released to her by crediting the same to her bank account as intimated by her to the bank.
Copy of award alongwith Court stamped copy of photographs, specimen signatures, proof of residence and bank account details of claimant be sent to the Nodal Officer, UCO Bank, Karkardooma Courts, Delhi by the Ahlmad.
Put up for compliance on 10.04.2017. Also defendant no.3 shall file on record proof of deposit of award amount, notice of deposit and calculation of interest.
8. Attested copies of the award be furnished to the concerned parties for compliance. Also certified copy of the award be sent to DLSA and ld. MM.
9. It is noted that in this case FormIV to the Modified Claims Tribunal Agreed Procedure is not relevant inasmuch as date of accident is prior to 12.12.2014 i.e. the date of the order vide which FormIV came into existence.
10. File be consigned to record room.
Pronounced in Open Court on 10.03.2017
(ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD COURTS / DELHI
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