Delhi District Court
Suman Malhotra W/O Late Sh. Anuj Kumar ... vs Gulfam S/O Kabul Aziz on 21 September, 2013
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IN THE COURT OF MS. REKHA RANI : JUDGE : MACT : DELHI
MACT No. : 338/13
UNIQUE ID No. : 02404C0099322010
1. Suman Malhotra W/o Late Sh. Anuj Kumar Malhotra,
(Widow of deceased)
2. Mudit S/o Late Anuj Kumar Malhotra,
(Minor son of deceased)
(Minor through his mother and natural guardian Suman
Malhotra)
Both R/o B2/10, Brij Vihar,
Pitampura, Delhi110034. ...... Petitioners
Versus
1. Gulfam S/o Kabul Aziz,
R/o B41, Devipura,
Buland Shahar, U.P. ........... (Driver)
2. Ausaf Ali S/o Allauddin,
R/o Village Pabbi Shahadatpura,
Loni, District Ghaziabad,
U.P. .......... (Owner)
3. National Insurance Company Ltd.,
Noida Divisional Office,
Noida, Sector18,
Dharam Palace, Noida, U.P. .......... (Insurance)
........ Respondents
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DATE OF INSTITUTION : 17.07.2013
DATE OF RESERVING ORDER : 19.09.2013
DATE OF PRONOUNCEMENT : 21.09.2013
AWARD:
1. An application under section 166/140 of the Motor Vehicles
Act (in short the Act) was filed by widow and minor son of
deceased, pleading therein following facts.
On 14.11.1999, Anuj Kumar Malhotra (in short the
deceased) was coming in his car from the side of Rohini bus
stop and was proceeding towards his residence at B2/10, Brij
Vihar, Pitampura, Delhi110034. When he reached near A60,
Saraswati Vihar, Delhi, a truck bearing registration No. UP14
E7024 (in short the offending vehicle) being driven by Gulfam
(in short R1), who was an employee of Ausaf Ali (in short R2)
stopped the same in the middle of the road, as a result thereof
car being driven by the deceased was completely smashed.
Deceased was taken to Jaipur Golden Hospital, where he was
declared brought dead. Deceased had died due to gross
negligence on the part of R1, who suddenly stopped the
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offending vehicle in the middle of the road without giving any
horn, signal or indicator.
2. Deceased was a businessman having income of Rs. 15,000 to
20,000/ per month. Petitioners have suffered immensely on
account of untimely demise of the deceased. They have claimed
compensation of Rs. 25 lac. Petitioner have arrayed driver and
owner and insurance of the offending vehicle (in short R3) as
respondents No. 1 to 3 respectively.
3. R1 & R2 in their joint written statement have not denied the
presence of the offending vehicle on the site of accident but it is
denied that the accident was caused due to any fault on the part
of R1. It is stated that the alleged offending vehicle was already
stationed on the road due to obstructions on the road ahead by
giving due signal but deceased was not vigilent who without
caring for the signal came on driving the car from behind and
dashed against the stationary truck. It is denied that alleged
offending vehicle was being driven by R1 negligently. It is
stated that the vehicle was stationed on the road. It is denied
that R1 caused any accident.
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4. R3 admitted that the truck in question was insured with it as on
the date of accident. It is however denied that the said vehicle
was involved in any accident.
5. Following issues were framed by my Ld. Predecessor vide his
order dated 24.07.2003.
(i) Whether deceased Anuj Kumar sustained fatal injuries in
motor accident caused by rash and negligent driving of truck
No. UP14E7024 by R1 on 14.11.99 at about 3:30 p.m at
Saraswati Vihar Delhi? O.P.P.
ii) Whether petitioners are LR's of the deceased? O.P.P.
iii) Whether petitioners are entitled to compensation, if so, to
what amount and from whom?
iv) Relief.
6. Vide her order dated 18.12.2004, my learned Predecessor
dismissed the claim petition while deciding issue No.1 against
the petitioners.
7. The award was challenged and the Hon'ble High Court vide its
order dated 26.03.2010 permitted the petitioners to convert the
claim petition from section 166 to Section 163A of the Act and
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Tribunal was directed to conduct fresh enquiry under section
163A of the Act.
8. My learned Predecessor vide his order dated 16.12.2010
dismissed the petition saying that the same is not maintainable
under section 163A of the Act as annual income of the
deceased claimed was much more than the Rs. 40,000/.
9. The award was again challenged by the petitioners and the
Hon'ble High Court vide its order dated 07.07.2013 set aside the
impugned award and again remanded the case for adjudication
of the claim petition under section 163A of the Act. Parties
were directed to appear before the Tribunal on 22.07.2013.
Only petitioners and R3 have appeared. None appeared on
behalf of R1 & R2.
10. I have heard learned counsel for petitioners and learned
counsel for R3. It was stated that they do not want to lead
additional evidence and the evidence on record may be read.
Issue No.1 qua negligence
11. My attention was drawn to para 12 of award dated
18.12.2004 of my learned Predecessor. It was observed that
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petitioners have failed to prove that accident took place due to
any rashness and negligence on the part of truck driver. Para 22
of the award, reads as under:
" The circumstances as brought on record and
the lack of material in support of the claim
with regard to the manner of the accident, it
only emerges that the said collision occurred
because of the rash and negligent driving or
negligence of the deceased himself, for which
the driver, owner or insurer of the above
stated truck cannot be held responsible in any
manner whatsoever. As such the petitioners
have miserably failed to lead even the
minimum necessary evidence in support of
Issue No.1 pertaining to the manner and
circumstances of the accident and as to the
truck driver being responsible for the accident
in any manner whatsoever. Issue No.1 stands
decided accordingly against the petitioners."
12. It was contended that claim under section 163A is not
maintainable having been rejected under section 166 of the Act.
In Prem Devi & Ors. v. Jagdish Kumar & Ors, FAO 398/2000,
decided on 02.07.2012. Similar question arose before Hon'ble
Delhi High Court and it was observed as under:
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"If a petition under Section 166 of the Act
is dismissed for want of proof of negligence
on the part of the alleged tortfeasor, would a
subsequent petition under Section 163A on
the same cause of action be barred.
Admittedly, in the subsequent petition under
Section 163A of the Act, the Claimant would
not be required to prove and plead the
negligence. The subsequent petition would
not be barred under Order II Rule 2 CPC as
the claim under Section 163A of the Act was
not permissible in the earlier petition. The
finding in the earlier petition would also not
be res judicata against the Claimant, unless a
finding is given by the Court that the vehicle
alleged to be involved in the accident, was not
involved in the accident. Thus, when there is
no prohibition or embargo on filing a petition
under Section 163A after dismissal of a
Petition under Section 166 of the Act, a victim
cannot be debarred from amending a Petition
under Section 166 to one under Section 163A
of the Act."
13. For claiming compensation under section 163A of the Act
from the owner/insurer only involvement of the vehicle in an
accident is required to be proved. LR's of deceased need not
plead or prove that accident was caused due to rash or negligent
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driving of the vehicle by its driver. Owner or insurer may
however plead and prove that deceased died due to his own
rashness or negligence.
14. In ICICI Lombard General Insurance Co. Ltd. v. Jai Veer
Singh & Ors. MAC. APP 164/2012, decided on 16.11.2012,
Hon'ble Delhi High Court observed:
"A perusal of Section 163(A) reveals that Sub
section (2) thereof is in pari materia with Sub
section (3) of Section 140. In other words,
just as in Section 140 of the Act, so also under
Section 163A of the Act, it is not essential for
a claimant seeking compensation, to "plead or
establish", that the accident out of which the
claim arises suffers from "wrongful act" or
"neglect" or "default" of the offending
vehicle. But then, there is no equivalent of
Subsection (4) of Section 140 in Section 163
A of the Act. Whereas, under Subsection (4)
of Section 140, there is a specific bar, whereby
the concerned party (owner or insurance
company) is precluded from defeating a claim
raised under Section 140 of the Act, by
"pleading and establishing", "wrongful act",
"neglect" or "default", there is no such or
similar prohibiting clause in Section 163A of
the Act. The additional negative bar,
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precluding the defense from defeating a claim
for reasons of a "fault" ("wrongful act",
"neglect" or "default"), as has been expressly
incorporated in Section 140 of the Act
(through Subsection (4) thereof), having not
been embodied in Section 163A of the Act,
has to have a bearing on the interpretation of
Section 163A of the Act. In our considered
view the legislature designedly included the
negative clause through subsection (4) in
Section 140, yet consciously did not include
the same in the scheme of Section 163A of
the Act. The legislature must have refrained
from providing such a negative clause in
Section 163A intentionally and purposefully.
In fact, the presence of Subsection (4) in
Section 140, and the absence of a similar
provision in Section 163A, in our view,
leaves no room for any doubt, that the only
object of the Legislature in doing so was, that
the legislature desired to afford liberty to the
defense to defeat a claim for compensation
raised under Section 163A of the Act, by
pleading and establishing "wrongful act",
"neglect" or "default". Thus, in our view, it is
open to a concerned party (owner or insurer)
to defeat a claim raised under Section 163A of
the Act, by pleading and establishing anyone
of the three "fault", namely, "wrongful act",
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"neglect" or "default". But for the above
reason, we find no plausible logic in the
wisdom of the legislature, for providing an
additional negative bar precluding the defense
from defeating a claim for compensation in
Section 140 of the Act, and in avoiding to
include a similar negative bar in Section
163A of the Act. The object for incorporating
Subsection (2) in Section 163A of the Act is,
that the burden of pleading and establishing
proof of "wrongful act", "neglect" or "default"
would not rest on the shoulders of the
claimant. The absence of a provision similar
to Subsection (4) of Section 140 of the Act
from Section 163A of the Act, is for shifting
the onus of proof on the grounds of "wrongful
act", "neglect" or "default" onto the shoulders
of the defense (owner or the insurance
company."
In view of the aforesaid petitioners are not required to prove
that the accident was caused due to rash and negligent driving of
the offending vehicle by R1. The respondents namely
owner/insurer could defeat the claim by pleading that accident
was caused on account of rash and negligent driving by the
deceased himself. Respondents have not adduced any evidence
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as it is clear from order sheets dated 26.10.2004 and 07.12.2004.
15. The copy of FIR shows involvement of the offending
vehicle. The postmortem report bearing No. 3206 dated
14.11.1999 has been placed on record according to which the
cause of death was multi organ injuries causing damage to liver,
lungs and brain due to blunt force impact, could be possible as
alleged. As per the report deceased was brought to the hospital
with alleged history of his car colliding with a truck.
16. Involvement of the offending vehicle in the accident is not
even denied by R1 & R2 in their written statement. In paras 1
and 23 it is pleaded that "the vehicle was stopped on the road
due to obstructions on the road ahead by giving due signal".
Reference may be made to the rules of Road Regulations, 1989
and clause 15 of the same reads as under:
"Parking of the vehicle (1) Every driver of a
motor vehicle parking on any road shall park
in such a way that it does not cause or is not
likely to cause danger, obstruction or undue
inconvenience to other road users and if the
manner of parking is indicated by any
signboard or markings on the road side, he
shall park his vehicle in such manner.
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(2) (iv) A driver of a motor vehicle shall not
park his vehicle in a main road or one carrying
fast traffic.
R1 has not adduced any evidence that warning lights, red light
or reflectors were put on to warn drivers of the other vehicles
even if plea of R1 is believed that there was obstruction on the
road. It is true that claim can be defeated by proving rashness
or negligence on the part of deceased in causing the accident but
respondents have not adduced any evidence to prove the same.
In absence of any such evidence the claim under section 163A
of the Act cannot be defeated. With these observations, issue
No.1 is decided in favour of the petitioners.
Issue No.2
17. No objection was raised regarding the locus standi of the
petitioners to claim compensation either during the course of
arguments nor any evidence was adduced by respondents to
prove that they are not LR's of the deceased.
Issue No.3 qua compensation
18. Hon'ble High Court in Santosh Kumar & Anr. v. Prem
Kumar & Ors. MAC APP. 990/2011, decided on 11.05.2012
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observed as under:
" In MAC APP.304/2009 titled New India
Assurance Co. Ltd. v. Pitamber & Ors.,
decided on 23.01.2012 this Court noticed the
judgment of this Court in Oriental Insurance
Company Limited v. Smt. Pataso & Ors.,
MAC APP.962/2005 decided on 01.09.2008;
Oriental Insurance Company Limited v. Om
Prakash & Ors., 1 (2009) ACC 148; Jagdish &
Anr. v. Madhav Raj Mishra and Anr. MAC
APP. 190/2011 decided on 19.04.2011;
Oriental Insurance Company Limited v. Anita
Devi & Ors., 2011 (5) AD (Delhi) 138,
decided on 10.05.2011; and the Supreme
Court judgment in Deepal Girishbhai Soni v.
United India Insurance Company Limited,
(2004) 5 SCC 385; and opined that the
compensation in a Claim Petition under
Section 163A of the Act would be payable
strictly as per the structured formula."
19. In the claim petition as well as testimony of the widow of the
deceased it was claimed that deceased was running business
under the name and style of K.B. Color Lab at Church Mission
Road, Fatehpuri, Delhi as its sole proprietor and was earning Rs.
15,000 to 20,000 per month.
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20. In National Insurance Co. Ltd. v. Phoolo & Ors. MAC. APP.
15/2005 & CM Nos. 7167/2006 and 15880/2008, decided on
03.09.2013, appeal was preferred against award dated
25.10.2004 before Hon'ble Delhi High Court. The Tribunal
while adjudicating the petition under section 163A of the Act
considered the salary of the deceased as Rs. 6,830/ per month.
Counsel appearing on behalf of insurance argued that if the
petition is under section 163A, the compensation should be as
per Second Schedule of the Act and accordingly, the annual
income of the deceased could not be considered to be more than
40,000/ per annum, whereas Tribunal considered the salary of
the deceased as Rs. 6,830/ per month, that comes to Rs.
81,960/ per annum.
Hon'ble Delhi High Court upheld the contention of learned
counsel for insurance and observed as under:
" I find force in the submission of the learned
counsel for the appellant. This is the only
issue argued by the counsel for the appellant.
Therefore, I am of the considered opinion that
the learned Tribunal has erred in considering
the salary of the deceased as Rs. 6,830/ per
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month. This should not have been more than
40,000/ per annum. Accordingly, the
compensation amount is modified/reduced as
under:
Annual loss of income : Rs. 40,000/ per annum
Personal Expenses (1/3) :Rs. 13,333.3
Multiplier :5
Loss of Dependency :Rs. 26,666.7x5 = Rs. 1,33,333.5
Funeral Expenses :Rs. 2,000
Loss of Consortium :Rs. 5,000
Loss of Estate :Rs. 2,500
.......................................................................
Total compensation : Rs. 1,42,833.5"
21. Learned counsel for petitioners during the course of arguments submitted that income of the deceased may be taken at Rs. 40,000/ per annum and quantum of compensation may be determined as per structured formula given in second schedule under section 163A of the Act. So income of the deceased is taken as Rs. 40,000/ per annum.
22. On making deduction of 1/3 towards personal living and expenses and applying the multiplier of 15 as per age of deceased (37 years as per petition as well as postmortem report) loss of dependency comes to 40,000x2/3x15=4,00,005/. On MACT No.338/13 Suman Malhotra v. Gulfam 15 of 17 16 addition of conventional sums of Rs. 2,000/ towards funeral expenses, Rs. 5,000/ towards loss of consortium and Rs. 2,500/ towards loss of estate the over all compensation comes to Rs. 4,09,505/.
23. R3 is accordingly directed to deposit within 30 days from today the award amount of Rs. 4,09,505/ with interest at the rate of 7.5 % per annum from the date of filing of the petition till notice of deposit of award amount to be given by R3 to petitioners and their counsel.
24. I have heard learned counsel for petitioners qua their financial needs. In view of the submissions made and further in view of the judgment in General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631 following arrangements are hereby ordered:
25. Rs. 1 lac with proportionate interest be given to petitioner No.2 (son of deceased) and be kept in FDR in his name for five years. Remaining amount with proportionate interest be given to widow of deceased (petitioner No.1), out of which Rs. 1 lac be released to her and remaining amount with proportionate MACT No.338/13 Suman Malhotra v. Gulfam 16 of 17 17 interest be kept in FDR in her name for three years.
26. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in their Saving Accounts.
27. The petitioners shall not have any facility of loan or advance on these FDRs. However, in case of emergent need, they may approach this Tribunal for premature encashment of FDR's.
28. The petition is accordingly disposed of.
Announced in the open Court Judge MACT today i.e. 21.09.2013 Rohini Courts, Delhi MACT No.338/13 Suman Malhotra v. Gulfam 17 of 17