Delhi District Court
Nisha W/O, Deceased Satish (Fir ... vs Mahesh Rathore (National Ins Co.) on 8 May, 2024
IN THE COURT OF DR. RUCHI AGGARWAL ASRANI
PRESIDING OFFICER, MACT-01 (CENTRAL)
TIS HAZARI COURTS, DELHI.
DLCT010167852023
MACT No. : 1009/2023
FIR No. : 131/2012
PS : Timar Pur
u/s : 279/338/304A IPC
1. Smt. Nisha
W/o Late Sh. Satish
2. Master Ankit (Minor through his natural guardian)
S/o Late Sh. Satish
3. Sh. Tula Ram
S/o Sh. Ram Bharose Lal
4. Smt. Sunita
W/o Sh. Tula Ram
All residents of
G-8, Wazirabad Village, Delhi.
Also at:
H. No. 903, Village Chhakkar Pur,
Gurgaon.
......Petitioner
Versus
1. Sh. Mahesh Rathore (Driver-cum-owner)
S/o Sh. Ram Ratan Rathore
R/o B-224, Gali No. 9,
Chandu Nagar, Karawal Nagar,
Delhi.
MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 1 of 36
2. National Insurance Company Ltd. (insurer)
Division No. 11,
Second Floor, 6/90, Padam Singh Road,
Karol Bagh, New Delhi-110005. ......Respondents
Date of filing of claim petition : 25.09.2012 Judgment reserved on : 27.04.2024 Date of Award : 08.05.2024 AWAR D The petitioners filed the present claim petition under sections 140 and 166 of the Motor Vehicle Act, 1988 on 25.09.2012. Later, on 15.04.2013, an application was filed to convert the petition into one under section 163A Motor Vehicles Act which was allowed vide order dated 30.07.2013. The present award will be considered upon the claim petition under section 163A of the MV Act.
Brief facts of the case:
2. The Road Traffic Accident in question took place on 17.06.2012 at about 4:00 P.M. at Outer Ring Road, Near Gopalpur Red Light towards Wazirabad Red Light, P.S. Timar Pur. Mr. Satish expired in the said accident. The said accident was allegedly caused by the vehicle i.e. motorcycle bearing registration No. DL-1ST-8025 which was owned and driven by respondent No.1, Mahesh Rathore and insured with respondent no.2, National Insurance Company Ltd.
3. As per the DAR, the information of the accident in question was received at P.S. Timar Pur vide DD No. 35B at 14.05 P.M. and on MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 2 of 36 receiving the information, ASI Ishwar Chand along with Ct. Vijender went to the spot i.e. at Gopalpur Red Light where one motorcycle make Discover along with one unknown dead person was found and about 6 feet away from the said dead body, one motorcycle bearing registration No. DL-4SAQ-9862 in damaged condition was lying on the road and one another motorcycle bearing registration no. DL1ST-8025 was lying on the other side of the road near footpath and its front was towards Gopalpur Red Light. The injured was stated to have been taken to some unknown hospital. No eye witness was found at the spot. The photographs of the spot of accident were taken and the dead body was sent to Subzi Mandi Mortuary for preservation. Beat Ct. Sanjeev had come to the spot and after leaving him at the spot, ASI Ishwar Prasad went to Trauma Centre where injured Mahesh was found under treatment vide MLC No. 150495 and the doctor stated that the injured was not fit for statement. The IO returned to the spot of accident and despite his best efforts, no eye witness was found. Therefore, on the basis of the place of accident, MLC of injured and dead body found at the spot of the accident, the offence under Section 279/338/304A IPC was found to have been committed and the IO got the FIR registered.
4. During the course of investigation, the IO prepared site plan of the spot of accident, identity of the dead person was discovered and it was found that the said dead person was Sh. Satish S/o Sh. Tula Ram. After postmortem, the dead body of Sh. Satish was handed over to his family members for last rites. The accidental motorcycle was seized by the IO and deposited in Malkhana. The mechanical inspection of the offending vehicle was got done. During the further course of MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 3 of 36 investigation, the documents of vehicle of injured Mahesh and deceased Satish were obtained and on verification, it was found that the deceased had no driving license and his motorcycle was not insured. Therefore, Section 146/196 were added in the FIR. The IO obtained postmortem report of the deceased and obtained final result on MLC of injured Mahesh wherein his injury was mentioned as grievous and therefore, Section 338 IPC was added in the FIR. The statement of the injured Mahesh was recorded by the IO wherein he stated that on 17.06.2012, he was going from Jahangirpuri on his motorcycle bearing registration No. DL-1ST-8025 to his house at Chandu Nagar, Karawal Nagar and he had just reached at Gopalpur Red Light when one biker came in very high speed while riding the said motorcycle in a very rash and negligent manner and hit him at his right side from behind due to which he fell down on the road and the said bike rider fell on the other side of the road. He further stated in his statement that after he fell down on the road, he had become unconscious and since then, his treatment was going on. On the basis of statement of the injured and mechanical inspection of vehicle, deceased Satish was found to be accused of the offence in the said FIR. After completion of investigation, chargesheet was filed against Satish in the court of concerned Ld. MM and DAR was filed before the MACT court.
5. It is averred in the claim petition that the said accident was not caused due to the fault of the deceased Satish but due to the fault of respondent no. 1 who failed to control the offending vehicle in prudent manner without observing the safety and security of the other person on the road. It is further pleaded that had the respondent no.1 been cautious MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 4 of 36 in driving the offending vehicle within permissible speed and if he had taken care of safety and security of common citizen on the road, the accident would not happened and the precious life of 21 years old deceased, Sh. Satish could have been saved. It is also averred that there was no contributory negligence on the part of the deceased. It is further averred that the carelessness and negligent driving of respondent no.1 snatched the valuable life of Satish and the petitioners have been forced to live their life without deceased Satish.
Written statements:
6. Respondent nos. 1 and 2 filed their respective written statements wherein, they stated that the present claim petition is not maintainable as the death of the deceased Satish occurred on account of his own fault as the accident had occurred due to rash and negligent driving of motorcycle without following the traffic rules. They further stated that there is no fault of respondent no. 1 in the said accident and therefore, neither the respondent no. 1 nor the insurance company is liable to pay any compensation to the petitioners.
7. Perusal of record reveals that on 04.10.2016, Ld. Counsel for the petitioner submitted that he had to file the protest petition with respect to the final report filed by the IO concerned. Therefore, the present claim petition was adjourned sine-die with liberty to revive the same in case the said petition was decided in favour of the petitioner.
Thereafter, vide order dated 25.11.2023, the DAR has been revived and accordingly, vide order dated 04.04.2024, the present matter was MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 5 of 36 ordered to be proceeded on merits.
ISSUES FRAMED
8. On the basis of the pleading of the parties, vide order dated 05.11.2012, this Tribunal had framed the following issues:
i. Whether the deceased Satish died in a road traffic accident dated 17.06.2012 due to rash and negligent driving of the offending vehicle bearing no. DL 1ST 8025 driven by respondent no. 1 as alleged?
ii. What amount of compensation the petitioners are entitled to and from whom?
iii. Relief.
EVIDENCE
9. The petitioners examined petitioner no. 3, Sh. Tula Ram, father of the deceased as PW-1; Sh. Ravinder Kumar as PW-2 and Sh. Atul Kumar Chaudhary as PW-3. The respondent no. 2 insurance company examined ASI Ishwar Chand as R2W1.
10. The petitioners had filed Form XIII. Financial statement of the petitioners were recorded and final arguments were heard on behalf of the petitioners and all the respondents.
MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 6 of 36FINDINGS & OBSERVATIONS
11. Before delving into the facts of the current case to decide the aforementioned issues, it is pertinent to highlight that it is firmly established in legal precedents that the proceedings conducted before the Claims Tribunal are in the nature of an inquiry. Further, procedural approach adopted by an accident claims' tribunal mirrors that of a civil court (National Insurance Co. Ltd. vs. Smt. Pushpa Rana & Ors. 2009 ACJ 287). In civil proceedings, the establishment of facts hinges on a preponderance of probabilities, rather than being bound by the strict rules of evidence or the higher standard of beyond reasonable doubt, as required in criminal cases. The burden of proof in civil cases is lighter than in criminal cases, and the burden to decide claim petition under The Motor Vehicles Act is even lesser as compared to a civil litigation. In Bimla Devi & Ors. v. Himachal Road Transport Corporation & Ors (2009) 13 SC 530, it has been held by Hon'ble Supreme Court of India that negligence must be decided on the touchstone of preponderance of probabilities and a holistic view must be adopted in reaching a conclusion.
12. Keeping in mind the aforementioned legal principle for adjudicating the present issue, this Tribunal has thoroughly gone through the testimony of the witnesses and all the material available on record. Also, careful consideration has been given to the arguments addressed by the Learned Counsels for all the parties.
MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 7 of 36Issue No. 1:
Whether the deceased Satish died in a road traffic accident dated 17.06.2012 due to rash and negligent driving of the offending vehicle bearing no. DL 1ST 8025 driven by respondent no. 1 as alleged? OPP
13. The present award is being passed under section 163A Motor Vehicles Act and thus, before proceeding on merits, it is important to see what it provides. Section 163A of the Act is reproduced as under:
"163A. Special provisions as to payment of compensation on structured formula basis.
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.- For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death of permanent disablement in respect of which the claim has been made was due to any wrongful act or neglector default of the owner of the vehicle or vehicles concerned or of any other person."
14. The claim petition for compensation can be filed by the claimants either under section 140, section 166 or Section 163A of the MV Act. While under section 166 of the MV Act, it is imperative to prove the fault of the driver of the offending vehicle, sections 140 and MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 8 of 36 163A provide that the claimants are not required to prove that the driver of the offending vehicle has committed any wrongful act, neglect or default. Therefore, the fact that the accident took place and a person suffered grievous or fatal injury is sufficient to attract the provisions of section 140 and section 163A of the Act. Therefore, rashness and negligence on the part of respondent no. 1 is not required to be proved.
The factum of accident:
15. In this matter, to prove the occurrence of the accident, the father of the deceased who is the petitioner no. 3 in this case examined himself as PW-1 who deposed in his evidence by way of affidavit Ex.PW1/A as under:-
"1...
2. That the son of deponent namely Late Sh. Satish, met with an accident on 17.06.2012 at about 4.00 P.M. at Outer Ring Road, near Gopalpur Red Light, towards Wazirabad Red Light, P.S. Timar Pur, Delhi and an FIR was lodged in this respect in P.S. Timar Pur vide FIR No. 131/12 u/s 279/337/304A IPC. On the unfortunate day, the deceased was riding on M/cycle bearing no. DL-4SAQ-9862 meanwhile he was hit by M/cycle bearing no. DL-1ST-8025. As an impact of the accident, the deceased sustained multiple body injuries and fractures on all over the body as per PMR and the deceased could not be medically treated as he died at the spot.
3. That late Sh. Satish left behind him after his death, his wife Nisha aged about 20 yrs, minor son Master Ankit aged about half yr, mother Sunita aged about 37 yrs and father i.e. the deponent and all of them are petitioner no. 1-4.
4. That age of late Sh. Satish was 21 years as per Ration Card hence late Sh. Satish was a young man MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 9 of 36 of 2 years old with a good health and physique at the time of the accident when his life was cut short down. The carelessness and negligent driving of the respondent no. 1 snatched their valuable life and the petitioners have been forced to live their life without Late Sh. Satish.
5. That the said accident was caused by respondent no.1 who failed to control the offending vehicle in prudent manner without observing the safety and security of the other person on the road thereby violating traffic rules and regulations. Had the respondent no. 1 been cautious in driving the offending vehicle with in permissible speed and taking care of safety and security of common citizen on the road, the accident would not happn and the precious life of 21 years old Late Sh. Satish could have been saved. The respondent no. 1 is liable to pay the compensation for being rash and negligent while driving an being the owner of the offending M/cycle at a very High speed without blowing the Horn and thereby caused the death of an innocent and bonafide person. There is no contributory negligent on the part of the deceased. The respondent no. 2 is also vicariously liable to pay compensation being the insurer of the offending M/cycle.
6. That the future of the petitioners has been absolutely ruined by this accident and death of late Sh. Satish and they had suffered a shock, physical and mental tension, pain and agony, loss of love and affection and care etc.
7. That the deponent had spent a sum of Rs.50,000/- on the conveyance and last rights of Late Sh. Satish.
8. That late Sh. Satish was self employee in Pvt. Job and he used to earn a sum of Rs. 3325/- per month and handed over all the amount to his wife i.e. petitioner no. 1 .
9. That the copy of ration card is Ex. PW-1/1, copy of P.M. Report of Late Sh. Satish is Ex. PW-1/2 and marriage card is Ex. PW-1/3, Insurance of offending vehicle is Ex. PW1/4, DAR is Ex. PW-1/5, FIR is Ex.MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 10 of 36
PW1/6, Sie plan is Ex. PW-1/7, R/C is Ex. PW-1/8, D/L of respondent no. 1 is Ex. PW-1/9."
16. The petitioners also examined Sh. Ravinder Kumar as PW-2. In his examination-in-chief, he deposed as under:
"I am a summoned witness. On 17.06.2012 at about 4 pm, I alongwith my brother in law and his wife reached at red light Gopalpur, Delhi by hired three wheeler from railway station new Delhi. I was waiting for my nephew. At that time, there was red light, one boy came from Jahangirpur towards Wazirabad in speed of 60 to 65 kmph crossed the red light. At that time green light was for traffic coming from Gopalpur side and one another person on motorcycle towards his right side for Wazirabad near about 100 ft. Motorcyclist coming from Wazirabad toched him slightly from back side. Thereafter both of them fell down on road. Thereafter, number of persons gathered there, thereafter, I left the spot for my residence. one inmates to me named as Atl Kumar R/o Gali No. 6 Wazirabad was available there. I have photocopy of my DL which is Mark PW2/A."
17. PW-2, who is the eye-witness to the alleged road accident has categorically proved the factum of the accident. Further, PW-1 has proved that the deceased had suffered multiple injuries in the said accident on 17.06.2012. They have unequivocally testified regarding the occurrence of the accident due to which the deceased Satish expired and respondent no. 1 Mahesh sustained injuries.
18. Furthermore, it is settled law that this Tribunal is holding an inquiry and not a trial where the case has to be decided to the hilt. Here the burden is even lesser than the balance of probabilities. The MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 11 of 36 occurrence of the accident is even admitted by respondent no. 1.
19. It is also an admitted case that DAR containing the charge- sheet for the offences u/s 279/338/304A IPC and section 146/196 MV Act was filed albeit against the deceased. However, filing of the DAR and the chargesheet also proves that the accident did take place. Therefore, it is proved and concluded that an accident took place on 17.06.2012.
The injury:
20. The postmortem report bearing no. 1039/12 dated 18.06.2012 of the deceased Satish reveals that the alleged history mentioned is "Police received call on 17.06.2012 at 15:05 hrs via DD no. 35B that at Gopalpur Red Light, Accident had occurred Case FIR no. 131/2012 s.279/304A IPC PS Timarpur, Delhi." It has also been mentioned that the dead body was received on 17.06.2012. The postmortem report reveals that the deceased sustained many external and internal injuries and that the main cause of his death was "consumed effect of fine carniocerebral damage and hemorrhagic shock." All injuries have been stated to be ante mortem and time since death was stated to be 18 to 24 hours. Thus, it stands established that deceased Satish had expired on account of injuries sustained by him in the accident in question.
21. In view of aforesaid discussion, it is concluded that the deceased Satish sustained fatal injuries in the accident that occurred on 17.06.2012 at Gopalpur Red Light involving his vehicle as well as MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 12 of 36 the vehicle of respondent no. 1.
Defence u/s. 163A M.V. Act
22. The next question that arises for consideration is whether the petitioners are entitled to compensation under section 163A MV Act. Clearly, the petitioners were only required to prove that the accident took place involving the vehicle of respondent no. 1 and they were not required to prove whether there was any wilful act, neglect or default on the part of respondent no. 1. However, Ld. Counsel for respondent no. 2 argued that even though section 163A of the Act does not require the petitioners to prove any wilful act, neglect or default on the part of respondent no. 1 but in this case, it is the deceased who was rash and negligent and compensation cannot be claimed under section 163A of the Act where the deceased himself is at fault. He argued that it is a matter of record that the deceased was driving without a valid driving license and without helmet. He also pointed out that his vehicle was not insured and since he was violating all the laws, he was at fault and was not competent to drive. To prove that the petitioners are not entitled to any claim for compensation under section 163A of the Act where the deceased is at fault, Ld. Counsel for the insurance company has relied upon the judgment of National Insurance Co. v Sinitha & Ors. AIR 2012 SC 797 wherein Hon'ble Supreme Court observed as follows:
"12. For determination of the issue under consideration, namely, whether Section 163A of the Act is governed by the "fault" or the "no-fault"
liability principle, it is first relevant for us to examine Section 140 of the Act, so as to determine whether it has any bearing on the interpretation of MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 13 of 36 Section 163A of the Act. Section 140 aforesaid is being extracted hereunder :
"140. Liability to pay compensation in certain cases on the principle of no fault. - (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
(5) Notwithstanding anything contained in sub-
section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force :
Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A."
For the instant determination, only sub-sections (3) and (4) are relevant. A perusal of sub-section (3) MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 14 of 36 reveals, that the burden of "pleading and establishing", whether or not "wrongful act", "neglect" or "default" was committed by the person (for or on whose behalf) compensation is claimed under Section 140, would not rest on the shoulders of the claimant. In other words the onus of proof of "wrongful act", "neglect" or "default" is not on the claimant. The matter however does not end with this. A perusal of sub-section (4) of Section 140 of the Act further reveals, that the claim of compensation under Section 140 of the Act cannot be defeated because of any of the "fault" grounds ("wrongful act", "neglect" or "default"). This additional negative bar, precluding the defence from defeating a claim for reasons of a "fault", is of extreme significance, for the consideration of the issue in hand. It is apparent, that both sides are precluded in a claim raised under Section 140 of the Act from entering into the arena of "fault" ("wrongful act" or "neglect" or "default"). There can be no doubt, therefore, that the compensation claimed under Section 140 is governed by the "no- fault" liability principle.
13. In the second limb of the present consideration, it is necessary to carry out a comparison between Sections 140 and 163A of the Act. For this, Section 163A of the Act is being extracted hereunder:
"Section 163A. Special provisions as to payment of compensation on structured formula basis - (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-
section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 15 of 36 made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
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 sub-section (4) of Section 140 in Section 163A of the Act. Whereas, under sub-section (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, precluding the defence 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 sub- section (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 sub- section (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 sub-section (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 defence 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 MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 16 of 36 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 "faults", namely, "wrongful act", "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 defence 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 sub-section (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 sub- section (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 defence (owner or the insurance company). A claim which can be defeated on the basis of any of the aforesaid considerations, regulated under the "fault" liability principle. We have no hesitation therefore to conclude, that Section 163A of the Act is founded on the "fault" liability principle."
23. Thus, the court has drawn a distinction between section 140 of the Act and section 163A of the Act. It has been laid down that while under section 140 Act, in their defence the respondents cannot take a plea that the wrongful act, neglect or default was on the part of the injured/ deceased but under section 163A of the Act, the respondents are at liberty to prove that it was the injured/ deceased who had committed the wrongful act, neglect or default. However, the burden is on the respondent to prove the same.
24. To prove that the deceased was rash and negligent in riding his motorcycle, respondent no. 1 examined himself and deposed as under:
MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 17 of 36"While crossing Gopalpur red light I was hit from behind by the Motorcycle of deceased Satish. After the accident both of us fell down and thereafter, I lost on consciousness. At present I do not remember the no. of the Motorcycle which had hit me but I remembered at that point of time when the accident took place, I was driving slowly on my correct side and was hit by the Motorcycle driven by deceased Satish who was driving rashly and very fast. The accident did not occurred on account of my fault at all."
25. Although, the respondent no. 1 has deposed that the deceased was driving rashly and very fast but in his cross-examination, he has deposed that "I had seen him for the first time when he hit and I fell on the ground." which means that the respondent had not seen the deceased prior to the time when he was hit and thus, he cannot tell if the deceased was diving rashly and negligently or not. Further, it is the case of the respondent himself that the deceased had hit him from behind which makes it even more convincing to believe that the respondent had not seen the deceased prior to the accident and thus he cannot tell regarding the speed, rashness and negligence of the driver. Therefore, the respondent as R2W2 has failed to prove that the deceased was rash and negligent while riding his motorcycle.
26. Further, the respondent no. 1 has examined the IO as R2W1 who has proved the chargesheet as Ex. R2W1/1 and the DAR as Ex. PX. It is his submission that chargesheet was prepared by him against the MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 18 of 36 deceased. Although, relying on the investigation, one may conclude that the deceased was at fault which is why the charge-sheet was filed against him, however, the bare perusal of the charge-sheet shows major lapses on the part of the IO. He has mentioned in the charge-sheet itself that there was no eye-witness and only on the basis of the inspection of the spot of accident, he filed the chargesheet against the deceased. Another interesting fact that emerges from the charge-sheet is that section 304A IPC has also been invoked while it is the alleged accused Satish who expired and not the respondent Mahesh. If the charge-sheet is being filed under section 304A IPC, the accused should have been Mahesh and not Satish. It seems the IO has not investigated the case properly and assessed and examined the facts correctly before filing the charge-sheet. Therefore, the testimony of the IO as well as his investigation cannot be relied upon. The chargesheet cannot be taken as an undisputed document to prove the guilt of the deceased.
27. Further, it is the case of respondent no. 2 that the deceased did not have a valid driving license and was not wearing a helmet and thus, he was rash and negligent in riding his motorcycle. Regarding this, it was held in the case of Sudhir Kumar Rana v Surinder Singh & Ors 2008 SCC OnLine SC 794 that:
"9. If a person drives a vehicle without a license, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini-truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any license but no finding of fact has been arrived at that he was driving the two-wheeler rashly and MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 19 of 36 negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a license, he would be held to be guilty of contributory negligence.
10. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place."
28. The Sudhir Kumar Rana (supra) case was affirmed in the case of National Insurance Co. Ltd. V Puneet Bhatia (MAC APP. 774/2017 & CM APPl. 41950/2018, 50140/2018 where the appeal was rejected on the ground that merely because the driver did not have a valid license, he cannot be said to be driving in a rash and negligent manner unless rashness and negligence on his part is specifically proved. In the case of Puneet Bhatia (supra), it was further held that:
"29. Even otherwise, applying the ratio of the judgment of the Supreme Court in Sudhir Kumar Rana (Supra), I am also of the view that, though not wearing a helmet would have magnified the injuries suffered by the deceased, the same were caused by the accident in question, where the cause of the accident was the overloading of the offending vehicle which had led to the overhanging electric wires being struck with the bales that were being carried in the Offending Vehicle and the said wires falling over the deceased, entangling her scooty and making her fell down. Non- wearing of the helmet by the deceased, therefore, did not cause or contribute to the accident, though had the deceased worn a helmet, the injuries suffered by the deceased due to the accident may have been reduced (though this also remains in the realm of conjecture!).
30. The above challenge of the appellant is, accordingly, rejected."
29. The dicta laid down in the cases of Sudhir Kumar Rana (supra) as well as Puneet Bhatia (supra) make it amply clear that an MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 20 of 36 overt act of rashness and negligence had to be proved on behalf of the deceased and merely because he did not have a driving license or was not wearing a helmet, he cannot be termed to have been riding his motorcycle in a rash and negligent manner. Neither the IO (R2W1) nor the respondent no. 1 (R2W2) have been able to establish that the deceased was riding his motorcycle in a rash and negligent manner. Therefore, it is concluded that the deceased suffered fatal injuries in an accident that took place on 17.06.2012 in which the vehicle of the respondent was involved. It is also concluded that any wilful act, neglect or default on the part of the deceased has not been proved. Thus, the respondent no. 2 has not been able to prove its defence that the deceased was rash and negligent. Therefore, for the purpose of Section 163A MV Act, it stands proved that the deceased Satish suffered fatal injuries in an accident that involved the vehicle of respondent no. 1. Lastly, the vehicle of the respondent which was a motorcycle bearing no. DL-1ST-8025 was insured with National Insurance Co. vide policy no. 360500/31/11/6200002590 valid from 30.06.2011 to 29.06.2012.
Issue no. 2 Whether the petitioners are entitled for compensation? If so, to what amount and from whom? (OPP.)
30. The petitioners are certainly entitled for compensation in view of the decision of issue no. 1 above. The compensation is being claimed under section 163A of the MV Act as per which it has to be calculated in accordance with Second Schedule appended to the Act. At MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 21 of 36 the relevant time i.e. in the year 2012, when the accident took place, the Second Schedule provided for calculation on the basis of the structured formula. The said second schedule was amended w.e.f. 01.04.2022 and now flat Rs. 5 lakhs has to be awarded.
31. The general principles relating to computation of compensation in MACT cases were laid down by the Hon'ble Supreme Court in the case of Sarla Verma & Others Vs. Delhi Transport Corporation & Another (2009) 6 Supreme Court Cases 121 which were reiterated by the Constitution Bench of Hon'ble Supreme Court in the case of National Insurance Company Vs. Pranay Sethi & Ors. decided on 31.10.2017. The same are as under:
"...18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
The issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference to the age of the deceased.
If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the Insurance Companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 22 of 36 of death, by the following well settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multiplier with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual Calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs.5,000/- to Rs.10,000/- may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs.5,000/- to Rs.10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added....." .MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 23 of 36
Age determination of the deceased:
32. Applying the principles settled in the case of Sarla Verma (supra) and Pranay Sethi (supra) to the facts of the present case, the first aspect to be determined is the age of the deceased. According to the petitioners, the deceased Satish was aged 23 years old at the time of the accident. The ration card of the father of the deceased shows that the year of birth of the deceased was 1991. Thus, the deceased Satish was aged 23 years old at the time of accident on 17.06.2012.
Income of the deceased:
33. The petitioners have claimed that the deceased Satish was self employed and was earning Rs.3,325/- p.m. Although, the petitioners have not filed any document to prove the same but the evidence of the petitioners has not been controverted by the respondents. Therefore, the income of the deceased Satish is considered to be Rs. 3,325/- per month at the time of the accident i.e. on 17.06.2012.
Calculation as per Second Schedule:
34. The deceased was 23 years old at the time of the accident and his annual income would be Rs. 3,325/- x 12 which is Rs. 39,900/-.
Further, in the case of Oriental Insurance Company Ltd. v Maman Singh MAC Appeal 930/2011 and CM 19410/2011 where claim was MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 24 of 36 made under section 163A MV Act, Hon'ble High Court of Delhi held that the decision in National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. 2017 ACJ 2700 (SC) makes no distinction between a claim under Section 166 or one under Section 163A Motor Vehicles Act for assessing the income. It was further held that the element of future prospects of increase would deserve to be added to the extent of 40% in view of the ruling in Pranay Sethi (supra). Thus, the total annual income of the deceased after considering the future prospects would be Rs. 39,900 x 140/100 which equals to Rs. 55,860/-.
35. However, in view of the Second Schedule, one-third deductions for personal expenses have to be made. After deducting one- third, the annual loss of dependency will be Rs. 37,240/-. Furthermore, as per the Second Schedule, the multiplier in the present case would be seventeen (17). Applying, the multiplier, the total loss of dependency is Rs. 6,33,080/-.
36. Also, as per the Second Schedule, the petitioners are further entitled to Rs. 2,000/- as funeral expenses, Rs. 5,000/- as loss of consortium to the spouse and Rs. 2,500/- as loss of estate.
Computation of compensation:
37. As per the Second Schedule, the compensation payable to the petitioners is calculated as under:
MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 25 of 36Sr. Head Awarded by the Claims Tribunal No. 1 Monthly Income of deceased (A) Rs. 3,325/- 2 Annual Income of deceased (B) Rs. 3,325 x 12 = 39,900/- 3 Add future prospect @40% (C) Rs. 39,900 x 140/100= 55,860/- 4 Less 1/3 deductions towards 55,860 x 1/3= personal and living expenses of Rs. 18,620/-
the deceased (D) 5 Annual loss of Dependency (E)= 55,860-18,620= (C-D) Rs. 37,240/-
6 Multiplier (F) 177 Total loss of dependency (ExF) 37,240 x 17= Rs. 6,33,080/-
8 Medical Expenses (G) Nil.
9 Compensation for loss of love Nil.
and affection (H) 10 Compensation for loss of Rs. 5,000/-
consortium (I) to the spouse 11 Compensation for loss of Estate Rs. 2,500/-
(J) 12 Compensation for funeral Rs. 2,000/-
expenses (K) 13 Total Compensation 6,42,580/-
38. Further, in view of the judgment of Benson George V. Reliance General Insurance Co. Ltd. in Civil Appeal No. 1540 of 2022 decided on 25.02.2022, the claimants are held entitled to interest @ 6 % per annum from the date of filing of claim petition i.e. from 25.09.2012 till realization. However, the present petition MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 26 of 36 was adjourned sine die w.e.f. 04.10.2016 and was revived vide order dated 25.11.2023. Thus, the petitioner will not be entitled to interest to the period w.e.f. 04.10.2016 till 25.11.2023.
Apportionment:
39. It is evident from the record that the deceased Satish had left behind four legal heirs i.e. his wife Smt. Nisha (aged about 21 years); minor son Master Ankit (aged about 15 months); father Sh. Tula Ram (aged about 39 years) and mother Sunita (aged about 38 years). For the sake of convenience, the individual shares of the dependents of the deceased are tabulated as under:-
S.N Name of the Relation with Percentage Amount in (Rupees) o. claimant deceased of share
1. Nisha Wife 50% 6,42,580 x 50/100= Rs. 3,21,290/-
2. Master Ankit Minor son 30% 6,42,580 x 30/100= Rs. 1,92,774/-
3. Tula Ram Father Nil. Nil.
4. Sunita Mother 20% 6,42,580 x 20/100= Rs. 1,28,516/-
Disbursement
40. On realization of the award amount, the entire share in the award amount in respect of petitioner no. 1 (wife, Nisha) and petitioner no. 4 (mother, Sunita) be released to them along with their respective interest amount.
MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 27 of 3641. Further, since Master Ankit is a minor, his entire share of the award amount be put in fixed deposits in his name in MACAD account and upon his attaining majority, the entire amount be put in equal monthly fixed deposits with cumulative interest in terms of the directions contained in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021. The amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank situated near the place of his residence without the facility of cheque book and ATM card.
42. It is clarified that the aforesaid amounts shall be released to all the petitioners only on submitting the copy of passbook of savings account in a bank near to their residence with endorsement of the bank that no cheque book facility and ATM card has been issued or if it has been issued the said ATM Card has been withdrawn and shall not be issued without the prior permission of this Tribunal.
43. The above FDRs shall be prepared with the following conditions as enumerated by the Hon'ble Delhi High Court vide orders dated 07.12.2018 & 08.01.2021 in FAO No. 842/2003 under the title Rajesh Tyagi & Ors. v. Jaivir Singh & Ors.:
(i) The bank shall not permit any joint name to be added in the saving account or fixed deposit accounts of the claimants i.e. saving bank accounts of the claimants shall be an individual saving bank account and not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 28 of 36 containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimants.
(iii) The maturity amount of the FDRs be credited by the ECS in the saving bank account of the claimant near the place of their residence.
(iv) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(v) The concerned bank shall not issue any cheque book and/or debit card to claimants.
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 claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank.
(vi) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque books and/or debit card have been issued and shall not be issued without the permission of the Court and the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
44. In compliance of the directions given by Hon'ble High Court in FAO No. 842/2003 dated 08.01.2021, Summary of the Award in the prescribed Format-XV is as under:
SUMMARY OF AWARD:
1. Date of Accident: 17.06.2012
2. Name of the deceased: Satish
3. Age of the deceased: 23 years
4. Occupation of deceased: Self employed MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 29 of 36
5. Income of the deceased: Rs. 3,325/-
6. Name, Age and relationship of legal representatives of deceased:
S.No. Name of the claimant Relation with deceased
1. Nisha Wife
2. Master Ankit Son
3. Tula Ram Father
4. Sunita Mother COMPUTATION OF COMPENSATION Sr. Head Awarded by the Claims Tribunal No. 1 Monthly Income of deceased Rs. 3,325/-
(A) 2 Annual Income of deceased Rs. 3,325 x 12 = 39,900/-
(B) 3 Add future prospect @40% (C) Rs. 39,900 x 140/100= 55,860/- 4 Less 1/3 deductions towards 55,860 x 1/3= personal and living expenses of Rs. 18,620/-
the deceased (D) 5 Annual loss of Dependency 55,860-18,620= (E)= (C-D) Rs. 37,240/-
6 Multiplier (F) 177 Total loss of dependency (ExF) 37,240 x 17= Rs. 6,33,080/-
8 Medical Expenses (G) Nil.
9 Compensation for loss of love Nil.
and affection (H) MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 30 of 36 10 Compensation for loss of Rs. 5,000/-
consortium (I) to the spouse 11 Compensation for loss of Rs. 2,500/-
Estate (J) 12 Compensation for funeral Rs. 2,000/-
expenses (K) 13 Total Compensation 6,42,580/-
14 Rate of Interest Awarded 6% 15 Interest amount up to the date of award (4 years and 5 Rs. 1,71,675.95/-
months and 22 days) 16 Total amount including interest Rs. 8,14,255.95/-
(rounded off to Rs.8,14,256/-) 17 Award amount released As per paragraph No.40 & 41 18 Award amount kept in FDRs As per paragraph No. 41 19 Mode of disbursement of the As per paragraph No.40 & 41 award amount to the claimant(s) 20 Next Date of compliance of the 08.06.2024 award LIABILITY:
45. The offending vehicle was being driven by respondent no.1, Mahesh Rathore and was owned by him. The offending vehicle was insured with respondent no. 2, National Insurance Co.
Therefore, the respondent no.1 is liable to pay the award amount and respondent no. 2 is liable to indemnify respondent no. 1.
Issue no. 2 is decided accordingly.
MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 31 of 36RELIEF:
46. In view of the above, the respondent no. 2 National Insurance Company Limited, is directed to deposit a sum of Rs.6,42,580/- (Rupees Six Lakhs Forty Two Thousand Five Hundred and Eighty only) along with interest @ 6 % from the date of filing of DAR i.e. from 25.09.2012 till 04.10.2016 and again w.e.f. 25.11.2023 till realisation with the Civil Nazir of this Tribunal within 30 days under intimation to the claimants, failing which insurance company shall be liable to pay interest @ 7.5 % per annum for the period of delay beyond 30 days.
Ahlmad is directed to e-mail an authenticated copy of the award to the insurance company for compliance within the time granted as directed by the Hon'ble Supreme Court of India in WP (Civil) No. 534/2020 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India & Ors. on 16.03.2021. The said respondent is further directed to give intimation of deposit of the compensation amount to the claimant and shall file a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount within 15 days of the deposit with a copy to the Claimant and his counsel.
Ahlmad shall also e-mail an authenticated copy of the award to Branch Manager, SBI, Tis Hazari Courts for information.
A copy of this award be forwarded to the parties free of cost.
Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 32 of 36 Authority in view of Central Motor Vehicles (fifth Amendment) Rules, 2022 [(Directions at serial nos. 39, 40 of Procedure for Investigation of Motor Vehicle Accidents (under Rule 150A)].
Civil Nazir is directed to place a report on record on 08.06.2024 in the event of non-receipt/deposit of the compensation amount within the time granted.
Further Nazir is directed to maintain the record in Form XVIII in view of Central Motor Vehicles (fifth Amendment) Rules, 2022 [(Directions at serial no. 41 of Procedure for Investigation of Motor Vehicle Accidents (under Rule 150A).
Ahlmad is further directed to comply with the directions passed by the Hon'ble High Court of Delhi in MAC APP No. 10/2021 titled as New India Assurance Company Ltd. Vs. Sangeeta Vaid & Ors., date of decision : 06.01.2021 regarding digitisation of the records.
File be consigned to Record Room after due compliance.
Digitally signedAnnounced in the open Court on RUCHI by RUCHI AGGARWAL this 8th day of May, 2024. AGGARWAL ASRANI ASRANI Date: 2024.05.08 16:54:14 +0530 (Dr. RUCHI AGGARWAL ASRANI) PO, MACT-01, Central District, Tis Hazari Courts, Delhi. MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 33 of 36 FORM - XVII
COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE MENTIONED IN THE AWARD 1 Date of Accident 17.06.2012 2 Date of filing of Form-I -
First Accident Report Not available
(FAR)
3 Date of delivery of Form-II
to the victim(s) Not available
4 Date of receipt of Form-III
from the Driver Not available
5 Date of receipt of Form-IV
from the Owner Not available
6 Date of filing of the Form-
V - Interim Accident Not available
Report (IAR)
7 Date of receipt of Form- Not available
VIA and Form VIB from
the Victim(s)
8 Date of filing of Form-VII
- Detail Accident Report Not available
(DAR)
9 Whether there was any
delay or deficiency on the
part of the Investigating No.
Officer? If so, whether any
action/direction warranted?
10 Date of appointment of the
Designated Officer by the 12.10.2012
Insurance Company
11 Whether the Designated
Officer of the Insurance Yes.
MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 34 of 36
Company admitted his
report within 30 days of the
DAR/Claim petition?
12 Whether there was any
delay or deficiency on the No.
part of the Designated
Officer of the Insurance
Company? If so, whether
any action/direction
warranted?
13 Date of response of the No response.
claimant(s) to the offer of
the Insurance Company.
14 Date of award 08.05.2024
15 Whether the claimant(s)
were directed to open Yes.
savings bank account(s)
near their place of
residence?
16 Date of order by which
claimant(s) were directed to
open Savings Bank
Account(s) near his place of
residence and produce PAN
card and Aadhaar Card and 04.04.2024
the direction to the bank not
to issue any cheque
book/debit card to the
claimant(s) and make an
endorsement to this effect
on the passbook(s).
17 Date on which the
claimant(s) produced the 12.04.2024
passbook of their savings
bank account(s) near the
place of their residence
MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 35 of 36
alongwith the endorsement,
PAN card and Aadhaar
Card?
18 Permanent residential
address of the claimant(s). As per Award
19 Whether the claimant(s)
savings bank account(s) is
Yes.
near their place of
residence?
20 Whether the Claimant(s)
were examined at the time
Yes. Financial statement was recorded on of passing of the Award to 12.04.2024 ascertain his/their financial condition?
Digitally signed by RUCHI RUCHI AGGARWAL
AGGARWAL ASRANI
ASRANI Date:
2024.05.08
16:54:28 +0530
(Dr. Ruchi Aggarwal Asrani)
PO, MACT-01 (Central),
Tis Hazari Courts, Delhi.
08.05.2024
MACT No. 1009/2023 Nisha vs. Mahesh Rathore & Anr. Page 36 of 36