Delhi District Court
Smt. Runa Devi (Wife Of The Deceased) vs M/S Sidhartha Metal Works on 17 October, 2019
IN THE COURT OF SH. RAJ KUMAR
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL:
(WEST-01):DELHI
New MACT Case No. 476915/16
1. Smt. Runa Devi (Wife of the deceased)
W/o late Sh. Bhim Singh
2. Amit (Son of the deceased)
S/o Late Sh. Bhim Singh
3. Sandeep (Son of the deceased)
S/o Late Sh. Bhim Singh
4. Sanjeev (Son of the deceased)
S/o Late Sh. Bhim Singh
5. Jyoti (Daughter of the deceased)
D/o Late Sh. Bhim Singh
6. Smt. Sanichari Devi (Mother of the deceased)
W/o Late Shri Shanker
All R/o H. No. 343, C-Block,
Railway Jhuggi Camp
Cement Siding, Shakur Basti,
Delhi.
........Petitioners
Versus
1. M/s Sidhartha Metal Works,
98, Basti Harphool Singh
Sadar Bazar, Delhi-06.
Also at:
K-4/20, Model Town, Delhi and 4/5, Ist Floor, Asaf Ali Road, Delhi
Through its Prop. Ravinder Nath Jain
S/o Sh. Jitender Nath Jain.
2. M/s SMW Metal Pvt. Ltd.
K-4/20, Model Town Delhi-09,
Through its Director
Sh. Mohinder Jain and Mr. Adish Jain.
......... Respondents
MACT Case No. 476915/16 Page No. 1/26
Date of Institution: : 03.07.2015
Date of reserving order/judgment : 21.09.2019
Date of pronouncement: : 17.10.2019
AWARD
FORM-V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 03.12.2014
2. Date of intimation of the accident by the Date not mentioned Investigation Officer to the Claims Tribunal.
3. Date of Intimation of the accident by the Offending vehicle was not Investigating Officer to the Insurance insured at the time of Company. accident
4. Date of filing of Report under Section 173 Date not mentioned Cr. P.C. before the Metropolitan Magistrate.
5. Date of filing of Detailed Accident 03.08.2015 Information Report (DAR) by the Investigating Officer before Claims Tribunal.
6. Date of service of DAR on the Insurance N.A. Company.
7. Date of service of DAR on the claimant 03.08.2015
(s).
8. Whether DAR was complete in all Yes respects?
9. If not, whether deficiencies in the DAR No removed later on?
10. Whether the police has verified the Yes documents filed with DAR?
11. Whether there was any delay or Accident in question took deficiency on the part of the Investigating place on 03.12.2014 and the Officer ? If so, whether any action/ DAR was filed on 03.08.2015 direction warranted?
12. Date of appointment of the Designated N.A. Officer by the Insurance Company MACT Case No. 476915/16 Page No. 2/26
13. Name, address and contact number of N.A. the Designated Officer of the Insurance Company.
14. Whether the Designated Officer of the N.A. Insurance Company submitted his report within 30 days of the DAR?
15. Whether the Insurance Company N.A. admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or N.A. deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to N.A. the offer of the Insurance Company.
18. Date of the award 17.10.2019
19. Whether the award was passed with the Yes consent of the parties?
20. Whether the claimant (s) were directed to Yes open savings bank account (s) near their place of residence?
21. Date of order by which claimant (s) were 01.02.2018 directed to open savings bank account
(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook.
22. Date on which the claimant(s) produced Yet to be produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the All R/o H. No. 343, C-
Claimant(s). Block, Railway
Jhuggi Camp Cement
Siding, Shakur Basti,
Delhi.
24. Details of savings bank account(s) of the Yet to be produced
MACT Case No. 476915/16 Page No. 3/26
claimant(s) and the address of the bank
with IFSC Code.
25. Whether the claimant(s) savings bank Yes
account (s) in near his place of
residence?
26. Whether the claimant (s) were examined Yes
at the time of passing of the award to
ascertain his/their financial condition?
27. Account number, MICR number, IFSC ADJ/MACT/Parking Account
Code, name and branch of the bank of of SBI Tis Hazari Courts,
the Claims Tribunal in which the award Delhi as informed by the
amount is to be deposited/transfered. Chief Manager, SBI Tis
Hazari Courts, Delhi
MICR:- 110002126, IFSC
Code:- SBIN0000726
1. This judgment -cum- award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred to as the 'Act') filed by petitioners for grant of compensation for the death of the deceased Late Sh. Bhim Singh in the road vehicular accident.
2. Brief facts of the case are that on 03.12.2014, the deceased, after finishing the work was returning to his home by bicycle. It has been further stated that when the deceased reached at Gole Chakkar (round-about), Punjabi Bagh, a vehicle bearing no. DL-8CA-7050(Car) came from Britaniya Chowk side at a very high speed and in a rash and negligent manner, hit the deceased. It has been further stated that due to the forceful impact, the deceased fell down on the road and sustained fatal injuries on all parts of his body. It has been further stated that immediately after the accident, the deceased was taken to Maharaja Agarsen Hospital, Punjabi Bagh, New Delhi for his treatment. It has been further stated that during the treatment, the deceased expired on 13.12.2014. It has been further stated that post mortem of the deceased was conducted at Sanjay Gandhi Hospital, Mangolpuri, New Delhi. It has been further stated that the offending vehicle was being driven by the employee/driver of the respondent no.1.
3. It has been further stated that at the time of accident, the deceased was 39 years of age possessing good health and physique. It has been further stated that at the time of accident, the deceased was working as Rehri Pullar and MACT Case No. 476915/16 Page No. 4/26 earning Rs.10,000/- per month.
4. It has been further stated that the deceased is survived by his wife, three minor sons, one minor daughter and mother.
5. In total, the petitioners have claimed a sum of Rs. 25,00,000/- (Rupees Twenty Five Lacs Only) on account of compensation.
6. As a result of the abovesaid accident, as per the case of the petitioners, FIR No. 1091/2014 dated 03.12.2014: P.S. Punjabi Bagh u/s 279/304A IPC was registered against the vehicle bearing no. DL-8CA-7050.
7. It has been further stated that the respondent no.1 being the registered owner of the offending vehicle and respondent no.2 are jointly liable to pay the compensation to the petitioners.
8. Written statement has been filed by Sh. Ravinder Nath Jain stating therein that the answering respondent is not the owner of the alleged offending vehicle. It has been further stated that the alleged offending vehicle stands in the name of M/s Sidhartha Metal Works' which was before the date of the alleged accident. It has been further stated that earlier the said company was as a proprietorship firm in the name and style of M/s Sidhartha Metal Works. It has been further stated that answering respondent has been falsely implicated in the present matter.
9. Sh. Ravinder Nath Jain, in his reply, has further stated that the documents placed on record by the IO show that Form No. 35 is there on record which pertains to the notice of termination of an agreement of Hire Purchase/Lease/Hypothecation which has been duly endorsed by M/s Gujrat Lease Finance Ltd. in favour of M/s SMW Metal Pvt. Ltd. (respondent no.2 herein) through its authorized signatory Sh. Jatinder Nath Jain alongwith cancellation of the hire purchase lease agreement dated 17.08.1999 addressed to the Regional Transport Office, Delhi. Sh. Ravinder Nath Jain has alleged that IO has failed to enquire about the respondent no.2, the particulars of the insurance, the particulars of the sale and purchase of the vehicle. It has been further alleged that without any basis, Sh. Ravinder Nath Jain has been added as one of the respondents by the IO in the present DAR. It has been further stated that the MACT Case No. 476915/16 Page No. 5/26 answering respondent was neither the partner nor the director nor the authorized signatory of the said company/firm at the time of the alleged accident and as such, he is liable to be deleted from the array of respondents.
10. Reply has also been filed by the respondent no.2 i.e. SMW Metals Pvt. Ltd. stating therein that the respondent no.2 has been falsely implicated in the present matter. It has been further stated that the respondent no.2 was not the owner of the alleged offending vehicle nor in possession of the alleged offending vehicle. It has been further stated that the registration certificate of the alleged offending vehicle shows the registered owner of the vehicle as Siddhartha Metal Works, 98, Basti Harpool Singh, Sadar Thana Road, Delhi. It has been further stated that on the date of transfer of the said car i.e. on 27.07.1995, Siddhartha Metal Works had been a proprietorship concern and Mr. Ravinder Nath Jain was the proprietor of the said firm. It has been further stated that hence, Mr. Ravinder Nath Jain had been the owner and in possession of the said card in the capacity of Proprietor of Siddhartha Metal Works.
11. It has been further stated that the said firm had been taken over by the respondent no.2, a private limited company and thereafter, the present Directors of the company had only become the directors of the said company. It has been further stated that when the respondent no.2 had taken over the assets and liabilities of respondent no.1, the alleged offending vehicle had not been handed over to the company SMW Private Limited which does not show that the said vehicle as forming part of assets being transferred to the company. It has been further stated that hence, the respondent no.2 is not a necessary party in the present claim petition. It has been prayed that the present claim petition be dismissed.
12. After hearing the arguments and going through the pleadings of the parties, the following issues were framed by this Tribunal on 09.08.2017:-
1. Whether the present claim petition/DAR is without any cause of action against the respondent no.2 ie against SMW Metal Pvt. Limited? OPR2.
2. Whether the present claim petition/DAR is without any cause of action against the respondent no.1 ie MACT Case No. 476915/16 Page No. 6/26 against Sh. Ravinder Nath Jain? OPR1.
3. Whether the deceased Sh. Bhim Singh suffered fatal injuries in the accident that took place on 03.12.2014 due to rash and negligent driving of vehicle bearing no. DL-8CA-7050 the respondent no.1, being owned by respondent no.2? OPP.
4. Relief.
13. In order to establish their claim, the petitioners have examined the petitioner No.1 Smt. Runa Devi (wife of the deceased) as PW-1 and in her evidence by way of affidavit, she has reiterated and reaffirmed the stand as taken by the petitioners in the present claim petition. She has filed on record his affidavit as Ex. PW1/A; copy of her Aadhar Card as Ex. PW1/1; medical bills as Ex. PW1/2(colly); copy of death certificate of deceased as Ex. PW1/3(OSR); copy of Election ID card of deceased as Ex. PW1/4(OSR); copy of Aadhar Card of Amit as Ex. PW1/5(OSR); copy of Aadhar Card of Sandeep as Ex. PW1/6(OSR) and copy of Election ID card of Shanichari Devi, mother of the deceased as Mark A.
14. In the cross-examination done by Ld. Counsel for the respondent no.1, PW-1 states that she was married with Sh. Bheem Singh. PW-1 further states that she does not know in which year, she got married with Sh. Bheem Singh.
15. PW-1 further states that the information regarding the accident was given to her by one Sardarji. PW-1 further states that the said information was given to her on 14 day of December but she does not remember the year.
16. PW-1 has further stated that her husband used to work as street peddler (Rehri Puller). PW-1 further states that he used to work and run the Rehri at Rampura. PW-1 further states that the said rehri was used to be run by hands (hand driven cart). PW-1 further stated that she had not seen herself the occurrence of the accident.
17. PW-1 admits it to be correct that none of the bills either bears the stamps or signature of any of the office bearer of Maharaja Agarsen Hosptial. PW1 further states that she put the thumb impressions and signatures upon the copy of the bills at the instance of the doctors. PW-1 further states that she does not know the name of the said doctors. PW-1 further states that she does not MACT Case No. 476915/16 Page No. 7/26 know the person namely Amandeep.
18. PW1 has been shown the bill no. 14205674 dated 04.12.2014 in the name of patient Amandeep and the same has been exhibited as Ex. PW1/R1.
19. In the cross-examination done on 14.03.2018, PW-1 states that she has not placed on record any documentary evidence to show that she had spent an amount of Rs.70,000/- approximately on the treatment of her husband. PW-1 further states that she has also not placed on record any documentary proof to show that she had spent an amount of Rs.30,039/- on account of the medical bills of her deceased husband.
20. PW-1 further states that she is not aware as to what has been written in her affidavit. PW-1 admits it to be correct that she did not spend any amount on the treatment of her deceased husband till his death. PW-1 further states that she is not an eye witness to the accident in question. PW-1 further states that she cannot admit or deny the suggestion that the vehicle of Sardarjee who had informed her about the accident in question might have hit her deceased husband.
21. PW-1 states that she has not placed on record any documentary evidence to show the earnings of her husband. PW-1 admits it to be correct that her husband was treated by the hospital under EWS category free of costs. PW1 admits it to be correct that she has not placed on record any documentary proof to show that the offending vehicle was owned by the respondent no.2 at the time of the accident. By way of volunteer, PW-1 states that DAR has been filed by the IO and she has relied upon the DAR.
22. The petitioners have further examined Sh. Nain Singh, Assistant, Maharaja Agrasen Hospital, Punjabi Bagh, New Delhi as PW-2 and this witness has brought on record the summary of medical bills of deceased Bhim Singh issued by Maharaja Agrasen Hospital and the same has been exhibited as Ex. PW2/1(colly, running into two pages).
23. In the cross-examination done by ld. Counsel for the respondent no.1, PW-2 states that the patient Bhim Singh was admitted in Maharaja Agrasen Hospital under EWS category. PW-2 further states that the entire amount with MACT Case No. 476915/16 Page No. 8/26 respect to the treatment given to the patient during his admission in the hospital including all the medicines were paid by the management of Maharaja Agrasen hospital. PW-2 further states that Ex. PW1/2(colly) are the medicines issue slips showing the medicines given to the patient and the same are neither the bills nor the receipts of payment. PW-2 further states that no payment has been done by the patient or his family members with respect to Ex. PW1/2(colly).
24. The petitioners have also examined the eye witness to the accident in question Sh. Tarjinder Singh as PW-3 and in his evidence by way of affidavit, PW-3 has reiterated and reaffirmed the stand as taken by the petitioners in the claim petition. PW-3, in his affidavit has stated that he had seen the accident in question with his naked eyes. PW-3 has filed on record his affidavit as Ex. PW3/A and copy of his Voter ID card as Ex. PW3/1(OSR).
25. In the cross-examination done by ld. Counsel for the respondent no.2, PW-3 states that he is into the Transport Business. PW-3 further states that he possessed trucks at Punjabi Bagh. PW-3 further states that he does not remember the date of accident. PW-3 further states that the accident took place in front of Sunder Hotel. PW-3 admits it to be correct that the place of accident is near the round-about Punjabi Bagh crossing. PW-3 admits it to be correct that a round-about crossing, red lights are also installed. PW-3 further states that the place of accident is about 250 to 300 meters from the Punjabi Bagh crossing.
26. PW-3 further states that the vehicle involved in the accident was Maruti 800. PW-3 further states that the distance is between the place where he was present and the offending vehicle was about 100 yards. PW-3 further states that the accident took place between 4 pm to 5 pm. PW-3 further states that earlier, traffic was some what less than in present situation. PW-3 admits it to be correct that during peak hours, the traffic is usually heavy. PW-3 further states that he was driving the scooter at about 10 km/hr. PW-3 further states that the vehicle in question ahead of him was at a fast speed.
27. PW-3 further states that he is not aware about the description of driver of the said vehicle. PW-3 further states that he does not know as to whether the said person was a male or a female or as to what was the age of the driver.
MACT Case No. 476915/16 Page No. 9/26PW-3 further states that he cannot tell the name of the lady in whose vehicle, the victim was taken to the hospital. PW-3 admits it to be correct that the victim was alive when he was taken to the hospital.
28. PW-3 further states that 10-15 peoples had gathered at the spot of the accident. PW-3 admits it to be correct that he did not give a call to the police. PW-3 further states that he cannot say as to whether anyone else from the spot of the accident gave a call to the police or not. PW-3 further states that the place of accident was not visited by him for the second time. PW-3 further states that the police did not record his statement. PW-3 admits it to be correct that he is not aware about the owner of the offending vehicle.
29. In the cross-examination done on 13.09.2018 by the Ld. Counsel for the respondent no.1, PW-3 states that there was one three wheeler and one more vehicle between him and the said car. PW-3 further states that he cannot tell the make of the said vehicle in between the vehicle of himself and the offending vehicle PW-3 further states that the distance between his scooty and the said three wheeler was about 5 ft. PW-3 admits it to be correct that the speed of his scooty and the said three wheeler was about the same. PW-3 further states that he does not know the number of the two-three vehicles which were being run just ahead of him.
30. PW-3 further states that he had taken the deceased to the hospital in the Alto car of a doctor. PW-3 further states that he does not know the name and address of the doctor in whose car, the deceased was taken to the hospital. PW-3 further states that he was not advised by the Advocate of the petitioners to state about the Alto Car and the doctor. By way of volunteer, PW-3 states that he has deposed about the doctor and the Alto car on the basis of truth only.
31. The respondent no.1 has examined Sh. Ravinder Nath Jain as RW1 and he has reiterated and reaffirmed the stand as taken by the respondent no.1 in its reply/written statement. RW1 has filed on record his affdiavit as Ex. RW1/A; copy of Form 35 filed by the IO alongwith DAR as Mark X; copy of Final Report under Section 173 Cr. PC as Mark X1; Deed fo Settlement dated 29.01.2013 executed between Ravinder Nath Jain & Mohinder Jain with revised MACT Case No. 476915/16 Page No. 10/26 memorandum of understanding dated 12.11.2014 as Ex. RW1/2(colly)(OSR).
32. In the cross-examination done by Ld. Counsel for the petitioners, RW1 admits it to be correct that he has the knowledge that one criminal case bearing FIR No. 1091/2014 is pending against him. RW1 further states that the statement dated 09.08.2017 recorded before this court is correct. RW1 admits it to be correct that he was not the Director in the Sidharath Metal Works Pvt. Ltd at the time of accident. RW1 further states that it is a matter of record that he was the Proprietor of Sidharath Metal Works. RW1 admits it to be correct that the document Ex. RW1/2(colly) are not notarized.
33. In the cross-examination done by Ld. Counsel for the respondent no.2, RW1 admits it to be correct that Sidharath Metal Works was a proprietorship concern and he was the Proprietor of the same. RW1 further states that he has to check as to whether the vehicle bearing no. DL-8CA-7050 was registered in the name of Sidharath Metal Works or not.
34. RW1 states that he has filed the documents of Gujrat Leasing & Finance Company with his reply. RW1 further states that he cannot say as to whether notice u/s 133 of MV Act was issued to him or not. RW1 further states that he cannot say as to whether he had replied to the said notice filed at page no. 42 and 43 of the official file.
35. RW1 further states that he knows the difference between proprietorship and private limited. RW1 further states that he also knows the difference between partnership and private limited company.
36. RW1 admits it to be correct that the said document Ex. RW1/R2 belongs to Gujrat Leasing Finance Ltd. RW1 states that SMW Metal Pvt. Ltd. never took over Sidharath Metal Works and merely the name was changed.
37. RW1 admits it to be correct that he is aware about the dispute in the present matter is as to whether he himself was the owner of the vehicle bearing no. DL-8CA-7050 on the date of the accident or as to whether the respondent no.2 was the owner of the said vehicle. RW1 further states that he did not write any letter to the Arbitrator for resolution of the controversy as to whether he was the owner of the abovesaid vehicle or as to whether the respondent no.2 was the MACT Case No. 476915/16 Page No. 11/26 owner of the said vehicle on the date of the accident.
38. RW1 admits it to be correct that he is facing trial in the criminal matter which has arisen out of FIR bearing no. 1091/2014 PS Punjabi Bagh u/s 279/304/A IPC. By way of volunteer, RW1 states that only the notice has been issued to him and trial has yet not commenced.
39. The respondent no.1 has also examined Sh. Subhash Dutt, GST Inspector, Department of Trade & Taxes, ITO, Delhi as R1W2 and R1W2 has brought on record the records of Trade & Taxes, GNCT pertaining to M/s S.M.W. Metal Pvt. Ltd. having TIN No. 07680046367. R1W2 has exhibited the said record as Ex. R1W2/1(colly). R1W2 states that the record mentioned alongwith the summons is found untraceable
40. The respondent no.1 has also examined Sh. Divakar Yadav, Junior Technical Assistant, Registrar of Company, NCT of Delhi & Haryana as R1W3 and this witness has brought on record the office order dated 22.05.2019 alongwith certified copy of Master Data of M/s SMW Metals Pvt. Ltd. showing the signatory details alongwith Form 32 dated 15.06.2013 submitted by the company, resolution dated 15.06.2013, resignation letter dated 15.06.2013 of Sh. Ravinder Nath Jain and the same has been exhibited as Ex. R1W3/1(colly, running into 9 pages).
41. In the cross-examination done by ld. Counsel for the respondent no.2, R1W3 admits it to be correct that the document brought by him does not have any details of what were the assets of the company SMW Metals Pvt. Ltd. at the time of incorporation or till such date pertaining to which he had brought the records.
42. The respondent no.2 has examined Sh. Mohinder Jain as RW2 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the respondent no.2 in its reply/written statement. RW2 has filed on record his affidavit as Ex. RW2/A; LLP Master Data as Ex. RW2/1; details of directors as Ex.RW2/2; copy of TIN Number of SMW Metal Pvt. Ltd. as Ex. RW2/3; statement of AR of respondent no.2 as Ex. RW2/4; schedule of assets of respondent no.2 as Ex. RW2/5; schedule of car of respondent no.2 as Ex. RW2/6 and board resolution dated 27.02.2017 as Ex. RW2/7.
MACT Case No. 476915/16 Page No. 12/2643. In the cross-examination done by Ld. Counsel for the petitioners, RW2 states that he has placed on record copy of resolution Ex. RW2/7 in his favour to show that he is authorized to depose as an witness. RW2 further states that he has filed on record Ex. RW2/5 to show that the assets of Sidharath Metal Works were taken over by SMW Metal Pvt. Ltd.
44. RW2 further states that Mr. Ravinder Nath Jain is not the Director of SMW Metal Pvt. Ltd. RW2 further states that his statement was recorded by the police in April, 2015 but exact date he does not remember. RW2 further states that he does not remember as to whether Sh. Jatinder Nath Jain was the authorized signatory of SMW Metal Pvt. Ltd. or not.
45. RW2 further states that it is not written in the document Ex. RW1/R2 that hypthecation was not cancelled in favour of SMW Metal Pvt. Ltd.
46. On 10.01.2019, RW has brought on record the copy of certificate of the Department of Trade and Taxes, Govt. of NCT of Delhi with respect to TIN number of respondent no.2 which has been exhibited as Ex. RW2/8(OSR) and GST registration number of the respondent no.2. RW-2 admits it to be correct that Sh. Ravinder Nath Jain had resigned from SMW Metals (P) Limited in 2013 but he has to check the said record regarding the date. RW2 admits it to be correct that the Ex.RW1/2 was executed in between him and with Sh. Ravinder Nath Jain.
47. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given my thoughtful consideration to the arguments addressed by learned counsels for the parties. I have meticulous perused the written final arguments filed by the respondent Mr. Ravinder Nath Jain. The petitioners have also been examined under the MCTAP and I have considered the statement of the petitioners under MCTAP as well.
My findings on various issues are as under :-
Issues No.1, 2 & 348. All these issues are taken up today as the same are connected interse and overlap each other. As has been discussed herein above, there is a MACT Case No. 476915/16 Page No. 13/26 direct conflict in between the respondents no.1 & 2 in the present matter. The respondent no.1 states that the respondent no.2 was the owner of the offending vehicle at the time of accident. Whereas, on other hand, the respondent no.2 has categorically stated that the respondent no.1 was the registered owner of the offending vehicle on the date and time of the accident in question. Accordingly, the onus to prove the issue no.1 has been placed upon the respondent no.2. Whereas, the onus to prove the issue no.2 has been placed upon the respondent no.1. The onus to prove the issue no.3 has been placed upon the petitioners.
49. The present petition has been filed by the petitioners u/s 166 & 140 M. V. Act and the onus is upon the petitioners to prove the rash and negligent act of the respondent No.1.
50. The petitioners have examined the petitioner no.1 as PW-1 and she has well explained the mode and manner of accident. She has reaffirmed and reiterated the averments made in the petition. During her entire cross examination, nothing has come out so as to discredit her testimony.
51. The petitioners have also examined the eye witness to the abovesaid accident namely Sh. Tarjinder Singh as PW-3.
52. In the written final arguments, Sh. Ravinder Nath Jain has reiterated and reaffirmed the stand as contained in his reply. Sh. Ravinder Nath Jain has argued that the Form No. 35 is there on record which shows that Gujrat Lease Financing Ltd. had terminated the lease in favour of the respondent no.2 and Form no. 35 was duly sent to the Regional Transport office, Delhi alongwith cancellation of the hire purchase/lease agreement dated 17.08.1999. It has been further argued that on the date of the alleged accident i.e. on 03.12.2014, the proprietorship concern of Sh. Ravinder Nath Jain i.e. respondent no.1 was not in existence. It has been further argued that R1W3 Sh. Divakar Yadav has been able to prove that Sh. Ravinder Nath Jain had resigned from SMW Metal Pvt. Ltd vide Ex. R1W3/1. It has been further argued that the testimony of PW-1 is not reliable at all because she is not the eye witness in the accident in question and she is not aware about anything as contained in her affidavit. It has been further argued that the testimony of PW-3, the alleged eye witness to the accident in MACT Case No. 476915/16 Page No. 14/26 question is also not reliable so far as the accident in question is concerned. It has been further argued that there are various contradictions in the testimony of PW-
3. It has been further argued that the respondent no.1 Sh. Ravinder Nath Jain has no role in the captioned claim filed by the petitioner as the offending vehicle does not belong to Sh. Ravinder Nath Jain.
53. It is true that PW-1 is not the eye witness to the accident in question. It is also true that she has stated that she is not aware as to what has been written in her affidavit. It is also true that there are certain contradictions in the testimony of PW3, the eye witness in the accident in question also. It is also true that the offending vehicle has not been placed at all by the IO till date in the present matter. But it has to be seen that the IO in the final report under Section 173 Cr. PC and in the present DAR has categorically stated that the offending vehicle bearing no. DL-8CA-7050 was registered in the name of the respondent no.1 at the time of the accident in question and Sh. Ravinder Nath Jain was the Proprietor of the respondent no.1. The copy of the RC of the offending vehicle is there on record which categorically states that the offending vehicle was registered in the name of the respondent no.1. In his statement recorded by this Court on 09.08.2017, Sh. Ravinder Nath Jain has stated on oath that he was the proprietor of respondent no.1 and the offending vehicle was owned by the said proprietorship firm.
54. The eye witness PW-3 despite the contradictions, in his cross- examination has stuck to the point that he had seen the accident in question with his naked eye and as such, so far as the accident in question is concerned, his testimony is streamlined and the same has not been shaken even in his cross- examination.
55. The date of accident is 03.12.2014. Even in the MLC issued by Maharaja Agarsan Hospital, the number of the offending vehicle has been mentioned. As such, to my mind, the possibility of implication of the alleged offending vehicle is absolutely ruled out.
56. As per the PM report, the cause of death of the deceased has been mentioned as "Shock associated with Head injury as a result of blunt force impact MACT Case No. 476915/16 Page No. 15/26 which could be possible in a RTA as alleged". All injuries are antemortem in nature. The PM report of the deceased also confirms that the deceased expired on account of the injuries received by him in the road traffic accident.
57. Now, coming to the submission of the Ld. Counsel for the respondent no.1, it is true that the Form no. 35 is there on record and it is also true that R1W3 has stated that Sh. Ravinder Nath Jain had resigned from the directorship of the respondent no.2 but the fact remains that the respondent no.1 was the registered owner of the offending vehicle on the date and time of the accident as per the overwhelming documentary evidence on record. In the latest judgment titled as Naveen Kumar Vs. Vijay Kumar and Ors. Cited as Civil Appeal no. 1427 of 2018 decided on 06.02.2018, the Hon'ble Apex Court of the land has categorically held that the registered owner of the offending vehicle is solely liable so far as the liability is concerned. The Hon'ble Supreme Court of India, in para no. 12 of the aforesaid judgment titled as Naveen Kumar Vs. Vijay Kumar and Ors. Cited as Civil Appeal no. 1427 of 2018 decided on 06.02.2018 has held as under:-
Para no. 12 .... The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression 'owner' in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the 'owner'. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In the situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expression 'owner' in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(3) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trial of successive transfers, which are not registered with the registering authority. To hold otherwise would be defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed MACT Case No. 476915/16 Page No. 16/26 must facilitate the fulfillment of the object of the law. In the present case, the First respondent was the 'owner' of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.
58. In the light of the abovesaid discussion, I have no hesitation to hold that Sh. Ravinder Nath Jain who was the Proprietor of respondent no.1 on the date of the accident cannot be absolved of his liability. I am of the opinion that the respondent no.2 cannot be held liable for the purposes of compensation because the registered owner of the offending vehicle on the date and time of the accident was respondent no.1 and not respondent no.2.
59. Issue No.1, thus, is decided in favour of the respondent no.2 and issue no.2 is decided against the respondent no.1.
60. Furthermore, in the present case, the petitioners have placed on record the certified copy of the FIR No. 833/2016 dated 09.06.2016: P.S. Sahibabad, Ghaziabad, UP u/s 279/338/304A IPC was registered against the respondent No.1/Driver of the offending vehicle.
61. In Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors (2009) 13 SC 530, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, in National Insurance Co. Ltd. vs. Pushpa Rana cited as 2009 ACJ 287, it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
62. In the light of the abovesaid discussion, to my mind, the petitioners have been able to prove issue No.3 in their favour and accordingly, the issue No.3 is decided in favour of the petitioners and against the respondent no.1.MACT Case No. 476915/16 Page No. 17/26
COMPENSATION :-
MEDICAL REIMBURSEMENT:-
63. The petitioner no.1 has placed on record the medical bills of the deceased in the form of Ex. PW1/2(colly) alongwith bill summary to the tune of Rs.30,039/-. The petitioners have also examined Sh. Nain Singh, Assistant, Maharaja Agrasen Hospital, West Punjabi Bagh, Delhi as PW-2 and this witness has proved on record the medical bills of the deceased Sh. Bhim Singh in the form of Ex. PW2/1. But in the cross-examination, PW-2 has admitted it to be correct that neither patient Bhim Singh nor his family members has paid any amount towards the treatment or purchase of medicines to the hospital because the patient was admitted under EWS category. PW-2 has also stated that no payment has been paid by the patient or his family members with respect to Ex.
PW1/2 (colly). As such, to my mind, the petitioners have utterly failed to prove on record the medical bills of the deceased Ex. PW1/2. Accordingly, the petitioners are not entitled for any amount under this heard.
64. The petitioner No.1 has placed on record the photocopy of the Election ID Card of the deceased in the form of Ex. PW1/4. In Ex.PW1/4, it has been mentioned that on 01.01.2008, the deceased was 32 years of age. The date of accident is 03.12.2014. Accordingly, the deceased was about 38 years as on the date of accident.
65. In the claim petition, the petitioners have claimed that the deceased was working as Rehri Puller and earning Rs.10,000/- per month but nothing has been placed on record by the petitioners to show that the deceased was earning Rs.10,000/- per month.
66. As such, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act of an Unskilled person. The date of accident is 03.12.2014 on which the minimum wages for an Unskilled person for the relevant period were Rs. 8632/- per month.
67. As such, all the petitioners are to be taken as dependents upon the deceased at the time of the accident.
MACT Case No. 476915/16 Page No. 18/2668. In terms of the judgment of the Hon'ble Supreme Court of India in 'Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08', the deceased might have been spending one- fourth of Rs.8632/- on his personal expenses as he had left behind six dependents on the deceased. Therefore, after deducting one- fourth towards personal expenses, the loss of dependency per month comes out to Rs. 6474/- =(Rs. 8632/- less (Rs.2158).
69. The Hon'ble Apex Court of the land in the latest judgment which has arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Pranay Sethi & ors decided on 31.10.2017 has held as under : -
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by MACT Case No. 476915/16 Page No. 19/26 paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
70. The Hon'ble High Court of Delhi in MAC Appeal No. 798/2011 titled as Bajaj Allianz General Insurance company Ltd. vs. Pooja & ors decided on 02.11.2017 has held that even in the cases where the income of the deceased is calculated on the basis of the minimum wages, the benefit of future prospects is to be given in accordance with the abovesaid guidelines issued by the Hon'ble Supreme Court of India in the abovestated authority as per the rule applicable to self employed or privately employed persons.
71. Going by the ratio of the abovestated two authorities, the multiplier has to be selected as per the age of the deceased which is 38 years in the case in hand, accordingly, the multiplier of 15 as per Sarla Verma vs. DTC 2009 ACJ 1298 SC shall be applicable.
72. An addition of 40% on account of the future prospects has to be given as the age of the deceased was 38 years. Accordingly, the monthly income of the injured has to be calculated as Rs.9063/- (Rs.6474/- + Rs.2589/- (rounding off Rs.2589.6 )which is 40% of Rs.6474/-).
73. The appropriate multiplier applicable is '15' (for the age group of 36 years to 40 years) as mentioned in Sarla Verma's judgment (Supra). Hence, the total loss of dependency comes out to be Rs.16,31,340/- = (Rs. 9063x 12 x 15).
74. The Hon'ble Supreme Court of India in, "National Insurance Company Ltd. vs. Pranay Sethi & Ors. in Special Leave Petition (Civil) No.25590 of 2014 has granted a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on account of loss of estate, loss of consortium and funeral expenses respectively. The aforesaid MACT Case No. 476915/16 Page No. 20/26 amounts are to be enhanced at the rate of 10% in every three years.
75. In view of the abovesaid judgment, I hereby award Rs. 15,000/- towards loss of estate; Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral charges.
76. Therefore, in total, I hereby award a sum of Rs.17,01,340/- (Rupees Seventeen Lacs One Thousand Three Hundred and Forty Only) = (Rs. 16,31,340/- + Rs. 70,000/-) in favour of the petitioners and against the respondents.
R E L I EF
77. I award Rs.17,01,340/- (Rupees Seventeen Lacs One Thousand Three Hundred and Forty Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. 03.07.2015 till the date of the payment of the award amount, in favour of the petitioners and against the respondents on account of their liability being joint and several. The petitioner No.1 shall have 50% share in the award amount, the petitioners No. 2 to 5 shall have 10% share each in the award amount and the petitioner No. 6 who is the mother of the deceased shall have 10% share in the award amount.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
78. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annuity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Tis Hazari Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
MACT Case No. 476915/16 Page No. 21/2679. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi, the respondent no.1 is directed to deposit the amount of Rs.17,01,340/- (Rupees Seventeen Lacs One Thousand Three Hundred and Forty Only) as stated herein above with SBI, Tis Hazari Courts, Delhi, out of which the amount of Rs. 2,01,340/- (Rupees Two Lacs One Thousand Three Hundred and Forty Only) shall be released to the petitioner no.1 i.e. the wife of the deceased keeping in view the submissions of the Ld. Counsel for the petitioners and in the entirety of the facts.
80. The rest of the amount of Rs. 15,00,000/- shall be kept in 150 equal monthly FDR's for the period of one month to 150 months for an amount of Rs. 10,000/- each with cumulative interest in favour of the petitioners in their abovementioned shares. However, money can be withdrawn through withdrawl slip only.
81. As stated herein above, since the petitioners No.2 to 5 are minor, the amount of their FDRs shall not be released until they reach the age of majority.
82. The following conditions are to be adhered to by SBI, Tis Hazari Courts, Delhi with respect to the fixed deposits:-
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant (s) near the place of their residence.
(e) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not be issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall MACT Case No. 476915/16 Page No. 22/26 cancel the same before the disbursement of the award amount.
The bank shall debit card (s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.
83. In accordance with the orders dated 08.02.2019 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 in Rajesh Tyagi and others Vs. Jaibir Singh and others, Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone no. 022- 22741336/9414048606 and e mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted to. A copy of this order be sent by e-mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court as contained in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi. APPORTIONMENT OF LIABILITY
84. Since the offending vehicle was not insured, the respondent no.1 is hereby directed to deposit the award amount in favour of the petitioners with SBI, Tis Hazari Courts, Delhi within a period of 30 days from the date of passing of this award together with the interest as stated herein above under the intimation to this court and under intimation to the petitioners. In case of any delay, it shall be liable to pay interest at the rate of 12% per annum for the period of delay.
A separate file be prepared for compliance report by the Nazir MACT Case No. 476915/16 Page No. 23/26 and put up the same on 26.11.2019.
A copy of this award be given to the parties free of cost. A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP). Digitally signed by RAJ File be consigned to Record Room. RAJ KUMAR Date:
KUMAR 2019.10.20
16:29:11
Announced in the open court +0530
On 17th of October, 2019 (RAJ KUMAR)
P.O.MACT (WEST-01)
Delhi (17.10.2019)
MACT Case No. 476915/16 Page No. 24/26
FORM -IVA
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident :- 03.12.2014
2. Name of the deceased :- Sh. Bheem Singh
3. Age of the deceased :- 38 years
4. Occupation of the deceased :- Rehri Puller
5. Income of the deceased :- Rs.8632/-
6. Name, age and relationship of legal representative of deceased:-
S. Name Age Relation
No.
(I) Smt. Runa Devi Not Wife of the deceased
mentioned
(ii) Amit Year of birth Son of the deceased
1999
(iii) Sandeep Year of Son of the deceased
birth : 2003
(iv) Sanjeev Not Son of the deceased
mentioned
(v) Jyoti Not Daughter of the deceased
mentioned
(vi) Smt. Sanichari Devi 74 years Mother of the deceased
Computation of Compensation
Sr. No. Heads Awarded by the Claim Tribunal
7. Income of the deceased(A) Rs.8632/-
8. Add-Future Prospects (B) 40%
9. Less-Personal expenses 1/4th has been deducted
of the deceased(C)
10. Monthly loss of Rs. 9063/-
dependency[(A+B)-C=D]
11. Annual loss of dependency Rs.1,08,756/-
(Dx12)
12. Multiplier(E) 15
MACT Case No. 476915/16 Page No. 25/26
13. Total loss of dependency Rs.16,31,340/-
(Dx12xE= F)
14. Medical Expenses(G) NIL
15. Compensation for loss of Rs.40,000/-
consortium(H)
16. Compensation for loss of Rs.15,000/-
estate(I)
17. Compensation towards Rs.15,000/-
funeral expenses(J)
18. TOTAL COMPENSATION Rs.17,01,340/-
(F+G+H+I+J+=K)
19. RATE OF INTEREST 9% per annum
AWARDED
20. Interest amount up to the Rs.6,56,717.17(4 years 3 months and 14 date of award (L) days)
21. Total amount including Rs.23,58,057.17 interest (K + L)
22. Award amount released Rs.2,01,340/-
23. Award amount kept in Rs.15,00,000/-
FDRs
24. Mode of disbursement of Mentioned in the award the award amount to the claimant (s).
25. Next date for compliance 26.11.2019 of the award (RAJ KUMAR) P.O.MACT (WEST-01) Delhi (17.10.2019) MACT Case No. 476915/16 Page No. 26/26 MACT Case No. 476915/16 17.10.2019 Present: None The award has been passed separately.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 26.11.2019.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP). A copy of this award be sent by the Ahlmad on the e-mail address of the Nodal Officer of the bank immediately as mentioned in the award.
( RAJ KUMAR ) P.O. MACT (WEST-01) Delhi (17.10.2019) MACT Case No. 476915/16 Page No. 27/26