Delhi District Court
Smt. Sangeeta (Widow) vs Shri Ankit Tyagi (Driver) on 28 March, 2013
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 50/12/10 and MACT No. 246/12
IN THE MATTER OF :
MACT No. 50/12/10
1. Smt. Sangeeta (Widow)
W/o Late Shri Praveen Kumar
2. Baby Neha (DOB: 05.01.2008) (Daughter)
D/o Late Shri Praveen Kumar
Through natural guardian her mother Smt. Sangeeta
3. Shri Jagdhir Singh (Father)
S/o Shri Khetli Ram
4. Smt. Murti Devi (Mother)
W/o Shri Jagdhir Singh
All residents of:
R/o Plot No. 156
Village Amber Hai
Sector - 19, Dwarka
New Delhi.
... Petitioners
Versus
1. Shri Ankit Tyagi (Driver)
S/o Shri Janmajai Tyagi
R/o WZ21, F/F, Village
Bodhella Vikas Puri
New Delhi - 110 018.
2. Shri Bijender Solanki (Owner)
S/o Shri Raj Singh
MACT No. 50/12/10 and MACT No. 246/12 Page No. 1 of 32
R/o WZ7, Village Matiala
P.O. Uttam Nager, New Delhi.
3. The New India Assurance Co. Ltd. (Insurer)
Divisional Office 320100
A2/3, Lusa Tower,
Azadpur, Delhi - 110 033.
(Vehicle No. DL4CAE9121)
(Policy No. 32010031090100204380)
(02.12.2009 to 01.12.2010)
... Respondents
Filed on : 01.04.2010
Reserved on : 15.03.2013
Decided on : 28.03.2013
AND
MACT No. 246/12
IN THE MATTER OF :
Shri Krishan Kumar
S/o Shri Daya Nand
R/o H. No. 183, VPO Kakrola,
Dwarka, New Delhi.
... Petitioner
Versus
1. Shri Ankit Tyagi (Driver)
S/o Shri J.J. Tyagi
R/o WZ21, First Floor, Village
Budhela, Vikas Puri
New Delhi.
2. Shri Bijender Singh Solanki (Owner)
R/o WZ7, Village Matiala
New Delhi.
3. The New India Assurance Co. Ltd. (Insurer)
MACT No. 50/12/10 and MACT No. 246/12 Page No. 2 of 32
A2/3, Lusa Tower,
Azadpur, Delhi - 110 033.
... Respondents
Filed on : 11.01.2012
Reserved on : 15.03.2013
Decided on : 28.03.2013
J U D G M E N T :
1. These two claim petitions are filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Whereas MACT No. 50/12/10 titled as Smt. Sangeeta & Ors. v. Sh. Ankit Tyagi & Ors. is a claim petition for compensation for fatal injuries suffered by Sh. Praveen Kumar, husband of Smt. Sangeeta, MACT No. 246/12 titled as Sh. Krishan Kumar v. Sh. Ankit Tyagi & Ors. is a claim petition for compensation for injuries suffered by claimant Sh. Krishan Kumar in a Road Traffic Accident which took place on 08.03.10.
3. As both the claim petitions have arisen out of a single Road Traffic Accident and as driver, owner and insurer of the two claim petitions are same, both these claim petitions are being disposed of by a common order.
4. Facts as stated in the case of Smt. Sangeeta & Ors. v. Sh. Ankit Tyagi & Ors., MACT No. 50/12/10 are that on 08.03.10, at about 4.25 a.m., Sh. Praveen Kumar (hereinafter referred as the deceased) was driving his motorcycle bearing no. DL9SV1702 and MACT No. 50/12/10 and MACT No. 246/12 Page No. 3 of 32 was going to drop his friend Sh. Krishan Kumar who was the pillion rider at Kakrola Village.
5. It is stated that unfortunately, the offending vehicle bearing no. DL4CAE9121 came at a very high speed, in a rash and negligent manner, in violation of traffic rules and hit the deceased who as a result of this, died on the spot.
6. It is stated that although the deceased was taken to DDU Hospital but he was declared as brought dead.
7. It is stated that at the time of accident, the deceased was 23 years and 11 months of age (D.O.B. 15.03.86) and was doing private job with M/s. Gujarat Freight Carriers Regd. at a salary of Rs. 8,800/ per month.
8. It is stated that FIR No. 107/10 was registered at P.S. Dwarka North under Section 279/337/304A of IPC against Respondent No. 1.
9. In these circumstances, the petitioners who are widow, minor daughter and the parents of the deceased have prayed for a compensation of Rs. 60 lacs from the respondents.
10. Respondent No. 1 has filed a brief written statement stating therein that he is falsely implicated in the present police case and he has nothing to do with the alleged offence.
11. So far as contents of para 1 to 16 are concerned he has stated that they are matter of record and hence needs no reply. Rest of the contentions raised in claim petition were denied and it was also stated that the compensation claimed is exorbitant and excessive.
12. Respondent No. 2 also filed his written statement MACT No. 50/12/10 and MACT No. 246/12 Page No. 4 of 32 stating therein that he is the registered owner of the offending vehicle which was insured with Respondent No. 3 at the time of accident.
13. It is stated that Respondent No. 1 is having a valid driving license and he has no responsibility for the alleged accident as the accident took due to carelessness of the deceased who was driving his motorcycle carelessly, without observing the traffic rules and regulations and was coming from the wrong side.
14. It is stated that Respondent No. 1 was driving the offending vehicle at a slow speed, carefully and obeying all the traffic rules and regulations.
15. It was stated that FIR is registered against Respondent No. 1 on false and fabricated grounds.
16. It was also stated that vehicle bearing registration no. DL4CAE9121 is not the offending vehicle.
17. Rest of the contents of claim petition were also denied but it was also stated that the vehicle was insured by Respondent No. 3 on the date of accident.
18. Insurance company stated in its written statement that in case driver of the offending vehicle was not having valid and effective driving license or permit to ply the vehicle, in that event, insurance company will not be liable to pay compensation to the claimants.
19. It is also stated that the compensation claimed is exorbitant and exaggerated.
20. It is also stated that the accident was due to contributory negligence of the deceased himself and therefore, MACT No. 50/12/10 and MACT No. 246/12 Page No. 5 of 32 claim petition is not maintainable and is liable to be dismissed.
21. Rest of the contents of claim petition were denied but it was admitted that vehicle no. DL4CAE9121 was insured with the answering respondent in the name of Sh. Bijender Solanki vide policy no. 320100/31/90100204380 valid from 02.12.09 to 01.12.10 subject to the terms and conditions of policy.
22. From the pleadings of parties, following consolidated issues were framed:
1) Whether husband of petitioner no. 1 namely Praveen Kumar, had sustained fatal injuries on his person in an accident which took place on 08.03.2010 due to negligent driving of the vehicle bearing registration number DL4C AE9121, being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3? ..... O.P.P.
2) In case, issue no. 1 is decided in affirmative then to what amount of compensation, petitioners are entitled and from whom?
... O.P.P.
3) Relief.
23. First witness examined on behalf of claimants in this claim petition of Smt. Sangeeta & Ors. v. Sh. Ankit Tyagi & Ors. was Sh. Roshan Lal, Record Clerk of DDU Hospital.
24. This witness produced post mortem report conducted on the body of the deceased which was exhibited as Ex. PW1/A.
25. Second witness examined on behalf of claimants was H.C. Balwant Singh who produced register containing FIR No. 107/10 registered under Section 279/304 A of IPC which was MACT No. 50/12/10 and MACT No. 246/12 Page No. 6 of 32 exhibited as Ex. PW2/A.
26. Third witness was the widow of the deceased herself who in her evidence by way of affidavit stated similar facts as were already stated in the claim petition.
27. She proved her Voter Card as Ex. PW3/1, certificate given by Gujarat Freight Carriers (Regd.) showing that the income of the deceased was Rs. 8,800/ per month (including Rs. 500/ as conveyance charges) was proved as Ex. PW3/2, ration card of the deceased was proved as Ex. PW3/3 and school leaving certificate of Gyan Sagar Public School showing date of birth of the deceased as 15.03.86 was proved as Ex. PW3/4, driving license of the deceased was proved as Ex. PW3/5 and his Voter Card was proved as Ex. PW3/6.
28. In cross examination conducted by counsel for insurance company, she deposed that she is not an eye witness to the accident as same had not taken place in her presence. She denied a suggestion that her husband was not working for Gujarat Freight Carriers (Regd.) or salary certificate is forged one. She denied a suggestion that her husband was not earning Rs. 8,800/ per month.
29. Fourth witness examined by claimants was PW4 Sh. Pratap Singh, Proprietor of Gujarat Freight Carriers (Regd.).
30. PW4 deposed that the deceased was working with him as a Supervisor since May, 2009. He produced register containing attendance and salary records of employees which was exhibited as Ex. PW4/A. He deposed that salary given to the deceased was Rs. 8,800/ per month and salary certificate dated MACT No. 50/12/10 and MACT No. 246/12 Page No. 7 of 32 24.03.10 stating therein that deceased was given a salary of Rs. 8,300/ plus Rs. 500/ as conveyance charges was proved as Ex. PW4/B.
31. In cross examination by counsel for insurance company, he deposed that he had not issued any appointment letter to the deceased and he maintained his registers on financial year basis i.e. from April, 2009 to March, 2010. He deposed that he is an income tax payee but had not brought the records of the same in the court.
32. Rest of the suggestions contrary to his examination in chief were denied by him.
33. Respondent No. 1 entered in the witness box as R1W1 and stated in his evidence by way of affidavit that he is a law graduate and is not involved in the alleged accident and the police has falsely implicated him in the present case. He deposed that he has no concern with the offending vehicle. He proved his driving license as Ex. R1W1/A.
34. In cross examination by counsel for petitioners, he admitted that charge sheet is filed by the police in a case registered under Section 279/337/304 A of IPC against him and even charges are also framed against him. He admitted that he was arrested and released on bail in Police Station. He deposed that he does not know anything about mechanical inspection of vehicle no. DL4C AE9121. He deposed that his father is also an advocate. He denied a suggestion that as a counter blast to a case under Section 304 A of IPC registered against him, he had made a false complaint against the accused in a case under Section 25 of the Arms Act. He denied a MACT No. 50/12/10 and MACT No. 246/12 Page No. 8 of 32 suggestion that he was driving the vehicle in a rash and negligent manner.
35. The witness was also cross examined by counsel for insurance company and deposed in his cross examination that on 08.03.10, he was at his house and he was not driving the vehicle no. DL4CAE9121. He deposed that though his statement was recorded by the police but he does not remember its date or month. He deposed that he was called upon by the Investigating Officer to give a statement that he was going in his car to purchase something for eating when two persons on a motorcycle tried to stop him on gun point and they had fallen while following him which resulted in the accident. He deposed that the vehicle bearing no. DL4C AE9121 had met with an accident but he was not driving the same. He deposed that the vehicle is registered in the name of a friend of his friend. He deposed that he does not know name of registered owner of said vehicle. He deposed that he is falsely implicated in a case under Section 304 A of IPC and police had taken his signatures as a complainant in a case under Section 25 of the Arms Act. He deposed that he has not filed any complaint against the Investigating Officer for falsely implicating him as an accused in a case under Section 304 A of IPC or in a case where he was falsely shown as a complainant under Section 25 of Arms Act. He stated that he is not involved in either of the two cases referred above.
36. No other witness was examined by any other party.
37. Now, the facts of case of Krishan Kumar v. Ankit Tyagi & Ors. which is MACT No. 246/12, are taken up for MACT No. 50/12/10 and MACT No. 246/12 Page No. 9 of 32 consideration.
38. This claimant has also stated that on 08.03.10, at about 4.15 a.m. he was a pillion rider on motorcycle no. DL9S V1702 which was being driven by his friend Sh. Praveen Kumar and they were going from Village Ambrahi to Kakrola.
39. He has stated that near Atulaya Apartments, the offending vehicle Toyota Innova Car bearing no. DL4CAE9121 driven by Respondent No. 1 in a rash and negligent manner hit their motorcycle resulting in grievous injuries to him.
40. The claimant has further stated in the claim petition that he was removed to DDU Hospital and thereafter he was shifted to Mahendru Hospital where he was operated upon twice and rods were fixed in his left leg and left arm.
41. Claimant has stated that he remained admitted in the hospital for 10 days and thereafter he remained under treatment of said hospital as an outdoor patient.
42. The claimant has stated that his treatment is still continuing and he has been advised to undergo for an operation by the doctors for removal of rods.
43. The claimant has stated that he has spent Rs. 3 lacs on his treatment, special diet and conveyance and the expenses are still being incurred.
44. The claimant has stated that he is a Commercial Heavy Vehicle driver and he was likely to get a Govt. job in DTC as he had received a call letter for interview on 14.03.10 but due to accidental injuries suffered by him on 08.03.10, he missed the chance of a Govt. job as he was unable to appear in the interview for MACT No. 50/12/10 and MACT No. 246/12 Page No. 10 of 32 which he would suffer for the rest of his life as he will be denied a Govt. job due to medical reasons.
45. The claimant has stated that he was earning Rs. 15,000/ per month by working as a driver.
46. In these circumstances, this claimant claimed a compensation of Rs. 15 lacs with interest @ 15% from the date of filing of claim petition.
47. Respondent No. 1 filed his written statement stating therein that he is falsely implicated in this case and FIR No. 109 dated 08.03.10 under Section 25/27 of the Arms Act, P.S. Dwarka North, Delhi is registered against the petitioner.
48. Rest of the contents of claim petition were denied stating therein that the compensation claimed is excessive and exorbitant.
49. Insurance company also filed its written statement stating therein that petitioner himself was an accused in a case under Section 25/27 54/59 of the Arms Act at the date and time of occurrence of this accident i.e. 4.30 a.m., on 08.03.10.
50. It is stated that this claimant and his friend late Sh. Praveen (since deceased) were going on a motorcycle alongwith weapons i.e. revolver 9 mm (revolver desi) and cartridge (1.9 mm) which were in the possession of petitioner and his fellow Sh. Praveen.
51. It is stated that petitioner was a pillion rider on a motorcycle no. DL9SV1702 and other accused Sh. Praveen was driving the motorcycle at a suspicious time which clearly shows that both the accused under the Arms Act were indulging in criminal MACT No. 50/12/10 and MACT No. 246/12 Page No. 11 of 32 activities and had fallen down alongwith their motorcycle when they were driving the same in a rash and negligent manner and the alleged vehicle no. DL4CAE9121 was not involved in any alleged accident. Hence this petition is filed against insurance company to grab money by hook or crook.
52. It is also stated that in case it is found that driver of the offending vehicle was not having a driving license or was not having permit to ply the vehicle, in that event, the insurance company shall not pay any compensation to the claimant.
53. It is also stated that the compensation claimed is exorbitant and excessive.
54. Rest of the contents of claim petition were denied but it was admitted that the offending vehicle was insured on the date of accident.
55. No written statement was filed by Respondent No. 2.
56. From the pleadings of parties, following issues are framed:
1) Whether petitioner received injuries in an accident on 08.03.2010 caused by respondent no. 1, while driving Toyota Innova Car being no. DL4CAE9121 rashly and negligently?
..... O.P.P.
2) If yes, what is the amount of compensation which the claimant is entitled to received and from which respondent?
3) Relief.
57. In this case, only claimant examined himself as MACT No. 50/12/10 and MACT No. 246/12 Page No. 12 of 32 PW1 to prove his case.
58. The claimant stated in his evidence by way of affidavit similar facts leading to the accidental injuries as well as his employment as were already stated by him in the claim petition. He additionally deposed that Respondent No. 1 is a very influential person and got him implicated in a false case under Section 25/27/54/59 of the Arms Act with a view to wriggle out from his liability and to save his skin from the present case and from criminal proceedings. He deposed that he is already discharged in the case under Section 25/27/54/59 of the Arms Act registered by the police of P.S. Dwarka North vide FIR No. 209/10 by the court of Ld. ASJ, Dwarka, New Delhi vide orders dated 21.11.11.
59. His treatment record was proved as Ex. PW1/1, certified copy of charge sheet was proved as Ex. PW1/2, certified copy of FIR was proved as Ex. PW1/3, Xray and other receipts were proved as Ex. PW1/4, admission card for DSSSB was proved as Ex. PW1/5 and certified copy of order dated 21.11.11 was proved as Ex. PW1/6.
60. In cross examination by counsel for Respondent No. 1, he denied a suggestion that no accident as alleged ever took place with the offending vehicle.
61. In cross examination by counsel for insurance company, he deposed that Sh. Praveen Kumar was his friend. He denied a suggestion that a revolver was recovered at the time of accident by the police from his possession but admitted that a case was registered against him under Section 25 of the Arms Act. He deposed that he is acquitted in that case. He admitted that he was MACT No. 50/12/10 and MACT No. 246/12 Page No. 13 of 32 not wearing helmet at the time of accident and speed of their motorcycle was around 4045 km per hour. He denied a suggestion that they had tried to stop Tata Innova Car bearing no. DL4C AE9121 or he had hit the driver of said vehicle with his helmet. He denied a suggestion that he had broken wind shield of the car with his helmet. He denied a suggestion that he had threatened the driver of offending vehicle with a revolver. He deposed that the offending vehicle had hit their motorcycle from behind and the driver had ran away after the accident. He deposed that he had lost consciousness after the accident but had noted the number of offending vehicle before that.
62. Rest of the suggestions contrary to his case were denied by him.
63. This witness had sought permission for additional evidence and had entered in the witness box second time and proved certified copy of MLC as Ex. PW1/AA, discharge slip of Mahendru Hopsital as Ex. PW1/BB, prescription slip of Amarleela Hospital as Ex. PW1/CC, Xray report of Mohan XRay Lab as Ex. PW1/DD, discharge slip of Amarleela Hospital as Ex. PW1/EE, bills for purchase of medicines and for treatment as Ex. PW1/FF.
64. In cross examination, he denied a suggestion that all the medical bills are forged and fabricated.
65. Respondent No. 1 also entered in the witness box but his evidence by way of affidavit as well as cross examination is word by word same as already noted in the case of Smt. Sangeeta & Ors.
66. In the case of Smt. Sangeeta & Ors. arguments MACT No. 50/12/10 and MACT No. 246/12 Page No. 14 of 32 were addressed by Sh. S.K. Verma, Advocate and in the case of Sh. Krishan Kumar, arguments were addressed by Sh. Arun Kumar Sharma, Advocate and Sh. Shyam Singh, learned Counsel for insurance company addressed arguments on behalf of the insurance company.
67. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1:
68. Burden of proving this issue is on the petitioners.
69. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, it is for the petitioners to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
70. This is sine qua non for getting the relief.
71. In the case of Smt. Sangeeta & Ors. v. Ankit Tyagi & Ors., there is no eye witness to show negligent driving of Respondent No. 1.
72. However, in the evidence of Respondent No. 1, it has come on record that chargesheet is filed by the IO in a case under Section 279/337/304A of IPC against him and charges are also framed against him. He admitted that he was released on bail in police station.
73. In crossexamination by counsel for the insurance company, he deposed that neither he is a complainant in a case under Section 25 of the Arms Act nor he is an accused in case registered against him under Section 279/337/304A of IPC. He admitted that he did not make any complaint against the police for MACT No. 50/12/10 and MACT No. 246/12 Page No. 15 of 32 falsely implicating him as an accused in FIR under Section 279/337/304A of IPC or for showing him as a complainant in a case under Section 25 of the Arms Act.
74. However, in the case of Shri Krishan Kumar Vs. Shri Ankit Tyagi & Ors., the claimant himself is an eye witness to the accident being pillion rider on Motorcycle No. DL4CAE9121 which was hit from behind by Respondent No. 1. He has deposed in his evidence by way of affidavit that the offending vehicle had hit their motorcycle from behind being driven in a rash and negligent manner. He has also deposed that he is discharged by the order of Ld. ASJ in a false case registered against him under Section 25 of the Arms Act vide orders dated 21.11.2011.
75. In crossexamination, strong efforts were made by the learned counsel for the insurance company to make out a case that this claimant and the deceased were accused persons and had suffered accidental injuries while trying to stop the alleged offending vehicle bearing No. DL4CAE9121. However, witness Shri Krishan Kumar stood his ground and nothing could be elicited from him to prove that they were criminals or in possession of arms and were injured while trying to stop Innova Car.
76. The story that the deceased and Shri Krishan Kumar, on the strength of revolver, had tried to stop the offending vehicle is debunked by Respondent No. 1 himself when he stated in his crossexamination that he did not give any complaint or statement to the police in a case under Section 25 of the Arms Act.
77. Moreover, the accused Shri Krishan Kumar stands discharged from a case under Section 25 of the Arms Act by the MACT No. 50/12/10 and MACT No. 246/12 Page No. 16 of 32 orders of Ld. ASJ which shows that the version of the police that the deceased and the claimant Sh. Krishan Kumar were trying to stop the offending vehicle in wee hours at the time of accident is proved totally false.
78. Whereas petitioner is discharged in a case under Section 25 of the Arms Act, Respondent No. 1 is facing trial under Section 304A of IPC in FIR No. 107/10.
79. The reasoning of Ld. ASJ in discharging the petitioner is important to show the innocence of the petitioner. In para 10 to 20 of the said judgment, it is held as under: "10. It is manifest that on 08.03.2010 i.e. the day when the incident had happened, only FIR No. 107/10 u/s 279/337/304A IPC was registered wherein, Amit Tyagi came to be known as accused.
11. It is also evident that Amit Tyagi has not reported the incident of attempt to robbery to the Police. He simply maintained mischievous silence after the incident. It appears that when the police approached him, in connection with FIR No. 107/10 in order to apprehend him, he in collusion with the police officials fabricated a false story of the attempt to robbery and accordingly his statement u/s 161 Cr. P.C. was recorded on 09.03.2010. There is no explanation on record either from the IO or from Amit Tyagi as to why he did not come forward with his complaint till the police approached him on 09.03.2010.
12.From the statement of constable Ram Niwas, recorded by SI Jagdish Chander in the present case FIR No. 109/10, it is apparent that HC Charan Singh had reached the spot alongwith constable Mohanji before the arrival of SI Jagdish Chander. Therefore, it is not discernible why did not MACT No. 50/12/10 and MACT No. 246/12 Page No. 17 of 32 constable Ram Niwas make such statement to HC Charan Singh, who had reached the spot first in time and why he did not show the country made revolver, allegedly thrown by accused Krishan Kumar, to HC Charan Singh. Such conduct of constable Ram Niwas and of SI Jagdish Chander in recording the aforesaid statement reinforces a doubt that no incident like attempt to robbery had taken place.
13.Coming to the statement of the victim Amit Tyagi recorded u/s 161 Cr. P.C. on 09.03.2010 in the present case. He states that he had gone to see his friend in Rose Aptt. Sector18B, Dwarka and they spent time in gossiping with each other. He further states that since there was nothing to eat in the house of his friend Amit, he was asked by Amit to fetch some food. Accordingly, he was returning from KFC Chinese Restaurant, Sector 4, Dwarka alongwith food at about 4 am in the night when two youths on a motorcycle came on the left side of his vehicle and asked him to stop the vehicle by showing a pistol to him. He goes on to say that the youth sitting as a pillion on the motorcycle hit the front side windscreen of his car by his helmet and broke the same. He become terrified. The youths continued to follow him and also continued to ask him to stop the vehicle. On reaching Sector - 19, Dwarka, they brought their motorcycle in front of his car and threatened him to stop the car. He became so scared that instead of pressing the brake, he pressed the accelerator of the car, as a result of which the car collided against the motorcycle and both the boys got injured. He fled the spot thereafter on account of fear.
14. Even a cursory reading of aforesaid statement of Amit Tyagi, reveals that it does not inspire any confidence at all. It can be said with certainty that no restaurant in Delhi remains open till 4 am in the MACT No. 50/12/10 and MACT No. 246/12 Page No. 18 of 32 morning. KFC Restaurant is a chain of well known restaurants and in no case it can be believed that it remains open till 4 am. Moreover, the receipt of food allegedly purchased by Amit Tyagi, has not been produced by him before the IO.
15.Another fact which comes to my notice is the mechanical inspection report of the Toyota Innova Car being driven by Amit Tyagi which is a part of charge sheet in case FIR No. 107/10. It mentions following damage in the said car:
1. damage in engine
2. damage in radiator
3. front bumper and net broken
4.front left side of the car damaged
5. front left side of the windscreen broken
6. left side head light and indicator broken.
16. It is evident that the aforesaid damages are mostly on the left side of the vehicle and could not have been got by colliding head on with the motorcycle of the accused. The manner in which the vehicle has got damaged, shows that it was being driven in a rash and at a very high speed. It collided with the motorcycle of the accused from the left side and thereafter must had hit some other solid object also from the left side, which resulted into left side damage to it.
17. It appears to be a clear case of road accident. The story of attempt to robbery has been fabricated by the Police in collusion with Amit Tyagi. This also borne out from following strange facts coming out from the two charge sheets. The charge sheet in respect of case FIR No. 107/10 mentions that HC Charan Singh alongwith constable Mohanji proceeded to the spot on receipt of DD No. 8A. At the same time, charge sheet in present case FIR No. 109/10 also mentions that SI Jagdish Chander alongwith Ct. Mohanji MACT No. 50/12/10 and MACT No. 246/12 Page No. 19 of 32 reached the spot of incident after the receipt of DD No. 8A and 9A. How could constable Mohanji have accompanied both HC Charan Singh as well as SI Jagdish Chander, is mystery. Moreover, SI Jagdish Chander investigated the case FIR No. 107/10 after the FIR had been registered in that case u/s 279/337/304A IPC. At the same time, it is he only, who recorded the statement of constable Ram Niwas in the present case FIR No. 109/10 and got the FIR u/s 25/27 of Arms Act registered, pursuant to which charge sheet has been submitted u/s 393/398/34 IPC. In case FIR No. 107/10, SI Jagdish Chander says it is a road accident case whereas in the present case FIR No. 109/10 he states that it is an attempt to robbery case.
18. ASI Vijay Pal, who has investigated the present case FIR No. 109/10 after the registration of the FIR, was summoned by this Court. He was present when arguments on charge were heard on 15.11.2011. He could not give any answer as to why he did not make any inquiry from Amit, the friend of victim Amit Tyagi as to whether they were together on the night intervening in between 7 & 8 March, 2010. He has not made any inquiries from the KFC Restaurant at Sector 4, Dwarka as to whether Amit Tyagi had purchased food from there at 4 am in the night. It is apparent that either he was an inefficient investigating officer or he colluded with Amit Tyagi and framed accused Krishan Kumar falsely in this case on the charge of attempt to robbery.
19. Resultantly, I am constraint to say that the offences with which accused has been charge sheeted does not sustain from the material on record. I do not find from the record, any ground to proceed against the accused.
20. In view of aforesaid discussion, the accused is MACT No. 50/12/10 and MACT No. 246/12 Page No. 20 of 32 hereby liable to be discharged and is hereby discharged. File be consigned to the Record Room."
80. In view of the fact that the Ld. ASJ has discharged the claimant in a case registered against him under Section 25 of the Arms Act and in view of the fact that Respondent No. 1 is facing trial under Section 304A of IPC, the objection of insurance company that the claimant and the deceased were themselves criminals has no force.
81. Moreover, it has come in evidence that Respondent No. 1 has not complained to any police official against his false implication in the case.
82. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the MACT No. 50/12/10 and MACT No. 246/12 Page No. 21 of 32 welfare of the society"
83. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
84. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex MACT No. 50/12/10 and MACT No. 246/12 Page No. 22 of 32 Court in Oriental Insurance Co. Ltd. v. Meena Variyal (Supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in F.I.R No. 955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of charge sheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
85. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
86. Therefore, this issue is decided in favour of petitioners and against the respondents. ISSUE NO. 2: MACT No. 50/12/10 and MACT No. 246/12 Page No. 23 of 32
87. First, compensation payable to LRs of the deceased Shri Praveen Kumar is being taken up for consideration.
88. There are four claimants who are the widow, minor child and parents of the deceased.
89. However, while recording statements of claimants on their financial needs, it has come on record that the father of the deceased is a pensioner as he had retired from BSF.
90. Therefore, if the father of the deceased is excluded and is not treated as a dependent on the deceased, then deduction for the purposes of personal expenses from the income of the deceased would be one third as there were only three dependents on the deceased.
91. Petitioners have proved by the evidence of PW4 that the deceased was earning Rs. 8,800/ per month including conveyance charges of Rs. 500/.
92. Once Rs. 500/ received by the deceased as conveyance charges is excluded from the income of the deceased, his income can be treated as Rs. 8,300/ per month.
93. Relying on the case of Santosh Devi v. National Insurance Company Ltd. and others decided by Hon'ble Supreme Court in Civil Appeal No. 3723 of 2012 arising out of SLP (C) No. 24489 of 10 dated 23.04.2012 and also relying on the case of Rakhi v. Satish Kumar & Ors. which is MAC APP. No. 390/11 dated 16.07.12 decided by Hon'ble High Court of Delhi, 30% is to be given for future prospects / inflation.
94. Once 30% is added to Rs. 8,300/, the income of the deceased would be Rs. 10,790/. When 1/3rd is deducted there MACT No. 50/12/10 and MACT No. 246/12 Page No. 24 of 32 from towards personal expenses, the loss of dependency for the family would be Rs. 7,193/ per month or Rs. 86,320/ per annum.
95. Age of the deceased at the time of accident was 23 years and 11 months.
96. Therefore, following the judgment of the Hon'ble Supreme Court of India in the case of Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., 2009 (6) SCALE 129, the multiplier applicable will be of 18.
97. Therefore, Loss of Dependency for the family will be Rs. 15,53,760/.
98. For Loss of Love and Affection, petitioners are also awarded a compensation of Rs. 25,000/.
99. Widow of the deceased is also awarded a compensation of Rs. 10,000/ towards Loss of Consortium.
100. Petitioners are also awarded a compensation of Rs. 10,000/ for Loss of Estate and Rs. 10,000/ for Cremation Charges.
101. Therefore, total compensation payable to the petitioners would be Rs. 16,08,760/ which will be paid with interest @ 7.5% per annum from the date of filing of this claim petition which is 01.04.2010 till its realization.
102. Insurance company has not proved any defence. Therefore, compensation shall be payable by insurance company which be paid within 30 days from today under intimation to the petitioners as well as counsel for the petitioners by Registered A.D. Post.
103. Address of counsel for the claimants for effecting MACT No. 50/12/10 and MACT No. 246/12 Page No. 25 of 32 service of notice of deposit of compensation is as under: Shri S.K. Verma, Advocate, B605, Nav Nirman Apartment, Plot No. 6A, Sector - 2, Dwarka, New Delhi - 110 075.
Mobile : 9868101935, 01125089457/25088347
104. Widow of the deceased has stated that her as well as her daughter's compensation be released in her favour straight away without any precondition of FDR as she wants to purchase a house in her name. Mother of the deceased has also stated that the compensation be released in her favour straight away without any precondition of FDR as she wants to help financially to Petitioner No. 1.
105. It is doubtful if a house in Delhi or elsewhere can be purchased for a sum of Rs. 17 lacs which is approximately the compensation payable to the claimants. Moreover, claimants have not shown that there are other resources available to them for purchasing the property in addition to compensation receivable by them. They have not shown that they are interested to purchase any particular property whose worth is within their means. Therefore, this court is not inclined to release the entire compensation immediately in favour of claimants. Moreover, Petitioner No. 2 is a minor daughter and her interest is also to be protected.
106. Therefore, following directions are given regarding apportionment of compensation: i. 35%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 1 widow of the MACT No. 50/12/10 and MACT No. 246/12 Page No. 26 of 32 deceased. This payment shall be deposited by insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c. Smt. Sangeeta Devi. Out of this, 10% shall be released in her Saving Bank Account in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 10 FDRs of equal amount for a period of 1 to 10 years. Monthly interest will be credited in her Saving Bank Account regularly.
ii. 35% out of the total awarded compensation with proportionate interest shall be payable in favour of Petitioner No. 2, minor daughter of the deceased. The cheque will be deposited in the name of SBI A/c. Baby Neha. This amount will be kept in FDR till she attains the age of 21 years. However, monthly interest will be credited in Saving Bank Account of petitioner No. 1 regularly so that she can use it for the welfare of Petitioner No. 2.
iii. 30%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 4 mother of the deceased. This payment shall be deposited by insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c. Smt. Murti Devi. Out of this, 10% shall be released in her Saving Bank Account in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 5 FDRs of equal amount for a period of 1 to 5 years. Monthly interest will be credited in her Saving Bank Account regularly.
iv. All the original FDRs shall remain with the bank. Only copies thereof will be given to the MACT No. 50/12/10 and MACT No. 246/12 Page No. 27 of 32 petitioners. However, pass book will be given to the petitioners. No cheque book shall be issued to the petitioners.
v. No loan or advance will be given against these deposits.
vi. FDRs shall not be prematurely encashed without leave of this Tribunal.
vii.Petitioners shall cooperate with the bank by providing requisite documents and by completing required formalities for opening Saving Bank and FDR Accounts.
viii.Petitioners shall be at liberty to get their Saving Bank Account and FD Accounts transferred to any branch of SBI of their choice if so desired.
ix. Insurance company will intimate this Tribunal before the deposit of the compensation amount with State Bank of India, Dwarka Courts, New Delhi.
107. Now, compensation payable to the claimant Shri Krishan Kumar in MACT No. 246/12 is being taken up for consideration.
108. This claimant was admitted in Mahendru Hospital from 08.03.2010 and discharged on 16.03.2010. He was diagnosed as a case of fracture of both bones of left leg and fracture dislocation of left elbow. He had undergone open reduction and internal fixation under general anesthesia.
109. This claimant had to be admitted again in Mahendru Hospital from 24.07.2010 to 26.07.2010 when bone grafting was done on 24.07.2010. He was again admitted in MACT No. 50/12/10 and MACT No. 246/12 Page No. 28 of 32 Amarleela Hospital on 29.01.2012 and discharged on 30.01.2012 for removal of implant.
110. Therefore, for Pain and Suffering, petitioner is granted a compensation of Rs. 50,000/.
111. Various bills for purchase of medicines and for payments given to treating doctors worth Rs. 1,41,544/ are on record.
112. Therefore, petitioner is awarded a compensation of Rs. 1,41,544/ for Cost of Medicines and Cost of Treatment.
113. Considering the nature of injuries suffered by the claimant, it can be safely assumed that he would have needed the help of an attendant at least for a period of three months.
114. Minimum rates of wages payable to an unskilled workman at the time of accident were Rs. 5,278/ per month.
115. Therefore, for Attendant's Charges, claimant is awarded a compensation of Rs. 15,834/ i.e. 5,278/ x 3.
116. Date of accident is 08.03.2010. In the first instance, the claimant had remained admitted in Mahendru Hospital till 16.03.2010. However, he had to be admitted again in the same hospital on 24.07.2010 till 26.07.2010 when bone grafting was done on 24.07.2010. Therefore, it can also be safely assumed that he would have remained out of work at least for a period of six months.
117. Claimant was called for an interview as a driver with DTC as per Ex. PW1/4. He has placed on record copy of driver's badge authorizing him to drive bus / taxi. This badge was issued on 06.03.2006. He has a driving license to drive LMV Commercial since 30.05.2000. Therefore, it can be assumed that he was a skilled MACT No. 50/12/10 and MACT No. 246/12 Page No. 29 of 32 workman on the time of accident.
118. Wages payable to a skilled workman on the date of accident were Rs. 6,448/ per month.
119. Therefore, claimant is awarded a compensation of Rs. 38,688/ as Loss of Wages due to accidental injuries i.e. Rs. 6,448/ x 6.
120. For Special Diet and Conveyance Charges, claimant is granted a compensation of Rs. 7,500/ on both counts i.e. Rs. 15,000/.
121. Claimant was called for an interview by Delhi Subordinate Services Board for appointment as driver in DTC. The examination date was 14.03.2010.
122. As this claimant had remained admitted in Mahendru Hospital till 16.03.2010, obviously, he missed an opportunity to appear in the examination. But it is a common fact that a large number of candidates appear in the examinations for a government job and not each candidate is selected.
123. Claimant has not shown that he had cleared written examination and only interview had to be given.
124. Therefore, it cannot be assumed that if the petitioner had appeared in the interview on 14.03.2010, he would have been selected as a driver.
125. However, due to this accidental injuries, he missed an opportunity to participate in selection process for the post of driver in DTC.
126. Therefore, for this Loss of Opportunity, he is granted a compensation of Rs. 25,000/.
MACT No. 50/12/10 and MACT No. 246/12 Page No. 30 of 32
127. Therefore, total compensation payable to the claimant would be Rs. 2,86,066/ which will be paid with interest @ 7.5% per annum from the date of filing of this claim petition which is 11.01.2012 till its realization.
128. Insurance company has not proved any defence. Therefore, compensation shall be payable by insurance company which be paid within 30 days from today under intimation to the petitioner as well as counsel for the petitioner by Registered A.D. Post.
129. This claimant has stated that he has borrowed from others during his treatment and therefore entire amount be released in his favour without any precondition of FDR.
130. It is noted that out of compensation awarded to the claimant he has already spent Rs. 2,11,066/ on his treatment, attendant's charges, special diet, conveyance and for loss of wages. Therefore, the entire compensation would be released in his favour without any precondition of FDR.
131. Address of counsel for the claimants for effecting service of notice of deposit of compensation is as under: Shri Arun Kumar Sharma, Advocate, Chamber No. 444, Dwarka Courts, New Delhi.
132. A copy of this order be retained by the Ahlmad and put up before this Court to see the compliance of directions after 90 days. Ahlmad will put up a copy of this order with report from Nazir regarding deposit of compensation again on 02.07.2013.
133. Copy of this order be given dasti to all the MACT No. 50/12/10 and MACT No. 246/12 Page No. 31 of 32 parties.
134. A copy of this order be also sent to the State Bank of India, Dwarka Courts, New Delhi.
Announced in the Open Court On the 28th day of March, 2013 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI MACT No. 50/12/10 and MACT No. 246/12 Page No. 32 of 32