Delhi District Court
Smt. Manorama W/O. Late Sh. Rakesh Kumar ... vs Sh. Pradeep Kumar Soni on 18 October, 2022
IN THE COURT OF SH. HARUN PRATAP, PO, MACT,
DISTRICT NORTH -EAST, KARKARDOOMA COURTS, DELHI
MACT No.: 496/2018
CNR No. DLNE010053192018
IN THE MATTER OF:-
1. Smt. Manorama W/o. Late Sh. Rakesh Kumar (Wife of deceased, aged 45
years)
2. Ms. Nancy D/o. Late Sh. Rakesh Kumar (Daughter of deceased, aged 20 years)
3. Ms. Diksha D/o. Late Sh. Rakesh Kumar (Minor daughter of deceased, aged 17
years)
4. Deepak Verma S/o. Late Sh. Rakesh Kumar (Minor son of deceased, aged 12
years)
(Petitioner no. 4 & 5 being minor are represented through
their mother Smt. Manorama / Natural Guardian / Petitioner no.1)
All R/o. H. No. D-9, D-Block, Vikas Kunj, Loni Dehat, Distt. Ghaziabad, UP-
201102.
5. Smt. Deepshikha W/o Sh. Deelip Verma (Married daughter of deceased,aged
29 years)
R/o Kazi Tola, Bewar Grameen, Mainpuri, Distt. Bewar, UP-206301.
........ Petitioners
Vs.
1. Sh. Pradeep Kumar Soni
S/o Sh. Jagdish Kumar Soni
R/o H.No. 243, Gali No. 1, New Sabha Pur,
Karawal Nagar, New Delhi-110094.
Fresh Address: Ward No. 32, Mahaveer Ganj,
Distt. Bhind, M.P. ..... (Driver-cum-owner of Offending
vehicle)
2. United India Insurance Co. Ltd.
8th Floor, Kanchan Janga Building,
Barakhamba Road, Connaught Place,
New Delhi. ..... Insurance Company of
Offending vehicle)
MACT No. 496/18 Smt. Manorama & Ors. Vs. Pradeep Kumar Soni & Anr. Page No. 1 of 13
Date of institution : 20.12.2018
Date of Arguments : 26.09.2022
Date of Award : 18.10.2022
Advocates appearing in the case:
For petitioner : Sh. Upender Singh
For respondent no.1 : Sh. Sunil Sharma
For respondent no. 2 / Ins. Company : Sh. S. Ghosh
AWARD
1. Vide this Award, the Tribunal shall decide the MACT Claim Petition u/s.
163-A of Motor Vehicles Act (hereinafter referred to as MV Act), 1988 filed by
the petitioners against the respondents as mentioned in the memo of parties.
FACTS OF THE CASE
2. Briefly stated, the facts of the case are that on 05.06.2018, at about 02:30 AM, one Sh. Rakesh Kumar (since deceased) alongwith his relatives namely Rama Devi and Nandini @ Chandni were coming to Delhi from Village Antri, District Bhind (Madhya Pradesh) in car make Wagon-R bearing registration no. DL2CAG-8330. The said car was being driven by Pradeep Kumar Soni (respondent herein). It has been alleged that when the aforesaid car reached in front of Leelawati Hospital, Kasba Farahpur, PS Farah, District Mathura on NH- 2, one unknown vehicle hit the same and all the occupants of the Wagon-R sustained grievous injuries. All the occupants were taken to local Hospital at Agra and thereafter to GTB Hospital Shahdara, Delhi, but Rakesh Kumar expired during the course of treatment on 10.06.2018. His postmortem was conducted at mortuary of GTB hospital vide PMR No. 1003/18 on 11.06.2018. A FIR in this regard was also registered at PS Farah, District Mathura vide FIR no. 477/18 for MACT No. 496/18 Smt. Manorama & Ors. Vs. Pradeep Kumar Soni & Anr. Page No. 2 of 13 the offences u/s 279/338/304-A/427 IPC on 10.06.2018. The present claim petition thereon came to be filed by the wife of the deceased Rakesh Kumar and his four children on 18.12.2018.
3. Copies of MACT petition were supplied to both the respondents after issuance of notice to them on 20.12.2018.
WS / Reply of Respondents
4. Respondent no.1 filed written statement on record after the closure of his right to file the same, wherein it was contended that he has been falsely implicated in the present case. It was also contended that the respondent no. 1 is the registered owner of the vehicle in question bearing registration no. DL2CAG- 8330 and that he was not the driver of the same. At the same time, it was also contended that the vehicle in question was insured with the insurance company namely M/s. United India Insurance Co. Ltd. vide policy number 1908023117P110567935 and validity from 26.10.2017 to 25.10.2018. It was further contended that the respondent no. 1 was also having a valid Driving License issued by the concerned Transport Authority with its validity from 13.06.2018 to 12.06.2023. The respondent no.1 denied all the allegations against him and prayed for dismissal of the petition.
5. Respondent no. 2 i.e. United India Insurance Co. Ltd, filed its separate detailed written statement, wherein it was admitted that though the insurance policy no. 1908023117P110567935 was issued in the name of respondent no. 1 Sh. Pradeep Kumar Soni in respect of the Wagon R Car bearing regn. No. DL-2C- AG-8330 with its validity from 26.10.2017 (midnight) to 25.10.2018 (midnight), but the same was private car liability policy only. It was further contended that the MACT No. 496/18 Smt. Manorama & Ors. Vs. Pradeep Kumar Soni & Anr. Page No. 3 of 13 policy in question was a liability only policy and as per the settled law, it did not cover any liability for the passengers traveling in the vehicle in question and thus the respondent no. 2 was not liable to indemnify the respondent no. 1 for the claim made in the present case.
ISSUES
6. From the pleadings of the parties, following issues were framed by ld. Predecessor vide order dated 19.03.2019:-
(i) Whether deceased died on account of injuries sustained in accident having taken place on 05.06.2018 at about 2:30 a.m. in front at Leelawati Hospital, NH-2, Kasba Farah Pur, PS Farah, Distt. Mathura, UP within the jurisdiction of PS Farah, Distt. Mathura, UP with the involvement of vehicle no. DL-2CAG-8330 being driven by respondent no.1? OPP
(ii) Whether petitioner is entitled to compensation? If so, to what amount and from whom?OPP
(iii) Relief.
PETITIONER'S EVIDENCE
7. Petitioner no.1 Smt. Manorama (Wife of deceased) examined herself as PW-1 and tendered her evidence by way of affidavit Ex.PW-1/A, wherein she reiterated the averments of her claim petition. She exhibited the following documents:-
Sl. No. Exhibit No. Particulars
01. Ex. PW-1/1 Copy of Death Certificate of deceased Sh. Rakesh
Kumar
02. Ex. PW-1/2 Copy of PAN Card of deceased Sh. Rakesh Kumar
03. Ex. PW-1/3 Copy of Aadhar Card of deceased Sh. Rakesh Kumar
04. Ex. PW-1/4 Copy of Aadhar Card of petitioner no. 1 Manorama
MACT No. 496/18 Smt. Manorama & Ors. Vs. Pradeep Kumar Soni & Anr. Page No. 4 of 13
05. Ex. PW-1/5 Copy of Aadhar Card of petitioner no. 2 Nancy
06. Ex. PW-1/6 Copy of Aadhar Card of petitioner no. 3 Diksha
07. Ex. PW-1/7 Copy of Aadhar Card of petitioner no. 4 Deepak
Verma
08. Ex. PW-1/8 Copy of Aadhar Card of petitioner no. 5 Deepshikha
8. In her cross examination by ld. counsel for respondent no. 1, PW-1 stated that respondent no. 1 is brother-in-law of deceased Rakesh Kumar. She admitted that the deceased and the respondent alongwith their family used to visit their native place on festival and other functions. She stated that she had not filed any medical bill and transportation bill on record. She also did not file any document in regard to age proof of deceased except his Aadhar Card and no documentary proof regarding her marriage with deceased was filed. She also did not file any document in regard to her age proof as well as age proof of daughter Diksha of deceased except her Aadhar card. PW-1 further stated that on 05.06.2018 at about 2:30 am, she alongwith her family were present at home at Delhi and admitted that she was not an eyewitness of the accident. She denied the suggestion that her husband being an old age person was not able to do anything or capable of earning.
9. In her cross examination by ld. counsel for respondent no.2 / Insurance Company, PW-1 stated that she is matriculate and that the deceased had not filed any ITR. She admitted that as per the PAN Card of deceased Ex.PW1/2, his DOB is 09.10.1965 and at the time of accident, he was aged around 52 years and 8 months. She denied the suggestion that deceased was not working as Karigar of artificial jewelery nor he was earning sum of Rs. 3,300/- p.m. She admitted that her daughter Deepshikha is married and residing with her husband but she denied MACT No. 496/18 Smt. Manorama & Ors. Vs. Pradeep Kumar Soni & Anr. Page No. 5 of 13 the suggestion that her daughter Nancy was employed and was not dependent on the deceased. She further deposed that her husband was a passenger in car no. DL-2C-AG-8330 on 05.06.2018 at the time of accident and she stated that the vehicle which hit the car in which her husband was travelling as a passenger had still not been traced. She admitted that she had not filed any medical treatment record of her husband.
Respondents' Evidence
10. After closure of petitioner's evidence vide order dt. 25.02.2020, the case was fixed for Respondents' Evidence.
11. Respondent no. 2 / Insurance Company examined Ms. Reema Prabha, Assistant Manager as R2W1 who tendered her evidence by way of affidavit Ex.R2W-1/A. She exhibited the following documents:-
Sl. No. Exhibit No. Particulars
01. Ex. R2W1/1 Office copy of notice u/o 12 rule 8 CPC
02. Ex. R2W1/2 Original postal receipt
03. Ex. R2W1/3 Certified true copy of Insurance Policy
(2 sheets)
04. Ex. R2W1/4 Circular No. IRDA/NL/CIR/F&U/073/2009 dt.
16.11.2009
12. She deposed that in the present case, the deceased was an occupant of Wagon R car no. DL-2CAG-8330 and was not covered under the private car liability only policy issued in favour of respondent no. 1. She also deposed that the Insurance Company is not liable to indemnify respondent no. 1 for any liability arising in the present case.
MACT No. 496/18 Smt. Manorama & Ors. Vs. Pradeep Kumar Soni & Anr. Page No. 6 of 13
13. In her cross examination by ld. counsel for petitioner, R2W1 denied the suggestion that the contents of her affidavit are false and fabricated and based on concocted story or that she had filed false affidavit to escape the liability of Insurance Company being the officer of Insurance Company or that Insurance Company is liable to pay the compensation to the petitioners being the insurer or that the occupants of Wagon R were also covered under the policy as it was a comprehensive policy.
14. RE of both respondents stood closed vide order dt. 22.09.2021 and case was fixed for final arguments after recording of the statement of the petitioner no. 1 as per clause 29 of MCTAP on 23.11.2021.
15. Final arguments heard. File perused.
Issue wise findings:
16. Issue no. (i):
Whether deceased died on account of injuries sustained in accident having taken place on 05.06.2018 at about 2:30 a.m. in front at Leelawati Hospital, NH-2, Kasba Farah Pur, PS Farah, Distt. Mathura, UP within the jurisdiction of PS Farah, Distt. Mathura, UP with the involvement of vehicle no. DL-2CAG-8330 being driven by respondent no.1? OPP.
17. It may be noted that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil Court and in civil matters the fact are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts, as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as in a criminal case, but in a claim petition under the M.V Act, this burden is infact even MACT No. 496/18 Smt. Manorama & Ors. Vs. Pradeep Kumar Soni & Anr. Page No. 7 of 13 lesser than that in a civil case. Reference in this regard can be made to the prepositions of law laid down by the Hon'ble Supreme Court in the case of "Bimla Devi Vs. Himachal Road Transport Corporation (2009) 13 SCC 530"
which were reiterated in the subsequent judgment in the case of "Parmeshwari Vs. Amir Chand & Ors 2011 (1) SCR 1096 (Civil) Appeal No. 1082 of 2011)"
and also recently in another case "Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 etc."
18. As per petitioners, the accident occurred on 05.06.2018 at about 02:30AM. At the relevant time, the deceased was coming to Delhi from his native village alongwith his relatives in a car bearing registration number DL-2CAG-8330 which was being driven by the respondent no. 1. It has been contended that when the aforesaid car reached in front of Leelawati Hospital, NH-2, Kasba Farahpur, District Mathura, UP, an unknown vehicle hit the car in question, due to which its occupants sustained grievous injuries, while the deceased Rakesh Kumar and another occupant namely Chandni died later on during treatment. The respondent no. 1 happened to be the owner of the car in question and has also been stated to be the driver of the vehicle at the time of incident. Though the R-1 has denied the said assertion by claiming that he has been falsely implicated, but his presence at the spot at the time of incident and being an occupant of the car in question is clearly substantiated in the FIR bearing no. 0477, PS Farah which came to be registered in respect of the incident in question on the complaint of the son of respondent no. 1 himself. Furthermore, it has been deposed by PW-1 during her cross examination that the R-1 happened to be brother-in-law of deceased Rakesh Kumar and that they used to visit their native place on festival and other functions. The said fact has not been denied by the R-1 and not even a suggestion has been given to the PW-1 that the R-1 was not driving the car in question at the MACT No. 496/18 Smt. Manorama & Ors. Vs. Pradeep Kumar Soni & Anr. Page No. 8 of 13 time of incident. At the same time, neither the R-1 nor the insurance company have even disputed the fact that the deceased Rakesh Kumar died on account of injuries sustained in the incident in question as deposed by PW-1 and not even a single suggestion to the contrary has been given to the PW-1 during her detailed cross examination.
19. Besides the above, respondent no. 1 himself was the best witness who could have stepped into the witness box to challenge the depositions being made by PW-1 regarding the abovesaid accident and its manner etc. but he has not done so. Therefore, an adverse inference on this aspect is also required to be drawn against the respondents in view of the law laid down in case titled as "Cholamandalam M.S General Insurance Company Ltd. Vs Kamlesh, reported in year 2009 (3) AD (Delhi) 310.
20. In view thereof, it can be safely inferred and termed to have been proved by the petitioner that the deceased Rakesh Kumar indeed died on account of injuries sustained in accident in question with the involvement of the car in question being driven by respondent no. 1. The issue at hand is thus decided against the respondents and in favour of the petitioners.
ISSUE NO. (ii) Whether petitioner is entitled to compensation? If so, to what amount and from whom?OPP .
21. As the fatal accident has arisen out of the use of the vehicle in question, accordingly, as per the Second Schedule annexed to MV Act as amended upto date, compensation to the tune of Rs. 5,00,000/- is admissible to the petitioners on account of death of deceased under section 163-A M.V Act. The petitioners are MACT No. 496/18 Smt. Manorama & Ors. Vs. Pradeep Kumar Soni & Anr. Page No. 9 of 13 also entitled to be granted a sum of Rs. 16,500/- each towards funeral expenses and loss of estate. Each of the petitioners is also entitled to be granted a sum of Rs. 44,000/- towards loss of consortium. The petitioners are thus awarded a sum of Rs 7,09,000/-(Rupees Seven Lakh nine thousand) on account of the untimely death of the deceased in a motor vehicular accident dated 05.06.2018.
22. Now the question arises as to which of the respondents is liable to pay compensation to the petitioners. The respondent no. 2 / Insurance Company has admitted in its written statement that the offending vehicle i.e. DL-2CAG-8330 was insured at the time of accident with respondent no. 2 vide policy no. 1908023117P10567935 which was valid for the period from 26.10.2017 (midnight) to 25.10.2018 (midnight). However, it has been specifically proved on record that the aforesaid insurance policy in respect of the vehicle in question was a private car liability only policy and that the insurance company is not liable to indemnify the respondent no. 1 for any liability arising in the present case on account of death of its occupants. The said fact has been specifically proved by R1W1 and no material has been brought on record to deny the said fact by R1 or the petitioners.
23. Hence, on the basis of entire above stated facts and circumstances and discussion of evidence, this Tribunal is of the view that respondent no. 1 being the driver and owner of the vehicle in question is liable to pay compensation to the petitioners without any recovery rights.
ISSUE NO. 3RELIEF:-
24. The petitioners are thus hereby awarded a sum of Rs. 7,09,000/- (Rs.
MACT No. 496/18 Smt. Manorama & Ors. Vs. Pradeep Kumar Soni & Anr. Page No. 10 of 13 5,00,000+ 16500 + 16500+ 44000+ 44000+ 44000 +44000) alongwith interest @ 6% per annum from the date of filing of petition i.e. 19.12.2018. However, it is directed that the amount of interim award, if any, shall be excluded from the above amount and calculations of compensation.
RELEASE/APPORTIONMENT OF COMPENSATION TO THE PETITIONERS
25. On 23.11.2021, the statement of petitioner no. 1 being wife of the deceased and representing all other claimants in this case was recorded in terms of clause of 29 of MCTAP as prescribed by Hon'ble High Court in case titled as "Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors"., FAO No. 842/2003 decided by Hon'ble High Court of Delhi on 08.01.2021. In the said statement, it was disclosed that the deceased was having his family comprising of his wife and four children out of whom one daughter i.e. (petitioner no. 5) was already married and living separately with her husband. It was further stated therein that the parents of the deceased had already pre deceased him.
26. As per the aforesaid statement, none of the dependent were earning anything and the petitioner no. 1 and her bank account with Punjab & Sind Bank Lakshmi Garden, Loni Road, District Ghaziabad, UP, A/c No. 07041000050626, IFSC Code PSIB0000704. The photocopy of the passbook of the bank account of the petitioner no. 1 maintained with Punjab & Sind Bank Lakshmi Garden, Loni Road, District Ghaziabad, UP was also placed on record by the petitioner, apart from two photographs each of the petitioners.
27. Finally, out of the aforesaid awarded amount, the petitioner no. 1 namely Manorama is hereby awarded Rs. 7,09,000/- out of which Rs. 7,00,000/- is directed to be kept with UCO Bank, Karkardooma Court Branch, Delhi bearing MACT No. 496/18 Smt. Manorama & Ors. Vs. Pradeep Kumar Soni & Anr. Page No. 11 of 13 account no. 20780110171929; IFSC: UCBA0002078 in MACAD in the form of 35 monthly fixed deposit receipts (FDRs) of Rs. 20,000/- payable in equal amounts for a period of 1 to 35 months in succession, as per the scheme formulated by the Hon'ble Delhi High Court vide order dated 08.01.2021 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. The amount of FDRs on maturity would be released in his savings/MACT Claims SB Account bearing no. 07041000050626, IFSC Code - PSIB0000704 maintained with Punjab & Sind Bank Lakshmi Garden, Loni Road, District Ghaziabad, UP. The remaining amount of Rs. 9,000/- (Rupees Nine Thousand Only) and the interest component to be paid by the respondent is also directed to be released into her above said account, which can be withdrawn and utilized by the petitioner no. 1 as per her volition.
28. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:-
(a) The original fixed deposit shall be retained by the bank in safe custody and copies of the same be provided to the petitioner with the statement containing FDR number, FDR amount, date of maturity and maturity amount.
(b) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant.
(c) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(d) The concerned bank shall not issue any cheque book and/or debit card to claimant / his guardian. However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount.
(e) The bank shall make an endorsement on the passbook of the claimant to MACT No. 496/18 Smt. Manorama & Ors. Vs. Pradeep Kumar Soni & Anr. Page No. 12 of 13 the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court.
29. Respondent no. 1, being driver cum owner of the offending vehicle, is directed to deposit the award amount with interest @ 6% per annum till date with UCO Bank, Karkardooma Court Branch within 30 days as per above order, failing which he shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Branch Manager, UCO Bank, Karkardooma Court Branch is directed to transfer the share amount of the petitioners in their bank account / FDRs as per above-said directions, on completing necessary formalities as per rules. The Branch Manager, is further directed to keep the said amounts in fixed deposits in name of this Court in auto renewal mode every 15 days, till the claimants approach the bank for disbursement, so that the award amount starts earning interest from the date of clearance of the cheques. Soft copy of the award be uploaded on official website of Delhi District Courts i.e. https://delhidistrictcourts.nic.in.
30. Form IV-A and Form-V, in terms of MCTAP, shall be read as part of the Award. Copy of the award be given dasti to the petitioner and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of UCO Bank, Karkardooma Court Branch, Delhi for information and necessary compliance. Announced in open Court on this 18th Day of October, 2022 (HARUN PRATAP) PO- MACT, NORTH EAST KARKARDOOMA COURTS, DELHI.
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