Delhi District Court
Mst. Samina W/O Late Tahir ... Wife vs Dost Mohammad S/O Ishak Mohammad on 24 January, 2015
IN THE COURT OF MS. RAVINDER BEDI : PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL : KARKARDOOMA
COURTS : EAST DISTRICT : DELHI
MAC PETITION NO. : 103/13
UNIQUE CASE ID NO. : 02402C0137712013
1. Mst. Samina W/o Late Tahir ... WIFE
2. Baby Mumtaz D/o Late Tahir ... DAUGHTER
3. Master Afroz S/o Late Tahir ... SON
4. Master Mustafa S/o Late Tahir ... SON
5. Baby Muskan D/o Late Tahir ... DAUGHTER
All Permanent R/o Village Mundheta,
Tehsil Punhana, District Mewat, Haryana,
At present : H.No. 28/20, Trilokpuri, Delhi110091. ... PETITIONERS
VERSUS
1. Dost Mohammad S/o Ishak Mohammad
R/o Village Moongaska, PS & Distt. Alwar, Rajasthan.
Also At : Village Ghusingaka, PS Jurheda, Distt.
Bharatpur, Rajasthan. ... DRIVER
2. Smt. Dayawati W/o Sh. Narender Kumar
R/o VPO, Sadpura, Faridabad, Haryana. ... OWNER
3. M/s. ICICI Lombard General Insurance Co. Ltd.
Space No. 315, 3rd Floor, Aggarwal City Mall,
MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 1/13
Plot no. 04, Road no. 44, Pitampura, Delhi110034.
Also at : DDA Market, 1st Floor, 101,
J&K Market, Dilshad Garden, New Delhi 110095 ... INSURER
... RESPONDENTS
Represented by : Ms. Pankaj Kumar, Counsel for Petitioners.
Mr. Vikas Kumar, Counsel for Respondents no.1 & 2. Mr. Vimal Kumar, Counsel for Respondent no.3.
Date of institution : 04.05.2013 Reserved for orders : 26.11.2014 Date of Award : 24.01.2015 A W A R D
1. The petitioners have filed present claim petition under Section 166 & Section 140 of M.V. Act claiming compensation of Rs.40,00,000/ for the death of Tahir S/o Late Shamsuddin in the road accident which occurred on 10.11.2011.
2. The facts briefly stated in the petition are that on 10.11.2011, deceased Tahir, was returning to his house in Punhana (Mewat) on his bicycle and his brother Liyakat was following him. At about 5.00 PM, a vehicle i.e. Maruti Eeco Car bearing registration no.HR51AL6701, driven by the respondent no.1 in a rash and negligent manner, hit the deceased. The offending Marutiy Car ran over the deceased and injuring one Munfaid, MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 2/13 son of Liyakat. The driver fled away from the spot leaving the offending vehicle. Deceased was taken to Govt. Hospital, Mandi Khera from where he was referred to JPN AIIMS Trauma Centre, Delhi where he succumbed to his injuries during the course of his treatment. A case FIR no. 438/11 U/s 279/304A IPC was registered at Police Station Punhana, Distt. Mewat against the respondent no.1.
3. It is stated that the respondent no.1 is the driver, the respondent no. 2 is the Insured/owner and respondent no. 3 is the insurer and all respondents are jointly and severally liable to pay compensation to the petitioners.
4. The respondents no. 1 & 2 in their joint Written Statement have stated that the vehicle in question was not involved in the accident and the driving licence of the driver was valid; that the vehicle i.e. Maruti Eeco Car no. HR51AL6701 was insured with respondent no.3.
5. The respondent no. 3 in its Written Statement has admitted that the Maruti Eeco Car no. HR51AL6701 was insured vide policy issued in the name of respondent no. 2/ DTC for a period from 05.01.2011 to 04.01.2012.
6. On the basis of the pleadings, following issues were framed vide order dated 30.04.2014 :
i) Whether deceased Tahir suffered fatal injuries in a road accident on 10.11.11 involving vehicle i.e. Maruti Eeco Car MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 3/13 bearing registration no. HR51AL6701 driven by respondent no.1 in a rash and negligent manner? (OPP)
ii) Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? (OPP)
iii) Relief.
7. Mst. Samina, wife of deceased appeared as PW1 and filed her affidavit Ex. PW1/A stating therein the facts as stated by her in the petition. She relied upon the documents i.e. her Election I card as Ex.PW1/1 and Ration Card as Ex.PW1/2 and Chargesheet as Ex.PX. Petitioner also examined Liyakat Ali as PW2 who tendered his affidavit Ex.PW2/A and relied upon his Election I Card as Ex.PW2/1.
8. The respondents have not come up with any evidence despite opportunities provided to them and their evidence was closed vide order dated 09.09.2014.
9. I have heard Ld. Counsels for parties, perused the entire material carefully in the light of relevant statutory provisions of law and my observations on the issues are as follows : ISSUE NO. 1 :
Whether deceased Tahir suffered fatal injuries in a road accident on 10.11.11 involving vehicle i.e. Maruti Ecco Car bearing registration no. HR51AL6701 driven by respondent MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 4/13 no.1 in a rash and negligent manner? (OPP)
10.Mst. Samina, PW1/wife of deceased has deposed that on 10.11.2011 at 5.00 PM, while her husband was returning home, he was hit by a vehicle i.e. Maruti Ecco Car bearing registration no.HR51AL6701, driven by its driver in a high speed and negligent manner. PW2 Liyakat Ali is the eye witness of the accident and is the brother of deceased. He was following his brother on his own cycle. He has supported the version of PW1 and stated that in the accident, the deceased was run over by the vehicle in question whereas his own son Munfaid suffered injuries.
11.I have looked into the statement of witnesses, Criminal Case Record as well as the Chargesheet filed by IO. The testimony of eye witness is reliable and nothing otherwise could be elicited therefrom. The FIR was registered on his statement. The facts are supported and corroborated by IO of the case who had conducted the investigation in the matter and filed Chargesheet against the respondent no.1, which suggests the rashness and negligence of the driver of the offending vehicle. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Hon'ble Supreme Court held that in a petition under Section 166 of the Act, the petitioners were merely to establish their case on the touchstone of preponderance of probabilities while dealing with the MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 5/13 Claim Petition under the Motor Vehicles Act. Para 15 of the Judgment 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 petitioners. The petitioners 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."
12.The report in Bimla Devi (Supra) was relied on by the Hon'ble Supreme Court in its subsequent judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
13.In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors. : 2009 ACJ 287, the Hon'ble High Court of Delhi has held :
"..... 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 FIR No.955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet 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 MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 6/13 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".
14.In the case of Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh : 2009 (3) AD (Delhi) 310, an 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.
15.There is nothing on record to show that the petitioners had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case. The issue thus stands decided in favour of petitioners holding that the accident happened as a result of negligent driving by respondent no.1 in which Tahir had received fatal injuries. ISSUE NO.2 :
To what amount of compensation, if any, the petitioners are entitled to and from whom?
16.PW1 Mst. Samina stated that her husband was taken to Mandi Khera Hospital where his MLC No.184/11 was prepared. Thereafter he was referred to JPN Hospital where he expired during the treatment. The postmortem of dead body was conducted at Mortuary JPN Trauma MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 7/13 Centre. PW1 stated that her husband was self employed and was running his mechanic shop at Block28, Trilokpuri, Delhi91 and was earning Rs.12,000/ p.m. She deposed that she incurred expenses of about Rs.50,000/ on transportation and last rites of the deceased. She deposed that the entire family which consisted of herself and her four minor children was financially dependent on the deceased.
17.The court has perused the postmortem report, (part of Ex.PX) alongwith other documents. From the document i.e. Ration Card Ex.PW1/2, the deceased is shown as 35 years of age. His age is taken above 35 years as on the date of accident. In the absence of any reliable material in respect of his work or earnings, the minimum wages prevalent at the relevant time, can be taken into consideration. Therefore, the monthly income of deceased is taken as Rs.6,656/.
18.Ld. Counsel for the insurance company has relied upon a recent judgment of Hon'ble Delhi High Court in HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors., (Decided on 12.1.2015). Ld. Counsel argued that the petitioners are not entitled for any addition towards future prospects. I have perused the said judgment, in which it was held that in view of the observations of Hon'ble Apex Court in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65 and that of Hon'ble Apex Court MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 8/13 in Union of India & Ors. Vs. S.K. Kapoor, (2011) 4 SCC 589 and further of decision of Hon'ble Delhi High Court in New India Assurance Co. Ltd. Vs. Harpal & Ors., MAC APP 138/11 decided on 06.09.2013, the three Judge Bench Decision in Reshma Kumari & Ors. (Supra) was held to be taken as a binding precedent on the aspect of future prospects. Therefore, relying upon the judgment of Hon'ble High Court of Delhi in HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors., this court is of the view that the petitioners are not entitled to any addition towards the future prospects.
19.All the petitioners would be considered to be the dependents in view of "Sarla Verma & Ors. Vs. DTC & Anr. (2009) ACJ 1298". Thus, 1/4th from income of deceased has to be deducted towards his living expenses. After deduction, the contribution to the family (dependents) comes to Rs. 4,992/ [Rs.6,656.00 - Rs.1,664.00 (1/4th)]. In view of judgments rendered in Mohd. Hasnain & Ors. Vs. Jayram Meena & Ors. and in "Cholamandalam M.S. General Insurance Company Vs. Issak Khan & Ors." (Both decided by Hon'ble High Court of Delhi on 24.03.2014 and 26.03.2014 respectively) and of Hon'ble Apex Court in P.S. Somanathan & Ors. Vs. District Insurance Office & Anr. (2011 ACJ 737), while assessing the dependency, the age of deceased is to be taken for selecting MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 9/13 the correct multiplier. The multiplier applicable would be 15. Thus, compensation under the head Loss of Dependency would be Rs. 8,98,560/ (Rs.4,992.00 X 12 X 15).
20.The petitioners are also entitled to a sum of Rs.1,00,000/ towards loss of love and affection, Rs.1,00,000/ towards loss of Consortium, Rs. 10,000/ towards loss of Estate and Rs.25,000/ towards funeral expenses.
21.The petitioners are entitled for the total amount of compensation towards all the heads, which is as follows : S.No. On Account of Amount (Rs.) 1 Loss of dependency Rs. 8,98,560.00 2 Loss of Love and affection Rs. 1,00,000.00 3 Funeral Expenses Rs. 25,000.00 4 Loss of Consortium Rs. 1,00,000.00 5 Loss of Estate Rs. 10,000.00 Total = Rs.11,33,560.00 I accordingly award an amount of compensation of Rs.11,33,560/ in favour of petitioners and against respondents.
LIABILITY
22.Since the Insurance Company has admitted the policy as on the date of MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 10/13 accident, therefore, it is respondent no. 3/Insurance Company which is liable to pay the compensation amount. Since, no violation u/s 149 (2) (a) of M.V. Act could be established by respondent no. 3, in such circumstances, I am of the considered view that it is the Insurance Company, which shall be responsible for the payment of compensation.
A W A R D
23.Resultantly, the petition stands allowed. The respondent no.3/Insurance company is directed to pay the compensation of Rs.11,33,560/ to the petitioners within one month. Following the judgment of Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, the respondent No. 3 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
24.Out of total amount of award, Rs.33,560/ shall be released to the petitioner no. 1 Mst. Samina (wife of deceased) forthwith and Rs. 2,00,000/ shall be kept in the form of one FDR for a period of five years with release of monthly periodical interest to her.
25.The entire remaining amount of award in favour of petitioners no.2, 3, 4 and 5 (four children of deceased) shall be kept in the form of four FDRs of equal amount in their names till they attain the age of majority. MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 11/13
26.Respondent no.3 is hereby directed to deposit the award amount with UCO Bank, Karkardooma Courts Complex, Delhi in the names of the Petitioners, as directed above, within 30 days from the date of award. The Bank would wait for the further directions as to the disbursement of the same till the compliance is reported.
27.The interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioners.
28.Withdrawal from the said Account shall be permitted to petitioners after due verification and Bank shall issue Photo Identity Card to petitioners to facilitate Identity.
29.The original Fixed Deposit Receipts shall be retained by the Bank in safe custody. However, original Passbook shall be given to the petitioners/beneficiaries with photocopy of FDRs. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of petitioners/ beneficiaries.
30.No loan, advance, withdrawal shall be allowed on the said FDRs without permission of this court.
31.Half yearly statement of account be filed by the Bank in this court.
32.In case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 12/13 that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
File be consigned to record room.
Announced in the open Court
Dated : 24th January, 2015 (MS. RAVINDER BEDI)
PRESIDING OFFICER MACT (EAST)
KARKARDOOMA COURTS, DELHI.
MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 13/13
MACT NO.103/13
23.01.2015
Ld. P.O. is on leave today.
Present : Ld. Counsel for parties.
Put up for orders on 24.01.2015.
Reader in the court of
(MS. RAVINDER BEDI)
PO MACT(EAST)KKD./DELHI/23.01.2015
24.01.2015
Present : Ld. Counsel for parties.
Vide separate order announced in the open Court today, the petition stands allowed. The respondent no.3/Insurance company is directed to pay the compensation of Rs.11,33,560/ to the petitioners within one month. Following the judgment of Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, the respondent No. 3 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
Out of total amount of award, Rs.33,560/ shall be released to the petitioner no. 1 Mst. Samina (wife of deceased) forthwith and Rs.2,00,000/ shall be kept in the form of one FDR for a period of five years with release of monthly periodical interest to her.
The entire remaining amount of award in favour of petitioners no.2, 3, 4 and 5 (four children of deceased) shall be kept in the form of four FDRs of equal amount in their names till they attain the age of majority.
MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 14/13 Respondent no.3 is hereby directed to deposit the award amount with UCO Bank, Karkardooma Courts Complex, Delhi in the names of the Petitioners, as directed above, within 30 days from the date of award. The Bank would wait for the further directions as to the disbursement of the same till the compliance is reported.
The interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioners.
Withdrawal from the said Account shall be permitted to petitioners after due verification and Bank shall issue Photo Identity Card to petitioners to facilitate Identity.
The original Fixed Deposit Receipts shall be retained by the Bank in safe custody. However, original Passbook shall be given to the petitioners/beneficiaries with photocopy of FDRs. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of petitioners/ beneficiaries.
No loan, advance, withdrawal shall be allowed on the said FDRs without permission of this court.
Half yearly statement of account be filed by the Bank in this court.
In case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
Be listed for compliance on 09.03.2015.
(MS. RAVINDER BEDI) PO MACT(EAST)KKD./DELHI/24.01.2015 MAC No. 103/13 Mst. Samina & Ors. Vs. Dost Mohd. & Ors. Page : 15/13