Delhi District Court
Smt. Nusrat Jahan (Wife Of The Deceased) vs Sh. Alimuddin (Driver) on 5 September, 2019
IN THE COURT OF SH. RAJ KUMAR
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL:
(WEST-01):DELHI
MACT Case No. 478150/16
1. Smt. Nusrat Jahan (Wife of the deceased)
W/o Mohd. Imtiyaz
Aged about 35 years
2. Sofiya (Daughter of the deceased)
D/o Mohd. Imtiyaz
Aged about 15 years
3. Rehan (Son of the deceased)
S/o Mohd. Imtiyaz
Aged about 13 years
4. Zishan (Son of the deceased)
S/o Mohd. Imtiyaz
Aged about 11 years
5. Faizan (Son of the deceased)
S/o Mohd. Imtiyaz
8 years
All R/o D-1, Madipur, J. J. Colony,
Madipur West, Delhi-110053
(The parents of deceased are proforma respondents no. 5 & 6)
........Petitioners Versus
1. Sh. Alimuddin (Driver) S/o Idrees
2. Mohd. Naim (Superpdar/present owner) S/o Mystak Both R/o C-4-A/599, LNJP Colony, T-Hut, Ranjeet Nagar, Delhi
3. Sh. Akshay Goswami (Regd. Owner) S/o Sh. Ram Charan Giri Goswami H. No. A48, Gali No.1, Jait Pur Part-II, Badarpur, Delhi MACT Case No. 478150/16 Page No. 1/25
4. Reliance General Insurance Company Pvt. Ltd. (Insurer) th 6 Floor, Unit No.19, Plot No. D-5, Noida, Noida Gautam Budhanagar, UP-201301 Vide Policy No. 1302282339000073 issued for the period from 28.04.2016 to 27.04.2017
5. Mohd. Vijair@ Ujair (Father of the deceased) S/o Sh. Vali Md.
Aged about 85 years
6. Mrs. Hamida Khataun (Mother of the deceased) W/o Mohd. Vijair @ Ujair Both R/o Basshiya Shekh Tola Gadhava, Town/Vill. Basshiya Sekh, Unchal/Thana Piprahi, Distt. Shiv Har, Bihar-843334 ......... Respondents Date of Institution: : 09.12.2016 Date of reserving order/judgment : 26.08.2019 Date of pronouncement: : 05.09.2019 AWARD FORM-V COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 13.08.2016
2. Date of intimation of the accident by the 16.08.2019 Investigation Officer to the Claims Tribunal.
3. Date of Intimation of the accident by the Not mentioned Investigating Officer to the Insurance Company.
4. Date of filing of Report under Section 173 02.12.2016 Cr. P.C. before the Metropolitan Magistrate.
5. Date of filing of Detailed Accident 09.12.2016 Information Report (DAR) by the Investigating Officer before Claims Tribunal.
6. Date of service of DAR on the Insurance 09.12.2016 MACT Case No. 478150/16 Page No. 2/25 Company.
7. Date of service of DAR on the claimant 09.12.2016
(s).
8. Whether DAR was complete in all Yes respects?
9. If not, whether deficiencies in the DAR ----
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 13.08.2016 and the Officer ? If so, whether any action/ DAR was filed on 09.12.2016 direction warranted?
12. Date of appointment of the Designated 17.01.2017 Officer by the Insurance Company
13. Name, address and contact number of Sh. Dharmendra Singh the Designated Officer of the Insurance Parihar Company.
14. Whether the Designated Officer of the Yes Insurance Company submitted his report within 30 days of the DAR?
15. Whether the Insurance Company No. 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 No 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 Legal offer was not given by the offer of the Insurance Company. the insurance company
18. Date of the award 05.09.2019
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 22.01.2018 directed to open savings bank account MACT Case No. 478150/16 Page No. 3/25
(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 26.08.2019 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 petitioners R/o D-1, Claimant(s). Madipur J. J. Colony, Delhi-
110063
24. Details of savings bank account(s) of the The petitioner No.1 Smt. claimant(s) and the address of the bank Nushrat Jahn is having A/c with IFSC Code. No.606310110009863 of Bank of India, 22, N.W.A. Club Road, Punjabi Bagh Extension, Delhi, New Delhi-
110026 IFSC Code: BKID0006063 The petitioner no.2 Sofya is having A/c No. 38186747403 of State Bank of India, 2/85, Club Road, Punjabi Bagh, New Delhi, IFSC Code:
SBIN0001704 The petitioner no.3 Rehan is having A/c No. 606310110004331 of Bank of India, 22, N.W.A. Club Road, Punjabi Bagh Extension, Delhi, New Delhi-
110026 IFSC Code: BKID0006063 The petitioner no.4 Zishan is having A/c No. 35174901632 of State Bank of India, 2/85, Club Road, Punjabi Bagh, New Delhi, IFSC Code:
SBIN0001704 MACT Case No. 478150/16 Page No. 4/25 The petitioner no.5 Faizan is having A/c No. 2740101006774 of Canara Ban, Punjabi Bagh, New Delhi, IFSC Code:
RB0002740
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 Mohd. Imtiyaz in the road vehicular accident.
2. Brief facts of the case are that on 13.08.2016, the deceased was going for purchasing of raw material of slippers/shoes on his motorbike bearing No. DL-4SCF-5435 Honda from Madipur to Karol Bagh via New Rohtak Road. It has been further stated that when the deceased reached infront of Power House New Rohtak Road, Pillar No. 70, then, suddenly, the offending vehicle bearing No. DL-1RS-9882 TSR came at a very high speed and in a rash and negligent manner, hit the motorcycle of the deceased from behind. It has been further stated that due to the forceful impact, the deceased fell down on the road and sustained multiple grievous injuries. It has been further stated that thereafter, the deceased was taken to the hospital by the respondent no.1 in the offending vehicle.
3. It has been further stated that during the course of treatment, the MACT Case No. 478150/16 Page No. 5/25 deceased declared brought dead by the concerned doctors. It has been further stated that MLC No. 3134/16 was prepared by the concerned doctors.
4. 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 doing the work of slipper/shoes, belt etc. in weekly market and earning Rs.20,000/- per month.
5. It has been further stated that the deceased is survived by his wife, mother and father, one minor daughter and three minor sons. The wife, the minor daughter and the minor sons of the deceased have been arrayed in the array of the petitioners as petitioners No.1 to 5 but the father and mother of the deceased have been arrayed as the respondents no.4 & 5 in the present claim petition by the petitioners.
6. In total, the petitioners have claimed a sum of Rs. 50,00,000/- (Rupees Fifty Lacs Only) on account of compensation.
7. As a result of the abovesaid accident, as per the case of the petitioners, FIR No. 505/16 dated 13.08.2016: P.S. Punjabi Bagh u/s 279/304A IPC and u/s 3/181 of MV Act was registered against the respondent No.1/Driver of the offending vehicle.
8. It has been further stated that the respondent no.1 being the driver of the offending vehicle, the respondent no.2 being the present owner of the offending vehicle, the respondent no.3 being the registered owner of the offending vehicle and the respondent no.4 being the Insurer of the offending vehicle are jointly liable to pay the compensation to the petitioner.
9. Written statement has been filed by the respondent no.1 stating therein that no accident had taken place with the alleged offending vehicle. It has been further stated that the alleged accident was caused by some other person who had run away after causing the accident. It has been further stated that at that point of time, the TSR of the respondent no.1 was parked by the side of the road near the place of the accident for waiting the driver and after seeing the public at the spot, the respondent no.1 also reached at the place of accident. It has been further stated that however, the persons present at the spot including MACT Case No. 478150/16 Page No. 6/25 the witness to the present case requested the driver to take the injured to the hospital keeping in view the serious condition. It has been further stated that the respondent no.1 at that time had shown his inability to take the injured to the hospital as he was not having the driving license but however on their insistence, the respondent no.1 took the deceased to the hospital. It has been further stated that later on, the police has falsely implicated the respondent no.1 in the present accident. It has been further stated that the alleged offending vehicle was duly insured with the respondent no.4 at the time of alleged accident. It has been prayed that the present claim petition be dismissed.
10. Written statement has been filed by the respondent no.4 i.e. by the United India Insurance Co. Ltd. wherein it has been admitted that the alleged offending vehicle bearing no. DL-1RS-9882 was insured with it vide policy no.1302262339000073 for a period from 28.04.2016 to 27.04.2017 in the name of Mr. Akshay Goswami. It has been further stated that the driver of the offending vehicle was not having any valid driving license. It has been prayed that the present claim petition be dismissed.
11. Except the respondent no.1 and respondent no.4, no written statement/reply has been filed by the rest of the respondents.
12. After hearing the arguments and going through the pleadings of the parties, the following issues were framed by this Tribunal on 05.06.2017:-
1. Whether the deceased Md. Imtiaz suffered fatal injuries in the accident that took place on 13.08.2016 at about 2.55 pm am due to rash and negligent driving of TSR bearing No. DL-1RS-9882 by the respondent no.1 Sh. Alimouddin, being owned by the respondent no.2 and insured with the respondent no.4? OPP.
2. Whether the petitioners are entitled for compensation? IF so, to what amount and from whom? OPP.
3. Relief.
13. In order to establish their claim, the petitioners have examined the petitioner No.1 Smt. Nusrat (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 MACT Case No. 478150/16 Page No. 7/25 Ex. PW1/A; copy of her Aadhar Card as Ex. PW1/1(OSR); copy of Aadhar Card of her daughter namely Sofiya as Ex. PW1/2(OSR); copy of Aadhar Card of her son namely Rehan as Ex. PW1/3(OSR); copy of Aadhar Card of her son namely Zishan as Ex. PW1/4(OSR); copy of Aadhar Card of her son namely Faizan as Ex. PW1/5(OSR); copy of Election I Card of her deceased husband as Mark A; copy of DL of her deceased husband as Ex. PW1/6(OSR); photocopies of School ID cards of her children as Mark B(colly) and the DAR as Ex. PW1/7(colly).
14. In the cross-examination done by ld. Counsel for the respondents No.1 & 2, PW-1 has stated that she is not an eye witness to the accident in question. PW-1 has further stated that the accident of her husband was caused by a three wheeler. PW-1 has further stated that she was informed about the accident by a security guard. PW-1 has further stated that she did not remember the number of the auto at that stage.
15. In the cross-examination done by Ld. Counsel for the respondent no.4(the insurance company), PW-1 has stated that her deceased husband was born in the year 1972 but she does not remember the exact date or month of the birth of her husband. PW-1 has further stated that she has three sons and a daughter, aged about 19 years, 17 years, 14 years and 12 years respectively. PW-1 has further stated that the names of her sons are Rehan, Zishan, Faizan and the name of her daughter is Sofiya. PW-1 has further stated that all of her children were unmarried at the time of accident and they are so even as on date. PW-1 has further stated that she has already placed on record the driving license of her deceased husband which was valid at the time of accident.
16. PW-1 has further stated that she is doing petty work and earning Rs.4000/- to Rs.5000/- per month. PW-1 has further stated that she does not have any documentary proof to show that the deceased was employed for gain or that he was earning any amount as on the date of the accident.
17. The petitioners have also examined Sh. Ashok Kumar, eye witness to the accident and this witness has exhibited his statement u/s 161 Cr. PC recorded by the police on 07.09.2016 as Ex. PW2/1 and his statement u/s 161 Cr. PC dated 16.08.2016 as Ex. PW2/2.
MACT Case No. 478150/16 Page No. 8/2518. In the cross-examination done by Ld. Counsel for the respondents No.1 & 2, PW-2 has stated that he does not know as to what was the date of the accident. PW-2 has further stated that he also does not know as to when and how the accident in question took place. PW-2 has further stated that he is not an eye witness to the accident in question. PW-2 has further stated that the IO had obtained his signatures on a blank paper.
19. In the cross-examination done by Ld. Counsel for the insurance company, PW-2 has stated that he had not given any statement to the police officials. PW-2 has further stated that no inquiry was done by the police officials from him.
20. The petitioners have also examined IO of the case Sh. Rajender Singh as PW-3 and this witness has stated that he was the IO in the present matter. PW-3 has further stated that the FIR dated 13.08.2016 bearing No.505/16 PS Punjabi Bagh was recorded by him u/s 279/337 IPC pertaining to the injuries received by the deceased Mohd. Imtiyaz. PW-3 has further stated that after receipt of the DD entry bearing No. 21, he reached at the spot of the accident and he saw that there was a motorcycle which was standing there in a accidental position. PW-3 has further stated that he also came to know at the spot that the accident in question was done by the respondent no.1 who was a TSR driver and he had taken the injured to MGS hospital, Punjabi Bagh in the TSR itself. PW-3 has further stated that on the mobile number of the respondent no.1 which was written on the MLC of the injured, he gave him a telephone call. PW-3 has further stated that the respondent no.1 assured him that he would be returning alongwith the amount for the treatment of the injured. PW3 has further stated that however, he took into custody the TSR of respondent no.1 which was standing outside the hospital and thereafter respondent no.1 returned back but without any amount. PW-3 has further stated that the respondent no.1 was arrested by him on 16.08.2016 and later on he was released on bail. PW-3 has further stated that thereafter, the injured expired at Safdarjung Hospital and as so far he remembers, the injured expired on 15.08.2016. PW-3 has further stated that the Post mortem of the injured was done on 16.08.2016. PW-3 has further stated that he carried MACT Case No. 478150/16 Page No. 9/25 out the investigation. PW-3 has further stated that he issued the notice to the owner of the TSR namely Naim u/s 133 Cr. PC. PW-3 has further stated that however, during the investigation, he came to know that the real owner/permit holder of the TSR was Akshay Goswami. PW-3 has further stated that the mechanical inspection of both the vehicles was also got done by him. PW-3 has further stated that the arrest memo, the seizure memo, the verification of the insurance policy has been placed on record. PW-3 further states that however, the respondent no.1 was not having any DL and a Kalandra was prepared against the owner of the offending vehicle. PW-3 has further stated that he has already filed the chargesheet against the accused in the court of Ld. MM.
21. PW-3 has further stated that Ashok Kumar was eye witness in the present matter and his statement u/s 161 Cr. PC was recorded by him. PW-3 has further stated that however, he had met him on 16.08.2016 and thereafter, he had told him about the accident in question. PW-3 has further stated that the eye witness was working in the same area where the accident in question took place.
22. In the examination, PW-3 has stated that the TSR was taken into his custody from the outside of MGS hospital. PW-3 stated that no photographs of the spot of the accident were taken by him. PW-3 has further stated that at about 3:10-3:15 pm, he reached at the spot and thereafter, after 15 minutes approximately, he reached at the hospital. PW-3 has further stated that the distance of the hospital from the spot of the accident might be half a kilometer. PW-3 has further stated that he obtained the MLC of the injured after 15 minutes from the time, when he reached the hospital.
23. PW-3 has further stated that the eye witness namely Ashok Kumar met him at the spot of the accident on 16.08.2016, when he was making inquries in connection with the accident in question. PW-3 has further stated that prior to 16.08.2016, no eye witness came in his contact. PW-3 has further stated that from 13.08.2016 till 16.08.2016, he reached at the spot of the accident three times. PW-3 has further stated that the eye witness met him when he was passing by the spot of the accident after the termination of his duties. By way of volunteer, PW-3 states that it might be possible that he was going to attend his duties. PW3 MACT Case No. 478150/16 Page No. 10/25 has further stated that he met him at about 5:00-6:00 pm. PW3 has further stated that he does not remember the timings when he visited the accident spot three times in between 13.08.2016 and 16.08.2016. PW-3 has admitted it to be correct that he carried out the investigation on all the three occasions when he visited the accident spot. PW-3 has further stated that he carried out the investigation from the eye witness near about the spot of the accident. PW-3 has further stated that he recorded the statement of Sh. Ashok Kumar on 16.08.2016 near about the spot of the accident. PW-3 has further stated that however the statement of Ashok Kumar dated 07.09.2016 was recorded by him in the police station itself. PW-3 has further stated that at the time of recording of the statement of Ashok Kumar on 16.08.2016, besides he and Ashok Kumar, no one else was present. PW-3 has further stated that except on 16.08.2016 and 07.09.2016, Ashok Kumar did not meet him anywhere but during the pendency of the present matter, he has talked to him so many times on telephone. PW-3 has further stated that he had got the signatures of Ashok Kumar on the arrest memo of Alimudeen on 07.09.2016 but the said arrest memo is not there on record. PW-3 has further stated that except the arrest memo of Alimudeen, the signatures of Ashok Kumar were not obtained by him anywhere else.
24. PW-3 has further stated that Alimudeen was arrested by him on 07.09.2016. PW-3 has further stated that the respondent no.1 was arrested by him only after carrying out complete investigation. PW-3 has further stated that Alimudeen me him several times in between 13.08.2016 and 07.09.2016 in the police station, at the spot of the accident etc. PW-3 has further stated that he did not try to contact Ashok Kumar in between 16.08.2016 and 07.09.2016. PW-3 has further stated that he does not have any details of the inquiry, from whom the same was conducted three times from 13.08.2016 to 16.08.2016 when he visited the spot.
25. PW-3 has further stated that the site plan was prepared by him. PW- 3 has admitted it to be correct that at the time of preparation of site plan, neither Ashok Kumar nor Alimudeen were present at the spot. PW-3 has admitted it to be correct that no site plan was prepared by him at the instance of Ashok Kumar or MACT Case No. 478150/16 Page No. 11/25 Alimudeen.
26. The petitioners have also examined Mohd. Azizur Rahman as PW-4 and in evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the petitioners. PW-4 has filed on record his affidavit as PW-4/A and copy of his Aadhar Card as Ex. PW4/1(OSR). PW-4 has stated that he had received a telephonic call on 13.08.2016 at about 3 pm from the police to the effect that his brother-in-law (the deceased) had met with an accident and he rushed to MGS Hospital, Punjabi Bagh. It has been further stated that in the hospital, he met the respondent no.1 who was in the custody of police officials and police officials told him that the respondent no.1 had caused the accident. It has been further stated that after two weeks, the respondent no.1 came to his home and requested for a compromise but he refused.
27. In the cross-examination done by Ld. Counsel for the respondent no.1, PW-4 has stated that he knows Md. Alimuddin and he identified him who was present in the court. PW-4 has further stated that Md. Alimuddin visited his house several times. PW-4 has further stated that Md. Alimuddin requested him for compromise in the present matter but he refused the same. PW-4 has further stated that Md. Alimuddin visited his house after 2-3 weeks after the accident. PW-4 has further stated that on the date of accident, he went to PS Punjabi Bagh and thereafter, he never visited the PS Punjabi Bagh.
28. PW-4 has further stated that on the date of accident, he gave the address of his factory to the respondent No.1 and the respondent no.1 visited his factory after 2-3 weeks.
29. PW-4 has further stated that he is not an eye witness to the accident in question. PW-4 has further stated that PCR officials informed him about the accident in question. PW-4 has further stated that his statement was not recorded by the IO. PW-4 has further stated that he received a call from the PCR officials at 2:45 PM. PW-4 has admitted it to be correct that he has not filed on record any documentary proof to show that the respondent no.1 visited his house and factory in respect of settlement.
30. The insurance company has examined its Legal Manager Sh.
MACT Case No. 478150/16 Page No. 12/25Chidananda Sahani as R4W1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the insurance company in the written statement/reply. R4W1 has filed on record his affidavit Ex. R4W1/A; office copy of notice u/o 12 Rule 8 of the CPC as Ex. R4W1/1; three postal receipts in respect of the said notice as Ex. R4W1/2 to Ex. R4W1/4 and attested true copy of insurance policy as Ex. R4W1/5(colly). In his affidavit, this witness has stated that the driver of the offending vehicle was not having any DL at the time of the accident.
31. In the cross-examination, R4W1 has admitted it to be correct that the offending vehicle was insured with insurance company.
32. No evidence has been led either by the respondent no.1 or by the respondents no.2 & 3. They have failed to appear in the witness box also.
33. 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 meticulously perused the written final arguments filed by the Ld. Counsel for the insurance company. The petitioner no.1 has 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 :-
ISSUE NO. 134. 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.
35. 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.
36. Ld. Counsel for the insurance company has vehemently argued that the present claim petition u/s 166 of MV Act is not maintainable because the petitioners have failed to prove the rash and negligent driving of the offending MACT Case No. 478150/16 Page No. 13/25 vehicle by the respondent no.1. It has been further argued by the Ld. Counsel for the insurance company that Sh. Ashok, the alleged eye witness has been planted by the IO as it is apparent from the cross-examination of the aforesaid witness Sh. Ashok who has been examined as PW-2.
37. It is true that the alleged eye witness Sh. Ashok, in the cross- examination has not supported the case of the petitioners. It is also true that PW-2 has stated that he had not given any statement to the IO or that IO had obtained his signatures on blank papers but it has to be seen that IO of the case ASI Rajender Singh has been examined by the petitioners as PW-3 and in his detailed cross- examination, the IO of the case has stuck to the point that the accident in question was caused by the respondent no.1 while driving the offending TSR bearing No. DL-1RS-9882.
38. It has to be further seen that the petitioners have further examined Mohd. Azizur Rahman, the brother-in-law of the deceased as PW-4 and this witness even in his cross-examination has stuck to the point that the accident in question was caused by the respondent no.1 while driving the offending TSR bearing no. DL-1RS-9882.
39. Furthermore, the mechanical inspections report of the offending vehicle bearing No. DL-1RS-9882 and the motorcycle bearing no. DL-4SCF-5435 on which the deceased was riding, to my mind, sufficiently throw considerable light on the aspect that the accident in question was caused by the respondent no.1 while driving the TSR bearing no. DL-1RS-9882.
40. The Mechanical inspection report of the offending vehicle bearing no. DL-1RS9882 has been placed on record in the form of Ex. PW1/7. The said mechanical inspection report categorically states that fresh damages were there in the front side of the aforesaid TSR. The mechanical inspection report of the motorcycle bearing no. DL-4SCF-5435 on which the deceased was riding reveals that fresh damages were found on the front side and on the rear side of the said motorcycle. As per the mechanical inspection report of the abovesaid motorcycle, the rear side petrol tank was bended and scratched and the rear footrest was bended and scratched. The rear side of the Dicky was broken and the rear side MACT Case No. 478150/16 Page No. 14/25 view mirror was broken.
41. Last but not the least, the cause of death of the deceased, in the PM report of the deceased has been mentioned as ""cranio-cerebral damage as a result of ante mortem injuries sustained to head produced by blunt force impact. All injuries are ante mortem in nature and could be possible in a manner as alleged".
42. Furthermore, it has to be seen that the respondent no.1 has failed to appear in the witness box. The respondent no.1 has filed to prove his stand that he has been falsely implicated by the police in the present matter.
43. In the light of the abovesaid discussion, to my mind, the petitioners have been able to prove that the accident in question was caused on account of the rash and negligent driving of the offending vehicle by the respondent no.1 and the submissions of the Ld. Counsel for the insurance company on this count are not sustainable.
44. Furthermore, in the present case, the FIR No. 505/16 dated 13.08.2016: P.S. Punjabi Bagh u/s 279/304A IPC and u/s 3/181 of MV Act was registered against the respondent No.1/Driver of the offending vehicle.
45. 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.
46. In the light of the abovesaid discussion, to my mind, the petitioners have been able to prove issue No.1 in their favour and accordingly, the issue No.1 is decided in favour of the petitioners.
COMPENSATION / ISSUE NO. 247. The petitioner No.1 has placed on record the photocopy of the DL of the deceased as Ex. PW1/6. In Ex. PW1/6, the date of birth of the deceased has MACT Case No. 478150/16 Page No. 15/25 been mentioned as 30.06.1978. The date of accident is 13.08.2016. Accordingly, the deceased was about 38 years as on the date of accident.
48. In the claim petition, the petitioners have claimed that the deceased was doing the work of slipper/shoes, belt etc. in weekly market and earning Rs.20,000/- per month but nothing has been placed on record by the petitioners to show that the deceased was earning Rs.20,000/- per month. This is evident from the cross-examination of PW-1. As such, the petitioners have utterly failed to prove on record the income of the deceased.
49. 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 13.08.2016 on which the minimum wages for an Unskilled person for the relevant period were Rs. 9568/- per month.
50. The petitioner no.1 has been examined on 26.08.2019 under MCTAP and she has stated that she is not doing any work and her children are minor and going to school.
51. In the claim petition, it has been stated that the respondents no.5 & 6 are the parents of the deceased. As such, the petitioners No. 1 to 5 and the respondents No. 5 & 6 are to be taken as dependents upon the deceased at the time of the accident.
52. 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- fifth of Rs.9568/- on his personal expenses as he had left behind seven dependents on the deceased. Therefore, after deducting one- fifth towards personal expenses, the loss of dependency per month comes out to Rs. 7655/- =(Rs. 9568/- less (Rs.1913/- after rounding of Rs. 1913.6).
53. 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 MACT Case No. 478150/16 Page No. 16/25 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 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."
54. 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 MACT Case No. 478150/16 Page No. 17/25 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.
55. Going by the ratio of the abovestated two authorities, the multiplier has to be selected as per the age of the injured 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.
56. An addition of 40% on account of the future prospects has to be given as the age of the injured was 38 years. Accordingly, the monthly income of the injured has to be calculated as Rs.10,717/- (Rs.7655/- + Rs.3062/- which is 40% of Rs.7655/-).
57. 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.19,29,060/- = (Rs. 10,717 x 12 x 15).
58. 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 amounts are to be enhanced at the rate of 10% in every three years.
59. 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.
60. Therefore, in total, I hereby award a sum of Rs.19,99,060/- (Rupees Nineteen Lacs Ninety Nine Thousand and Sixty Only) = (Rs. 19,29,060/- + Rs. 70,000/-) in favour of the petitioners and against the respondents.
R E L I EF / ISSUE NO.3
61. I award Rs.19,99,060/- (Rupees Nineteen Lacs Ninety Nine Thousand and Sixty Only) as compensation with interest at the rate of 9% per MACT Case No. 478150/16 Page No. 18/25 annum including interim award, if any from the date of filing the DAR/claim petition i.e. 09.12.2016 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 40% share in the award amount, the petitioners No. 2 to 5 shall have 10% share each in the award amount and the respondents No. 5 & 6 who are the parents of the deceased shall have 10% share each 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).
62. 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.
63. 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.3/insurance company is directed to deposit the amount of Rs.19,99,060/- (Rupees Nineteen Lacs Ninety Nine Thousand and Sixty Only) as stated herein above with SBI, Tis Hazari Courts, Delhi, out of which the amount of Rs. 1,99,060/- (Rupees One Lac Ninety Nine Thousand and Sixty 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 petitioner and that of the respondents as well and in the entirety of the facts.
64. The rest of the amount of Rs. 18,00,000/- shall be kept in 180 equal monthly FDR's for the period of one month to 180 months for an amount of Rs. 10,000/- each with cumulative interest in favour of the petitioners and respondents MACT Case No. 478150/16 Page No. 19/25 no. 5 & 6 in their abovementioned shares. However, money can be withdrawn through withdrawl slip only.
65. As stated herein above, since the petitioners No.3 & 4 are minor, the amount of their FDRs shall not be released until they reach the age of majority.
66. 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 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.
67. 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 MACT Case No. 478150/16 Page No. 20/25 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
68. It has been alleged that the respondent No.1 was not holding any valid and effective driving license at the time of the accident. The insurance company has examined its Legal Manager Sh. Chidananda Sahani as R4W1 in the present matter and this witness has filed on record his affidavit as Ex. R4W1/A; office copy of the notice u/o 12 Rule 8 of the CPC as Ex. R4W1/1; three postal receipts in respect of the notice as Ex. R4W1/2 to Ex. R4W1/4 and attested true copy of insurance policy as Ex. R4W1/5(colly).
69. IO has invoked Section 3/181 of MV Act against the respondent No.1. The respondent no.1 in the reply has admitted that he was not having any DL at the time of the accident. As such, it stands established on record that the respondent no.1 was not having any valid DL on the date and time of the accident.
70. In view of the law laid down by the Hon'ble Supreme Court of the Land in the authority tiled as Naveen Kumar Vs. Vijay Kumar and Ors. Cited as Civil Appeal no. 1427 of 2018 decided on 06.02.2018, only the registered owner is liable. The Hon'ble Supreme Court of India in Para no. 12 of the said authority 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, MACT Case No. 478150/16 Page No. 21/25 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 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.
71. In the light of the ratio of the abovestated authority of the Hon'ble Apex Court of the Land, the respondent no.2 Sh. Mohd. Naim who is the present owner of the offending vehicle cannot be held liable. Accordingly, the driver and the registered owner are being held jointly and severely liable to pay the amount of the compensation to the petitioner/injured.
72. As such, I am of the opinion that the respondent no.4/insurance company is entitled for recovery rights against the respondent no.1 i.e. Sh. Alimuddin and respondent no.3 No. i.e. Sh. Akshay Goswami who is the registered owner of the offending vehicle but only after the payment of the award amount to the petitioners and the respondents no. 5 & 6.
73. Since the offending vehicle, was admittedly insured with the respondent No.4, the respondent No.4 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 MACT Case No. 478150/16 Page No. 22/25 intimation to the petitioners as well as to the respondents No. 5 & 6. 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 and put up the same on 21.10.2019.
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 File be consigned to Record Room. by RAJ KUMAR RAJ Date: KUMAR 2019.09.09 16:36:17 Announced in the open court +0530 On 5th of September, 2019 (RAJ KUMAR) P.O.MACT (WEST-01) Delhi (05.09.2019) MACT Case No. 478150/16 Page No. 23/25 FORM -IVA
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident :- 13.08.2016
2. Name of the deceased :- Mohd. Imtiyaz
3. Age of the deceased :- 38 years
4. Occupation of the deceased :- Private Work
5. Income of the deceased :- Rs. 9568/- per month.
6. Name, age and relationship of legal representative of deceased:-
S. Name Age Relation No.
(I) Mrs. Nushrat Jahn DOB: 01.01. Wife of the deceased 1981
(ii) Sofya DOB: Daughter of the deceased 20.03.2001
(iii) Rehan DOB: Son of the deceased 18.12.2003
(iv) Zishan Year of Son of the deceased Birth: 2005
(v) Faizan Year of Son of the deceased Birth: 1998
(vi) Mohd. Vijair @ Ujair Not Father of the deceased mentioned
(vii) Mrs. Hamida Not Mother of the deceased Khataun mentioned Computation of Compensation Sr. No. Heads Awarded by the Claim Tribunal
7. Income of the deceased(A) Rs.9568/-
8. Add-Future Prospects (B) 40%
9. Less-Personal expenses 1/5th has been deducted of the deceased(C)
10. Monthly loss of Rs.10,717/-
MACT Case No. 478150/16 Page No. 24/25dependency[(A+B)-C=D]
11. Annual loss of dependency Rs.1,28,604/-
(Dx12) 12. Multiplier(E) 15
13. Total loss of dependency Rs.19,29,060/-
(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.19,99,060/-
(F+G+H+I+J+=K)
19. RATE OF INTEREST 9% per annum AWARDED
20. Interest amount up to the Rs.4,92,768.16(2 years 8 months and 26 date of award (L) days)
21. Total amount including Rs.24,91,828.16 interest (K + L)
22. Award amount released Rs.1,99,060/-
23. Award amount kept in Rs.18,00,000/-
FDRs
24. Mode of disbursement of Mentioned in the award the award amount to the claimant (s).
25. Next date for compliance 21.10.2019 of the award (RAJ KUMAR) P.O.MACT (WEST-01) Delhi (05.09.2019) MACT Case No. 478150/16 Page No. 25/25 MACT Case No. 478150/16 05.09.2019 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 21.10.2019.
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 (05.09.2019) MACT Case No. 478150/16 Page No. 26/25