Delhi District Court
). Nahir @ Nahid W/O Sh. Amzad vs Rajesh (Since Deceased) (Driver & ... on 27 July, 2021
IN THE COURT OF SH. VIVEK KUMAR GULIA
P.O : MOTOR ACCIDENT CLAIMS TRIBUNAL
EAST DISTRICT : KARKARDOOMA COURTS: DELHI
In the matters of :
MACP No. 352/2019
Unique Case I.D. No. DLET010020862016
1). Nahir @ Nahid W/o Sh. Amzad
2). Amzad S/o Sh. Mansoor Ahmad
Both R/o E36A/157, Block 32 & 33, Ambedkar Park,
Trilokpuri, Delhi110091. ..........................Petitioners
Versus
1. Rajesh (since deceased) (driver & owner)
Through LRs
1(a). Parveen W/o late Sh. Rajesh
1(b). Neha D/o late Sh. Rajesh
1(c). Ruchi D/o late Sh. Rajesh
All R/o 33/23/4, Block33, Trilokpuri, Delhi110091.
2. The New India Assurance Co. Ltd. (insurer)
12th Floor, B Block, K.G. Marg, Delhi110001.
Also at : 12/1, Jeevan Raksha Building,
Asaf Ali Road, Delhi110002. ......................Respondents
Date of Institution : 15.02.2016
Date of Reserving : 08.04.2021
Date of Judgment : 27.07.2021
AWARD
1. By this award, claim petition under section 166 & 140 of Motor Vehicles Act, 1988, based on detailed accident report (DAR), would be decided.
MACP No. 352/19; Nahir @ Nahid & Anr. Vs. Parveen & Anr. Page 1 of 102. Important facts of the case are as under. Son of the petitioners, namely Ayan, died on account of a motor vehicular accident happened on 14.01.2016 at 05:30 p.m., at road, Ambedkar Camp, 33 Block, Trilokpuri, Delhi. In connection with this accident, an FIR No.32/2016, u/s 279/337 IPC was also registered at PS Mayur Vihar PhaseI on the complaint of eyewitness Satish. As per FIR, at the aforesaid date and time, when the deceased child, aged about 4 years, was running on the road, a car bearing registration no. DL14CB0458 (in short "offending vehicle"), being driven by respondent no.1 at a high speed and in rash and negligent manner, came from 33 Block side and hit him. As a result of the accident, victim child came under the right rear side wheel of the offending vehicle and received fatal injuries.
3. On service of notice, respondents marked appearance and filed written statement.
3.1 Respondent no.1 in his written statement mentioned that no accident was caused by his vehicle. He further mentioned that in fact, the accident had been caused by some other vehicle and though he had tried to rescue the injured and had got him admitted in Hospital, but he was falsely implicated in this case. 3.2 Respondent no.2/ insurance company took general defences in its reply.
MACP No. 352/19; Nahir @ Nahid & Anr. Vs. Parveen & Anr. Page 2 of 104. On the basis of pleadings, issues were framed on 03.09.2016 as under :
i).Whether deceased Ayan, pillion rider suffered fatal injuries in a road accident on 30.12.2015 involving vehicle i.e. Ertigo bearing registration no. DL14CB0458, 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.
5. Petitioners examined only one witness to establish their claim. PW1, Nahid @ Nahir (mother of deceased) deposed on the strength of affidavit Ex.PW1/A regarding the manner of accident and relied upon the documents i.e. DAR Ex.PW1/1; copy of her voter I.D. Card Ex.PW1/2 and copy of birth certificate of deceased Mark P1/A.
6. The respondent side/ insurance company examined four witnesses.
6.1 R2W1, Anuj Kumar, Investigator of the insurance company proved his report dated 09.03.2016 Ex.R2W1/2 and report dated 18.03.2016 Ex.R2W1/3.
6.2 R2W2, Sh. Irfan Ali, Medical Record Officer of Jeevan Anmol Hospital, Mayur Vihar, produced the dialysis record of Rajesh Kumar Ex.R2W2/A and relevant entries showing arrival of MACP No. 352/19; Nahir @ Nahid & Anr. Vs. Parveen & Anr. Page 3 of 10 patient in their hospital Ex.R2W2/B. 6.3 R2W3, Satish, examined being the complainant of the FIR.
6.4 R2W4, Shakil Amed, Dialysis Incharge, Jeevan Anmol Hospital, Mayur Vihar, Delhi, deposed about medical condition of respondent No.1.
7. This Tribunal also examined the IO of the case, SI (Retd.) Mehmood Hasan as TW1. He relied upon the documents i.e. statement of eyewitnss Satish Kumar Ex.TW1/A; MLC Ex.TW1/B; site plan Ex.TW1/C; seizure memo Ex.TW1/D; seizure memo of insurance policy and registration certificate as Ex.TW1/E and Ex.TW1/F and arrest memo of Rajesh Kumar Ex.TW1/G.
8. I have heard Sh. S.K. Chaudhary, learned counsel for petitioners and Sh. Rajnesh Kumar, learned counsel for respondent No.2/ insurer. Record of the case has also been perused.
ISSUE No.1
9. The mother of deceased (PW1 Nahid) deposed that on 14.01.2016, at about 05:30 p.m., while her son Master Ayan, aged about 4 years, was running on the side of Ambedkar Camp, 33 Block, Trilokpuri, Delhi, all of a sudden, offending car bearing registration no. DL14CB0458, being driven by respondent No.1 in rash and negligent manner, came and hit the child due to which he fell down on the road and came under right side wheel of the MACP No. 352/19; Nahir @ Nahid & Anr. Vs. Parveen & Anr. Page 4 of 10 offending vehicle. Further, she mentioned that after the accident, her child was shifted to LBS Hospital by the public persons and the driver of the offending vehicle and on the same day, he was taken by his father to Arogya Hospital, Vaishali, Ghaziabad, where he remained hospitalized for four days and succumbed to injuries on 17.01.2016. It is evident that this witness was not crossexamined by respondent No.1. In the crossexamination conducted on behalf of the insurance company, PW1 mentioned that she was around 15 steps away from the child when the accident took place and the place of accident was situated at a distance of about 30 meters from her house. On going through the entire crossexamination, it is found out that nothing could be extracted to rebut the testimony of PW1.
10. Though the learned counsel for insurance company argued that accident was caused by some other vehicle and investigation in this regard was conducted by the investigator (R2W), however, this witness has admitted that respondent No.1 had taken the injured/ deceased to LBS Hospital, where police was called and thereafter, case was registered. Further, he also mentioned in his affidavit that he has verified that respondent No.1 had paid ambulance charges of Rs.12,000/ as the injured was shifted to LBS Hospital, Delhi from Arogya Hospital, Ghaziabad. Moreover, R2W1 also clarified that respondent No.1 did not give any statement in writing regarding his MACP No. 352/19; Nahir @ Nahid & Anr. Vs. Parveen & Anr. Page 5 of 10 alleged false implication.
11. Further, insurance company called the complainant Satish as R2W3 and he mentioned that he did not see the accident. However, he mentioned that injured was shifted to hospital in the offending vehicle and further, clarified that he is the neighbor of LRs of deceased and respondent No.1. Considering the aforesaid testimony of complainant, it becomes clear that he reached at the accident spot after the accident and thus, he was not in position to rule out the involvement of respondent No.1 in the accident. Furthermore, the presence of respondent No.1 at the place of accident just after the accident is not in dispute and at the same time, it is also admitted fact that deceased was shifted to hospital in the offending vehicle. Furthermore, the insurance company's investigator R2W1 has verified that respondent No.1 had paid ambulance charges for shifting the injured from one hospital to another hospital. In view of this Court, though it may be accepted that respondent No.1 was requested to shift the injured in hospital on humanitarian ground but it is not believable that respondent No.1 would be asked to pay the ambulance charges after getting him admitted in LBS Hospital unless he was to blame for accident. The facts that the ambulance charges were paid by respondent No.1 for shifting the injured from one hospital to another and further that the injured was shifted to the first hospital in the offending vehicle MACP No. 352/19; Nahir @ Nahid & Anr. Vs. Parveen & Anr. Page 6 of 10 from the place of accident, are sufficient enough to indicate the involvement of the offending vehicle in the accident. Moreover, it is also noteworthy that respondent No.1 did not make any complaint whatsoever to police or any other authority regarding his false implication.
12. Further, MLC and postmortem report of deceased, filed along with the DAR, make it clear that his death was caused as a result of the injuries sustained by him in the accident.
13. In view of above, it is held that petitioners have been able to establish on the basis of preponderance of probabilities that deceased child Ayan died consequent to the injuries sustained in a motor vehicular accident caused due to rash and negligent driving of offending vehicle by the respondent no.1. Therefore, issue no.1 is decided in favour of the petitioners.
ISSUE NO. 214. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be pittance.
15. In Chetan Malhotra & Ors. Vs. Lala Ram & Ors., 2016 VIII AD(Delhi) 415, Hon'ble Delhi High Court provided method MACP No. 352/19; Nahir @ Nahid & Anr. Vs. Parveen & Anr. Page 7 of 10 of calculation of compensation in accident claim cases involving death of a child.
16. The accident in question had taken place on 14.01.2016 and therefore, Cost Inflation Index (CII) for the financial year 2015 16 would apply.
17. The inflation corrected notional income is computed as Rs.48,987/ (15,000 x 1081/ 331). As the age of the deceased was only 4 years, the multiplier of 10 applies. After deducting 1/3rd towards personal and living expenses, the pecuniary loss to estate is computed as Rs. 3,26,580/ (Rs.48,987 x 2/3 x 10). Adding an equivalent sum towards noncomposite pecuniary damages, the total compensation would come to Rs.6,53,160/ (Rs.3,26,580 x 2).
18. Petitioner have pursued the case diligently and therefore, they shall be entitled for interest @ 8% per annum on the aforesaid award amount from the date of filing of the petition till realization except the aforesaid period.
LIABILITY :
19. Now, the question arises as to which of the respondents is liable to pay the compensation amount. As insurance company has contractual and statutory liability to indemnify the insured and in this case, insurance company has not been able to prove that any term or condition of insurance policy was breached/ violated by insured, therefore, respondent no.2/ insurance company becomes MACP No. 352/19; Nahir @ Nahid & Anr. Vs. Parveen & Anr. Page 8 of 10 liable to pay the aforesaid compensation amount.
RELIEF:
20. The petitioners are awarded a compensation of Rs.6,53,000/ (rounded off from Rs.6,53,160/) along with interest @ 8% per annum w.e.f. date of filing of the petition till the date of realization. The respondent No.2/ insurer shall deposit the aforesaid award amount with this Tribunal within 30 days.
APPORTIONMENT & MODE OF DISBURSAL
21. The petitioner No.1 and 2, who are mother and father of deceased, respectively, shall be entitled to the award amount in the ratio of 60:40.
22. An amount of Rs.1,91,800/ out of Rs.3,91,800 (60% share of petitioner No.1) will be released to her and rest of her share of Rs.2 lakhs and interest will be secured in the form of fixed deposits, as per following schedule :
Sl No. Amount (Rs.) Period of FDR
1 50,000/ 01 year
2. 50,000/ 02 years
3 50,000/ 03 years
4. 50,000/ 04 years
5. Interest Component 05 years
23. Further, an amount of Rs.1,61,200/ out of Rs.2,61,200/ (40% share of petitioner No.2) will be released to him and balance MACP No. 352/19; Nahir @ Nahid & Anr. Vs. Parveen & Anr. Page 9 of 10 amount of Rs. One Lakh and interest will be secured in the form of fixed deposits, as per following schedule :
Sl No. Amount (Rs.) Period of FDR
1 50,000/ 01 year
2. 50,000/ 02 years
3 Interest Component 03 years
24. FormV in terms of MCTAP is annexed herewith as Annexure A. Copy of award be also sent to concerned MM and DLSA in view of clause 35 and 36 of MCTAP.
VIVEK Digitally signed
by VIVEK
KUMAR KUMAR GULIA
Date: 2021.07.29
GULIA 16:38:31 +0530
Announced in the open (Vivek Kumar Gulia)
Court on 27.07.2021 Presiding OfficerMACT (East)
(Total 10 pages) Karkardooma Courts, Delhi
MACP No. 352/19; Nahir @ Nahid & Anr. Vs. Parveen & Anr. Page 10 of 10