Delhi District Court
Smt. Gujrati Gupta & Ors . vs . Moshin & Ors. Dar No. 195/14 on 22 August, 2017
Digitally signed
by ANAND
ANAND SWAROOP
SWAROOP AGGARWAL
AGGARWAL Location: Delhi
Date: 2017.08.22
14:27:48 +0530
Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14
BEFORE MOTOR ACCIDENTS CLAIMS TRIBUNAL:
NORTHEAST DISTT. : KARKARDOOMA COURTS COMPLEX: DELHI
Presiding Officer: ANAND SWAROOP AGGARWAL: DHJS
Additional District & Sessions Judge: Delhi
DAR No. 195/14 FIR No. 587/14
ID No. 15341/15 P.S.: New Usmanpur
U/s. 279/304AIPC
In the matter of:
1. Smt. Gujrati Gupta W/o. Late Sh. Jhinku Ram , aged 54 years (Widow)
2. Kiran D/o.Late Sh. Jhinku Ram , aged 39 years (Married Daughter)
3. Krishna Devi D/o Late Sh. Jhinku Ram , aged 38 years (Married Daughter)
4. Subhash Chand S/o. Late Sh. Jhinku Ram , aged 37 years (Married Son)
5. Shashi Gupta D/o. Late Sh. Jhinku Ram , aged 36 years (Married Daughter)
6. Shravan Kumar S/o. Late Sh. Jhinku Ram , aged 32years (Married Son)
7. Pawan Kumar Gupta S/o.Late Sh. Jhinku Ram , aged 29 years (Unmarried Son)
8. Sunil Kumar S/o. Late Sh. Jhinku Ram , aged 26 years (Unmarried Son)
9. Anil Kumar S/o.Late Sh. Jhinku Ram , aged 24 years (Unmarried Son)
R/o. H. NO. D291, Gali No. 15, DBlock, Prem Vihar, Shiv Vihar, Karawal Nagar,
Delhi 110094.
Through:
Mr. Upender Singh, Adv. (Mobile No. 9810325185).
Chamber No. K56, Tis Hazari Courts, Delhi 110054
( details given in compliance with Clause 27 of
Modified Claims Tribunal Agreed Procedure) ....... Claimants
Versus
1. Moshin S/o. Sh. Riyajuddin,
R/o. D1566, Gali NO. 13,
Ashok Nagar, Shahdara, Delhi (DRIVER)
2. Dilshad S/o. Sh. Riyajuddin
R/o. D1566, Gali NO. 13,
D1 Block,Ashok Kumar(sic),Delhi (OWNER)
3. Reliance General Insurance Co. Ltd., (INSURER)
Plot No. 60, Okhla Industrial Estate
Phase3, Opp. SBI Bank, New Delhi.
......... Defendants
Page No. 1 of 18 (ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD / DELHI /22.08.2017
Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14
i) Date of institution of DAR : 11.11.2014
ii) Date when reserved for award : 11.08.2017
iii) Date of award : 22.08.2017
DETAILED ACCIDENT REPORT ATTRACTING SECTION 166 OF THE
MOTOR VEHICLES ACT, 1988
A W A R D
1.1 BRIEF FACTS AS PER FIR/DAR
On 23.06.2014 eye - witness Mr. Amit Kumar S/o. Ram Dayal was going to
Chandni Chowk Road via Pusta Road on his motorcycle for his personal work. When
at about 1.20 PM Mr. Amit Kumar reached at Pusta Road New Usmanpur, in the
meanwhile driver of Maruti Van No. DL9CJ 0648 overtook the motorcycle of Mr.
Amit Kumar from right hand side while driving the said Maruti Van rashly,
negligently, at high speed and in a zig - zag manner, and strongly hit against TVS XL
Super No. DL7SBR1323 which was coming from Som Bazar Gamri and draged its
driver to the extent of 4 - 5 steps. Mr. Amit Kumar parked his motorcycle and went
near to the injured and came to know that injured was his uncle (Mausa Ji) namely
Jinku Ram Gupta S/o. Chhote Lal Gupta R/o. D291, Gali No.15, Prem Vihar,
Karawal Nagar, Delhi. The injured was put in Maruti Van No. DL9CJ 0648 with
the help of public and driver of abovesaid Van for taking him to hospital but someone
had made a call at 100 No. and CATs Ambulance came at the spot immediately and
took the injured Jinku Ram Gupta to Jag Pravesh Chandra Hospital. The driver of the
abovesaid van escaped from the spot by taking benefit of crowd while leaving the
abovesaid Maruti Van at the place of accident. Mr. Amit Kumar had gone to Prem
Nagar, Karawal Nagar to intimate the family members and visited Jag Pravesh
Chandra Hospital with Mr. Subhash Chand Gupta and came to know that his uncle
Jinku Ram Gupta had expired.
Page No. 2 of 18 (ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD / DELHI /22.08.2017
Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14
Regarding the accident FIR No. 587/14, u/s. 279/304A IPC was registered at
P.S. New Usmanpur, Delhi. The investigation ended in filing of a chargesheet u/s.
279/304A IPC and section 3/181 of the Motor Vehicles Act, 1988 against Moseen
S/o. Riyajuddin / defendant no.1. Separate Kalandara u/s. 5/180 of the Motor
Vehicles Act, 1988 was also prepared against defendant no.2 / owner of the offending
vehicle.
2.1 STAND TAKEN BY DEFENDANTS NO. 1 & 2 IN THEIR COMMON WS.
Defendant no. 1 is the driver and defendant no. 2 is the owner of the vehicle
bearing no. DL 9CJ 0648 (Maruti Van) at the time of the accident as alleged. The
defendant no. 1 was having valid driving license and accident did not take place due
to any rash and negligent driving of the defendant no. 1. The deceased was the victim
of his own wrongs. The accident in question was caused due to the gross negligence,
and rash and negligent act of the deceased himself who was driving his mopet (sic) in
zik - zak (sic) manner without following the traffic rules. The defendant while driving
the vehicle bearing no. DL 9CJ 0648 (Maruti Van) has not caused any accident as
alleged. The vehicle TVS XL Super No. DL7SBR1323 was hit by any other
vehicle and defendant no.1 only dropped the injured (now deceased) to the hospital
and later on he has been falsely implicated by the police in this false case without any
cause or reason. Mr. Amit Gupta was not present at the time of alleged accident.
The vehicle bearing no. DL 9C J 0648 insured with the Reliance General
Insurance Company Ltd.
2.2 STAND TAKEN BY DEFENDANT NO. 3 IN ITS REPLY.
Defendant no. 3 in the WS admitted that vehicle bearing no. DL 9CJ 0648 in
the name of Mohd. Dilshad is insured with it vide policy no. 1316442347004668
valid from 19.03.2014 to 18.03.2015. The driver of the alleged offending vehicle was
Page No. 3 of 18 (ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD / DELHI /22.08.2017
Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14
not having any driving licence for driving the offending vehicle, which amounts to
breach of terms and conditions of policy and, therefore, defendant no.3 is not liable to
pay any compensation. As per MLC injured was 61 years old and no age or income
proof of injured has been filed.
3. ISSUES
Vide order dated 19.05.2015 following issues were framed :
(i) Whether deceased Jhinku Ram Gupta died on account of injuries sustained in
accident taking place on 23/06/2014 at about 1:20 PM at 4-1/2, Pusta, Main
Pusta Road, Usmanpur, Delhi within the jurisdiction of PS New Usman Pur
due to rash and negligent driving of vehicle bearing no. DL 9CJ 0648 by
respondent no. 1? OPP
(ii) Whether petitioners are entitled to compensation? If so, to what amount and from whom ? OPP
(iii) Relief.
4. EVIDENCE 4.1 Claimant no. 1 appeared in the witness box as PW 1 Ms. Gujrati Gupta and claimants also examined PW2 Amit Kumar.
4.2 Defendant no. 1 examined himself RW1 Mr. Moseen. Defendant no. 3 examined R3W1 Mr. Pramod Sah, Legal Manager, Reliance General Insurance Company Ltd. and R3W2 Mr. Nitin Nayyar, Legal Claims Manager, Reliance General Insurance Co. Ltd.
5. STATEMENTS OF CLAIMANTS UNDER CLAUSE 26 OF MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE.
On 16.05.2017 statements of all the claimants except Shravan Kumar were recorded. On 26.05.2017 statement of claimant no.6 Mr. Srawan Kumar was recorded under clause 26 of Modified Claims Tribunal Agreed Procedure.
6. ARGUMENTS Page No. 4 of 18 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /22.08.2017 Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14 I have heard Mr. Upender Singh, Advocate for claimant, Mr. Arun Gaur, Adv. for defendants no. 1 & 2 and Ms. Sadhna Chaudhary, Adv. for defendant no. 3.
7. My issuewise findings are as under: 7.1 ISSUE No. 1 Whether deceased Jhinku Ram Gupta died on account of injuries sustained in accident taking place on 23/06/2014 at about 1:20 PM at 4-1/2, Pusta, Main Pusta Road, Usmanpur, Delhi within the jurisdiction of PS New Usman Pur due to rash and negligent driving of vehicle bearing no. DL 9CJ 0648 by respondent no. 1? OPP HERE claimants have examined PW 2 Amit Kumar as an eye witness to the accident. PW 2 Amit Kumar has filed his examination in chief vide evidence affidavit Ex. PW 2/A containing following depositions: "2. I say that on 23.06.2014 I was going to Chandni Chowk Delhi form my house my house i.e. Karawal Nagar Delhi by my motor cycle via Pusta Road. At about 01:20 p.m. When I reached near 4, ½ Pusta Main Road Usmanpur Delhi, in the meanwhile a Maruti Van bearing registration No. DL9CJ0648, which was being driven by its driver at a very high speed, rashly, negligently and in a zigzag manner and without blowing any horn came from my right side and over take my motor cycle and then hit a motor cycle No. DL7SBR1323 (TVS) with a great force which was coming from Som Bazar, Gamri Road, for going towards 5 th Pusta, Gamri, Delhi. As a result of this motor cyclist fell down on the road along with the motor cycle and dragged for a distance 4 - 5 stapes by the driver of Maruti Van. The motor cyclist sustained grievous / fatal injuries. He was immediately taken to Jag Pravesh Hospital, Delhi by the Cat Ambulance, where his MLC No. 5104/2014 was prepared and doctor declared him as "brought dead". His post mortem was conducted at mortuary GTB Hospital, Dilshad Garden, Delhi by PMR No. 820/14.
3. I say that this accident was caused due to rash and negligent driving by the part of the driver of Maruti Van No. DL9CJ0648 and and FIR bearing no. 587/2014, dated - 23.06.2014, U/s - 279/304A IPC has been registered at PS - New Usmanpur, Delhi police recorded my statement regarding this accident. Had the Maruti Van driver been careful and cautious enough this accident could have been averted and the deceased would not have died an unnatural and untimely death in the Page No. 5 of 18 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /22.08.2017 Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14 accident."
In his cross examination by ld. counsel for defendants, PW 2 Amit Kumar has been made to depose as under:
"xxxx by Sh. Arun Gaur, Ld. Counsel for respondents no. 1 & 2.
I have not filed any document regarding running any mobile shop. I am doing the work of repairing of mobile. In the afternoon the traffic is not heavy. It is correct that there was a school situated near the place of incident. It is correct that the school used to close between 12:30 to 1:00 pm. It is wrong to suggest that the maruti van was being driven at a very slow speed as the school hours had closed and lot of children/student were leaving the school at that time. The deceased was driving TVS moped. It is wrong to suggest that the deceased himself could not control TVS moped due to rush of children on the spot and met with an accident by falling from his TVS moped. The deceased got injuries on his head and arms . The deceased was wearing helmet but it was not properly latched and when the accident occurred the helmet fell off from the head of the deceased and was lying besides the moped. It is correct that deceased was my neighbour. Deceased was my relative i.e (Mausa ji). I was at a distance of 10 steps from the deceased at the time of accident. I had not given any call on 100 number. IO did not obtained my signature on the site plan. IO did not collect any blood stains from the road at the place of the incident. IO did not call me for the purposes of investigation. I had myself gone to the IO on 06.07.2014. From the date of accident 23.06.2014 to 06.07.2014, I had not met the investigating officer nor I had told him anything regarding the accident during this period. On 06.07.2014 I had gone to PS at my own and saw the respondent no. 1 sitting there in the PS where I recognized him and told this fact to the IO. From 23.06.2014 to 06.07.2014 I had not told anything about the incident or about the identity of the driver to the IO. It is wrong to suggest that I am not an eye witness and deposing only to help the claimants as the deceased was my mausa ji.
xxxx by Ms. Sadhna Chaudhary, ld. Counsel for respondent no. 3.
The deceased was dragged only 4 to 5 steps. It is wrong to suggest that no dragging took place as the maruti van was at a very slow speed. I was not present on the place of incident when IO had reached the spot as I had followed the deceased when he was being taken to the hospital. My name does not find mention in PMR or MLC since the deceased was taken in CATS ambulance and I had gone to the hospital on my own bike. It is wrong to suggest that I was not present on the spot when the accident had taken place due to which my name does not find mention in any of the document as person accompanying the deceased and I am falsely deposing regarding my presence on the spot to create evidence since the deceased happened to be my close relative. The maruti van was being driven at a speed of 60 to 70 kmph. It stopped only after dragging the deceased to a distance of 45 paces. It is wrong to suggest that had the maruti van been driven at a speed of 6070 kmph., it could not have stopped merely at a distance of 45 paces".
In my considered opinion crossexamination of PW2 Amit Kumar has Page No. 6 of 18 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /22.08.2017 Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14 remained unfruitful from the view point of defendants as credit of PW2 Amit Kumar has remained unshaken in the course of his crossexamination. Defendant no.1 has also appeared in the witness box as RW1 Moseen, who in his crossexamination by ld. Counsel for claimants has deposed as under: "xxxxx by Mr. Mukesh Narain, Adv. for claimant.
It is correct that an FIR No. 587/14 u/s. 279/304A IPC dated 23.06.2014 PS New Usman Pur was registered against me. I was arrested by the police after 7 - 8 days of accident and I was released on bail. It is correct that a criminal case is pending u/s. 279/304A IPC and I am facing the criminal trial before Ld. MM. It is correct that my DL was also seized by the police. I have no any enmity or grudge with the IO of the case and injured. It is wrong to suggest that I have not filed any complaint to police authority or judicial magistrates regarding myself falsely implication in this case. I have not filed any application before the the Hon'ble High Court of Delhi for quashing the FIR registered against me. It is correct that I have not filed any complaint against IO of the case who arrested me regarding this accident. It is wrong to suggest that the accident took place due to my rash and negligent driving. It is wrong to suggest that the offending vehicle no. DL9CJ0648 Maruti Van was being driven by me in a very rash and negligent manner and hitted some motorcycle no. DL7SBR1323 due to which claimant sustained grievous injuries resulted to his death. It is wrong to suggest that I have filed false affidavit to save my liabilities being a driver of alleged offending vehicle. It is wrong to suggest that I am deposing falsely."
In the chargesheet itself there is mention about PW2 Amit Kumar being an eye witness to the accident. Mechanical Inspection Report of vehicle no. DL9CJ 0648 which was seized by IO from the place of accident on the date of accident also indicates towards possible involvement of said vehicle in the accident in question. In the totality of facts and circumstances of this case as are made out on the basis of material available on judicial file it can be said that accident did take place due to rash / negligent driving of vehicle no. DL9CJ0648 by defendant no.1.
As per MLC on record as a part of DAR deceased was declared brought dead at 1.55 pm on 23.06.2014. PMR mentions the cause of death as shock a result of antemortem injury due to head produced by blunt force impact. What is to be noted is that PW2 Mr. Amit Kumar in his crossexamination as deposed that, "... The Page No. 7 of 18 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /22.08.2017 Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14 deceased was wearing helmet but it was not properly latched and when the accident occurred the helmet fell off from the head of the deceased and was lying besides the moped....". If helmet is not properly latched the position is the same as if deceased was not wearing the helmet. Thus, even the deceased can be said to have contributed towards cause of his death. It is observed that there was contributory negligence to the extent of 50% on the part of deceased as to the cause of his death. ISSUE IS DECIDED ACCORDINGLY.
7.2 ISSUE NO. 2Whether petitioners are entitled to compensation? If so, to what amount and from whom ? OPP In view of my finding(s) on issue no.1, claimants are entitled to compensation u/s. 165 r/w. 166 of the Motor Vehicles Act, 1988. PW1 Mrs. Gujrati Gupta in her crossexamination by ld. counsel for defendants no.1 and 2 has deposed as under: "xxxx by Sh. Arun Gaur, Ld. Counsel for respondents no. 1 & 2.
I am 55 years old. I have not filed any document regarding the work of my deceased husband. I have also not filed document in relation to income or occupation of the deceased. It is correct that deceased was not an income tax payee. I have eight children. It is correct that all of my children are major. The daughters are married and sons are employed. I have not filed any document regarding the expenses of medical treatment, transportation and last rites of deceased. I am not an eye witness. I have not filed any proof of age of my deceased husband. The age 61 years of deceased was shown in the postmortem of the deceased. It is wrong to suggest that my husband used to be sick and due to his old age and sickness he was not working as a labourer. It is wrong to suggest that the deceased has died a natural death on account of his old age and ailment and not due to the accident. Xxxx by Ms. Sadhna Chaudhary, ld. Counsel for respondent no.3. Cross examination done by ld. Counsel for respondents no.1 & 2 adopted."
As per Ex.PW1/1 - Aadhar Card of deceased Jhinku Ram Gupta, which mentions his Year of Birth as 1958, age of deceased as on date of accident / death Page No. 8 of 18 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /22.08.2017 Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14 comes out to be 56 years and 6 months. As deposed by PW1 Mrs. Gujrati Gupta he was working as a Labour. But there is no document as regard income and occupation of deceased. Income of deceased can be assumed to be equivalent to minimum wages of a unskilled worker as on the date of accident (i.e. Rs.8554/ per month). Claimants 2 to 9 all are major. Daughters are married and sons are employed as deposed by PW 1 Mr. Gujrati Gupta. Marital status of being unmarried does not necessarily mean that claimants no. 7, 8 and 9 were dependents on the deceased; more so when PW1 Mrs. Gujrati Gupta has deposed that her sons are employed. Hence only the claimant no. 1 / wife of deceased can be said to be dependent upon the deceased. Dependent being only one, 50% deserves to be deducted towards personal and living expenses of deceased. The Hon'ble Supreme Court in Sarla Verma Vs. DTC 2009 (6) Scale 129 has observed that what would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon circumstances of each case. Claimant no.1 is not entitled to benefits of future prospects for want of proof of regular income or occupation of the deceased. Multiplier corresponding to the age of 56 years and 6 months is 9 as per Sarla Verma Vs. DTC 2009 (60 SCALE 129. In view of above discussion and finding as to contributory negligence as recorded while discussing issue no.1, claimant no.1 / claimants are held to be entitled following compensation under different heads: Sl. No. Particulars Amount in ₹ 1 Loss of dependency 2,30,958.00 (₹ 8554/ X 12 X 9 X 50% x 50%) 2 Loss of Consortium 1,00,000.00 (Claimant no.1 is wife of deceased) 3 Loss of Love and Affection towards claimants 1,00,000.00 no. 2 to 9 4 Loss of Estate 25,000.00 Page No. 9 of 18 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /22.08.2017 Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14 5 Loss of Funeral Expenses 25,000.00 Total 4,80,958.00 Rounded to 4,81,000.00 LIABILITY The vehicle no. DL9CJ0648 was insured with defendant no.3 as on the date of accident. But case of defendant no.3 is that defendant no.1 / driver of the offending vehicle at the time of accident was not having any DL authorising him to drive the offending vehicle. As per chargesheet, after his arrest, defendant no.1 did not produce his DL and, hence, section 3/181 of the Motor Vehicles Act, 1988 was added against defendant no.1 and separate Kalandara u/s. 5/180 of the Motor Vehicles Act, 1988 was prepared against defendant no.2.
On 19.05.2015 copy of DL no. 44313/TV/T/2010 in the name of Moseen S/D/W of RIAJUDDIN was filed by ld. Counsel for defendants no.1 and 2. One copy of DL was also given to be ld. counsel for defendant no.3. Also copy of DL was sent to IO with a direction to get it verified from Nagaland and file verification report. IO SI Kafil Ahmed furnished the report Ex.R3W1/4 (also Mark - A) to the effect that Ct. Manish 1727/N E was sent to Tuansang, Nagaland Authority for verification of DL and he has brought verification report dated 27October2015 issued by District Transport Officer, Tuensang: Nagaland to the effect that no record has been found / available in respect of the driving licence no. 44313/TV/T/2010 in the said office.
Defendant no.1 has appeared in the witness box as RW1 Mr. Moseen by tendering his examinationinchief vide evidence affidavit Ex.RW1/A containing depositions on the lines of averments made in common WS of the defendants no.1 and 2 and has relied upon Ex.RW1/1 - Aadhar Card of Mohsin; Ex.RW1/2 - DL No. 44313/TV/T/2010 in the name of Moseen S/o. Riajuddin; Ex.RW1/3 - RC of vehicle no. DL9CJ0648 in the name of defendant no.2 and Ex.RW1/4 Insurance Page No. 10 of 18 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /22.08.2017 Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14 policy. Regarding DL Ex. RW1/2 report of IO has already been referred to herein above. Also it is noted that Ex.RW1/2 mentions the Date of Birth as 16.02.1990 but on the aadhar card Ex.RW1/1 the Year of Birth is mentioned as: 1996.
Defendant no.1 / RW1 Moseen in his crossexamination by ld. Counsel for claimants and defendant no.3 has deposed as under: "xxxxx by Mr. Mukesh Narain, Adv. for claimant.
It is correct that an FIR No. 587/14 u/s. 279/304A IPC dated 23.06.2014 PS New Usman Pur was registered against me. I was arrested by the police after 7 - 8 days of accident and I was released on bail. It is correct that a criminal case is pending u/s. 279/304A IPC and I am facing the criminal trial before Ld. MM. It is correct that my DL was also seized by the police. I have no any enmity or grudge with the IO of the case and injured. It is wrong to suggest that I have not filed any complaint to police authority or judicial magistrates regarding myself falsely implication in this case. I have not filed any application before the the Hon'ble High Court of Delhi for quashing the FIR registered against me. It is correct that I have not filed any complaint against IO of the case who arrested me regarding this accident. It is wrong to suggest that the accident took place due to my rash and negligent driving. It is wrong to suggest that the offending vehicle no. DL9CJ0648 Maruti Van was being driven by me in a very rash and negligent manner and hitted some motorcycle no. DL7SBR1323 due to which claimant sustained grievous injuries resulted to his death. It is wrong to suggest that I have filed false affidavit to save my liabilities being a driver of alleged offending vehicle. It is wrong to suggest that I am deposing falsely.
xxxxx by Ms. Sadhna Chaudhary, Adv for defendant no.3 / insurance company.
My DL was seized after 6 7 days of accident. I do not remember how many days after accident I was arrested by the police. One or two days after my arrest, my DL was seized by the police. It is wrong to suggest that at the time of accident I was not in a position of DL and I was procured a fake DL to save myself from civil and criminal liabilities.
I had gone to Nagaland on 25.08.2013 for 10 days. After that I had come back to Delhi and had again gone to Nagaland after 3 months in order to get my DL. I had got my DL through a Broker. I do not know as to how much fees was deposited for getting my DL as the same was deposited by Mama ji. My Mama Nafees does not stay in Nagaland and Page No. 11 of 18 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /22.08.2017 Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14 he has no residential address in all over India. (Vol. He stays only in his truck.) Again said that my Mama Nafees drives truck from Delhi to Nagaland. I do not remember the registration no. of Truck of my Mama. Again said that the truck does not belongs to my Mama. I am not procured any driving test certificate from any driving institute since everyone is in my family involved in driving. My DL was issued on 21.07.2010. I am 27 years old.
It is wrong to suggest that I never possessed DL at any point of time and DL which I had produced before IO was somehow manipulated in connivance with some Broker illegally and DL is fake and forged. I cannot say whether any record of my DL is available in Nagaland, DTO and at the time of accident I was not in a possession of any DL and I am deposing falsely. The Maruti Van DL9CJ0648 is owned by my real brother Dilshad. It is wrong to suggest that my brother Dilshad, owner of Maruti Van was well aware of the facts that I was not holding any valid and effective DL but he still permitted me to drive the said vehicle.
I cannot show any fee receipt from Nagaland, DTO for getting my DL prepared. It is wrong to suggest that I am deposing falsely and I was not holding any valid and effective DL at the time of alleged accident." Date of 25.08.2013 as deposed by RW1 Moseen does not match with any of the dates as mentioned on Ex.RW1/2. RW1 Moseen in his crossexamination has deposed that his DL was seized after 6 - 7 days of accident. These depositions are not worth reliance inasmuch as defendant no.1 has been chargesheeted for the offence under section 3/181 of the Motor Vehicles Act, 1988 and also one Kalandara u/s. 5/180 of the Motor Vehicles Act, 1988 has also been filed against defendant no.2. It is not the case of defendant no.1 that he ever resided at GHS Road, Distt. Tuensang, Nagaland, which address is mentioned as 'Address' on Ex.RW1/2. This address even does not pertain to his 'Mama Ji'. Defendant no.1 got the DL - Ex.RW 1/2 through broker. Even as per Ex.R3W1/7 (Colly. with speed post envelope) for DL No. 44313/TV/T/2010 in the name of Moseen no record is found available in the office of PIO & District Transport Officer, Tuensang, Nagaland. ALSO, as per Ex.R3W1/1 after 30 October 2009 all the DLs have been issued on Smart Card but RW1/2 - DL issued on 21.07.2010 is not on Smart Card. This all suggest nothing Page No. 12 of 18 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /22.08.2017 Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14 but that DL Ex. RW1/2 relied upon by defendant no.1 is not genuine / is fake.
ALSO, it is noted that R3W1 - Mr. Pramod Sah in his evidence deposed as under: "On SA I am deposing on behalf of Reliance General Insurance Co. Ltd. being aware of the facts of the case on the basis of records available with us in this present case. Our ld counsel Ms. Sadhna Chaudhary had issued notice under Order XII Rule 8 r/w section 151 CPC and 3 / 4 Motor Vehicle Act to the owner of alleged offending vehicle DL - 9CJ0648 to produce the original insurance policy of said vehicle and the original DL of Driver Moseen. The notice was sent under registered AD its postal receipt is being filed alongwith the copy of notice sent as Ex.R3W1/1 and Ex.R3W1/2. The AD was not received back inspite of lapsing of one months period, therefore it will be presumed that notice was served on Dilshan s/o Riyasuddin. His advocate had also appeared in the court today and Moseen is present in the court. Inspite of being served notice to produce original policy cover and original DL have not been filed.
I am filing the attested copy of policy which is duly signed by me and same is Ex.R3W1/3. As per terms and conditions of policy cover issued, the insured could not have permitted any person not holding any valid and effective DL to drive the insured vehicle. The insured Dilshad was very much aware that his real brother was Moseen was not holding any valid and effective DL but he still permitted him to drive the alleged offending vehicle and, thus, committed breach of terms and conditions of the policy, therefore our company is not liable to pay any compensation on behalf of the insured.
As per Investigator Report, the DL of the Moseen is fake since no record of this DL was found available DTO Nagaland.
To this effect report of IO / SI Kafil Ahmed is also available on record which is Ex.R3W1/4.
Our company has also sought information through RTI from Govt. of Nagaland regarding DL No. 44313/TV/T/2010 in the name of Moseen which is Ex.R3W1/5 and postal dispatch receipt is Ex.R3W1/6. Reply to RTI was received through speed post to the company which is Ex. R3W1/7 (colly with speed post envelope). As per this report as well no record of DL No. 44313/TV/T/2010 in the name of Moseen was found in the office of DTO, Tuensang, Nagaland - 798612. Thus, it is clear that Moseen has produced a fake DL and, thus, insurance company is absolved of its liabilities to compensate if any.
Page No. 13 of 18 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /22.08.2017 Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14 xxxxxx by Mr. Mukesh Narain, Adv. for claimant.
It is wrong to suggest that I am deposing just to skip of my liabilities as insurer of vehicle.
xxxxxx by D1 and D2.
Initially ld counsel for D1 and D2 appeared during the course of evidence of Moseen, D1 but he left the court and did not appear despite wait till 3.10 p.m. for cross examination of this witness".
Despite notices Ex.R3W1/1 and R3W1/2 defendants have not produced any other valid and effective DL of the defendant no.1 authorising him to drive the offending vehicle as on the date of accident. FURTHER defendant no.2 has not appeared in the witness box to explain the circumstances under which defendant no.1 happened to be the driver of the offending vehicle at the time of accident while he was not holding any valid and effective driving licence authorising him to drive the offending vehicle. Here both the defendants no.1 and 2 are real brothers residing at the same address. Thus, in the totality of the facts and circumstances of this case defendant no.2 can be said to be having the knowledge about defendant no.1 not having any DL authorising him to drive the offending vehicle. Thus, it is observed that there has been wilful and conscious breach of terms and conditions of insurance policy by defendant no.2. Defendant no.3 is to first discharge its statutory liability towards claimants and is entitled to recover the awarded amount from the defendants no.1 and 2 jointly and severally.
7.3 ISSUE No.3: Relief.
Claimants are entitled to compensation to the tune of ₹4,81,000.00. It is held that claimants are entitled to receive the abovesaid compensation with interest @ 9% per annum from the date of filing of claim petition (11.11.2014) till the date of notice of deposit of awarded amount inclusive of interest with this tribunal by defendant no. 3 to claimants with copy of ld. counsel for claimants.
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Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14
If award is not complied with within 30 days from today, defendant no. 3 shall be liable to pay interest @ 12% per annum on the abovementioned sum (i.e. ₹4,81,000.00.) for the default period. After satisfying the award defendant no.3 shall be entitled to recover the awarded amount from defendants no.1 and 2 jointly and severally.
Shares of the claimants in the facts and circumstances of this case are determined as 72%, 3.5%, 3.5%, 3.5%, 3.5%, 3.5%, 3.5%, 3.5% and 3.5%, respectively, of the total awarded amount. Defendant no. 3 is directed to deposit with this tribunal the share of each of the claimants in above terms by issuing separate cheques for each claimant in the name of UCO Bank, Karkardooma Courts, Delhi C/o. Name of the claimant (MACTNE).
Out of the share of claimant no.1, Rs. 2,80,000/ shall be kept in 40 monthly FDRs each for Rs.7,000/ for 1 month to 40 months respectively with cumulative interest and remaining amount shall be released to her by crediting the same in her account details of which are given in document Mark M2 in the course of her examination under clause 26 of MCTAP. Shares of claimants no. 2 to 9 shall be released to them at once.
FDRs shall be subject to the following conditions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a statement containing FDR number, FDR amount, date of maturity of FDR shall be given to claimant no.1. Maturity amount of the FDRs shall be released to the claimant no.1 month by month by automatically crediting the same in the abovesaid bank account of claimant no. 1 details of which are given in document Mark M2.
(ii) The maturity amount of the FDR be credited in the saving account of the claimant(s) near the place of their residence.
(iii) No cheque book be issued to the claimant in the savings bank account
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Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14
without permission of the Court.
(iv) No loan, advance or withdrawal be allowed on the fixed deposits without
permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings
bank account of fixed deposit accounts of the victim.
8. Copy of award alongwith court stamped copy of photographs, specimen signatures, proof of residence and bank account details of claimants be sent to the Nodal Officer, UCO Bank, Karkardooma Courts, Delhi by the Ahlmad.
9. Put up for compliance on 22.09.2017. Also defendant no. 3 shall file on record proof of deposit of award amount, notice of deposit and calculation of interest.
10. Attested copies of the award be furnished to the concerned parties for compliance. Also certified copy of the award be sent to DLSA and Ld. MM.
11. FormIV to the Modified Claims Tribunal Agreed Procedure is attached herewith as Annexure A.
12. File be consigned to record room.
Pronounced in Open Court on 22.08.2017
(ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD COURTS / DELHI
Page No. 16 of 18 (ANAND SWAROOP AGGARWAL)
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Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14
Annexure A
FORM - IV
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE AWARD
1. Date of accident 23.06.2014
2. Date of intimation of the accident by the Investigating Not applicable as DAR filed on Officer to the Claims Tribunal. (Clause 2) 11.11.2014 (i.e. prior to 12.12.2014 when MCTAP came into existence)
3. Date of intimation of the accident by the Investigating do Officer to the Insurance Company. (Clause 2)
4. Date of filing of Report under Section 173 Cr. P. C. do before the Metropolitan Magistrate. (Clause 10)
5. Date of filing of Detailed Accident Information Report do (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the Insurance Company do (Clause 11)
7. Date of service of DAR on the claimant(s) (Clause 11) do
8. Whether DAR was complete in all respects? (Clause do
16)
9. If not, state deficiencies in the DAR do
10. Whether the police has verified the documents filed do with DAR (Clause 4)
11. Whether there was any delay or deficiency on the part do of the Investigating Officer? If so, whether any action / direction warranted?
12. Date of appointment of the Designated Officer by the do Insurance Company. (Clause 19)
13. Name, address and contact number of the Designated do Officer of the Insurance Company. (Clause 19)
14. Whether the Designated Officer of the Insurance do Company submitted his report within 30 days of the Page No. 17 of 18 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /22.08.2017 Smt. Gujrati Gupta & Ors . Vs. Moshin & Ors. DAR No. 195/14 DAR? (Clause 21)
15. Whether the Insurance Company admitted the do liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law. (Clause 22)
16. Whether there was any delay or deficiency on the part do of the Designated Officer of the Insurance Company? If so, whether any action / direction warranted?
17. Date of response of the claimant(s) to the officer of do the Insurance Company. (Clause 23)
18. Date of the award 22.08.2017
19. Whether the award was passed with the consent of the No. parties? (Clause 22)
20. Whether the claimant(s) examined at the time of Yes. passing of the award to ascertain his / their financial condition? (Clause 26)
21. Whether the photographs, specimen signatures, proof Yes. of residence and particulars of bank account of the injured / legal heirs of the deceased taken at the time of passing of the award? (Clause 26)
22. Mode of disbursement of the award amount to the Monthly FDRs / One time release claimant(s). (Clause 28)
23. Next Date of compliance of the award. 22.09.2017 (Clause 30) (ANAND SWAROOP AGGARWAL) P.O. MACT(NorthEast), KKD Delhi Page No. 18 of 18 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /22.08.2017