Delhi District Court
Chander Pal Singh & Ors. vs . Rajender Singh & Anr. Mact No. R01/15 on 31 July, 2017
Digitally signed by
ANAND ANAND SWAROOP
AGGARWAL
SWAROOP Location: Delhi
AGGARWAL Date: 2017.07.31
18:04:53 +0530
Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15
BEFORE MOTOR ACCIDENTS CLAIMS TRIBUNAL:
NORTHEAST DISTT. : KARKARDOOMA COURTS COMPLEX: DELHI
Presiding Officer: ANAND SWAROOP AGGARWAL: DHJS
Additional District & Sessions Judge: Delhi
MACT No. R01/15 DD No.48 dtd. 20.03.05
ID No. 15035/15 P.S. Kasna
Distt. G. B. Nagar
In the matter of:
1. Chander Pal Singh S/o. Late Shri Babu Singh. (FATHER)
2. Smt. Mahendri Devi W/o. Shri Chander Pal Singh. (MOTHER)
3. Smt. Archana W/o. Late Shri Kapil Kumar. (WIFE)
4. Miss. Arpita, (Minor aged about one year 8 months) (DAUGHTER)
D/o. Late Shri Kapil Kumar,
(through her next friend /
natural mother / Claimant No.3)
All resident of :
H. No. D92, West Jyoti Nagar Extension,
Durgapuri Chowk, Shahdara,
Delhi 110094. ....... Claimants
Versus
1. Rajender Singh S/o. Shri Mohar Singh
R/o. H. No. B450, Dr. Ambedkar Nagar, SectorI,
New Delhi 110062.
2. ICICI Lombard (INSURANCE Co.)
Birla Tower, 5th Floor, 25 Bara Khamba Road,
New Delhi 110001.
...... Defendants
i) Date of institution of Claim Petition : 01.06.2005
ii) Date of decision : 06.02.2007
iii) Date when received back as remanded by
Hon'ble High Court : 23.03.2015
iv) Date when reserved for award : 24.07.2017
v) Date of award : 31.07.2017
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CLAIM PETITION U/S. 166 & 140 OF MOTOR VEHICLES ACT, 1988
A W A R D
1. CASE OF CLAIMANTS AS PLEADED IN CLAIM PETITION
1.1. The deceased Kapil Kumar was carrying his business of health club (Gym) at
C86, West Jyoti Nagar Extension, Shahdara, Delhi 110094 and at present his net
monthly income was Rs.9050/ per month as per income Tax Return. The yearly
income of the deceased was increasing yearly and this fact can be compared from the
last three years Income Tax returns filed by the deceased. The defendant no.1 being
friend of the deceased was having close relations with him. The defendant no.1
purchased a car bearing number DL3CAK 2247 Make Honda City Exi. M.T. from
M/s Saket Motors Pvt. Ltd. Plot No.71 Mohan Cooperative Industrial Estate,
Badarpur, Mathura Road, New Delhi 110044 on 19.03.2005. The delivery of the
vehicle was taken on 20.03.2005 from M/s. Saket Motors Pvt. Ltd. The said car was
being driven by Mr. Kapil Kumar (since deceased) from the aforesaid showroom to
B78, Jalvayu Vihar Complex, Near Senior Citizen Complex, Greater Noida U.P. for
the ceremony of newly purchased car by the family members of the defendant no.1.
Mr. Kapil Kumar was having a valid driving license. The defendant no.1 was going
behind his friend Mr. Kapil Kumar (since deceased) in his another own car. When
defendant no.1 reached near Village Jhhatta Badoli, P.S. Kasna, District Gautam
Budh Nagar U.P. on Taj Express Highway (Greater Noida) U.P., he saw that his
newly purchased DL3CAK 2247 Make Honda City Exi. M. T. was burning on the
road and Mr. Kapil Kumar was inside the car at driver seat. The defendant no.1 made
efforts with the help of some passerbys to extinguish the fire and to save the vehicle
and his friend Mr. Kapil Kumar but could not succeed. The vehicle was completely
brunt and friend of the defendant no.1 named Mr. Kapil Kumar died at the spot. In
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this regard a report was lodged with the police of police station Kasna, Greater Noida
U.P. by defendant no.1 and he informed the family members of the deceased on
telephone. Postmortem of Mr. Kapil Kumar was conducted in Government Hospital
Noida U.P.
1.2. The deceased was a young boy of aged 27 years and was having good business
income, which was increasing yearly. At present yearly income of the deceased was
1,08,623/ as Income Tax Return for the assessment year 200405. This income was
to be increased by month to month every year.
1.3. The deceased was living with his parents alongwith his wife and minor
daughter. The marriage of the deceased was solemnized on 9th December, 2002 with
the claimant no.3 according to Hindu rites and ceremonies.
1.4. There is longevity of the age in the family of the deceased. If the death of the
deceased was not caused by this accident he was to alive till the age of 90 years at
least. The deceased opened a new (Health Club) World Gym No.2 at premises no. 303
Village Karawal Nagar, Delhi110094 few month before his death and there was
every likelihood to increase his monthly income by that business. There may be a
monthly income of Rs.9000/ at least per month from World Gym No.2 to the
deceased.
1.5. The deceased was of sound health, young boy and was to earn more than Fifty
Crores rupees in his life time for financial help of the claimants.
1.6. The claimants are living at the given address in Delhi.
1.7. The deceased was maintaining his wife and minor daughter and was paying
cash amount and other items to the claimants no.1 & 2 from time to time as per family
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customs on the occasions of festivals and functions.
1.8. The claimants have suffered mental agony which can not be compensated. The
claimants claim Rs. Twenty Lacs for their mental agony.
1.9. The claimants have spent money on bringing dead body of the deceased from
mortuary District Gautam Budh Nagar U.P. to Delhi and cremated the same and, thus,
spent more than Rs.10,000/.
1.10. The accident was caused all of a sudden at the time of driving of the newly
purchased car. Car catched the fire and brunt 100% at the spot and Mr. Kapil Kumar
died at the spot due 100% burn injuries on his person.
1.11. The defendant no.1 is the registered owner of the Car DL3CAK 2247 Make
Honda City Exi. M. T. and defendant no.2 is the insurer of the vehicle involved in the
accident. Both the defendants are vicariously liable to pay the compensation amount
to the claimants.
Claimants have claimed Rs.60,00,000/ as compensation in their favour and
against the defendants with interest from the date of filing of petition and cost of the
proceedings.
2. STAND TAKEN BY defendant no.1 IN HIS WS
Admittedly defendant no.1 had purchased new car as alleged in claim petition.
Before taking delivery of the vehicle, the vehicle was insured comprehensively with
defendant no.2 for the period for 19.03.2005 to 18.03.2006. On 20.03.2005 delivery
of vehicle no. DL3CAK 2247 was taken by defendant no.1. After the taking of the
delivery by defendant no.1, Mr. Kapil Kumar (since deceased), who was a friend and
with whom defendant no.1 also had business dealings, desired to drive the new
vehicle first. As per his wish the defendant no.1 agreed and permitted him to drive his
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new vehicle to B78, Jalvayu Vihar Complex, Greater Noida (U.P.) for performing the
ceremony of newly purchased car by the family members of defendant no.1.
Defendant no.1 was following the said car by another car 'Alto'. When defendant no.1
reached near Village Jhhatta Badali, P.S. Kasna, District - Gautam Budh Nagar, U.P.
on Taj Express Highway (Greater Noida) U.P., he saw that his newly purchased car
was burning on road and his friend Mr. Kapil Kumar (since deceased) was inside the
car at the driving seat. Defendant no.1 alongwith passerbys tried his best to extinguish
the fire to save the vehicle and his friend but failed. The vehicle was completely burnt
and his friend also died inside the car. Defendant no.1 immediately lodged the report
with at Police Station Kasna, Greater Noida, U.P. Defendant no.2 and claimant no.1
were informed about the aforesaid incidence of fire and damage caused to the vehicle
and the death of said Mr. Kapil Kumar.
Defendant no.1 appointed Mr. Avinash Kumar, Surveyor and Accessor to
access the nature and cause of the fire and extent of damage/loss caused to the said
vehicle but did not settle the claim of defendant no.1 despite legal notices dated
19.04.2005 and 14.10.2005. A complaint no.04/2006 has been filed by defendant no.1
before District Consumer Dispute Redressal Forum, New Delhi against defendant
no.2.
The claim petition does not shows any cause of action against the defendant
no.1 and, hence, his name is liable to be struck off from the array of parties. There
was no contractual relationship such as employer employee etc. between defendant
no.1 and Mr. Kapil Kumar (since deceased), and Mr. Kapil Kumar (since deceased)
was driving the vehicle of defendant no.1 at his own sweet will. The vehicle was fully
insured with defendant no.2. Claim Petition is liable to be dismissed against defendant
no.1.
The deceased was earning handsomely. Admittedly he had opened a new
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(Health Club) World Gym No.2, as alleged.
3. STAND TAKEN BY DEFENDANT NO.2 IN ITS WS
As per Claim Petition there are no pleadings or averments of rash and
negligent driving and, therefore, Claim Petition is not maintainable u/s. 166 of the
Motor Vehicles Act, 1988. As per terms and conditions of the Insurance Policy in
question, the driver of vehicle no. DL3CAK2247 is not a third party and, as such,
such type of risk is not covered under the Insurance Policy in question. As per the
terms and conditions of the Insurance Policy, the deceased driver of the said vehicle
while driving the vehicle is considered to be insured himself at the time of accident
and, hence, insured himself cannot claim compensation for his death from defendant
no.2 under the Motor Vehicles Act, 1988. The Claim Petition is not maintainable as
there is no relationship of master and servant between defendant no.1 and the
deceased.
The defendant no.2 is not liable to pay any amount of compensation to the
claimants as at the time of alleged accident the deceased driver of vehicle no. DL
3CAK2247 was not holding a valid and effective driving licence and this fact was
within the knowledge of the insured/defendant no.1. Accordingly defendant no.1 has
intentionally committed breach of terms and conditions of Insurance Policy and,
therefore, defendant no.2 is not liable to indemnify the insured under the policy.
The vehicle no. DL3CAK2247 was insured with defendant no.2 vide Policy
No.3001/1095054/00/000 issued for the period from 19.03.2005 to 18.03.2006.
However its liability is subject to various objections raised in the WS.
4. ISSUE
On 22.04.2006 following order was passed by ld. predecessor of this tribunal:
"22.04.06.
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Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15
Present : Sh. Rajinder Singh, Counsel for petitioners.
Sh. J.G. Garg, Counsel for R1.
Sh. Ragib, Counsel for R2.
Heard the Ld. Counsel on the issues. Ld. Counsel for R2
submits that petition is not maintainable U/s 166 of MV Act. Ld.
Counsel for the petitioner submits that this would not preclude the
petitioners claiming compensation considering the fact that Kapil
Kumar, died in the usage of the vehicle belonged to R1, insured by R
2. I find force in the submissions of Mr. Ragib, that the petition is not
maintainable U/s 166 of MV Act, but the same is maintainable U/s
163A of MV Act. Accordingly, the same is considered so. Since, the
pleadings are complete, the following issues are framed :
1. Whether the petitioners prove that they are the legal
representatives of the deceased Kapil Kumar ?
2. Whether the petitioners prove that the deceased died in the
road accident which occurred on 20.03.2005, during the usage of the
vehicle bearing number DL3CAK2247, belonged to R1 ?
3. Whether the petitioners are entitled for any compensation, if
so, to what amount and from whom ?
4. Relief.
Today, petitioner number 1 is present. The affidavit is filed.
Hence, the matter is taken up for PE.
PW is examined and discharged. PE is closed as submitted.
R1 has no evidence as submitted. Hence, RE is closed on behalf of R
1.
Put up for RC, if any, on behalf of R2 by 02.06.06."
4A. APPLICATION OF CLAIMANTS FOR REVIEW OF ORDER DATED
22.04.2006.
On 02.06.2006 ld. counsel for claimants moved an application for review of
order dated 22.04.2006 and praying to treat the petition u/s. 165/166 & 140 of M.V.
Act 1988 in the interest of justice. The ld. predecessor of this tribunal ordered on
02.06.2006 that this application will be heard alongwith the main petition.
5. EVIDENCE
Claimant no.1 appeared in the witness box as PW1 Chander Pal Singh and
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claimants evidence was closed on 22.04.2006 by ld. counsel for claimants. On
22.04.2006 ld. counsel for defendant no.1 submitted that defendant no.1 has no
evidence. Vide order dated 08.08.2006 legal notice addressed to defendant no.1 and
postal receipt was marked as Ex. RW2/1 and the copy of policy as Ex. R2W2/2.
Defendant no.2 examined R2W1 Pratush Kumar and closed its evidence.
6. STATEMENT OF CLAIMANT NO.3 SMT. ARCHANA
On 21.08.2006 following order was passed:
"21.08.06
Present : Sh. Rajinder Singh, Counsel for petitioner.
Sh. J.G. Garg, Counsel for R1.
None for R2.
The matter is now posted for orders. At this stage, petitioner
number 3 is present in person. She submits that her statement may be
recorded. In view of the above, the statement of Archana, is being
record on oath as under.
Statement of Archana, W/o Sh. Harit Chaudhary, Age 24 years, R/o A
19, New Modern Shahdara, Delhi.
On S.A.
I am the petitioner number 3 in the above case. Petitioner
number 4 Arpita, is my minor daughter. I was married to deceased
Kapil Kumar, in the year 2002. Arpita, is the daughter born to me
through the above wedlock. Kapil Kumar, died in the road accident in
the year March, 2005.
I was remarried to Harit Chaudhary, in the month of June,
2005. Arpita, is in the care and custody or petitioner number 1
Chander Pal Singh. The Arpita, is adopted fraudulently by petitioner
number 1. I have not taken any steps so far for the custody of my
daughter. After my remarriage I did not go to see my daughter since
they would quarrel with me. I have taken the insurance policy claim
amount Rs.4,20,000/ of my deceased husband Kapil Kumar. I have
not parted any share on these amounts to the parents of deceased
Kapil Kumar. I want the share of compensation concerning the death
of Kapil Kumar, in the accident. Petitioner number 1 is drawing heavy
salary. He is having good properties. They have also got transferred
the properties in the name of petitioner number 1 which was earlier in
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the name of Kapil Kumar.
My second husband Harit Chaudhary, is the son of the
brother of petitioner number 1 and I was remarried at the instance of
petitioner number 1. I also volunteered to remarriage.
Sd/ Sd/
RO&AC PO : MACT / 21.08.06.
In view of the above, the petitioner number 3 is permitted to engage a
counsel of her choice and put up this matter for hearing by
06.10.2006.
Sd/
PO : MACT / 21.08.2006."
7. JUDGMENT DATED 06.02.2007.
On 06.02.2007 ld. predecessor of this tribunal passed the following
Judgment :
"IN THE COURT OF SH A.S. JAYACHANDRA
PO : MACT : KKD : DELHI
DATE OF FILING : 01.06.2005
ARGUMENTS CONCLUDED ON 23.02.2007
JUDGMENT DELIVERED ON 06.02.2007
MACT No. 242/05
IN THE MATTER OF :
1. Shri Chander Pal Singh,
S/o Late Shri Babu Singh
2. Smt. Mahendri Devi,
W/o Shri Chander Pal Singh
3. Smt. Archana
W/o Late Shri Kapil Kmar
4. Miss. Arpita, (minor aged 8 months)
D/o Late Shri Kapil Kmar
(Through her natural guardian/mother/Petitioner Number 3)
All resident of :
H.No. D92, West Jyoti Nagar Extension,
Durgapuri Chowk,
Shahdara,
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Delhi 110094 ....... Petitioners
versus
1. Shri Rajender Singh,
S/o Shri Mohar Singh,
R/o H. No. B450
Dr. Ambedkar Nagar,SectorI,
New Delhi 110062
2. ICICI Lombard
Birla Tower, 5th Floor
25 Bara Khamba Road,
New Delhi 110001 ........ Respondents
J U D G M E N T
1. The claimants have claimed the compensation for a sum of Rs.60,00,000/ towards the death of one Kapil Kumar, aged 27 years. The petition allegations are that while on 20.03.2005, the deceased along with his family members and his friend i.e., respondent number 1 were going to Greater Noida for the celebration of the new Honda City Car bearing number DL3CAK2247 purchased by respondent number 1 and the said Car was being driven by deceased. The respondent number 1 was going behind the deceased in another Car. When the respondent number 1 reached on Taj Express Highway (Greater Noida), UP, saw that his newly purchased Car bearing number DL3CAK2247 was burning and the deceased was inside of the Car at driver seat. The respondent number 1 made efforts to extinguish the fire in the Car and rescue the deceased but in vain. The vehicle was completely burnt and the deceased died at the spot.
2. The respondent number 1 is the owner of the said Car and the respondent number 2 is the insurer of the said Car. After service of notice, both the respondents filed their respective written statements. In its WS, the respondent number 1 denied his liability but admitted the incident, driving of the said Car by the deceased, the subsequent death of Kapil Kumar. The respondent number 2 admitted the policy as covering the date of accident. On 22.04.06, ld. Counsel for the Ins. Co. submitted that the petition is not maintainable U/s 166 MV Act. Ld. Counsel for petitioners submitted that the deceased died in the course of usage of the said Car. Accordingly, the petition was converted into U/s 163A MV Act. The following issues were framed on the same day :
1) Whether the petitioners prove that they are the legal representatives of the deceased Kapil Kumar ?
2) Whether the petitioners prove that the deceased died in the road accident which occurred on 20.03.2005, during the usage of the vehicle bearing number DL3CAK2247, belonged to R1 ?
3) Whether the petitioners are entitled for any compensation, if so, to what amount and from whom ?
4) Relief. Page No. 10 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15
3. After framing of the issues, the petitioners examined PW 1 through affidavit and closed their side. There is no evidence on behalf of respondent number 1 and the respondent number 2 examined only one witness and closed its side. The matter was heard.
4. In the light of the available documentary and oral evidence, I proceed to answer the issues as under :
ISSUE NUMBER 1 : In the petition, one of the claimants have stated that the claimants are the near relatives and the LRs of the deceased. The relationship is also described at para 20. There is nothing in cross examination to disbelieve the relationship of the claimants of the deceased. Hence, I have no hesitation to hold that the petitioners are LRs of the deceased Kapil Kumar.
ISSUE NUMBER 2 : PW 1, Chander Pal Singh, the father of the deceased deposed through affidavit at Ex. P1 that deceased Kapil Kumar, was his son and carrying the business of GYM Health Club earning Rs.9,050/ p.m. His son was an incometax payee. On 20.03.2005, the deceased along with his family members and his friend i.e., respondent number 1 were going to Greater Noida for the celebration of the new Honda City Car bearing number DL3CAK2247 purchased by respondent number 1 and the said Car was being driven by deceased. The respondent number was going behind the deceased in his own another Car. When the respondent number 1 reached on Taj Express Highway (Greater Noida), UP, saw that his newly purchased Car bearing number DL3CAK2247 was burning and the deceased was inside of the Car at driver seat. The respondent number 1 made efforts to extinguish the fire in the Car but in vain. The vehicle completely was burnt and the deceased diet at the spot. He produced the attested copy of PMR of the deceased at Ex. PW 1/A and the certified police record (DD entry) at Ex. PW 1/B, the certified duplicate death certificate at Ex. PW 1/C, the birth certificate of petitioner number 3 (the daughter of the deceased) at Ex. PW 1/D, the education record of my son is at Ex. PW1/E, the D/I, of the deceased at Ex. PW 1/F. This witness was not crossexamined by R1. In the crossexamination on behalf of R2, this witness admitted the nonproduction of any proof to show the avocation of the deceased and volunteered that the income tax returns of his son were filed. In view of the above, I have gone through the attested photocopy of the DD entry at Ex. PW 1/B and it is apparent that on 20.03.2005, the deceased died due to the burning of the said Car in the course of the usage of the Page No. 11 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15 same. The PMR at Ex. PW 1/A shows that the deceased died due to 100% burn injuries. Furthermore, the entire incident is admitted by R1. Hence, issue number 1 is answered in favour of the petitioners and against the respondents.
ISSUE NUMBER 3 : Considering that the petition is converted under 163A MV Act, I take the income of the deceased at the maximum Rs.40,000/ p.a., as provided under the Schedule to the Act. The date of birth of the deceased is 21.03.1978 as is seen from Ex. PW 1/E, hence, the multiplier applicable in this case is 18 as per the Schedule. Thus, the loss of dependency comes to Rs.4,80,000/ (40,000 X 18 = 7,20,000/ less once third towards the personal expenses of the deceased). Apart from the above, the petitioners are also entitled for expenses on transportation of dead body, funeral expenses, loss of estate at Rs. 5,000/ each and petitioner number 3 for loss of consortium at Rs. 5,000/. The total compensation payable comes to Rs.5,00,000/ (RUPEES FIVE LAC ONLY).
LIABILITY : The respondent number 2 has examined Partush Kumar, Manager of R2 Co. He has produced Ex. R2W1/1. It is vehemently argued by the respondent Counsel that the deceased was not a third party as he himself was driving the vehicle and sustained injuries and, therefore, it was argued that there is no liability on the part of the Ins. Co. Reliance is placed on Deepal Girishbhai Soni & Ors. v. United India Ins. Co. Ltd., in Appeal (Civil) 3126/2002 decided on 18.03.2004. It was further contended Section 163A MV Act, would not come to the help of the person responsible for the accident. He relied on Appaji & Anr. v. M. Krishna & Anr., 2004 ACJ Kar. 1289. The citations are not supplied. I am unable to understand as to how the present petitioners are not third parties. The insurer and insured being the first and second parties, all the other persons would fall under third party category. It is not proved on record the deceased had no valid licence by the insurer.
U/s 163A MV Act, the owner and the insurer are liable to pay the compensation in respect of death or permanent disability arising out of an accident in the course of usage of motor vehicle. Therefore, I am unable to sail with the arguments of the Ins. Co. that no claim could be passed in this present case as the victim and the heirs of the victim fall under the category of third party.
In the ruling of Deepal Girishbhai Soni & Ors. Vs. United India, 1 (2004) ACC 728 (SC), it is held as under : Page No. 12 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15 "63. In section 163A, the expression notwithstanding anything contained in this Act or in any other law for the time being in force has been used, which goes to show that the Parliament intended to insert a non obstante clause of wide nature which would mean that the provisions of section 163A of the MV Act, would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to section 166 and the concept of social justice has been duly taken care of." Hence, the ruling relied by the Ins. Co.
is not helpful to their case. On the other hand, it is in favour of the petitioners.
Having held thus, the respondents 1 and 2 are jointly and severally liable to pay the compensation to the petitioners. The respondent number 2 being the insurer shall make good the compensation to the petitioners.
APPORTIONMENT : It is argued by the petitioner number 3 Smt. Archana, the widow of the deceased that petitioners 1 and 2 being the parents are not eligible to draw any compensation. On 21.08.2006, petitioner number 3 appeared in person and wanted her statement to be recorded. Accordingly, her statement on oath is recorded. She stated that she was married to the deceased in the year 2002 and minor petitioner number 4 is her daughter. She further stated that she got remarried with Harti Chaudhary and Arpita her daughter is in the care & custody of petitioner number 1 Chander Pal Singh. She further alleged that petitioner number 1 fraudulently adopted her minor child. She further deposed that she had already realised claim of insurance of her deceased husband at Rs4,20,000/ and that she had not parted any share to the parents of the deceased. It is also demanded by her that she be given a share since petitioner number 1 is having properties and is drawing good salary. Her second husband is the cousin of petitioner number 1. There is a dispute with regard to the eligibility and share interse among the petitioners. The petitioner number 3 relied on Balak Singh v. Union of India, 2006 ACJ 392 (HP) wherein it is held that the father of the deceased who was earning can not be said to be financially dependent but mother can be treated as a dependent. In Sandhaya & Others v. Navi Md. 2004 ACJ 1751 (MP), it is held that the wife of the deceased is entitled to the compensation. In Jamni Devi v. Somnath & Ors. 1998 ACJ 1071, moth is held to be entitled for entire compensation and father is held to be not dependent on the deceased being class II heir. In Shanti & Ors. v. Awadhnarain Jaiswal, 2006 ACJ Page No. 13 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15 1211 (MP), it is held that the father is not entitled to claim the compensation. In 2005 ACJ 1389 J & K, it is held that the widow remarrying can not be deprived of her share. It is held that simply because a widow is remarried can not be a ground for declining the compensation. The reasoning behind is that the inheretence never remains in abeyance and the rights of the widow are recognised on the date when her husband dies. In Sanjida Khatoon v. Md. Sher Ali, 2004 ACJ 1368, Jhar., it is held that the remarriage itself can not be a ground to deny but the share may get reduced. I have carefully gone through the above said decisions. It is to be borne in mind that petitioner number 3 the widow is remarried. The child born to her is in the care and custody of petitioner number 1 and 2. The legality or the morality of the vesting of the child can not be looked into by its Tribunal. Petitioner number 3 herself admits that the child is not in her custody. The petitioner number 1 is an earning member. At the same time, the petitioner number 3 widow was deprived of her expectations of life upon the first marriage with the deceased. The filial dependency is equal among all the petitioners qua the deceased. The economic dependency varies among them. It is the child who is the unfortunate victim having lost both the filial and economic dependency owing to the death of her father. In the result, I hold that the child be given the maximum share at 60%. The rulings relied by petitioner number 3 shows that the earning father can not be treated as dependent. However, considering the loss of filial dependency, the father and mother be given 10% share each of the compensation and the remaining 20% share be awarded in the favour of the widow (petitioner number 3) despite her remarriage. Issue number 3 is answered accordingly.
ISSUE NUMBER 4 : While granting the relief to the petitioners, I am also to award the interest @ 7.5% p.a., from the date of petition till the date of award (excepting for the periods not specifically allowed) following the ruling of Hon'ble Supreme Court in TNSTC vs. Raja Priya, 2005 ACJ, Page 1441. I also grant future interest @ 9% p.a., after one month of the award till realisation. Thus, issue number 4 is answered in favour of the petitioners and against the respondents.
5. In view of the above, I pass the following award :
A W A R D The petition is partly allowed.
Page No. 14 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15
Both the respondents are jointly and severally liable to pay the compensation as worked out above. However, the respondent number 2 being the insurer of the said Car is hereby directed to pay a compensation of Rs.5,00,000/ (RUPEES FIVE LAC ONLY) less interim award if any, within one month along with the interest @ 7.5% p.a., from the date of petition till the date of award (excepting for the periods not specifically allowed) to the petitioners towards the death of Kapil Kumar, in the road accident dated 20.03.2005.
Compensation amount be deposited within one month from today. Future interest @ 9% p.a., is awarded to the petitioners after one month from the date of award till realisation.
Ten percent share of the compensation be given to petitioners 1 and 2, twenty percent share to petitioner number 3 and sixty percent share to petitioner number 4 (minor). The fifty percent share of the petitioner number 1 to 3 be kept in FDR for the period of five years and the share of minor petitioner number 4 be kept in FDR till she attains the age of majority in any Nationalised Bank/LIC/Post Office/ A copy of the award portion be given free of cost to the parties concerned.
File be consigned to RR.
ANNOUNCED IN THE OPEN COURT Sd/
ON THE 6th DAY OF FEBRUARY, 2007 (A.S. JAYACHANDRA)
PO : MACT / KKD / DELHI"
8. MAC. APP. 303/2007: ICICI LOMBARD GENERAL
INSURANCE CO. LTD. VS. CHANDER PAL SINGH & ORS.:
Defendant no.2 ICICI Lombard General Insurance Company Ltd. challenged the judgment dated 06.02.2007 before Hon'ble High Court of Delhi. On 05.03.2015 Hon'ble High Court of Delhi passed the following Order : "O R D E R 05.03.2015
1. This appeal is directed against the judgment dated 06.02.2007 Page No. 15 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15 passed by the Motor Accident Claims Tribunal(the Claims Tribunal) whereby compensation of Rs.5,00,000/ was granted in favour of Respondents no.1 to 4 for the death of Kapil Kumar who suffered fatal injuries in a motor vehicular accident which occurred on 20.03.2005.
2. It is urged by the learned counsel for the Appellant (ICICI Lombard General Insurance Co. Ltd.) that the Appellant is not liable to pay the compensation at all as deceased Kapil Kumar himself was driving the vehicle at the time of the accident. He stepped into the shoes of the owner and he not being a third party, the Appellant is not liable to pay the compensation. Reliance is placed on Ningamma & Anr. v. United India Insurance Co. Ltd., (2009) 13 SCC 710 and Oriental Insurance Co. Ltd. v.
Rajni Devi & Ors., (2008) 5 SCC 736. It is urged that if the accident was caused on account of some mechanical defect in the vehicle the risk was not covered.
3. On the other hand, the learned counsel for Respondents no.1 to 4 states that by an order dated 22.04.2006, the Respondents had not given any consent to convert the petition to one under Section 163A of the Motor Vehicles Act, 1988. It was the Claims Tribunal itself who converted the petition suo moto under Section 163 A and then proceeded to award the compensation. It is stated that the issue of negligence was not even framed by the Claims Tribunal. It is urged that the impugned order cannot be sustained.
4. I am in agreement with the learned counsel for the Respondents (the Claimants) that the Claims Tribunal was not entitled to suo moto convert the Petition under Section 166 to one under Section 163 A of the M.V. Act. The impugned order therefore cannot be sustained.
5. Since this was a petition under Section 166 of the Motor Vehicles Act, 1988, the Claims Tribunal shall proceed and frame an issue if the accident was caused on account of negligence of the driver or the negligence of the owner of the vehicle and will thereafter proceed to determine the compensation.
6. The parties are directed to appear before the Claims Tribunal on 23.03.2015.
7. The Claims Tribunal shall endeavour to dispose of the claim petition within three months of the date of the appearance of the parties.
8. It may be noted that operation of the judgment dated 06.02.2007 Page No. 16 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15 was stayed by an order of this Court dated 22.05.2007. Subsequently, by an order dated 08.09.2009, the awarded amount of Rs.5,00,000/ was ordered to be deposited with UCO Bank, Delhi High Court Branch, New Delhi and a sum of Rs.50,000/ was ordered to be released to Respondents no. 1, 2 and 4 by transferring the said amount to their Saving Bank Account. If the amount has not been released, the same shall not be released to the Respondents. If any amount has been released, it shall be subject to the orders that may be passed by the Claims Tribunal. No further amount shall be released to the Respondents.
9. The amount deposited along with interest and the interest accrued during the pendency of the appeal shall be released to the Appellant Insurance Company forthwith.
10. The statutory amount, if any, deposited shall also be released to the Appellant Insurance Company.
11. Copy of the order be given dasti to the parties."
9. CASE REMANED BACK BY HON'BLE HIGH COURT.
9.1. APPLICATION U/o.1 RULE 10(2) r/w. S.151 CPC On 12.05.2015 claimants moved an application u/o. 1 Rule 10(2) r/w. S. 151 CPC for impleading M/s. Honda Cars India Ltd. as necessary party to present proceedings. On 28.08.2015 reply to this application was filed. On 04.12.2015 ld. predecessor of this tribunal passed the following order :
"MACT No. 01/15Chander Pal Singh Vs. Rajender Singh 04/12/2015 Present: None.
By this order I shall dispose off an application moved on behalf of petitioner u/o 1 rule 10 (2) r/w section 151 CPC for impleading M/s. Honda Cars India Ltd as party to the present petition. Present petition was remanded back by the order of Hon'ble High Court of Delhi dated 05/03/2015 and direction was given to frame issues as to whether accident was caused on account of negligence of the driver or owner of the vehicle. It is stated that surveyor report dated 24/11/2005 which was not available to the petitioner earlier, mentions that incident occurred due to internal fault in vehicle. Infact Honda City car bearing no. Dl 3CAK 2247 was purchased brand new and delivery of the same was taken by its owner namely Sh.
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Rajendra Singh and deceased was driving the said vehicle at the time of accident and the car was totally burnt on the spot. Car was burnt to the extent that same could not be repaired. It is stated that there was manufacturing defect / internal fault in the car of the deceased and the manufacturer M/s.Honda Cars India Ltd is necessary party to the present claim petition. Notice of the application was issued to the proposed respondent as well as to the respondents on record.
Reply has been filed on behalf of M/s. ICICI Lombard General Insurance Co. Ltd. In the reply it is stated that deceased was driving the vehicle and thus, stepped into the shoes of owner and does not fall under the definition of third party. It is also stated that case was remanded for limited purpose and also issue of negligence is to be decided and therefore, application is liable to be dismissed.
M/s. Honda Cars India Ltd has also filed reply to the application. As per their reply, the accident had occurred as the vehicle got overturned and due to overturning of vehicle it caught fire and therefore, surveyor report dated 24/11/2005 cannot be relied upon as the same is in contradiction of document Ex. PW1/B i.e DD entry no. 48 dated 20/03/2005 if P.S. Kasna, Distt. G.B. Nagar, U.P. Proposed respondent has also prayed that application of the petitioner be dismissed with cost.
I have heard counsels for the parties and perused the record. The case after remanding back from Hon'ble High Court of Delhi is at the initial stage and the proposed respondent would have enough opportunity to crossexamine the witnesses and rebut evidence on record to prove that the accident did not occurred due to internal fault or manufacturing defect in the vehicle. Whether vehicle first got overturned and thereafter, fire occurred due to over turning or the fire occurred first and then the vehicle overturned is also matter of evidence and at this stage, it would not be appropriate to comment regarding the circumstances in which the accident occurred. However, from the record it is clear that vehicle was purchased on the day of accident and soon after delivery while vehicle was taken from showroom to the residence of purchaser it caught fire on the way and the driver was burnt alive. In such circumstances, it is deemed fit that manufacturer M/s. Honda Cars India Ltd be impleaded as necessary party to the present claim petition. Also, to do complete justice, it is felt that M/s. Honda Cars India ltd is a necessary party to the present proceedings. Present application of petitioner is therefore, allowed. Copy of claim petition alongwith documents already supplied to M/s. Honda Cars India Ltd. However, in view of the impleadment of M/s. Honda Cars India Ltd. As respondent in the present case, the petitioner may file amended petition.
Put up for filing of amended petition on 20/01/2016.
Sd/
(KIRAN BANSAL)
Page No. 18 of 26 (ANAND SWAROOP AGGARWAL)
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Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15
POMACT (NE)/04.12.2015"
9.2. AMENDED CLAIM PETITION/MEMO. OF PARTIES
On 24.05.2016 claimants filed amended memo. of parties and claim petition. On 04.07.2016 defendant no.2 filed WS to the amended claim petition. On 02.09.2016 claimants through an application stated that they want to continue the proceedings u/s. 166 r/w. S.140 Motor Vehicles Act, 1988. On 22.07.2017 defendant no.1 filed WS.
[IT IS WORTH NOTICING THAT IN THE AMENDED MEMO. OF PARTIES CLAIMANT NO.3 SMT. ARCHANA WAS SHOWN AS DEFENDANT NO.2 WITHOUT ANY ORDER IN THAT REGARD FROM THE TRIBUNAL. DEFENDANT NO.2 - ICICI LOMBARD GENERAL INSURANCE COMPANY LTD. WAS SHOWN AS DEFENDANT NO.3 AND M/S. HONDA CARS INDIA LTD. AS DEFENDANT NO.4. HERE I AM REFERING TO SMT. ARCHANA AS CLAIMANT NO.3] 9.3. CM(M) 699/2016 & C.M. NOS. 25915/2016 & 25917/2016: M/S HONDA CAR INDIA PVT. LTD. VS. CHANDER PAL SINGH & ORS. M/s. Honda Car India Ltd. challenged the order dated 04.12.2015 before Hon'ble High Court of Delhi. On 25.01.2017 Hon'ble High Court of Delhi passed the following Order : "JUDGMENT ORAL
1. Petitioner is aggrieved by its impleadment by respondents claimants.
2. Respondent No.3 is served through her fatherinlaw but none has appeared on her behalf. She is accordingly set ex parte.
3. Respondent No.5 owner is unserved with the report 'vacated'. Since the impugned order is on the application of respondentclaimant therefore, notice to respondent No.5 is dispensed with.
4. Impugned order of 4th December, 2015 directs impleadment of petitioner in the capacity of manufacturer of the vehicle involved in a road accident on an application filed by respondents claimants. It is noted in the impugned order that whether the accident took place due to internal fault or Page No. 19 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15 manufacturing defect in the vehicle or whether the vehicle first overturned and thereafter, caught fire due to overturning, is a matter of evidence and since the road accident had taken place soon after delivery of the motor vehicle in question, therefore, the manufacturer is a necessary party to be impleaded.
5. Learned counsel for petitioner submits that so far as the report indicating that the vehicle in question had caught fire due to an internal fault cannot be the basis to summon petitioner, as there is no Mechanical Inspection Report of the vehicle in question on record.
6. Mr. G.P. Thareja, learned counsel for respondents No. 1, 2 & 4, support the impugned order and relies upon Sections 109, 165 and 175 of The Motor Vehicles Act, 1988 to submit that the vehicle has to be roadworthy and since the vehicle in question had caught fire soon after its delivery due to internal defect, therefore, impleadment of petitioner is justified.
7. Upon hearing and on perusal of impugned order, I find that reliance placed upon provisions of Sections 109, 165 and 175 of The Motor Vehicles Act, 1988 by learned counsel for respondents is of no avail for the reason that the Mechanical Inspection Report is not on record and there is no reference of it in the copy of Surveyor's Report of 24 th November, 2005. In view thereof, impleadment of petitioner is wholly unjustified. However, it is made clear that if respondentinsurer is able to place on record the Mechanical Inspection Report, then on an application, petitioner can be summoned, if so warranted and without being influenced by this order.
8. In view of the above, impugned order is set aside with clarification that in the event of Mechanical Inspection Report coming on record, concerned party would be at liberty to take steps to summon petitioner if such an occasion arises.
9. With aforesaid directions, this petition and applications are disposed of."
9.3A. In view of above judgment of Hon'ble High Court of Delhi, amended claim petition/WSs are not to be considered by this tribunal.
9.4. ADDITIONAL ISSUE FRAMED ON 06.06.2017 On 06.06.2017 pursuant to order dated 05.03.2015 passed by Hon'ble High Court of Delhi following additional issue was framed : Whether the accident was caused on account of negligence of the driver or owner of the vehicle?
Page No. 20 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15
9.5. RELIANCE OF CLAIMANTS REGARDING ADDITIONAL ISSUE & DE Vide order dated 06.06.2017 ld. counsel for claimants submitted that as regards additional issue as aforesaid, claimants wanted to rely upon report of surveyor Ex. X (3 pages) (exhibited on 22.07.2017) and order of the Consumer Forum vide which was passed in favour of defendant no.1 and against the defendant no.2. NO FURTHER/MORE EVIDENCE WAS LED BY CLAIMANTS and claimants evidence was closed on 24.07.2017 by claimant no.1. On 24.07.2017 ld. counsel for ICICI Lombard General Insurance Co. Ltd. closed DE.
9.6. ARGUMENTS I have heard Mr. Satyam Thareja & Mr. Rajender Singh Advocates for claimants and Mr. Ankit Kalra Adv. for defendant/ICICI Lombard General Insurance Company Ltd. Ld. counsel for claimants relied upon case laws (i) Ningamma and Another Vs. United India Insurance Company Ltd. (2009) 13 SCC 170; (ii) A.P. State Financial Corporation Vs. Vajra Chemicals and Anr. (1997) 7 SCC 76; (iii) B. L. Sreedhar and Ors. Vs. K. M. Munireddy (DEAD) & Ors. (2003)2 SCC 355. Ld. counsel for ICICI Lombard General Insurance Company Ltd. also relied upon case law of Ningamma and Anr. (supra.). Written arguments have also been filed by ld. counsel for ICICI Lombard General Insurance Company Ltd. Materials available on judicial file perused carefully.
9.7. MY ISSUEWISE FINDING ARE AS UNDER:
ADDITIONAL ISSUE:
Whether the accident was caused on account of negligence of the driver or owner of the vehicle ?
This is a claim petition u/s. 166/140 of the Motor Vehicles Act, 1988. Admittedly vehicle no. DL3CAK2247 was insured with defendant no.2 at the time Page No. 21 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15 of accident under the policy Ex. R2W2/2 - Car Package Policy. It is providing for OWN DAMAGE as well as LIABILITY. As regards LIABILITY Rs.600/ has been paid as "Basic Premium including premium for TPPD Vehicle"; Rs.100/ as "Compulsory PA covers for ownerdriver (Endt. IMT15)" and Rs.25/ as "Legal Liability to paid driver (Endt. IMT28)". HERE deceased Mr. Kapil Kumar was not a paid driver of defendant no.1/insured. He was his friend. Also at the time of accident defendant no.1/insured himself was not driving the insured vehicle. Thus, it is observed that in the Insurance Policy there was no special provision covering the liability of defendant no.1/insured qua deceased Mr. Kapil Kumar, who was a friend of in defendant no.1/insured.
IN MAC. APPEAL No. 165/2013: New India Assurance Co. Ltd. Vs. Devki & Ors, decided on 29.02.2016, it was observed as under by Hon'ble High Court of Delhi : "5. It is well settled that in proceedings arising out of a claim petition under Section 166 of MV Act based on fault liability principle, a person cannot be held liable unless he contravenes any of the duties imposed on him by the common law or by the statute. In the case of a motor accident it is imperative that the claimants show by some evidence that the driver of the motor vehicle had been negligent in relation to the said vehicle and thereby had caused an accident resulting in bodily injuries or death or damage to the property so as to be held liable as the principal tortfeasor. The owner's liability arises out of his failure to discharge a duty cast on him by the law, on the principle of vicarious liability. Proof of negligence is necessary before the owner or the insurance company may be held liable for payment of compensation in a motor accident claim case brought under Section 166 MV Act.
6. The law to above effect declared in Minu B Mehta v. Balkrishna Ramchanra Nayan (1977) 2 SCC 441 was reiterated by Supreme Court in Oriental Insurance Company Ltd. v. Meena Variyal 2007 (5) SC C 428. It appears there was some confusion raised with regard to these principles on account of view taken in the case of Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai (1987) 3 SCC 234. In Meena Variyal (supra) the Supreme Court clarified as under :
"On a careful understanding of the decision in Gujarat State Road Page No. 22 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15 Transport Corporation (supra) we cannot understand it as having held that in all claims under the Act proof of negligence as the basis of a claim is jettisoned by the scheme of the Act. In the context of Sections 166 and 163A of the Act of 1988, we are persuaded to think that the so called obiter observations in Minu B. Mehta's case (supra) govern a claim under Section 166 of the Act and they are inapplicable only when a claim is made under Section 163A of the Act. Obviously, it is for the claimant to choose under which provision he should approach the Tribunal and if he chooses to approach the Tribunal under Section 166 of the Act, we cannot see why the principle stated in Minu B. Mehta's case should not apply to him. We are, therefore, not in a position to accept the argument of learned counsel for the respondents that the observations in Minu B. Mehta's case deserve to be ignored."
7. In Pushpa Rana (supra), the learned Single Judge of this Court holding the case of the claimant as duly proved on the basis of the certified copies of the record of the corresponding criminal case, while dealing with identical contention took note of the judgment in Meena Variyal (supra) but proceeded to observe thus:
"13. The last contention of the appellant insurance company is that the respondents claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the Judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (i) certified copy of the criminal record of criminal case in FIR No. 955/2004, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304A, IPC against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent.
Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
8. In the facts and circumstances, this Court finds it difficult to follow the view taken in Pushpa Rana (supra). Since the law declared by the Supreme Court in Meena Variyal (supra) is binding, there is no escape from the conclusion that it is the burden of the claimants in a petition under section 166 of MV Act to prove negligence. Should they find it difficult to prove evidence with regard to negligence, the option to have resort to no fault liability on the structured formula under Section 163A of MV Act is always Page No. 23 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15 available to seek just compensation. The case of Bimla Devi (supra) cannot be an illustration to hold otherwise inasmuch as it is clear from the narration of facts noted therein that an eye witness was available and the conclusion on facts had been reached on the basis of his testimony."
In the report of surveyor Ex. X (3 pages) it is observed that ".... The mater was further discussed and it was observed and the insured and the local police who collected the information from the place of loss one firm opinion that the subject loss was caused with internal fault in the subject vehicle. .....". In the course of arguments reliance was placed by ld. Counsel for claimants on these observations. These observations in no way establish the negligence on the part of driver/deceased Mr. Kapil Kumar or the owner of the vehicle/defended no.1/insured. What is pertinent to note is that claimants herein are the LRs of deceased Mr. Kapil Kumar/driver. Negligence, if any, on the part of deceased Mr. Kapil Kumar/driver would automatically disentitle the claimants to claim compensation u/s. 166 of the Motor Vehicles Act, 1988 inasmuch as claimants being LRs of the deceased cannot taken benefits of negligence on the part of the deceased Mr. Kapil Kumar/driver himself. In Ningamma (supra.) it has been observed as under : "25. When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs." At this juncture it is pertinent to refer to Ex. PW1/BDD No.48 Time 18:15 dated 20.03.2005 P.S. Kasna, wherein it is mentioned that "....गगव झटटग कक सगमनक ममनक Page No. 24 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15 अगकर दकखग कक मकरर नई हहनडग सरटर जल रहर हमम अगमर पलट भर गई थर जजसक गगव कक लहगगक नक सरधग करग थग....". The fact that the car had overturned, in the absence of any cogent explanation from claimants, is suggestive of negligence on the part of deceased/driver Mr. Kapil Kumar. No explanation whatsoever in this regard has been brought on record by the claimants.
There being no negligence on the part of defendant no.1/insured/owner he cannot be made to pay any compensation u/s. 166 of the Motor Vehicles Act, 1988 and, consequently, even the defendant no.2 cannot be made to suffer any liability qua the claimants herein. It is settled proposition of law that if the insured/owner cannot be fastened with any liability under the provisions of the Motor Vehicles Act, 1988 the question of the insurer being liable to indemnify the insured does not arise.
The order of District consumer Dispute Redressal Forum (New Delhi) is of no relevance so far as the proceedings under section 166 of the Motor Vehicles Act, 1988 before this tribunal concerned. That order of the District Consumer Disputes Redressal Forum (New Delhi) was passed on the basis of contract of insurance between the defendants herein and when said contract is read keeping in view the provisions of Motor Vehicles Act, 1988, as discussed above, no liability can be fastened on the insured/defendant no.1 and, consequently, on the insurer/defendant no.2 under the provisions of section 166 of the Motor Vehicles Act, 1988. The case laws relied upon by ld. counsel for claimants have no application in these facts and circumstances of this case. It is settled proposition of law that there is no estoppal against law, and, when claimants have been found to be not entitled to any relief under the provisions of section 166 / 140 of the Motor Vehicles Act, 1988, no liability can be fastened on defendant no.2 by applying the principle of estoppal in view of stand taken by defendant no.2 during the proceedings before Consumer Forum.
Thus, it is observed that, by applying the principle of preponderance of Page No. 25 of 26 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /31.07.2017 Chander Pal Singh & Ors. Vs. Rajender Singh & Anr. MACT No. R01/15 probabilities, deceased/driver/Mr. Kapil Kumar himself might have been negligent while driving the car and no negligence is attributable on the part of owner/defendant no.1. ISSUE IS DECIDED ACCORDINGLY.
In view of my this finding, claim petition is found to be not maintainable u/s. 166 of the Motor Vehicles Act, 1988. Also claimants are not entitled to compensation u/s. 140 Motor Vehicles Act, 1988 inasmuch as deceased/driver/Mr. Kapil Kumar being the borrower of the vehicle from its owner stepped into the shoes of the owner/defendant no.1/insured and the same person cannot be the person entitled to receive the compensation as well as liable to pay the same inasmuch as liability u/s. 140 of the Motor Vehicles Act, 1988 is on the owner of the vehicle.
IN VIEW OF ABOVE DISCUSSION, ALL OTHER ISSUES NEED NOT BE DECIDED BY THIS TRIBUNAL AND THEY ALL ARE DELETED AS REDUNDANT AND CLAIMANTS ARE HELD TO BE NOT ENTITLED TO ANY RELEIF. ORDERED ACCORDINGLY.
10. In view of dismissal of claim petition, there is no need for recording statements of claimants under clause 26 of MCTAP.
11. Form IV to MCTAP is not relevant as accident took place out of Delhi and statements under clause 26 of MCTAP have not been recorded.
12. Attested Copy of this award be given to parties free of cost and be sent to DLSA, NE, Delhi.
13. File be consigned to record room.
Pronounced in Open Court on 31.07.2017
(ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD COURTS / DELHI
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