Delhi District Court
Rajesh Kumar @ Rajo Kumar vs Sh. Sidharth Kumar Arora on 30 July, 2009
MACT Suit No. : 298/07 Page 1 of 15
IN THE COURT OF MS. SUJATA KOHLI: AD&SJ
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
KARKARDOOMA COURTS, DELHI
MACT No. 298/07
Date of Institution of the case : 27/08/07
Date on which arguments were concluded : 18/07/09
Date on which Award/Judgment was pronounced : 30/07/09
Rajesh Kumar @ Rajo Kumar
S/ Lt. Sh. Tulsi Yadav
R/o Village (Samdev), P.O (Dhamool),
P.S. (Dhamool),
District (Navada),
Bihar, India.
....... Petitioner.
Versus.
1. Sh. Sidharth Kumar Arora
S/o Sh. A.K. Arora
R/o 257B, Bholanath Nagar,
Shahdar, Delhi32.
2. Sh. Nitin Negi
S/o Sh. M.S. Negi
R/o 668, Janta Flats,
GTB Enclave, Nand Nagri,
Delhi.
3. National Insurance Company Ltd.
Office : 50, Janpath,
New Delhi110001.
MACT Suit No. : 298/07 Page 2 of 15
...... Respondents
AWARD
1. One Smt. Janakwati Devi @ Sharda Devi @ Sonu W/o Late Sh. Tulsi Yadav died on account of injuries sustained in a motor accident which occurred on 05/05/07 involving motorcycle bearing no. DL7SAX5173, driven by R1, owned by R2 and insured with R3.
2. At the time of accident and untimely death deceased was aged 40 years and he left behind the following legal heirs:
1. Sh. Rajesh Kumar - Son - Sole petitioner.
3. Deceased was working as Clerk at M/s R.K. Industries, Friends Colony, Industrial Area, Delhi at a monthly salary of Rs. 5,000/. The claimant has filed this claim for Rs. 15 lacs before this tribunal.
4. Driver and owner vehemently denied any involvement in the accident however driver denied any rash and negligent driving on his part as being cause of the accident.
5. However and driver admitted being the owner and driver of the motorcycle in question as on date of the alleged accident.
6. Insurance company admitted the insurance of the alleged offending vehicle with it as on date of the accident, its liability being subject to MACT Suit No. : 298/07 Page 3 of 15 compliance of terms and conditions of the policy.
7. On the basis of the pleadings following, issues were framed by Ld. Predecessor on 11/01/08:
1. Whether the petitioner proves that he is the only L/R of deceased Janakwati Devi and that the said Janakwati Devi died in road accident dated 15/05/07 involving vehicle no. DL7SAX5173 within the jurisdiction of P.S Dilshad Garden driven by respondent no. 1 in a rash and negligent manner?
2. Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
3. Relief.
8. During evidence, petitioner examined PW1 petitioner himself, Sh. Ambika Pd. PW2 - eye witness and tendered following documents:
1. Affidavit Ex. P1.
2. Ration card Ex. P2.
3. Attested copies of criminal case record Ex. P3.
4. Certificate from Gram Panchaya Ex. P4.
5. Death certificate Ex. P4.
6. Receipt of dead body Ex. P6.
7. P/M report unproved - marked A.
8. Affidavit Ex. P7.
9. Respondents on the other hand, examined Sh. Sidharth Kumar - R1W1, driver himself and tendered following documents:
1. Affidavit Ex. R1W1/A. MACT Suit No. : 298/07 Page 4 of 15
10. Arguments heard. File perused. I proceed to decide the claim on the basis of material on record. My findings on each issue are as under: Issue No. 1
11. Respondent no. 1 driver in his joint W/s filed along with respondent no. 2 owner, has denied his involvement in the accident and in fact he has pleaded in reply to para 23 specifically that there was no zebra crossing on the fly over and heavy traffic used to pass on the said fly over. He was driving motorcycle at a slow speed on its correct side and at that time some vehicles were ahead of him and some were following his motorcycle when suddenly a heavy vehicle (bus) over took his motorcycle from the left side and in the process some portion of the said heavy vehicle struck against the leg yard of the motorcycle as a result of which he fell down and became unconscious. His condition deteriorated at the spot and he was not aware of what was happening and when he regained consciousness he found himself in hospital. His MLC shows that he was vomiting and bleeding from his nose and mouth and that he was not provided timely medical aid for reasons best known to the police and the medical department. Respondent no. 1 strongly protested to the police for involving him in this case but to no avail and he was falsely involved at the instance of brother in law of deceased who reached the MACT Suit No. : 298/07 Page 5 of 15 hospital subsequently believing that the motorcyclist might be the culprit responsible, whereas neither he (brother in law) was present nor he witnessed the accident.
12. It is also specifically pleaded by R1 that the deceased person was not accompanied by her brother in law Ambika Pd. at the fly over bridge at the place of accident and the MLC and other documents also do not reveal the identity of the deceased. According to him MLC shows that the injured was unknown W/o unknown aged about 50 years admitted in GTB Hospital.
13. It is a matter of record that petitioner has not filed any copy of the MLC on record nor it is found part of the attested copies filed by SHO concerned. On the other hand MLC of the respondent no. 1 has been filed and which is actually showing him to have suffered various injuries. However be that as it may, a serious doubt regarding the identity of the deceased person has arisen in this case. There are material contradictions about the name and the age of the deceased person in almost all the documents brought on record, so much so that there is even a difference between the copies of documents filed on record bythe petitioner and the copy as supplied to the respondents counsel. Some such material contradictions are as under: MACT Suit No. : 298/07 Page 6 of 15 Document Name of deceased Age Claim petition Janakwati Devi @ Sharda Devi @ Sonu 40 FIR Sharda Devi @ Sonu 50 P/M report Sharda 50 Receipt of dead body Sharda Devi 45 Ration card Janakwati Devi 22 Letter written by one Janakwati Devi @ Sharda Devi Rajo Yadav to the village head after the filing of the claim Voter list Janakwati Devi 36 as in 2005 = 38 in 2008
14. It is also relevant that during evidence of the petitioner he has only tendered death certificate Ex. P5 in evidence where as postmortem copy has remained unproved. Neither any certified copy was filed by petitioner. Petitioner did not file any MLC even.
15. It is also noted that during the course of argument Ld Counsel for insurance company Sh. Manoj Sinha has brought it to my attention that the copy of the voter list as provided to him by the counsel for petitioner was carrying different age of the deceased and also of the petitioner altered by pen and converted into 36 as the age of deceased and 20 as the MACT Suit No. : 298/07 Page 7 of 15 age of the petitioner, which was glaringly different from the figures shown on the voter list copy of which was originally filed by the counsel for petitioner, both pertainng to the same year. At that stage in the presence of the counsel for petitioner and the counsel for insurance company, the said copy as supplied to the counsel for insurance company was taken by the court and kept on record with an endorsement made thereon by this court. The difference in the copy filed on record by the petitioner was observed and for this reason endorsement was made on the copy filed by the counsel for insurance company on 18/07/09. However to my further shock and dismay, upon perusal of the file while dictating this judgment it has again come to my notice the copy of the voter list filed by the petitioner originally is also bearing same alterations at serial numbers 554 & 559 again done by pen, with no initials and no date. Going by the record, it is clear that copy filed by the petitioner originally at page 125 of this court file has been tampered with, after concluding of the arguments.
16. Since there is no initial and no date on the alteration done on the document on court record it is obvious that it would be done only by the person who would stands to gain by the alteration or who would suffered had the alteration not been done. It is evident that during the course of MACT Suit No. : 298/07 Page 8 of 15 final arguments only, the difference had been pointed out to the court by the counsel for insurance company in the presence of counsel for petitioner and at which stage the copy of the insurance company counsel had been taken on record to retain the difference at the time of judgment and relevant endorsement was made; and when the time has come for dicatating this judgment the copy filed by the petitioner originally also already stands altered again in ink and completely in harmony with the copy provided to the counsel for insurance company. Reference shall be made to this towards the end of judgment for passing further orders in this regard against the concerned persons who may be involved in assisting such tampering of the record.
17. Apart from this, all that petitioner has tendered in his evidence is the copy of ration card Ex. P2 which again is not showing the name of the petitioner therein himself and there is no document filed to show his connection with the deceased. Certificate issued from gram panchayat Ex. P4 even has been issued only in Sep. 09 itself i.e much after the death and filing of the claim.
18. Coming to the aspect of rash and negligent driving by R1 Ld. Counsel for insurance company has taken me through the testimony of Sh. Ambika Pd. PW4, particularly his cross examination, which would lead to MACT Suit No. : 298/07 Page 9 of 15 an inference that the accident occurred because of the contributory negligence of the deceased victim herself. PW2 replied that he along with the deceased crossed the road and reached the divider in the middle and that he was not even a foot away from the deceased when the accident took place while crossing the road. He has specifically admitted it as being true that he stopped, as the vehicles were coming at heavy speed. The clear inference from this would be that while PW2 brother in law of deceased exercised caution in view of the vehicles coming at heavy speed, the deceased acted negligently and rashly, and preferred to step on to the main road, and attempted to cross the road with the traffic flowing heavily at a fast speed. In fact the rash and negligent act of the deceased, crossing the road with a heavy traffic coming at a great speed, amounts to negligence to the extent of 100%. If a pedestrian chooses suddenly jump to a main road, trying to cross the road in the middle of the heavy flowing traffic coming at a fast speed ( and which is not an uncommon sight in Delhi) it may not be possible for any vehicle driver to apply brakes suddently; lest he causes a major disaster resulting into the vehicles following one vehicle to dash into one and another in a chain accident). Since the petitioner himself has relied upon the testimony of this witness examined as eye witness his replies during cross examination MACT Suit No. : 298/07 Page 10 of 15 are equally binding and they go against the petitioner.
19. Not only this, even in the FIR, the statement of PW2 shows that traffic was coming in flow and at a very fast speed, from Shahdara side, PW2 decided to be careful and stand and wait on the divider while Sharda Devi taking a chance, started crossing the road at which point she is alleged to have been hit.
20. No doubt the proceeding with respect to Motor Accident Claims are to be summary but it would never imply that the basic principles of evidence and quality of evidence could be given a go by.
21. In the affidavit PW2 mentioned the zebra crossing on the spot and improving upon the case he has stated that deceased was crossing the road through zebra crossing quite cautiosly following the rule when the motorcycle suddenly came and hit her. This is not so mentioned in the FIR and in fact what is stated there in exactly the opposite. If there was a zebra crossing in existence at the spot there was no reason for PW2 to have stopped and waited on the divider. In other words if in the given conditions it was wise enough on the part of the deceased a lady to have crossed the road why PW2 himself kept waiting for a better opportunity to cross, has been unexplained. On the point of rash and negligent driving Ld. Counsel placed reliance on the decision of Hon'ble High MACT Suit No. : 298/07 Page 11 of 15 Court of Madhya Pradesh in Paramjeet Kaur & Ors. Vs. Murari Lal Shankya & Ors. reported in 2005 ACJ page 401 wherein it was held that burden to prove that driver of the offending vehicle was not negligent would be upon the driver. Not withstanding the above, the present case is quite different, where the petitioner's own witnesses have spoken clearly about the own negligence of the deceased. In case, assuming that the claim is proceeding as exparte against all the respondents, even then it is the petitioner who must prove his case and rash and negligent driving on the part of driver. No doubt, the burden to prove is not very strict but it cannot be that when the petitioner's own eye witness deposed about the negligence of the deceased herself, same is to be ignored, as the basic principles of evidence cannot be ignored so that there should not be resultant failure of justice to anyone of the parties.
22. Petitioner has failed to prove that the accident occurred because of there being any rash and negligent driving on the part of the driver of the motorcycle.
23. And this is apart from the fact of the identity of the deceased lady also remaining doubtful. Issue no. 1 is decided against the petitioner. Issue No. 2
24. In view of my findings on issue no. 1 above the petitioner would not MACT Suit No. : 298/07 Page 12 of 15 have been entitled any compensation from the driver, owner and insurers also but for the purpose of deciding the claim on all issues, assuming but not taking it to be proved; that issue no. 1 had been decided in favour of the petitioner, whether he would be entitled to any compensation on account of any financial loss accrued to him out of the death of his mother; going by the age of the petitioner as stated in his affidavit as 26 years in 2008, he would be a young boy expected to support his widow mother financially and not that she would have financially supported the petitioner. In any case, the employment and income of the deceased has not been proved and even if her income is treated as assessed for that of a housewife, going by the ratio of Lata Verma case, even then petitioner who in his petition and affidavit has remained silent throughout about his marital status, the presumption would have been that he was or would have got married within a short period of time. Not only this, during course of arguments, query was put by me to Ld. Counsel for petitioner, who replied very definitely and surely, that petitioner was married, but his wife was in the village. Ld. Counsel started explaining the financial loss that petitioner has to engaged a maid for himself. It is beyond any reasoning as to why when both parents of the petitioners are no more; the petitioner will prefer to keep a maid and not prefer to call his wife from MACT Suit No. : 298/07 Page 13 of 15 the village. Apart from this petitioner's silence about his marital status in the affidavit again leads to an adverse inference against him that he has not come to court with clean hands by concealing very material facts.
25. As regards financial dependency there is no loss to the petitioner; however as regards loss of love and affection, loss of a mother for a child; of whatever age, is incompensable in terms of money, and no amount of money can replace the said loss; but only for the purpose of the claim sum of Rs. 50,000/ may be taken as fair and just besides the expenses incurred on the last rites i.e about Rs. 10,000/ may be sufficient in the circumstances.
26. Ld. Counsel for petitioner has placed reliance on plethora of judgments of various Hon'ble High Courts/Supreme Courts on different points mainly emphasis being on the formula for deriving financial loss in case of house wife:
1. Amar Singh Thukral Vs. Sandeep Chhatwal, II (2004) ACC 826.
2. Shakuntala Devi Vs. OIC, 190 ACJ 459.
3. A. Rajan Vs. M. Reddy, 1989 ACJ 542.
4. Sunny Chugh Vs. Darshan Lal, 1987 ACJ 812.
5. OIC Vs. Putul Devi.
6. National Insurance Vs. Malti Devi
7. Kela Devi Vs. Ram Chand, 1986 ACJ 818.
8. Ved Prakash Vs. Gurmit Singh, 1992 ACJ 1147.
9. II (2009) ACC 289 SC - NIC Vs. Meghji Nanan.
10. II (2009) ACC 192 DHC.
11. II (2009) ACC 664 Orissa HC.
MACT Suit No. : 298/07 Page 14 of 15
12. II (2008) ACC 102 MP HC.
13. I (2008) ACC 341 - AP HC.
14.I (2009) ACC 206 - MP HC.
27. In view of the detailed discussion none of these cases cited would be of any help as none of them deals with the claim filed by a young married son aged about 26 or so to seek compensation for the death of his mother. In fact, not even a single case out of the cases cited by the Ld. Counsel for petitioner was relating to the death of a mother of a young man, married and aged about 26 years. A young man would neither be financially dependent on his mother; nor for his household affairs. He would be dependent for his household affairs only on his wife in the normal circumstances. The term 'housewife' could be used only if the petitioner had been a young child and his mother was the only lady of the house to look after him and not when petitioner is a grown up young man of 26 years, already married, having his wife to look after him. The term housewife shall not apply to the deceased mother in such a situation. The principles laid down in Lata Wadhwa case not withstanding shall not apply in the given case as deceased was not a housewife viz a viz the petitioner.
28. Petitioner has failed to make out any case for compensation and he cannot be held entitled to compensation. Issue no. 2 is also accordingly MACT Suit No. : 298/07 Page 15 of 15 decided against the petitioner and in favour of the respondents. Relief
29. Claim stands dismissed with no further orders with regard to the observations made in issue no. 1 regarding alteration/tampering on the documents as same may not be expedient in the interest of justice. Attested copies of the award be furnished to the concerned parties from court expeditiously. File be consigned to record room.
Announced in the open court (SUJATA KOHLI)
Today on 30/07/2009 Addl. District & Sessions Judge
Presiding Officer, MACT (N/E)
Karkardooma Courts, Delhi.