Delhi District Court
Usha Garg vs Yatender Garg on 23 July, 2018
IN THE COURT OF SH. DEVENDER KUMAR, PRESIDING
OFFICER- MOTOR ACCIDENT CLAIMS TRIBUNAL,
SHAHDARA, KKD, DELHI
MAC No. 2489/16
1. Usha Garg
W/o Sh. Madan Lal
2. Madan Lal
Both R/o H. No. 158, Kanhyalal Street,
Delhi Gate, Ghaziabad, UP. ....Petitioners
Versus
1. Yatender Garg
S/o Sh. Madan Lal Garg,
R/o 158, Kanhyalal Street,
Delhi Gate, Ghaziabad, UP Driver
2. Anurag
S/o Sh. S.N. Aggarwal
R/o H. No. 2B-9, A2, Gali No-1,
B-Block, Jyoti Nagar, Delhi.
Also at
Flat No. 63, Kanchanchanga,
Apartment, IP Extension,
Patpargarnj, Delhi Owner
3. National Insurance Company Ltd.
C/o 2E/9, Jhandewalan,
New Delhi. Insurance Company
...Respondents
MAC No. 2489/16 Usha Garg & Ors.Vs. Yatender Garg & Ors.
MAC No. 2490/16 Ashok Kumar Jindal Vs. Yatender Garg & Ors.
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AND
MAC No. 2490/17
1. Ashok Kumar Jindal
S/o Sh. Ganeshi Lal
2. Manju Jindal
W/o Ashok Kumar Jindal
R/o Town Jhangirabad,
Distt. Bulandshare, UP ....Petitioners
Versus
1. Yatender Garg
S/o Sh. Madan Lal Garg,
R/o 158, Kanhyalal Street,
Delhi Gate, Ghaziabad, UP Driver
2. Anurag
S/o Sh. S.N. Aggarwal
R/o H. No. 2B-9, A2, Gali No. 1,
B-Block, Jyoti Nagar, Delhi. Owner
3. National Insurance Company Ltd.
C/o 2E/9, Jhandewalan,
New Delhi. Insurance Company
...Respondents
Date of Institution : 24.12.2016
Date of Arguments : 20.07.2018
Date of Judgment : 23.07.2018
MAC No. 2489/16 Usha Garg & Ors.Vs. Yatender Garg & Ors.
MAC No. 2490/16 Ashok Kumar Jindal Vs. Yatender Garg & Ors.
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JUDGMENT:
1. Vide this judgment I shall dispose off two petitions filed by petitioners u/s 163A of M.V. Act with the facts that on 17.2.2009, at about 2:45 pm, deceased Meetu Garg who was pregnant along with her husband and other relatives was travelling from Rajasthan to Delhi by a car bearing No. DL-5CD 3728 being driven by her husband /respondent No. 1 and they reached near Rajasthan Dhaba, Kotputli, when suddenly an unknown truck came from behind and hit the Wagon R which lost the control and collided with another truck and all the passengers sustained injuries. Injured Meetu Garg died during this accident. It is further stated that she was carrying a pregnancy of 8 weeks and her unborn child also died during this accident. Police lodged FIR No. 137/09 u/s 279/338/304A IPC against this accident with PS Kotputli at the instance of respondent No 1. Postmortem was conducted on the dead body of deceased Meetu Garg. The petitioners to claim compensation for the death of Meetu Garg are her parents whereas the parents of respondent No. 1 have claimed compensation for the death of unborn child of deceased Meetu Garg. As such, two separate petitions have been filed.
2. Respondents No. 1 is the driver of the car / vehicle No. DL-5CD 3728 and was also husband of the deceased Meetu Garg who has filed WS thereby stating that he was driving the offending vehicle and was holding a Valid DL to drive the vehicle, but has denied that any accident took place by his vehicle. The vehicle was owned and insured MAC No. 2489/16 Usha Garg & Ors.Vs. Yatender Garg & Ors. MAC No. 2490/16 Ashok Kumar Jindal Vs. Yatender Garg & Ors.
3/12in the name of respondent No. 2, but he has preferred not to contest these claims. He has denied all the allegations of both petitions and has prayed that both the petitions are liable to be dismissed.
3. Respondent No. 2 is the owner of the vehicle being driven by the respondent No. 1 and has failed to appear and was proceeded ex- parte vide order dated 03/07/2017.
4. Respondent No. 3 i.e. Insurance Company Ltd. has filed separate reply in both petitions thereby admitting that the offending vehicle was insured with the company on the day of accident, but it has denied that the petitioners are entitled for any compensation and has prayed that these petitions are liable to be dismissed.
5. From the pleading of the parties following issues are framed as under:
MAC No. 2489/16 : -
1. Whether Respondent No. 1 was driving vehicle bearing No. DL-5CD 3728 on 17.02.2009 at about 2:45 PM near Rajasthan Dhaba, Kotputli, Rajasthan and one unknown truck came in a high speed and in a rash and negligent manner and hit against the car from behind as a result its occupant namely Mitu Garg, who was having pregnancy of 10 weeks sustained injuries and succumbed to the injuries and unborn child also sustained fatal injuries? OPP MAC No. 2489/16 Usha Garg & Ors.Vs. Yatender Garg & Ors.
MAC No. 2490/16 Ashok Kumar Jindal Vs. Yatender Garg & Ors.
4/122. Whether the petitioner is entitled for any compensation, if so and for what amount? OPP
3. Relief.
MAC No. 2490/16 -
1. Whether Respondent No. 1 was driving vehicle bearing No. DL 5CD 3728 on 17.02.2009 at about 02:45 PM near Rajasthan Dhaba, Kotputli, Rajasthan and one unknown truck came in a high speed and in a rash and negligent manner and hit against the car from behind as a result its occupant namely Mitu Garg, who was having pregnancy of 10 weeks sustained injuries and succumbed to the injuries and unborn child also sustained fatal injuries? OPP
2. Whether the petitioner is entitled for any compensation, if so and for what amount? OPP
3. Relief.
6. Both the petitions were arising out of same accident due to both were clubbed together and MAC No. 2489/16 was treated as main petition to lead Evidence vide order dated 06.09.2017.
7. To prove MAC No. 2489/16, petitioners have examined PW1 Usha Garg who is the grandmother of unborn child of Late Smt. Meetu Garg and has deposed that she was not an eye witness of this accident. She has deposed that expected mother of unborn child of 8 MAC No. 2489/16 Usha Garg & Ors.Vs. Yatender Garg & Ors. MAC No. 2490/16 Ashok Kumar Jindal Vs. Yatender Garg & Ors.
5/12weeks namely Meetu Garg met with an accident caused by some unknown vehicle when she was coming with other persons by a car being driven by her husband. It is further deposed that the unborn child has left behind the petitioners as sole LR's and they have deprived by the love and affection of unborn child.
7.1. PW2 Smt. Preeti @ Pooja has deposed that she was travelling by the same vehicle being driven by the respondent No. 1 and deceased Meetu Garg along with others passengers and they were coming from Jaipur to Delhi by WagonR car. It is further deposed that she is an eye witness to this accident and their car reached at Rajasthan Dhaba when some unknown truck dashed against their Wagon R which hit another trolla and the occupants sustained injuries including fatal injuries by her husband Sandeep and Meetu Garg. She has relied upon copy of FIR as Ex.PW2/2.
8. To prove MAC No. 2490/16, PW1 Ashok Kumar Jindal has repeated the allegations of the petition about the mode and manner of this accident in which the deceased Meetu Garg died after sustaining fatal injuries, but he is not an eye witness to this accident. It is further deposed that the deceased has left behind the petitioners as sole LR's. It is further deposed that the deceased was house wife, however she was post graduate, but he has not produced any document to this effect.
MAC No. 2489/16 Usha Garg & Ors.Vs. Yatender Garg & Ors. MAC No. 2490/16 Ashok Kumar Jindal Vs. Yatender Garg & Ors.
6/129. Respondents have not examined any witness and closed RE on 21/02/2018.
10. I have heard the arguments and perused the record. My Issue- wise findings in both matters are as under:
Issue No. 1 in both petitions- Admittedly, both the cases have been filed u/s 163A of M.V. Act and there was no requirement to the petitioners to prove the rash and negligent driving of the offending vehicle in such cases. In fact, both the cases have been filed on the basis of no "fault liability" and, in such cases, the only requirement was to prove the involvement of the vehicle during accident which resulted into sustaining the injuries by injured / deceased. As such, fault of the driver was not required to be proved to prove the issue No. 1 whereas PW2 Preeti @ Pooja has duly proved the fault of the third vehicle which hit their vehicle / WagonR, but both claims have been filed against their vehicle by which the respondent no .1 was driving and deceased was travelling. Though PW2 has relied upon the FIR Ex.PW2/2 to prove the incident, yet the maker of this FIR / respondent No 1 has denied in WS itself that no such accident had ever taken place which has disputed the version of the PW2. However, in any case, it could not be disputed that no accident took place or the death of the deceased Meetu Garg and her unborn child was not result of road accident thereby involving a vehicle. Besides, the petitioners have chosen to raise their claims against the vehicle which was boarded by the deceased and there is no dispute about this proposition that it was MAC No. 2489/16 Usha Garg & Ors.Vs. Yatender Garg & Ors. MAC No. 2490/16 Ashok Kumar Jindal Vs. Yatender Garg & Ors.7/12
their prerogative to make this choice to opt either vehicle to file claims, but this choice of the petitioners have been disputed by the Ld. Counsel for the respondents who have disputed the eligibility of the petitioners in both petitions to claim this compensation and have also questioned the maintainability of both petitions.
10.1. Ld. Counsel for the Insurance Company has argued that both the petitions are not maintainable as the petitioners were not dependents upon the deceased, due to they are not entitled for any compensation. It is further argued that even the unborn child of deceased Meetu Garg was also not covered under the definition of "person" to grant any compensation and that petition is also liable to dismiss. It is further argued that the respondent No. 1 was the husband as well as the father of the deceased and unborn child and even he was the driver of the vehicle involved in this accident against which this claim has been raised. It is further argued that the respondent No. 1 was driver of the vehicle and hit against the trolla which resulted into this accident and, if the accident took place by the fault of the respondent no. 1, then the family members of the respondents are not entitled for any compensation being not covered under the category of third party and both the petitions are liable to be dismissed.
10.2. On the other hand, Ld. Counsel for the petitioners has argued that the "unborn child" of the deceased is very well covered under the definition of "person" to consider and grant compensation as held by the Hon'ble High court of Delhi in Prakash & Ors v. Arun Kumar MAC No. 2489/16 Usha Garg & Ors.Vs. Yatender Garg & Ors.
MAC No. 2490/16 Ashok Kumar Jindal Vs. Yatender Garg & Ors.
8/12Saini & Ors, MAC APP. No. 602/2009 dated 05/02/2010 and petitioners are entitled for compensation on the death of unborn child. It is further argued that the parents of the deceased are also to be considered her LR's and they are eligible to file this claim for compensation on the death of their married daughter and both the petitions are liable to be allowed.
10.3. I have heard the arguments and pursued the record. Before dealing with the facts of the cases, it is necessary to go through the legal proposition to claim award by the family members of the driver and owner of the vehicle involved in the accident. It is held in IFFCO TOKIO General Insurance Company Ltd. v. Smt. Babita & Ors. MAC No. 149/2012 that to raise a claim u/s 163A of M.V. Act, claimant is not required to prove negligence of the involved vehicle and, even if more than one vehicle is involved during the accident, claimants are entitled to claim compensation from either or both the vehicles. It is further held in Oriental Insurance Co. Ltd. v. Meena Variyal and Ors, (2007) 5 SCC 428 that ordinarily, a contract of insurance is a contract of indemnity. When a car belonging to an owner is insured with insurance company and it is being driven by a driver employed by insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation, it is this vicarious liability of the owner that is indemnified by the insurance company. It is further held that in case where a person is not a third party within the meaning of the Act, the MAC No. 2489/16 Usha Garg & Ors.Vs. Yatender Garg & Ors. MAC No. 2490/16 Ashok Kumar Jindal Vs. Yatender Garg & Ors.
9/12insurance company cannot be made automatically liable merely by resorting to the ratio of Swarn Singh, (2004) 3 SCC 297. In view of the above said law, it stands proved that the primary liability to pay compensation in case of road accident is / was on the respondent No. 1 who is the husband as well of father of deceased in both cases. The respondent No. 2 can be made vicariously liable to pay compensation if the liability of the driver is established.
10.4. In the present case, the primarily allegations of road accident were on the unknown vehicle which caused this accident, but the respondent No. 1 has denied these allegations leveled in the FIR. However, that unknown vehicle is not implicated to this case and the other vehicle being driven by the respondent No. 1 has been involved. Respondent No. 1 is being driver of the other vehicle is prima facie the persons who contributed to cause this accident. However, it is to be seen as to whether both the deceased were covered under the definition of third party or not, to raise these claims. The deceased Meetu Garg was the wife the respondent No. 1 and unborn fetus was his child. If this accident took place by the fault or involvement of the vehicle of the respondent No. 1, then the primary liability of this accident would be on him only. The owner of the vehicle can be asked to pay these claims being vicariously liable only to a third party which shall be other then the relatives of the driver and owner of the vehicle. In case of liability of the owner, the insurance company can be made liable to reimburse the claim. However, if the owner is not liable to pay this compensation, then insurance company also cannot be asked to MAC No. 2489/16 Usha Garg & Ors.Vs. Yatender Garg & Ors. MAC No. 2490/16 Ashok Kumar Jindal Vs. Yatender Garg & Ors.
10/12pay this compensation. Though this case has been filed under no fault liability clause, yet it is open to the owner or insurance company, as the case may be, to defeat a claim under section 163A of the Act by pleading and establishing through cogent evidence a fault ground ('wrongful act' or 'neglect' or 'default') as held in National Insurance Company v. Sinitha and others, 2011 (13) SCALE 84. In view of the law laid down, the claim of the petitioners cannot be accepted because these are made under no fault liability. In these claims also, the opposite party is definitely eligible to raise all such defenses as required to defeat claims. As such, the deceased Meetu Garg and her unborn fetus were not covered under the category of third party being related to the respondent No. 1 i.e. driver of the vehicle involved in this accident and, owner and insurance company cannot be made responsible to pay this compensation. As such, both the claims cannot be entertain merely because these have been filed through the parents of the deceased or grandparents of fetus, if they were not covered under the category of third party. Accordingly, they are not entitled for any compensation and both the petitions are not maintainable.
10.5. Not only this, the unborn child of the deceased Meetu Garg was just 8 weeks old fetus and was not covered under the definition of "person" to raise a claim in terms of Section 165(1) of M.V. Act. Though Hon'ble High Court has awarded compensation on the death of unborn child in Prakash & Ors v. Arun Kumar Saini & Ors (supra), yet the facts of that case were entirely different to this case. Firstly, in that case, the unborn child was about 24-28 weeks and was in advance MAC No. 2489/16 Usha Garg & Ors.Vs. Yatender Garg & Ors. MAC No. 2490/16 Ashok Kumar Jindal Vs. Yatender Garg & Ors.
11/12stage of pregnancy and even claimants therein were husband and children of the deceased, whereas in this case, the unborn child was merely 8 weeks old fetus and was just in initial stage to say that the petitioners who are grandparents had any love and affection towards an 8 weeks old fetus. In fact, it cannot be said surely in such early stage of pregnancy that the fetus is going to be delivered or not. No doubt emotions of the parents are expected to be attached to a such a fetus also, but it cannot be said that similar emotions of grandparents are also attached with unborn child in so early age. As such, the facts of the both cases are altogether different and cannot be made applicable in each others. Both the cases are not maintainable on legal as well as factual grounds. Petitioners have failed to discharge the onus to prove the issue No. 1 in both the petitions and issue is decided against them.
11. Issue No. 2 in both petitions - The onus to prove this issued in both petitions was fixed upon the petitioners. Since the petitioners have failed to prove the Issue No. 1, accordingly both the petitioners are hereby dismissed
12. Relief: Both the petitions are hereby dismissed. Copy of judgment be given to both parties. File be consigned to record room.
Digitally signed by DEVENDER DEVENDER KUMAR
KUMAR Date: 2018.07.23
Announced in open court (DEVENDER KUMAR) 16:36:12 +0530
On 23.07.2018 PO-MACT/SHAHDARA
KARKARDOOMA COURTS, DELHI
MAC No. 2489/16 Usha Garg & Ors.Vs. Yatender Garg & Ors.
MAC No. 2490/16 Ashok Kumar Jindal Vs. Yatender Garg & Ors.
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