Delhi District Court
Union Of India vs Pushpinder Kumar on 28 October, 2024
:1:
IN THE COURT OF MS. CHARU GUPTA
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS
TRIBUNAL-01 (SE), SAKET COURTS : NEW DELHI
MACT No.: 4523/16
Union of India v. Pushpender Kumar
CNR NO. DLSE01-002304-2016
Compensation case regarding damage to vehicle
bearing no. PB-08-AM-7386(Tata Model No. 1212, 5x Ton)
Union of India
Through
Director General Border Security Force
Ministry of Home Affairs
10th Block, CGO Complex
Lodhi Road,
New Delhi-110003.
.....Petitioner
VERSUS
1. Legal Heirs of Mr. Pushpender Kumar
S/o Sh. Ram Kishan
2. Smt. Rita Batra
W/o Late Pushpender Kumar
3. Master Govil Batra
S/o Pushpender Kumar
4. Ms. Divya Batra
D/o Pushpender Kumar
All R/o:
VPO- Rajound,
Tehsil & Distt-Kaithal(Haryana) CHARU
Digitally signed
by CHARU
GUPTA
GUPTA Date:
2024.10.28
16:30:58 +0530
MACT 4523/16 Union of India v. Pushpender Kumar P.NO.1 Of 9 BK
:2:
.....LRs of Owner/Respondent no.1
5. New India Assurance Co. Ltd.
SCO 23-24, II Floor, LIC Building Huda Ground Urban Estates Jind-126102.
.....Insurance company/Respondent no.2
6. Legal Heirs of Driver Vikram Smt. Satya Devi W/o Late Randhir Singh R/o: Village-Daahola PO-Daahola, Tehsil-Jind Police Chowki-Nagura PS- Alewa, Distt-Jind.
.....Driver/LRs of Respondent no.3 Date of accident : 09.04.2013 Date of filing of claim petition : 03.03.2016 Result of Accident : Damage to property Date of Decision : 28.10.2024 AWARD
1. Present is a claim petition filed by petitioner u/s 166 Motor Vehicle Act seeking compensation for damage to a BSF Mortuary vehicle (PB-08-AM-7386, TATA Model No.1212, 5X Ton) owned by Union of India.
2. Brief facts of the case are that on 08.04.2013, the abovementioned vehicle was being driven by HC/Driver Kabridin. One ASI (GD)Murlidhar, HC Rajbir Singh, Const. Ved Pal Singh,Const. Sanjay Kumar and Const. Hari Singh of 25 Bn BSF were travelling in the said vehicle for deporting the dead body of Late SI Vijay Pal, Ex.-92 Bn BSF from IGI Airport, New Delhi to the Digitally signed by CHARU CHARU GUPTA GUPTA Date:
2024.10.28 MACT 4523/16 Union of India v. Pushpender Kumar P.NO.2 Of16:31:43 9 BK+0530 :3: hometown of deceased i.e. Gwalior, M.P. At about 12.30 AM(Midnight), when the BSF morturary vehicle reached 1 km ahead of Jewar Toll Plaza, one TATA 407 vehicle bearing registration no. HR-64-6087 (hereinafter referred to as offending vehicle) driven in rash and negligent manner by its driver namely Vikram, hit the said BSF Mortuary vehicle from behind, resulting in injury to its occupants and damage to the said BSF vehicle. It is averred that the vehicle suffered the following damages.
(a) Stepping foundation broken;
(b) Chasis likely bent;
(c) Bakcside body completely damaged;
(d) All door hinges not working properly;
(e) AC Unit not functioning;
(f) All electrical system not working properly;
(g) 02 Nos. window glasses broken;
(h) Cabin Mounting (backside) bent;
(i) Front bumper bent;
(j) Chasis bolt bent.
3. As a result of the accident, HC Rajbir Singh suffered severe chest pain and Const. Hari Singh sustained minor injuries on his left leg. Both of them were removed to the nearby hospital. The driver and co-driver of the offending vehicle suffered fatal injuries. Post the accident, body of Late SI Vijay Pal was shifted in another vehicle and in the meantime the accidental BSF Mortuary vehicle was taken to PS-Jewar, got technically inspected and brought back to Bn HQrs 25th Bn, BSF, Chhawla Camp, New Delhi. Digitally signed CHARU by CHARU GUPTA GUPTA Date: 2024.10.28 16:31:54 +0530 MACT 4523/16 Union of India v. Pushpender Kumar P.NO.3 Of 9 BK :4:
4. An FIR no. 143/2013 dated 09.04.2013 u/s 279,337,338 & 427 IPC was lodged against the driver of offending vehicle while present claim petition was filed seeking compensation for damage caused to BSF Mortuary vehicle.
5. Since the driver and owner of the offending vehilce expire, their Legal heirs were impleaded. Despite opportunity, none filed any reply on behalf of the driver and the owner of the offending vehicle.
6. In response to the petition, a reply was filed by insurance company denying its liability to pay compensation on the ground that the accident was caused due to negligence on the part of the driver of the BSF Mortuary vehicle. It is further pleaded that petitioners have failed to file any document such as mechanical inspection report to show damage to the said vehicle. It is further pleaded that actual bill of repairs have not been filed except for the estimate of the damage. It is however, not denied that the offending vehicle was insured with it.
7. From pleadings, following issues were framed vide order dated 05.04.2018.
(I) Whether the damaged vehicle bearing no.PB-08-AM- 7386, Tata Model No.1212, suffered damages in a road traffic accident dated 09.04.2013 involving vehicle bearing no.HR-64-6087 driven by R1 and owned by R2 and insured with R3 due to rash and negligent driving of R1?
OPP. Digitally signed by CHARU CHARU GUPTA GUPTA Date: 2024.10.28 16:32:10 +0530 MACT 4523/16 Union of India v. Pushpender Kumar P.NO.4 Of 9 BK :5:
(II) Whether the claimant is entitled to any compensation, if so, to what extent and from whom?OPP. (III) Relief.
8. As per record, Sh. Abhinav Sharma, Assistant Commandant was examined as PW1. He tendered his evidence by way of affidavit as Ex.PW1/1 and relied upon certified copy of criminal records as Ex.PW-1/A and Estimate of repairs of damaged vehicle as Ex.PW-1/B. He was cross-examined by learned counsel for insurance company.
9. Respondent/Insurance company examined Ms. Nikhita Bhowmik, Assistant Manager as R-3W-1. She has brought the copy of insurance policy of offending vehicle and proved the same as Ex.R-3W-1/1. She also relied uopon documents i.e. Notice dated 21.12.2021 and postal receipt dated 22.12.2021 as Ex.R-3W-1/2 and Ex.R-3W- 1/3. Further, she deposed that driver of offending vehicle was not holding valid and effective driving licence at the time of accident, hence insurance company is not liable for damage compensation. She was not cross-examined by any of the respondent.
10. Subsequently, due to continuous non-appearance of petitioner, matter was dismissed for non-prosecution vide order dated 28.03.2022. The same was revived on application moved by the petitioner, vide order dated 14.07.2023 wherein the court closed the interest of the petitioner from 17.11.2020 till filing of the application for restoration of the case i.e. on 05.09.2022. Vide the same Digitally signed CHARU by CHARU GUPTA GUPTA 2024.10.28 Date:
16:32:30 +0530 MACT 4523/16 Union of India v. Pushpender Kumar P.NO.5 Of 9 BK :6: order, this Tribunal also granted another opportunity to the petitioner to lead petitioner evidence. petitioner accordingly examined Sh. Kunj Bihhari, Deputy Commandant as PW-2(inadvertently mentioned as PW-1). He tendered his evidence by way of affidavit as Ex.PW- 1/A. He relied upon his Authorization letter as Ex.CW- 1/1, Estimate of repair of vehicle as Mark-C, copy of FIR as Mark-A and documents received from RTO and insurance policy as Mark-B and copy of claim petition as Ex.CW-1/5. He was duly cross-examined by learned counsel for insurance company.
11. Upon closure of evidence, final arguments were addressed by learned counsel for the petitioner and learned counsel for insurance company.
12. On the basis of pleadings of the parties, evidence adduced and arguments addressed, issue-wise findings are as under:-
ISSUE NO.1 (I) Whether the damaged vehicle bearing no.PB-08-AM-
7386, Tata Model No.1212, suffered damages in a road traffic accident dated 09.04.2013 involving vehicle bearing no.HR-64-6087 driven by R1 and owned by R2 and insured with R3 due to rash and negligent driving of R1? OPP.
In the present case, petitioner has alleged that the BSF Mortuary vehicle met with an accident with the offending vehicle on 09.04.2013. The same is neither disputed by the insurance company and is also proved by registration of FIR on the same date qua the accident. Digitally signed by CHARU CHARU GUPTA Date:
GUPTA 2024.10.28 16:32:43 +0530 MACT 4523/16 Union of India v. Pushpender Kumar P.NO.6 Of 9 BK :7: As regards damages to the BSF Mortuary vehicle, it has been alleged that such BSF Mortuary vehicle sustained following damages:
(a) Stepping foundation broken;
(b) Chasis likely bent;
(c) Bakcside body completely damaged;
(d) All door hinges not working properly;
(e) AC Unit not functioning;
(f) All electrical system not working properly;
(g) 02 Nos. window glasses broken;
(h) Cabin Mounting (backside) bent;
(i) Front bumper bent;
(j) Chasis bolt bent.
13. In order to prove the damage, petitioner examined PW-1 and PW-2. During cross-examination, PW-1 admitted that he had not seen the damaged vehicle. It is a matter of record and an undisputed fact that PW-1 is neither an eye witness nor was an occupant of the allegedly damaged vehicle. It is significant to note that PW-1 stated in his cross-examination that the alleged damaged BSF vehicle has not been repaired so far. Similarly, PW-2 Kunj Bihari also relied upon certain estimates of the repair and during his cross-examination admitted that he was not present at the time of accident nor has any personal knowledge about the case. He stated that the accident vehicle may have been towed after a few days of accident and was first taken to TATA Motors work shop at NOIDA for inspection after the accident. He could not Digitally signed by CHARU CHARU GUPTA GUPTA Date:
2024.10.28 16:32:54 +0530 MACT 4523/16 Union of India v. Pushpender Kumar P.NO.7 Of 9 BK :8: testify if the vehicle was thereafter repaired at TATA Motors shop or at BSF Camp Chhawla, Delhi, where it was brought thereafter.
It is further seen that the estimate of bills relied upon by the petitioner as Ex.PW-1/B-1 to Ex.PW-1/B-7 do not bear any date or denote any damage of the said vehicle. Petitioner has not filed any mechanical inspection report to prove that the allegedly damaged vehicle was ever inspected during the investigation of the criminal case. Not even the photographs of the allegedly damaged vehicle have been placed on record. It is surprising that while it is claimed that the said BSF Mortuary vehicle was hit from behind and there is no averment that the vehicle then collided with any other object so as to cause damage to its frontal portion, petitioner has specified damages even on the frontal and side body of the said vehicle including front bumper, all doors and hinges and allegedly damaged chasis. Further, the estimates of repair are not limited to the above alleged damage caused to the said vehicle.
Petitioner has not even filed any proof of the fact that the damaged vehicle was inspected by the insurance company with which it was insured or even at the BSF Camp where it was allegedly taken. None of the witnesses examined by the petitioner have even seen the damaged vehicle on the date of the accident.
14. Petitioner has, as such failed to prove that the BSF Mortuary vehicle ever suffered any damage as a result of the accident. In absence of proof of any actual damage toDigitally signed by CHARU CHARU GUPTA GUPTA Date:
2024.10.28 16:33:04 +0530 MACT 4523/16 Union of India v. Pushpender Kumar P.NO.8 Of 9 BK :9: any property, no compensation can be awarded to the petitioner on the basis of presumptions and estimates. Petiton is accordingly dismissed. The issue No. 1 is decided accordingly against the petitioner.
ISSUE NO.2:
Whether the claimant is entitled to any compensation, if so, to what extent and from whom?OPP.
15. In view of the above discussion and reasons discussed in issue no.1, it is held that petitioner is not entitled to any compensation. Accordingly, issue no.2 is decided against the petitioner.
16. Present claim petition is accordingly dismissed.
Digitally signed by Announced in the open court CHARU CHARU GUPTA on 28th October, 2024 GUPTA Date:
2024.10.28 16:33:12 +0530 (Charu Gupta) PO-MACT-01(South-East) Saket Court/ New Delhi MACT 4523/16 Union of India v. Pushpender Kumar P.NO.9 Of 9 BK