Delhi District CourtMs.Matesari Devi Wife Of Mr.Chander ... vs The New India Assurance Co. Ltd on 21 December, 2010IN THE COURT OF MS.NIVEDITA ANIL SHARMA,
           JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL­02,
                                                       NEW DELHI

Suit Number                                                   : 378/08.
Unique Case ID Number                                         : 02403C0836322008


Ms.Matesari Devi Wife of Mr.Chander Bhan Puri
Aged about 44 years
Resident of RZE­3, Dwarika Puri, 
Near Vijay Enclave, NewDelhi.                                 .............Petitioner.
                                                             Versus
1. The New India Assurance Co. Ltd., 
    Vide Insurance Policy Number 451302/1390 
    Certificate number 581/594690 
    Covering the rise w.e.f. 06.11.1982 to 05.11.1983 
    and issued from its Divisional Office 5130
    Bombay Life Building Connaught Place, New Delhi­1.
2. Singhal Transport Corporation
   Through Mr.Dinesh Porewal Son of Mr.B.L.Porewal
   D­3876 Roshanara Road, Delhi­110007.
3. Mr.Ram Avadh son of Mr.Nanku Yadav
    Resident of Village Faridabad,
    Police Station Nizamabad, District Azamgarh, U.P.
   Also Through  
   Mr.Dinesh Porewal Son of Mr.B.L.Porewal
   Care of Singhal Transport Corporation,
   D­3876 Roshanara Road, Delhi­110007.           .............Respondents.Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  1 of 32 ::­
 Date of institution                                                                                    : 22.08.2001.Date of judgment and award                                                                             : 21.12.2010.Appearances: None for the petitioner.None for the respondent number 1.Respondent numbers 2 and 3 have been proceeded ex parte.


JUDGMENT AND AWARD1.                  The present claim petition undersections 166and140of

the Motor Vehicle Act (hereinafter referred to as theMV Act) has

been   filed   by  Ms.Matesari   Devi,   the   petitioner,   against  The   New

India   Assurance   Co.   Ltd.,   Singhal   Transport   Corporation  and

Mr.Ram Avadh, all the respondents, for compensation regarding the

death   of   Mr.Suraj   Dev   Puri,   the   son   of   the   petitioner,   in   a   road

traffic accident.2.                  Initially,   the   petition   had   been   filed   with   Mr.Chander

Bhan Puri, father of the deceased and husband of the petitioner, as

respondent number 4 but as subsequently he expired, his name was

deleted from the array of respondents.3.                  It is averred by the petitioner namely Ms.Matesari Devi

that on 01.08.1983 at about 4.30 pm, Mr.Suraj Dev Puri, her 15 years
Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  2 of 32 ::­
 old  son,  was     going   along  with   his   father   and   one   relation   from

Kalkaji   Mandir   towards   Hari   Nagar   Ashram   via   kutcha   road

adjacent to Mathura Road on foot to board a bus for Kirti Nagar,

Ring   Road,  Delhi  and   when   the   deceased   had   reached   infront   of

bunglow number 19, West Friend Colony, suddenly a truck bearing

registration number DEG­6971 driven in rash and negligent manner

by   respondent   number  3     came   from   Badarpur   side   and   caused

accident with the deceased due to which he received fatal injuries.

The   offending   vehicle   was   owned   by   respondent   number  2   and

insured   with   respondent   number  1   on   the   date   of   accident.   The

deceased was aged 15 years and was a student. Case FIR  number

270/83 dated  01.08.1983 under sections 279/337/304­A of theIndian

Penal Code(hereinafter referred to as theIPC) was lodged in Police

Station Sri Niwas Puri against respondent number 3. The petitioner

has claimed compensation of Rs.5 lacs from all the respondents.4.                  Summons of the case were served upon all the respondents

and pursuant there to all the respondents had appeared. However,

only respondent numbers 1 and 3 have filed their written statements

and   respondent   number   2   did   not   file   the   written   statement.   As

respondent   numbers   2   and   3   failed   to   put   an   appearance
Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
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 subsequently   they   were   proceeded   ex   parte.   Only   respondent

number 1 is the contesting respondent.5.                  In   the   written   statement   filed   on   behalf   of   respondent

number 1, all the averments made in the petition are controverted

and rebutted. It is however admitted that the offending vehicle i.e.

Nissan   Truck bearing registration number DEG­6971 was insured

with respondent number 1 vide policy no.451302/1390  for the period

w.e.f. 06.11.1982 to 05.11.1983 in the name of respondent number 2.

Prayer for dismissal of the petition is made.6.                  The learned predecessor did not pass any order regarding

the interim award.7.                  Vide   order   dated   18.10.2005   the   following   issues   were

framed:(1)        Whether the deceased Suraj Dev Puri received fatal
              injuries in road accident dated 1.8.1983 because of rash and
              negligent driving of Truck No.DEG­6971  driven by respondent
              no.3  owned  by  respondent  no.2  and  insured  with  respondent
              no.1?OPP.(2)        If issue no.1 is proved in affirmative to what amount
              of   compensation   the   petitioner   is   entitled   to   and   from
Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  4 of 32 ::­
               whom?OPP.(3)    Relief?8.                  In  order  to   prove  her case,  the petitioner  has examined

Mr.Dinesh   Kumar   as   PW1,   Mr.Chander   Bhan   Puri   as   PW2,

petitioner     herself   as   PW3   and   Mr.Ashok   Kumar   as   PW4.   The

respondent number 1 has examined Mr.Suraj Bhan as R1W1 and

Mr.Naresh Kumar Watts as R1W2 in support of its contentions.9.                  PW1   has   produced   the   post   mortem   report   of   the

deceased.10.                 PW2, who is an eye witness, has filed his affidavit as his

examination in chief and has deposed on the lines of the petition and

about  the manner  in  which  the accident  occurred  resulting  in  the

death of his son.11.                 PW3  has   filed  her  affidavit  as  her examination  in  chief

and has deposed on the lines of the petition.12.                 PW4 has produced the FIR of the case and has deposed

Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
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 that the challan has already been sent to the Court.13.                 R1W1 has produced the notice under order 12 rule 8 of

the Civil Procedure Code (hereinafter referred to asthe CPC) issued

to   the   registered   owner   of   the   vehicle   which   was   insured   with

respondent number 1 and there was fixed liability of Rs.50,000/­. He

did not have written permission from higher authorities to appear

and depose in the Court.14.                 R1W2   has   deposed   that   the   offending   vehicle   i.e.   DEG­

6971 was insured with respondent number 1 by respondent number

2 and there was fixed liability of Rs.50,000/­.15.                 Despite   due   opportunities,   neither  the   petitioner   nor

respondent number 1 filed their written arguments nor their counsel

appeared for advancing verbal arguments. Therefore, the matter is

being considered as per law. I have also given my conscious thought

and   prolonged   consideration   to   the   material   on   record,   relevant

provisions of law and the precedents on the point.16.                 After,  careful  perusal  of  the  record,  my  findings  on  the
Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  6 of 32 ::­
 issues are as follows:ISSUE NUMBER 1 :17.                 Issue number 1 is.............  Whether the deceased Suraj

Dev   Puri   received   fatal   injuries   in   road   accident   dated   1.8.1983

because of rash and negligent driving of Truck No.DEG­6971  driven

by   respondent   no.3   owned   by   respondent   no.2   and   insured   with

respondent no.1?OPP.18.                 As the petition  is  undersection  166of  the MV Act, the

rashness   and   negligence   of   the   offending   driver   is   required   to   be

proved by the petitioners.19.                 Section 140 of the MV Act reads as:Liability   to   pay   compensation   in   certain   cases   on   the
                   principal   of   no   fault­   (1)   Where   death   of   permanent
                   disablement   of   any   person   has   resulted   from   an   accident
                   arising out of the use of a motor vehicle or motor vehicles,
                   the owner of the vehicle shall, or, as the case may be, the
                   owners of the vehicles shall, jointly and severally, be liable to
                   pay compensation in respect of such death of disablement in
                   accordance with the provisions of this section.
                   (2)   The   amount   of   compensation   which   shall   be   payable
                   under sub section(1) in respect of the death of any person

Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
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                    shall   be   a   fixed   sum   of   (fifty   thousand   rupees)   and   the
                   amount of compensation payable under that sub­section in
                   respect of the permanent disablement of any person shall be
                   a fixed sum of (twenty­five thousand rupees). 
                   (3) In any claim or compensation under sub­section (1), the
                   claimant shall not be required to plead and establish that the
                   death   or   permanent   disablement   in   respect   of   which   the
                   claim has been made was due to any wrongful act, neglect or
                   default   of   the   owner   or  owners  of   the   vehicle   or   vehicles
                   concerned or of any other person.(4) A claim for compensation under sub­section (1) shall not
                   be defeated by reason of any wrongful act, neglect or default
                   of   the   person   in   respect   of   whose   death   or   permanent
                   disablement the claim has been made nor shall the quantum
                   of   compensation   recoverable   in   respect   of   such   death   or
                   permanent disablement be reduced on the basis of the share
                   of   such   person   in   the   responsibility   for   such   death   or
                   permanent disablement.(5)   Notwithstanding   anything   contained   in   sub­section   (2)
                   regarding death or bodily injury to any person, for which the
                   owner of the vehicle is liable to give compensation for relief,
                   he is also liable to pay compensation under any other law for
                   the time being in force:Provided that the amount of such compensation to be given
                   under any other law shall be reduced from the amount of
                   compensation   payable   under   this  section   or   under   section
                   163­A.20.                 Section 166 of the MV Act reads as:Application   for   compensation:­   (1)   An   application   for
Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  8 of 32 ::­
                   compensation   arising   out   of   an   accident   of   the   nature
                  specified in sub­section (1) ofsection 165may be made­1.   by the person who has sustained the injury; or2.   by the owner of the property; or3.   where death has resulted from the accident, by all or any
                  of the legal representatives of the deceased; or4.   by any agent duly authorised by the person injured or all 
                  or   any   of   the   legal  representatives  of  the  deceased,  as  the
                  case may be:Provided   that   where   all   the   legal   representatives   of   the
                  deceased   have   not   joined   in   any   such   application   for
                  compensation, the application shall be made on behalf of or
                  for the benefit of all the legal representatives of the deceased
                  and the legal representatives who ;have not so joined, shall
                  be impleaded as respondent to the application. 
                  (2) Every application under sub­section (1) shall be made, at
                  the   option   of   the   claimant,   either   to   the   Claims   Tribunal
                  having   jurisdiction   over   the   area   in   which   the   accident
                  occurred or to the Claims Tribunal within the local limits of
                  whose jurisdiction the claimant resides or carries on business
                  or within the local limits of whose jurisdiction the defendant
                  resides,   and   shall   be   in   such   form   and   contain   such
                  particulars as may be prescribed:Provided   that   where   no   claim   for   compensation   under
                  section 140 is made in such application, the application shall
                  contain a separate statement to that effect immediately before
                  the signature of the applicant.(4) The Claims Tribunal shall treat any report of accidents
                  forwarded  to  it  under  sub­section  (6) ofsection  158as  an
                  application for compensation under this Act.Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  9 of 32 ::­21.                 The   petitioners   have   examined   PW4   who   has   produced

Ex.PW4/A   which   is   the   record   of  FIR  number  270/83   dated

01.08.1983 under sections 279/337/304­A of theIPCof Police Station

Sri Niwas Puri against respondent number 3 containing the FIR, site

plan, mechanical inspection report, etc. I find on perusal of the same

that in the FIR, the offending vehicle is mentioned as truck bearing

registration number DEG­6971.22.                 The claim of the respondents  that respondent number  3

has been falsely implicated in the present case to help the petitioners

is not tenable as no one is above the law and no one can be punished

without evidence and neither the police nor the Court can be made

to deviate from the law.23.                 Proceedings   under   theMV   Actare   not   akin   to

proceedings in a civil Court and hence strict rules of evidence are

not required  to  be followed  in  this regard. Certified  copies  of the

criminal Court record such as FIR etc. are sufficient proof to reach

the conclusion that driver was negligent. It is not necessary for the

petition to prove rashness and negligence of the driver/ respondent

where   there   is   no   eye   witness   as   the   same   can   be   proved   by
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Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  10 of 32 ::­
 documents such as the FIR to show that his vehicle was involved in

the accident. (Reliance can be placed upon the judgment of the Delhi

High Court in the case reported as Union of India v.Rajo and others,

116 (2005) DLT 226).24.                 The Supreme Court in its judgment in the case reported

as  N.K.V.Bros.   (P)   Ltd.   v.   M.Karumai   Ammal   &   Ors.   etc.,   in

Supreme Court Cases on Motor Accident Claims at page 685  has

observed   that   Court/Tribunal   should   not   succumb   to   niceties

technicalities   and   mystic.   Special   care   must   be   taken   to   see   that

innocent victims do not suffer and drivers and owners do not escape

liability   merely   because   of   some   doubt   here   or   obscurity   there.

Except   in   plain   cases,   culpability   must   be   inferred   from

circumstances where it is fairly reasonable.25.                 In order to  prove  the rash  and negligent  driving  of the

offending vehicle i.e. truck  bearing registration number  DEG­6971

by   respondent   number  3  in   the   accident,   the   petitioners   have

produced   and   proved   the   copies  of   FIR  number  270/83   dated

01.08.1983 under sections 279/337/304­A of theIPCof Police Station

Sri  Niwas   Puri   against   respondent   number  3  besides   the   other
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 documents which are part of the criminal case record.26.                 It can be seen from the criminal case record that the IO

has reached the conclusion after investigation that the driver of the

offending  vehicle  is  respondent  number  3  and  he was  driving  the

offending   vehicle  in  a  rash  and  negligent  manner  and  respondent

number 3 is being prosecuted. It is clear that after due investigation,

it has been concluded that it is the respondent number 1 and none

else who has caused the accident.27.                 PWs  2  and  3  have categorically deposed that respondent

number  3  had caused the accident driving the offending vehicle i.e.

truck  bearing   registration   number  DEG­6971   in   a   rash   and

negligent  manner resulting  in the death  of  the deceased  Mr.Suraj

Dev   Puri.   They   have   assigned   a   very   clear   and   specific   role   to

respondent   number  3.   I   do   not   find   anything   material   in   their

lengthy   cross   examination   which   could   indicate   the   respondent

number  3  was   not   driving   the   offending   vehicle   in   a   rash   and

negligent manner.28.                 Respondent number 3 is not contesting. He apparently did
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Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  12 of 32 ::­
 not   care   to   appear   before   the   IO   of   the   criminal   case,   learned

Magistrate or any authority to inform or complain that respondent

number 1 has been falsely implicated. Neither respondent number 1

nor respondent numbers 2 and 3 have approached the High Court

for quashing the FIR.29.                 The   conduct   of   respondent   number  3  in   the   present

matter appears to indicate that the accident has been caused by him.

It cannot be disputed that respondent number  3  is facing trial in a

criminal   case   of   accident   and   even   the   police   investigation   has

concluded that he is the culprit.30.                 PW2   is   an   eye   witness   of   the   accident   and   he   has

categorically deposed that the accident occurred due to the rash and

negligent driving of the offending vehicle by respondent number 3

resulting in the death of the deceased. The fact that he has deposed

in   his   cross   examination   that   at   the   time   of   accident   nobody

accompanied   him   and   his   deceased   son   while   in  the   petition   it   is

mentioned that there was a relation also, this fact is immaterial for

the   proceedings   under   theMV   Actand   may   be   relevant   in   the

criminal   proceedings.   It   is   not   disputed   in   the   evidence   that   the
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 father   of   the   deceased   was  with  him  when  the  accident  occurred.

There   is   nothing   in   his   cross   examination   which   can   shatter   the

veracity of his testimony. PW2 is an eye witness of the accident and

has  categorically  deposed   on  oath  regarding  the offending  vehicle

being driven in a rash and negligent manner by respondent number

3  due   to   which   the   accident   had   occurred   in   which   the   deceased

Mr.Suraj Dev Puri received fatal injuries and died. Nothing material

has   come   forth   in   his   cross   examination   which   could   shatter   the

veracity of the case or falsify the version of the petitioners. The fact

that respondent number 3 was indeed rashly and negligently driving

the offending vehicle resulting in the death of the deceased Mr.Suraj

Dev Puri clearly proved by the unshatterred and unassailed evidence

of PWs as well as the criminal case record. The respondents  have

also been able to show otherwise to substantiate its averments.31.                 It   also   cannot   be   ignored   that   when   an   eye   witness   is

examined   at   length   it   is   quite   possible   for   him   to   make   some

discrepancies.   No   true   witness   can   possibly   escape   from   making

some   discrepant   details.   Perhaps   an   untrue   witness   who   is   well

tutored can successfully made his testimony totally non­discrepant.

But Courts should bear in mind that it is only when discrepancies in
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Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  14 of 32 ::­
 evidence of witness  are so incompatible with the credibility  of his

version that the Court is justified in jettisoning his evidence. But too

serious   a   view   to   be   adopted   on   mere   variations   falling   in   the

narration   of   incident   (either   as   between   the   evidence   of   two

witnesses or as between two statements of the same witness) is an

unrealistic   approach   for   judicial   scrutiny.   Therefore,   the

contradictions in the evidence of the PWs are not relevant.32.                 The petitioners have also produced and proved the copies

of the criminal case record wherein it is specifically mentioned that

the offending vehicle  i.e.  truck  bearing registration  number  DEG­

6971   was   driven   in   a   rash   and   negligent   manner   by   respondent

number  3  and has caused the accident due to which the deceased

Mr.Suraj   Dev   Puri  has   received  fatal  injuries,  the  FIR registered

regarding   the   accident,   site   plan,   post   mortem   report   of   the

deceased, statements undersection 161Cr.P.C. of the witnesses, etc.

PW4  has  also  deposed  that the challan  i.e. the final  report  undersection 173of the Criminal Procedure Code (hereinafter referred to

as theCr.P.C.) has also been put in Court.33.                 The  claim   of  the petitioners  that  the deceased  had  died
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 due to the injuries received by him in an accident caused by the rash

and   negligent   driving   of   the   offending   vehicle   i.e.   truck  bearing

registration number DEG­6971 by the respondent number 3 appears

to be absolutely correct as proved from the criminal case record as

well   the   evidence.   All   the   above  documents   show   that  respondent

number  3  is being prosecuted for rash and negligent driving of the

offending  vehicle  and  causing  accident  due to  which  the  deceased

had received fatal injuries.34.                 It is settled proposition that in case the charge sheet has

been  filed against  the driver of the alleged offending  vehicle, it is

sufficient proof regarding the involvement of the vehicle and factum

of accident unless and until denied by the respondent.In this regard

reference can also be made toBala & Ors v. Moti Chand Gupta &

Others2003   VIII   AD   (Delhi)   256,   the   Delhi   High   Court   held   as

under:­

             Plain reading ofSection 158(6)andSection 166 (4)of the Act
             shows   that   even   the   charge   sheet   submitted   by   the   Police
             Officer to the Tribunal  is to be treated as an application  for
             compensation by the claims tribunal. Once the charge­sheet is
             forwarded  to  the claims  tribunal, the tribunal  is  immediately
             made aware that the accident has been caused by the offending
             vehicle and the tribunalin that caseis not required to go into
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              any   further   technicality  to  direct  the  claimants  to  still  prove
             that the offending vehicle was involved in the accident unless,
             of   course,   the   party   opposing   the   petition   denies   the
             involvement of such vehicle.35.                 Arrest of the accused/ respondent number  3, his vehicle

being   impounded,   his   being   prosecuted   and   his   not   making   any

complaint of alleged false implication clearly point towards the guilt

of   respondent   number  3.   These   facts   in   totality   indicate   that   the

deceased had received  fatal injuries in the road accident due to the

rash and negligent driving of respondent number 3. The contentions

of the respondents remain unproved.36.                 There is nothing on record to indicate that the respondent

number  3  was   not   driving   the   offending   vehicle   in   a   rash   and

negligent   manner   or   that   he   has   not   caused   the   accident.  The

concept   of   rashness   and   negligence  in  the  present  case  is  entirely

different   from   the   criminal   proceedings.   In   the   present   case,   the

rashness  and  negligence is  only  one  of the species  of  the cause of

action.37.                 A   criminal   case   has   been   registered   vide   FIR  number
Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
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 270/83 dated 01.08.1983 under sections 279/337/304­A of theIPCof

Police Station Sri  Niwas Puri against respondent number  3 which

supports   the   claim   of   the  petitioners  that  it   was  due  to  rash  and

negligent   act   of   the   driver   of   offending   vehicle   i.e.   respondent

number 3 that the accident had taken place resulting in the death of

the deceased. A perusal of the criminal record also shows that the

police investigation has also concluded that the accident had taken

place due to rash and negligent  act of the driver of the offending

vehicle   i.e.   respondent   number  3.  It   is   evident   that   respondent

number  1  was  rash   and  negligent  in  driving  his  vehicle  i.e.  truck

bearing registration number  DEG­6971, FIR  number  270/83 dated

01.08.1983 under sections 279/337/304­A of theIPCof Police Station

Sri Niwas Puri against respondent number 3, which hit the deceased

Mr.Suraj   Dev   Puri  and   eye   witness,   PW2,   has   witnessed   the

accident.38.                 Even if there was no eye witness, then also the final report

in the criminal case is sufficient proof to show the rash and negligent

driving of the offending vehicle by respondent number 1. (Reliance

can be placed upon the judgments reported asUnion of India v. Rajo& ors., 116 (2205) DLT 226; Basant Kaur and others v. Chatarpal
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 Singh and others, 2003 ACJ 369).39.                 As   discussed   above,  the respondents  have  failed  to  lead

any evidence in this case to deny the factum of the offending vehicle

being  driven   rashly   and   negligently  by respondent  number  3  and

causing   accident   in   which   the   deceased   has   expired.   In   these

circumstances, I consider that the petitioners have duly proved that

the deceased Mr.Suraj Dev Puri has received injuries resulting in his

death due to road accident caused by the offending vehicle i.e. truck

bearing registration number DEG­6971 being driven by respondent

number 3 in a rash and negligent manner. Therefore, the testimonies

of petitioners' witnesses considered along with the other documents

i.e. the FIR registered in this case, charge sheet, post mortem report,

etc., I am of the considered opinion that the deceased Mr.Suraj Dev

Puri has received injuries resulting in his death due to road accident

caused   by   the   offending   vehicle   i.e.   truck  bearing   registration

number  DEG­6971 being driven by respondent number  3 in a rash

and negligent manner.40.                 It   is   not   in   dispute   that   on   the   date   of   accident   the

offending   vehicle   was   driven   by   respondent   number   3,   owned   by
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Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  19 of 32 ::­
 respondent   number   2   and   insured   with   respondent   number   1,   as

admitted in the written statement of respondent number 1.41.                 I   hereby   hold   that   Mr.Suraj   Dev   Puri   suffered   fatal

injuries   on   01.08.1983  due  to  rash  and  negligent  driving  of  truck

bearing  registration  number  DEG­6971  on the part of respondent

number 3.42.                 Issue   number   1   is   accordingly   decided   in   favour   of   the

petitioners and against the respondents.ISSUE NUMBER 2 :43.                 Issue   number   2   is.............If   issue   no.1   is   proved   in

affirmative to what amount of compensation the petitioner is entitled

to and from whom? OPP.44.                 The   petitioner   has  claimed   that  she  is  the   only   legal

representative   of   the   deceased   Mr.Suraj   Dev   Puri   besides

Mr.Chander Bhan Puri, his father, respondent number 4, who has

since expired. PWs 2 and 3 have also similarly deposed. 


Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  20 of 32 ::­45.                 Therefore, it is clear that Ms.Matesari Devi (mother) is the

only legal heir of the deceased.46.In view of the judgment of the Supreme Court in the case

ofSmt.Sarla Verma & Ors. v. Delhi Transport Corporation & Anr.,

in Civil Appeal No.3483 of 2008, decided on April 15, 2009 (arising

out of SLP (C) No.8648 of 2007)  Smt.Sarla Verma & Ors. v. Delhi

Transport   Corporation   &   Anr.,  of   the   Apex   Court   not   only   is

available on the official website of the Apex Court i.e. supreme court

of India.nic.in  and also  is reported in  as  2009 (6) Scale 129:  2009

ACJ 129: III (2009) ACC 708 (SC) and also relied upon in the Delhi

High Court in its order dated 08.05.2009 in MAC.App.No.842/2003

in FAO No.842/2003, in the case of  Rajesh Tyagi & Ors. v. Jagbir

Singh   &   Ors.  decided   on   21.04.2009,  the   law   of   compensation,

structured formula and appropriate multiplier have been changed,

overruling the earlier law as well as giving a new clarification to the

Second Schedule.47.                 Therefore,   only  the  petitioner   being   the   mother   of   the

deceased is entitled to the compensation under theMV Act.

 
Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  21 of 32 ::­
 LOSS OF DEPENDENCY:48.                 The   petitioner,  as  PW3,  and  Mr.Chander  Bhan  Puri  as

PW2  have  deposed in  their  affidavits  filed as  their  examination in

chief that the deceased, Mr.Suraj Dev Puri, was aged 15 years on the

date of accident. There is nothing brought on the record which could

show   otherwise   as   there   is   nothing   material   in  their  cross

examination   by   respondents  which   have  also   not   led   any

controverting evidence of their own.49.                 Therefore,   keeping   in   view   the   evidence   of   petitioner,

PW3, and PW2, it is clear that the deceased was aged 15 years at the

time of his demise.50.                 Further,   as   regards,   his   income,   it   is   averred   in   the

petition and deposed in the evidence of PW1 as well as PW2 that the

deceased was a student and had a bright future.51.In terms of the judgment of the Delhi High Court reported

asMohd. Ayyub and another v. Satish Kumar Gupta and others,

2010 ACJ 420, it may be observed that the pecuniary damages are

quantified   as   Rs.2,25,000/­,   the   non­pecuniary   damages   are
Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  22 of 32 ::­
 quantified as Rs.75,000/­ as the deceased was aged 15 years and his

notional income is taken as Rs.15,000/­ per annum and applying the

multiplier of 15, the claimant petitioner is entitled to compensation

of Rs.3,00,000/­ as loss of dependency.52.                 Accordingly, Rs.3,00,000/­ is awarded to the petitioner as

loss of dependency.LOSS OF FUTUTE PROSPECTS:53.In terms of the judgment of the Delhi High Court reported

asMohd. Ayyub and another v. Satish Kumar Gupta and others,

2010   ACJ   420,   the   claimant   is   entitled   to   compensation   of

Rs.75,000/­ as loss of future prospects.LOSS OF LOVE AND AFFECTION:54.                 The petitioner has lost her young son aged 15 years in the

present accident. The loss of love and affection and the emotional

trauma that the family of the deceased have undergone cannot be

assessed in monetary  terms. Money cannot compensate the loss  of

love and affection of a son that petitioner had lost due to his death in

the   accident.   However,   considering   the   overall   facts   and
Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  23 of 32 ::­
 circumstances   of   the   case,   I   award   a   sum   of  Rs.10,000/­  to   the

petitioner towards loss of love and affection.



MEDICAL EXPENSES:55.                 The petitioner  has not  filed  any  medical bills. Therefore,

no amount is awarded under the heading of medical expenses to the

petitioner.PAIN AND SUFFERING:56.                 The petitioners have although claimed compensation for

pain   and   suffering,   but   in   view   ofSarla   Verma's   case,   I   am  not

inclined to grant any amount under this heading.

 

FUNERAL EXPENSES:57.                 An   amount   of  Rs.10,000/­  is   awarded   on   account   of

funeral expenses.LOSS TO ESTATE:58.                 An amount of  Rs.10,000/­  on account of loss to estate to

petitioner is also granted as the deceased, Mr.Suraj Dev Puri, had he

remained alive, he would have made some property.
Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  24 of 32 ::­
 TOTAL COMPENSATION:59.                 In the petition, the petitioner is entitled to the following

compensation in the present petition:Loss of dependency                                            : Rs.3,00,000/­.

             Loss of future prospects                                      : Rs.75,000/­.

             Loss of love and affection                                    : Rs.10,000/­

             Medical expenses                                              : Nil.

             Pain and suffering                                            : Nil.

             Funeral expenses                                              : Rs.10,000/­

             Loss to estate                                                : Rs.10,000/­

              
             Total compensation 
                                                   
                                                   : Rs.
                                                       4,05,000
                                                                /­.
                                                                   



 
LIABILITY OF RESPONDENT NUMBER 
                               1:60.                 It may be mentioned here that the fact that the offending

vehicle   was   insured   with   respondent   number  1  by   respondent

number 2  and  was valid  on the date of  accident is admitted. The

documents of the offending vehicle are also valid.61.                 Nothing  is  shown  by respondent  number  1  which could

absolve it of its joint and several liability to pay compensation. In the

Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  25 of 32 ::­
 evidence of respondent number 1 i.e. of R1W1 and R1W2 that there

is a fixed liability  of Rs.50,000/­  only to be paid by the Insurance

Company.62.                 However,   I   am   of   the   considered   opinion   that   as   the

insurance policy has not been produced in the Court and as R1W1

has   deposed   in   his   cross  examination  that  he  cannot  say  whether

marked   documents   A   (circular   of   company   destroying   the   police

record) and B (photocopy of policy) are original and fabricated, the

evidence of R1W1 cannot be taken into consideration.63.                 Further,   as   regards   the   evidence   of   R1W2,   he   has

produced the attested copy of the insurance policy which is proved

as Ex.R1W2/1 and he has deposed that the insurance company has

fixed liability of Rs.50,000/­ and as he has not been cross examined,

it   is   hereby   observed   that   the   insurance   company/   respondent

number 1 has fixed liability of Rs.50,000/­   only and the remaining

liability is to be borne by the other respondents.64.                 Consequently, respondent number  1  being the insurer of

the   offending   vehicle   is  liable   to   pay   the   compensation   upto
Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  26 of 32 ::­
 Rs.50,000/­ only under theMV Actto the petitioner.

 

 
LIABILITY OF RESPONDENT NUMBERS 
                                2   AND 
                                        3  :65.                 Respondent  number  3, being  the driver  and  respondent

number   2,   being   the   owner/insured   of   the   offending   vehicle,   are

liable jointly and severally to pay compensation to the petitioners.RELIEF:66.                 Petitioner is entitled to  Rs.4,05,000
                                                          /­
                                                               as compensation. No

interim compensation was awarded to the petitioners by the learned

predecessor of this Court. The total compensation which now is to be

 
given to the petitioner is Rs.4,05,0
                                     00/­
                                        . The petitioner is also entitled

to the interest at the rate of 7.5% per annum from the date of filing

of petition i.e. 22.08.2001 till its realization.67.                 The   amount   of   Rs.4,05,000/­   which   is   to   be   given   to

petitioner, in terms of the directions in the judgment in the case of New

India Assurance Co.Ltd. v. Ganga Devi & ors, in MAC App.135/2008

decided on 20.01.2010 by his Lordship, Hon'ble Mr.Justice J.R.Midha,

as she needs to take care of her expenses and her family responsibilities,

Rs.55,000/­ be released immediately in favour of petitioner number 1

Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  27 of 32 ::­
 and the remaining amount of Rs.3,50,000/­ be kept in 7 fixed deposits of

Rs.50,000/­ each for the periods of six months, one year, one and a half

years, two years, two and a half years, three years and three and a half

years.68.                 The FDRs shall be without the facility of advance / loan or

withdrawal. However, the petitioner  will be entitled to monthly or

quarterly interest as applicable.69.                 Respondent number  1, Insurance Company is directed to

directly  deposit the  part of the  award amount  i.e. Rs.50,000/­ (the

fixed   liability)  with   the   Nodal   Officer   of   UCO   Bank,   Delhi   High

Court   Branch,   New   Delhi   within   30   days.   Insurance

Company/driver/owner of the offending vehicle are also directed to

place on record the proof of deposit of the award amount, the notice

of the deposit to the claimant and the calculation of interest in the

Court within 30 days from today.70.                 The remaining amount of  Rs.4,05,000
                                                        /­
                                                             minus Rs.50,000/­
                                                                              

which totals to Rs.3,55,000/­ shall be paid by respondent numbers 2

and 3 i.e. the owner and driver.Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  28 of 32 ::­71.                 In   case   the   Insurance   Company   fails   to   do   so,   General

Manager   of   Insurance   Company   will   file   reasons   for   non­

compliance.In case  of further  delay, the Insurance  Company  will

deposit   the   cheque   along   with   the   cost   of   Rs.5,000/­   without   any

further   directions   as   per   judgment   ofNew   India   Assurance

Company Ltd. v. Kashmiri Lal, 2007 ACJ 688.72.                 Ahlmad/Nazir   will   report   to   the   undersigned   if   the

cheques in this case are not received within 30 days of passing of this

judgment.  Ahlmad/Nazir   to   note   the   particulars   of   the   award

amount etc. in his register today.73.                 The petitioner will file two sets of photographs along with

her specimen signatures out of which one set be sent to the Nodal

Officer   of   the   Bank   along   with   copy   of   the   award   by   the

Ahlmad/Nazir and the second set shall be retained in the Court for

further reference. The photographs be got stamped and be sent to

the Bank. The proof of residence and details of the bank account be

also   provided   by   the   petitioner   within   seven   days   to   the

Ahlmad/Nazir.Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  29 of 32 ::­74.                 Aforesaid  fixed   deposits  are  to  be made by UCO Bank,

Delhi High Court Branch, New Delhi in the following manner:(1)   The   UCO   Bank,   Delhi   High   Court   Branch   shall   open

             separate   Savings   Accounts   in   the   name   of  claimant   and   the

             entire interest on the aforesaid fixed deposits be credited in the

             said   accounts.   The   fixed   deposits   shall   be   automatically

             renewed till the period prescribed by the Court.(2) The interest  on the aforesaid  fixed deposits  shall  be paid

             monthly by automatic credit of interest in the Saving Accounts.(3) Withdrawal from the aforesaid account shall be permitted to

             the   claimant   after   due  verification   and   the   Bank   shall   issue

             photo identity Card /Pass Books with attested photographs  to

             claim to facilitate her identity.(4)   No   cheque   book   be   issued   to   the   claimant   without   the

             permission of this Court.(5) Half yearly statement of account be filed by the Bank in this

             Court.(6) The original FDRs shall be retained by the Bank in the Safe

             custody. However, the original Pass Book shall be given to the

             claimant alongwith the photocopy of the FDRs.Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  30 of 32 ::­
              (7) The original Fixed Deposit Receipts shall be handed over to

             the claimant at the end of the fixed deposit period.

             (8) No loan, advance or withdrawal shall be allowed on the said

             FDRs without the permission of this Court.(9) On the request of the claimant, the Bank shall transfer the

             Saving Account to any other branch of UCO Bank according to

             the convenience of the claimant.(10)  In   terms   of   directions   contained   in   case   ofUOI   versus

             Nanisiri,   in   MAC   Appeal   No.   682/2005,   order   dated

             13/01/2010,  of  Hon'ble  Mr. Justice J. R. Midha, Respondent

             number   4   is   directed  to  directly  deposit  the   award   sum  with

             Manager UCO Bank, Delhi High Court Branch within 30 days

             through its nodal officer and the Manager concerned of UCO

             Bank, Delhi High Court Branch to keep the specified amount

             aforesaid in fixed deposits in terms of the award and release the

             balance amount by transferring the same to the Saving Bank

             Accounts   of   the   petitioner/   claimant.   Insurance   Company   to

             also file proof of deposit of award sum, also within said period.

             Manager UCO Bank, Delhi High Court Branch to also furnish

             compliance   report   within   15   days   of   deposit   of   award   sum.

             Claimant to do the necessary formalities in respect of the bank

Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  31 of 32 ::­
              account(s).75.                 Ahlmad/Nazir   to   keep   the   copy   of   Award   in   a

miscellaneous   file   for   awaiting   compliance   report   from   all

concerned, which be put up on 21.01.2011.76.                 Copy of the judgment be given, dasti, to the counsel for the

respondent number 1 for compliance and copy of this judgment and

information be also sent to General Manager of Insurance Company.77.                 One copy of the judgment also be given to the counsel for

the petitioner, dasti.78.                 The file be consigned to record room.Announced in the open Court               (NIVEDITA ANIL SHARMA)

on this 21st day of December, 2010.        Judge, MACT­02, New Delhi.




Suit Number: 378/08.Unique Case ID Number: 02403C0836322008
Matesari Devi versus The New India Assurance Co.Ltd. and others.                                                 ­:: Page  32 of 32 ::­