Delhi District Court
Sarita Devi W/O Late Sh. Naresh Kumar vs Popat Dubey S/O Sh. Limbaji on 2 November, 2012
IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI
M.A.C.P. NO. 893/08
1. Sarita Devi w/o Late Sh. Naresh Kumar
2. Aman Kataria s/o Late Sh. Naresh Kumar
3. Roshni Devi w/o Late Sh. Manohar Lal
r/o Village & Post Office Dhansa, New Delhi 110074
... Petitioners
Versus
1. Popat Dubey s/o Sh. Limbaji
r/o village & Post Anegaon, Tal Shirur,
Distt. Pune (Maharashtra)
2. Sh. Rajiv Kumar Gupta c/o Narayana Roadline,
r/o Village & Post Nira, Tal Purandhar,
Distt. Pune (Maharashtra).
3. United India Insurance Co. Ltd.
8th Floor, Kanchanjunga Bldg.,
18, Barakhamba Road, New Delhi. ... Respondents
1. Date of institution : 26.2.2008
2. Date of framing of issues : 22.9.2010
3.Date of hearing arguments : 02.11.2012
4. Date of decision : 02.11.2012
MACP No. 893/2008 Sarita Devi v/s Popat Dubey 1 of 13
AWARD/ JUDGEMENT:
(FATAL CASE)
1. The present petition has been filed by the widow (petitioners no. 1) and a son (petitioner no.2) and mother of the deceased (petitioner no.3) by invoking the jurisdiction of this Tribunal claiming compensation on account of accidental death of Naresh Kumar with the involvement of the vehicle owned by Respondent no2 ( in short R2) which was insured with respondent no3 ( in short R3).
2. Brief facts of the case are that on 18.1.2008 at about 7.30 am Naresh Kumar (hereinafter the deceased) was met with an accident while going Karimanglam to Dharam Puri Main Road, nearby Periyampatti with the use and involvement of the tanker bearing no. MH12DT7858 (herinafter offending vehicle) being driven by respondent no.1( in sort R1). As a result thereof, Naresh Kumar above named received injuries resulting into his death.
3. Pursuant to the service of the notice, respondent Nos. 1 and 2 chose to remain absent despite service through publication, therefore, they were proceeded exparte vide order dated 13.9.2010.
4. This petition has been resisted by the insurance company after filing a written statement pleading therein that it had no information regarding the alleged accident on the given date, time and place from the MACP No. 893/2008 Sarita Devi v/s Popat Dubey 2 of 13 insured of the vehicle, therefore, no liability can be fastened upon it. However, it had been admitted that the vehicle was insured vide policy number no. 081300/31/06/01/00018581 in the name of the R2 which was valid during the period 29.1.2007 till 28.1.2008 subject to the terms and conditions of the policy.
5. After completion of pleadings, issues were framed by the then presiding officer vide order dated 22.9.2010.
6. I have heard the rival contentions advanced on behalf of both the sides and after having perused the material including the evidence on record, my issuewise findings are as under: ISSUE No. 1 Whether Sh. Naresh Kumar sustained fatal injuries in motor vehicle accident involving vehicle No. MH12DT7858? ....OPP ISSUE No. 2 Whether the offending vehicle no.
MH12DT7858 and vehicle no. UP15J2212 is the same for which R3 had issued the policy?
....OPP
7. The onus to prove aforesaid both the issues was on the petitioners. Since both the issues are interconnected, therefore, the same are being tried together. PW1 Smt. Shashi Pillai was the junior clerk in the office of RTO Pune, Maharashtra who produced the computrised print of MACP No. 893/2008 Sarita Devi v/s Popat Dubey 3 of 13 registration vehicle no. MH12DT7858 as on 18.1.2008 which was registered in the name of Rajiv Kumar Gupta. He further stated that previous registration no. of the offending vehicle was UP15J2212 and its computerised print stands proved Ex.PW1/A. The registration particulars of the vehicle in questions is also proved as Ex.PW1/B. He also stated that as per Ex.PW1/A the vehicle was insured w.e.f. 28.2.2007 to 27.2.2008 with United India Insurance Company vide cover note 081300/31/06/01/00018581. His statement has tobe relied upon being official witness as nothing has brought up on record to make him untrustworthy. Considering the fact that the present petition was under Section 163A of Motor Vehicles Act 1988, therefore petitioners were only required to establish on record that the accident had taken place due to ''involvement'' of the tanker bearing Registration No. MH12DT7858 as the aspect of ''negligence'' was not required to be proved.
8. To prove the said issue the petitioners had examined Sarita Devi (PW1) being the widow of the deceased who filed her examination in chief by way of affidavit Ex. PW2/A wherein averred the details of the accident in paragraph 2 of her affidavit to show as to how and in what manner it had taken place. Besides this, the petitioners have proved the certified copies of criminal record viz. Copy of the FIR Ex. PW2/1 and translated copy thereof is Ex.PW2/2, copy of postmortem report MACP No. 893/2008 Sarita Devi v/s Popat Dubey 4 of 13 Ex.PW2/3.
9. From the evidence available on record, it stands established that the accident did take place at the given time, date and place with the use and involvement of the offending vehicle and hence both the issue nos. 1 & 2 are accordingly decided in favour of the petitioners and against the respondents.
ISSUE NO.3 Whether the petitioners are entitled to claim compensation, if so, what amount and from whom?
...OPP
10. As issue nos. 1 & 2 are decided in affirmative and now the question remains to decide with regard to the quantum of compensation. To prove the issue no.3, it is evident that the deceased was married and having age of 28 years at the time of accident and left behind his widow, son and mother only. It is specifically averred that there is no other legal heir except the petitioners. I find no reason to disbelieve the aforesaid statement as nothing contrary has been produced or shown.
11. In sofar the selection of multiplier is concerned, the law as stands today that the choice of multiplier shall be determined by the age of the deceased or that of claimant whichever is higher. Since the deceased was married person of 28 years, therefore, the age of the deceased has to be taken into consideration in that regard. The petitioners have relied upon the Ration MACP No. 893/2008 Sarita Devi v/s Popat Dubey 5 of 13 Card Ex. PW2/11 wherein the born year of the deceased is mentioned as 1980. If the age of the deceased is calculated on that basis then it came to 28 on the date of accident i.e. 18.1.2008. An operative multiplier shall be 17 as per the judgment of the Apex Court passed in Sarla Verma Vs. DTC & Another: (2009) 6 SCC 121.
12. As regards, the income of the deceased is concerned, the IInd schedule was inserted in the Motor Vehicles Act by amending the Act of 1988 on 14.11.1994. Section 163A of the Act restricts Rs.40,000/ as maximum limit of annual income of the deceased. The petitioners had pleaded and specifically averred that the deceased used to earn Rs. 40,000/ per annum. I do not find any reason to disbelieve the testimony of PW1 as the same remained unassailed /uncontroverted and hence, the income of the deceased can be taken as Rs. 40,000/ per annum for the determination under the heads of loss of dependency.
13. Since the deceased was a married of 28 years, therefore, 1/3rd deductions have to be made towards personal living expenses which comes to Rs. 26,667/ per annum as the petitioners had invoked the Section 163A of the Motor Vehicles Act.
14. Keeping in view, the evidence available on record, the following sum shall be just compensation:
1) Loss of dependency Rs. 26,667X17 Rs. 4,53,339.00 MACP No. 893/2008 Sarita Devi v/s Popat Dubey 6 of 13
2) For Funeral Expenses Rs. 2,000.00
3) For Loss of consortium* Rs. 5,000.00
4) For Loss of Estate Rs. 2,500.00 _____________________________________________________________ Total Rs. 4,62,839.00 (Rupees Four Lakhs Sixty Two Thousand Eight Hundred Thirty Nine only) INTEREST
15. There is no material on record to with hold the interest. The petitioners are awarded interest @ 7.5% per annum from the date of filing of petition i.e. 26.2.2008 till its realization. APPORTIONMENT
16. Petitioner no.1 shall be entitled the awarded amount to the tune of Rs.2,62,839/ with interest where as the petitioner nos. 2 & 3 shall be given Rs.1 Lakh each with interest.
LIABILITY
17. Ld. counsel for the insurance company laid much stress while contending that since the insured has failed to produce original licence of the driver (R1) and valid permit of the offending vehicle despite the service of notice u/s 12 rule 8 CPC, thus, the court can presume that the driver of the offending vehicle did not have a valid and effective driving licence on the date of accident. To support his contention, he has examined R3W2 Sh. Vikas Negi, Administrative Officer who had deposed about the licence MACP No. 893/2008 Sarita Devi v/s Popat Dubey 7 of 13 concerning Popat Dubey who was carrying hazardous goods i.e. Carbon dioxide at the time of the accident in the offending vehicle whereas he was holding the driving licence for LMV Transport Goods Vehicle. He proved the copy of the policy as Ex.R3W2/1, copy of the notice u/o 12 rule 8 CPC as Ex.R3W2/2. The said notice was remained unreplied and unresponded. Postal receipts are Ex.R3W2/3 and registered AD Card as Ex.R3W2/4, copy of the case gist provided by G Durai Samy, Investigator of the insurance company Ex.R3W2/5A to Ex.R3W2/5D, DL of the driver Popat Dubey is Ex.R3W2/6 stating that the aforesaid licence was issued in the category of LMV Transport goods vehicle. He further deposed that this licence was not valid for driving heavy goods vehicle for carrying hazardous goods. Shashi Pillai R3W1 clerk in the office of RTO Pune already examined PW1 who deposed about the National Permit of the vehicle valid during the period 1.5.2009 to 30.4.2010 covering the states AP, Gujrat, Maharashtra. After seeing the photocopy of the National Permit from the judicial record, he stated that national permit of the offending vehicle was valid for AP, Gujrat, Karnataka and Maharashtra during the period 25.5.2007 to 24.5.2008 but it was not authorised to ply the said vehicle in the state of Tamil Nadu on 18.1.2008. The offending vehicle was being plied on the date of accident without permit of the State Tamil Nadu. He proved the relevant record with regard to the permit of the offending vehicle duly signed by the RTO Pune as MACP No. 893/2008 Sarita Devi v/s Popat Dubey 8 of 13 Ex.R2W1/A. He also produced the extract of the DL bearing no. MH1220040510331 issued in the name of Popat Dubey on 25.2.1987 for LMV Transport Goods which was vaild till 1.6.2010. The extract of the DL having complete details duly attested by RTO Pune is Ex.R3W1/B. He caterogically stated that as per record, Popat Dubey was not authorized to drive the hazardous vehicle and DL for the hazardous vehicle has to be renewed on every year. He specifically stated that special training is imparted to the person before issuing the DL for hazardous vehicle. He also stated as per record, no certificate has been issued to Popat Dubey with regard to the impart of training for driving the hazardous vehicle. It is further argued that since the offending vehicle was being driven in breach of the terms and conditions of the insurance policy and accordingly, the insurance company can not be held liable for payment of any amount of compensation.
18 In National Insurance Company limited Vs. Rani & others 2006 ACJ 1224 , it was held as under: Regular driver engaged by owner entrusted the vehicle to mechanic who after carrying out repairs took the vehicle for test drive and caused accident - Insurance company disputed its liability on the ground that mechanic had no valid licence - Whether insurance company is liable to pay compensation to third parties and then recover the MACP No. 893/2008 Sarita Devi v/s Popat Dubey 9 of 13 amount from the owner - Held: yes. [2001 ACJ 843 (SC) and 2003 ACJ 611 (SC) followed] 19 In National Insurance Co. Ltd. Vs G.Mohd. Vani & Ors.,2004 A.C.J. 1424 :2004 (3) T.A.C. 890, and National Insurance Co. Ltd V. Gadigawwa & Ors., 2005 A.C.J. 40:2005 (2) T.A.C.171, wherein it was held that : If the driver of the offending vehicle did not have a valid diving licence, then the Insurance Company after paying the compensation amount would be entitled to recover the same from the owner of the vehicle. It was submitted that no interference was called for with the judgment and order of the High Court impugned in the Special Leave Petition.
20. In National Insurance Company limited Vs. Challa Bharathamma and others III (2004) ACC 292 (SC) , it was held as under: Motor Vehicles Act,1 988, sections 149(2) (a)
(i) (a) and 149 (4) read with section 66 Motor insurance PermitDefences available to insurance companyAutorickshaw met with accident resulting in death of two persons and third sustained injuries Insured had not obtained permit to ply the vehicle Whether insurance company is liable - Held : no;
however, insurance company directed to deposit the amount and recover the same from the insured by initiating proceedings before the executing court, it need not file a separate suit.
MACP No. 893/2008 Sarita Devi v/s Popat Dubey 10 of 13 21 After applying the ratio of judgments (supra), the defence sought to be raised by the insurance company u/s 149 of Motor Vehicle Act stands established that the offending vehicle was being driven in violation of the terms of the contract as the insured did not have valid license to drive the same.
22 Having regard the twin interest of petitioner who is a third party in this case and that of the insurance company and coupled with the fact that the vehicle involved in the accident was insured with respondent no 3, it would be appropriate to direct the insurance company/R3 to compensate the petitioner in terms of awarded amount with the liberty to recover subsequently from respondents no 1 & 2.
23 Recovery rights are,accordingly, granted to insurance company against respondent no 1 & 2.
24 In view of the above discussions, issue no. 2 is decided in favour of the petitioners and against the respondents. ISSUE NO. 4
Relief.
25. In view of the findings on issues nos. 1, 2, 3 & 4 the petitioners are awarded Rs.4,62,839/ (Rupees Four Lakhs Sixty Two Thousand Eight Hundred Thirty Nine only) with interest.
26. The awarded amount be deposited by R3 with State Bank of MACP No. 893/2008 Sarita Devi v/s Popat Dubey 11 of 13 India, Dwarka Court Complex Branch, Sector10, New Delhi within 30 days from today with intimation to the Nazir of this Court. Upon the aforesaid amount being deposited, SBI Branch is directed to release Rs.62,839/ with interest to the petitioner no.1 by transferring the same to her Saving Bank Account after keeping the remaining amount in a fixed deposit for two years in her name.
27. The half of the share of petitioners no. 3 shall be released with interest after retaining the remaining half amount in her name for a period of one year and the share of petitioner no.2 shall be kept in the shape of FDR in his name till he attains the age of 18 years.
28. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Account of the beneficiaries.
29. Withdrawal from the aforesaid account shall be permitted to the beneficiaries after due verification and the Bank shall issue photo Identity Card to the beneficiaries to facilitate identity.
30. No cheque book shall be issued to the beneficiaries without the permission of this Court.
31. The original fixed deposit receipts shall be retained by the Bank in the safe custody. However, the original Pass Book shall be given to the beneficiaries along with the photocopy of the FDRs. Upon the expiry of the MACP No. 893/2008 Sarita Devi v/s Popat Dubey 12 of 13 period of each FDR, the Bank shall automatically credit the maturity amount in the Savings Account of the beneficiaries.
32. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court.
33. On the request of the beneficiaries, Bank shall transfer the Savings Account to any other branch according to his convenience.
34. The beneficiaries shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account.
35. R3 shall inform the petitioners through registered post that the cheque of the awarded amount are being deposited so as to facilitate them to collect their cheques.
36. Copy of the award be supplied to both the parties at free of cost.
37. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED: 2.11.2012 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
ALL PAGES SIGNED
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