Delhi District Court
Smt. Pushpa W/O Late Sh. Suresh Chand - ... vs Sh. Julfqar S/O Sh. Mushraf (Driver) on 19 May, 2014
IN THE COURT OF SH. ARVIND KUMAR : PRESIDING OFFICER: MACT
KARKARDOOMA COURTS (SHAHDARA) : DELHI
M.A.C. Petition No: 03/13
Unique Case ID No. : 02402C0001652013
1. Smt. Pushpa W/o Late Sh. Suresh Chand - Widow- aged 37 years
2. Rohit Sharma S/o Late Sh. Suresh Chand - Son - aged 19 years
3. Kumari Mohini @ Rinki D/o Late Sh. Suersh Chand- Daughter-aged 16 years
4. Mohit Sharma @ Montu S/o Late Sh. Suresh Chand-son- aged 14 years
5. Malti W/o Late Sh. Dugpal Sharma - Mother -aged 60 years
R/o H. No. E-305, Gali No. 5, West Vinod Nagar, Delhi-110092
Also at : H. No. C-943, Nai Basti, Deen Dayal Puri,
Block-A, PS : Sihani Gate, Nandgram, Ghaziabad, U.P
(Petitioner no. 3 & 4 being minors, are presented through
his mother Smt. Pushpa /Natural Guardian / petitioner no. 1)
........ Petitioners
VERSUS
1. Sh. Julfqar S/o Sh. Mushraf (Driver)
R/o VPO-Parikshitgarh,
Distt. Meerut, U.P
2. Sh. Ravinder Kumar S/o Sh. Ved Prakash (Owner)
R/o 64, Kassaban Holi Wala,
Parikshitgarh, Meerut, U.P.
3. ICICI Lombard General Insurance Co. Ltd. (Ins. Co.)
315, 3 floor, Aggarwal City Mall,
Plot No. 4, Road No. 44, Land Ramrk
Rani Bagh, Pitam Pura,
Cover Note No. 02541606
Valid from : 23.07.2011 to 22.07.2012 .........Respondents
Presented on : 04.01.2013 Reserved for judgment on : 19.04.2014 Judgment delivered on : 19.05.2014 JUDG MENT
1. The petitioners have filed the present petition u/s 166 & 140 of MV Act M.A.C. Petition No: 03/13 Page No. 1/12 1988 claiming compensation of Rs. 20,00,000/- towards the death of one Sh. Suresh Chand, in a road side accident, occurred on 17.07.2012.
2. The brief facts, as stated by petitioners, are that on 17.07.2012, Sh.
Suresh Chand, the deceased was riding on bicycle and was coming to his house from his duty and when he reached at Hyundai Tiraha Chowki, Sihani Chungi, PS Sihani Gate, Ghaziabad, U.P an Eicher Canter no. RJ-141G-5234, driven by its driver, respondent no. 1 at a high speed, rashly and negligently came and hit the bicycle. The deceased fell down and suffered grievous injuries and was taken to MMG hospital by PCR Van and died on the way. It is stated that deceased was 39 years of age and was working as a Fitter Man with Uttam Industrial Ltd. and was getting salary of Rs. 8025/- per month. It is stated that the deceased left behind petitioner no. 1, his wife, the petitioner no. 2, 3 and 4, the children and the petitioner no. 5, mother of the deceased.
3. Written statement is filed by respondent no. 1 & 2 stating that no accident was caused as alleged by the petitioners. It is stated that respondent no. 1 was having valid driving licence at the time of alleged accident and the vehicle was duly insured. It is stated that the petitioners have wrongly noted down the number of the vehicle of respondent no. 2. The respondent no. 1 and 2 denied almost all the material contents of the petition.
4. The respondent no. 3/ insurance company filed written statement admitting that the vehicle bearing no. RJ-141G-5234 was insured vide policy no. 3003/60343478/01/000, for the period 23.07.2011 to 22.07.2012. It is further stated that the accident had taken place in UP and the deceased was employed in UP and no document had been placed on record to show that petitioners were resident of House no. 305, Gali No. 5, West Vinod Nagar therefore this court had no jurisdiction to entertain and try the present matter. It is stated that the respondent no. 1 was not holding valid and effective driving licence and hence the terms and conditions of the policy were violated. It is also stated that there was no permit issued by the competent authority and M.A.C. Petition No: 03/13 Page No. 2/12 there was no fitness certificate against the said vehicle. It is stated that the insurance company was taking all the defences available u/s 134(C), 147, 149 (2) and 170 of MV Act. The insurance company denied almost all the material contents of the petition.
5. On the basis of the pleadings following issues were framed:-
1. Whether the deceased Sh. Suresh Chand suffered fatal injuries in the accident occurred on 17.07.2012 due to rash and negligent driving of vehicle no. RJ-141G-5234 being driven by respondent no. 1? (OPP)
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom?
3. Relief.
6. The petitioner no. 1 examined herself as PW-1. The petitioners also examined Sh. Rafiq Ahmad as PW-2. On the other hand, the respondent no. 3 / insurance company examined Sh. Kanwar Kochhar, Manager Legal, ICICI Lombard General Insurance Co. Ltd. as R3W1. I have heard counsels for the parties and gone through the material on record. My findings on issues are as under : -
ISSUE NO. 17. The petitioner no.1 examined herself as PW-1 and deposed that on 17.07.2012, her husband, Sh. Suresh Chand, was riding on bicycle and was coming to his house from his duty and when he reached at Hyundai Tiraha, Chowki, Sihani Chungi, PS Sihani Gate, Ghaziabad, U.P a Eicher Canter no.
RJ-141G-5234, driven by its driver, respondent no. 1 at a high speed, rashly and negligently came and hit the bicycle. The PW-1 stated that Sh. Suresh Chand fell down and suffered grievous injuries and was taken to MMG hospital M.A.C. Petition No: 03/13 Page No. 3/12 by PCR Van and died on the way. The PW-1 exhibited bank pass book issued by UCO Bank, of Smt. Pushpa as Ex.PW-1/1, UCO Bank pass book of Rohit Sharma as Ex.PW-1/2, UCO Bank Pass Book of Mohini as Ex.PW-1/3, UCO Bank pass book of Mohit Sharma as Ex.PW-1/4, Aadhar card of Smt. Pushpa as Ex.PW-1/5, Aadhar Card of Rohit Sharma as Ex.PW-1/6, PAN card of Sh. Rohit Sharma as Ex.PW-1/A, PAN Card of Pushpa as Ex.PW-1/B and PAN Card of deceased as Ex.PW-1/C. During cross-examination, the PW-1 stated that she had not witnessed the accident. The PW-1 stated that she was having two residences one in Nand Gram, Ghaziabad and the other one in West Vinod Nagar, Delhi and both were rented accommodations. The PW-1 stated that her elder son was 19 years of age and daughter was of 16 years. The PW-1 stated that she had opened her account and accounts of Mohit Sharma, Rohit Sharma and Mohini in the year 2013 with UCO bank, Karkardooma Court, Delhi. The PW-1 also stated that her husband was working in Uttam Industries Ltd. for the previous 13-14 years.
8. The testimony of PW-2 Sh. Rafiq Ahmed is relevant on this issue. The PW-2 stated that on 17.07.2012, he along with Sh. Suresh Chand was going to their office from their duty on separate bicycles and when they reached at Hyundai Tiraha Chowki, Sihani Chungi, PS Sihani Gate, Ghaziabad, U.P a Eicher Canter no. RJ-141G-5234, driven by its driver, respondent no. 1 at a high speed, rashly and negligently came and hit the bicycle. The PW-2 stated that Sh. Suresh Chand fell down and suffered grievous injuries and was taken to MMG hospital by PCR Van and died on the way. During cross-examination, the PW-2 stated that his duty hours were 8 a.m. to 10 p.m and he left factory at 10 p.m with Sh. Suresh Chand. The PW-2 stated that number of the offending vehicle was 5234 and somebody had called the police and the police had reached on the spot within 20 minutes and the FIR was registered on his statement. The PW-2 stated that they were going on extreme left side of the road (kaccha portion) and the truck was loaded with Mangoes. The PW-2 denied the suggestion that the accident had taken place because of fault of Sh. Suresh Chand.
M.A.C. Petition No: 03/13 Page No. 4/129. I have gone through the material on record. Before deciding issue no. 1, I deem it appropriate to deal with the contention of counsel for insurance company that this court has no jurisdiction to decide the present matter. Ld. Counsel for insurance company contended that the petitioners are not the residents of Delhi nor any of the respondents are residing in Delhi or working for gain in Delhi therefore this court has no jurisdiction to decide the present matter. The petitioner has deposed that she was residing on E-305, Gali no. 5, West Vinod Nagar, Delhi and has also filed the Savings Bank Account passbook of Mohit Sharma (petitioner no.
4), Pushpa (petitioner no. 1). There is also acknowledgment / resident copy issued by Unique Identification Authority of India, Govt. Of India, Mark A and Mark B which mentions the address of the petitioner no. 1 and petitioner no. 2 to be E-305, Gali No. 5, West Vinod Nagar, Delhi. There is no evidence in rebuttal. The above said documents and the testimony of PW-1 leaves no doubt that petitioners are residing within jurisdiction of this court.
So far as the negligence of driver of vehicle no. RJ-141G-5234 is concerned, the FIR, charge sheet, Site-plan, postmortem report, mechanical inspection report and the testimonies of the PW-1 and PW-2, taken together fully establish the death of Sh. Suresh Chand caused by the injuries sustained by him involving vehicle bearing registration No. RJ-141G-5234 in a road accident. There is nothing on record to dispel the inference that deceased Sh. Suresh Chand, died on account of injuries sustained by him in a road accident which occurred on 17.07.2012 because of rash and negligent driving of vehicle bearing No. RJ-141G- 5234 being driven by its driver. There is no evidence in rebuttal. Issue no. 1 is accordingly decided in favour of petitioners and against the respondents.
ISSUE NO. 210. The PW-1 stated that deceased was 39 years of age and was working as a Fitter man with M/s Uttam Industries Ltd. and was getting salary of Rs. 8025/- per month. The petitioner stated that deceased left behind the petitioner no. 1 and children namely Rohit Sharma, aged 19 years, Kumari Mohini @ Rinki, aged 16 years, Mohit Sharma @ Montu, aged 14 years and his mother Smt. Malti, aged 60 years. It is also stated that petitioner no. 1 had incurred Rs. 30,000/- on last rites and transportation of the deceased. The PW-1 exhibited bank pass book issued by UCO Bank of Smt. Pushpa as Ex.PW-1/1, UCO M.A.C. Petition No: 03/13 Page No. 5/12 Bank pass book of Rohit Sharma as Ex.PW-1/2, UCO Bank Pass Book of Mohini as Ex.PW-1/3, UCO Bank pass book of Mohit Sharma as Ex.PW-1/4, Aadhar card of Smt. Pushpa as Ex.PW-1/5, Aadhar Card of Rohit Sharma as Ex.PW-1/6, PAN card of Sh. Rohit Sharma as Ex.PW-1/A, PAN Card of Pushpa as Ex.PW-1/B and PAN Card of deceased as Ex.PW-1/C.
11. I have gone through the material on record. The PW-1 stated that deceased was working as a Fitter man with M/s Uttam Industries Ltd. and was getting salary of Rs. 8025/- per month but there is no material on record with regard to the occupation and earning of the deceased. Under the facts and circumstances, minimum wages for unskilled workman as prevailing in Delhi State at the time of accident can be taken into consideration. The minimum wages for unskilled workman were Rs. 7,020/- (approx.) per month.
12. In the judgment of "Rajesh & Others Vs Rajbir Singh & Others" 2013 (6) Scale in C.A. No. 3860/2013 (Arising out of SLPC) No. 24825/2010) Hon'ble Supreme Court observed as under:-
"11 Since, the Court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years".
"12 In Sarla Verma's case (supra), it ,has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
"20 .......Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and M.A.C. Petition No: 03/13 Page No. 6/12 reasonable that the courts award at least rupees one lakh for loss of consortium."
"21 .........There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses' , in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/-."
6. In the present case as noted above, the monthly salary of the deceased at the time of death is taken to be Rs. 7,020/- per month. The deceased was 38 years of age (as per PAN Card Ex.PW-1/C). Adding 50% of the amount, the monthly income comes to Rs. 10,530/- (Rs. 7,020 + 3,510/-). The annual income of the deceased would be Rs. 1,26,360/- ( 10,530 x 12).
7. There is no material on record to show that petitioner no. 2, Sh. Rohit Sharma, major son of the deceased was dependent on the income of the deceased. Interest of justice in the present case would be met if 1/4th i.e. Rs. 31,590/- is deducted (as there are 4 dependents i.e. Wife, two minor children and mother of the deceased) as the personal and living expenses of the deceased. After such deduction the contribution to the family (dependants) is determined as Rs. 94,770/- per annum. The multiplier applicable would be 15 having regard to the age of the deceased i.e. 38 years (as per the age mentioned in PAN Card Ex.PW-1/C) at the time of the death. Therefore, the total loss on dependency would be Rs. 94,770 x 15 = Rs. 14,21,550/-.
8. In addition the claimants are entitled to a sum of Rs. 1,00,000/-
towards love and affection, Rs. 10,000/- towards loss of estate and Rs. 25,000/- towards funeral expenses. The petitioner no. 1, being the wife of the deceased is also entitled to Rs. 1,00,000/- towards loss of consortium. Thus, the compensation will be Rs. 16,56,550/-.
LIABILITY
9. The insurance company examined Sh. Kanwar Kocchar, Legal M.A.C. Petition No: 03/13 Page No. 7/12 Manager, ICICI Lombard General Insurance Co. Ltd. as R3W1. The R3W1 stated that vehicle no. RJ-141G-5234 was insured vide policy no. 3003/60343478/01/000, for the period 23.07.2011 to 22.07.2012. The R3W1 stated that the respondent no. 1 was not having valid and effective driving licence to drive the vehicle as he was not possessing the licence to drive the Goods Carrying Vehicle and his licence was for LMV (PE) and hence insurance company was not liable to pay the compensation. The R3W1 stated that licencing authority, Meerut sent a report to the effect that respondent no. 1 was having driving licence issued for LMV (PE) and the goods vehicle was having gross weight of 8770 kilograms which did not come under the category of light motor vehicle and hence the respondent no. 1 was not competent to drive the said vehicle. The R3W1 exhibited the policy as Ex.R3W1/1, RC of the vehicle bearing no. RJ-14-1G-5234 as Ex.R3W1/2, driving licence of driver as Ex.R3W1/3, report received from Licencing Authority, Meerut as Ex.R3W1/4, notice u/o 12 rule 8 CPC sent to driver and owner as Ex.R3W1/5, registry slips as Ex.R3W1/6, registered AD Cards as Ex.R3W1/7 and Ex. R3W1/8.
10. I have gone through the material on record. The driver of the vehicle / respondent no. 1 was holding driving licence for LMV (PE) and at the time of accident the respondent no. 1 was driving Truck (open body), which was medium goods vehicle with unladen weight of 2800 and gross vehicle weight to be 8770 kilograms (as apparent from the permit).
11. In the judgment titled, "Future General India Insurance Co. Ltd. vs Mohd. Ibrahim & ors.", MAC App. 837/2011 passed by Hon'ble High Court of Delhi on 09.10.2012. Hon'ble High Court of Delhi observed as under :-
7. Thus, from Section 10 of the Act it will be seen that even a learner's licence has to be in respect of the class of vehicle for which a person wants to have a regular licence. Similarly, Section 11 of the Act lays down that any person holding a driving licence to drive any class of motor vehicle can apply to the Licensing Authority for addition of such other class or description of motor vehicle as he has not been disqualified from holding. Section 14 of the Act lays down that a learner's licence is effective for a period of six months, a licence to drive a transport vehicle is effective M.A.C. Petition No: 03/13 Page No. 8/12 for a period of three years, a licence to drive a transport vehicle carrying hazardous goods will be effective for one year and the other licences would be valid for 20 years from the date of issue /date of renewal or until the person applying for such licence/applying for renewal attains the age of 50 years.
8. 'Transport vehicle' has been defined under section 2(47) of the Act to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehilce.
9. Similarly, 'Public Service Vehicle' is defined under Section 2(35) of the Act to mean any motor vehicle used for the carriage of passengers for hire or reward including a maxicab, a motorcab, a contract carriage and a stage carriage.
10. Further, 'Goods Carriage' is defined under Section 2(14) of the Act to mean any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods.
11. Similarly, 'Heavy Goods Vehicle', 'Light Motor Vehicle' and 'Medium Goods Vehicle' have been defined under Sections 2(16), 2(21) and 2(23) of the Act respectively, which are extracted hereunder:-
"2 (16) "heavy goods vehicle" means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms; 2 (21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight or any of which , does not exceed [7500] kilograms ;
2 (23) "medium goods vehicle" means any goods carriage other than a light motor vehicle or a heavy goods vehicle."
12. Thus, any transport vehicle or omnibus whose gross vehicle weight or a motor car or a tractor or a road roller, the unladen weight or any of which does not exceed 7500 kgs., is a light motor vehicle.
13. Therefore, it is important to note that a motor car, whose unladen weight does not exceed 7500 kgs., is a light motor vehicle. If that very motor car is used for hire or reward then it becomes a public service vehicle as laid down under Section 2 (35) of the Act and a transport vehicle as defined under Section 2 (47). Similarly, every goods carriage whether used for public or private purpose would be a transport vehicle.
14. A conjoint reading of Sections 10, 11 and 14 of the Act will show that a person driving a vehicle must possess a licence to drive that class of vehicle which he intends to drive. If he proposes to drive any other vehicle than the one for which M.A.C. Petition No: 03/13 Page No. 9/12 he/she possesses any effective driving licence he is to seek an addition to his/her driving licence. In other words, if a person wants to drive only a motor car whose unladen weight does not exceeds 7500 kgs., he needs to have a licence to drive a light motor vehicle only. At the same time, if a person wants to drive a motor car for hire and reward then that light motor vehicle will become a public service vehicle as well and a holder would not be competent to drive the motor car for hire and reward, that is, a maxicab or a motorcab or a taxi unless he possesses a licence to drive a transport vehicle for LMV. Similarly, ever goods carriage is included in the definition of transport vehicle. Thus, the holder of a licence must possess a licence to drive a transport vehicle of the category of the goods vehicle whose gross vehicle weight does not exceed 7500 kgs., then he must possess a licence to drive a light motor vehicle of the category of transport vehicle. If he wants to drive a goods vehicle whose gross vehicle weight is above 7500 kgs. Or 12,000 kgs., then he must possess a licence to drive a medium motor vehicle of the category of transport vehicle and heavy motor vehicle of the category of transport vehicle respectively. At the same time, a person possessing a licence to drive a heavy motor vehicle would be competent to drive a medium motor vehicle and light motor vehicle of the category of transport vehicle.
12. It is clear from the aforesaid judgment that the driver should possess the licence for the category of vehicle, which he was driving. In the present matter the driver was possessing the driving licence for LMV (PE) while he was driving the medium goods vehicle, the gross weight of which was 8700 kg. As per definition of Light Motor Vehicle as enshrined under Sec. 2 (21) of MV Act as under :
(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed (7500) kilograms;
13. Further the medium goods vehicle is defined u/s 2(23) reads as under :-
(23) "medium goods vehicle" means any goods carriage other than a light motor vehicle or a heavy goods vehicle."
The LMV and MGV are two separate categories and the driver must possess driving licence for driving medium goods vehicle for driving medium M.A.C. Petition No: 03/13 Page No. 10/12 goods vehicle or there should be endorsement on licence of that description. Admittedly, the driver was having driving licence for LMV (PE). Hence there is breach of terms and conditions of policy regarding driving licence therefore liability cannot be fastened on insurance company. However, insurance company having admitted the policy will initially satisfy the award and shall be entitled to recover the awarded amount from the respondent no.1 and 2.
RELIEF
14. In view of the above, the respondent No. 1 and 2 are liable to pay the compensation of Rs. 16,56,550/-. However, the respondent no. 3, insurance company has admitted the policy, the respondent No. 3, insurance company is hereby directed to pay a compensation of Rs. 16,56,550/-, within one month. The accident occurred on 17.07.2012, therefore following judgment Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, I direct that the respondent No. 3 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
15. The respondent no. 3 shall be entitled to recover the awarded amount from the respondent no. 1 and 2.
16. For the aforesaid reasons, I pass the following award :-
AWARD
17. In view of the above the petition is allowed. The respondent No. 1 and 2 are liable to pay the compensation of Rs. 16,56,550/-, inclusive of interim compensation. However, the respondent no. 3, insurance company has admitted the policy is hereby directed to pay a compensation of Rs. 16,56,550/-, within one month. The respondent no. 3 shall also pay interest @ 9% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioners. The respondent no. 3 shall be entitled to recover the awarded amount from the M.A.C. Petition No: 03/13 Page No. 11/12 respondent no. 1 and 2. The claimants are entitled to the compensation in the following proportions along with corresponding interest :-
(a) Petitioner No. 1 shall get Rs.7,45,447.5/- along with corresponding interest.
(b)Petitioner No. 2 shall get Rs.1,65,655/- along with corresponding interest.
(c)Petitioner No. 3 and 4 shall get Rs.2,48,482.5/- (each) along with corresponding interest.
(d)Petitioner No. 5 shall get Rs.2,48,482.5/- along with corresponding interest.
18. The award amount along with interest be deposited by insurance company, within 30 days in the court itself.
19. The insurance company is directed to give notice regarding the deposit of the amount to the petitioners at the address mentioned in the memo of parties and will also sent copy of notice to the counsel for petitioners at the address mentioned in the vakalatnama.
20. List for reporting compliance on 10.07.2014. The insurance company is directed to place on record the proof of deposit of the award amount, notice of the deposit and calculation of interest on the next date of hearing.
21. The insurance company shall deposit the award amount with interest up to the date of notice of deposit to the claimants with copy to their counsel. A copy of this order be given dasti to concerned parties.
ANNOUNCED IN THE OPEN ( Arvind Kumar )
COURT ON 19.05.2014 Presiding Officer: MACT:
Karkardooma Court
Delhi
M.A.C. Petition No: 03/13 Page No. 12/12