Delhi District Court
Smt. Jai Rani Devi W/O Late Sh. Ram Sewak vs Sh. Major Singh S/O Sh. Chaman Singh on 20 February, 2008
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IN THE COURT OF
DR. T. R. NAVAL: PRESIDING OFFICER
MOTOR ACCIDENTS CLAIMS TRIBUNAL
KARKARDOOMA COURTS: DELHI
Date of Institution : 3rd June, 2004
Date of Arguments : 8th February 2008
Date of Order : 20th February 2008
SUIT No. 402/04
IN MATTER OF
1. Smt. Jai Rani Devi W/o Late Sh. Ram Sewak
2. Sh. Dinesh Kumar S/o Late Sh. Ram Sewak
Both R/o A494, Pal Vihar, Vikas Kunj
Loni, Ghaziabad, U.P.
PETITIONERS
V E R S U S
1. Sh. Major Singh S/o Sh. Chaman Singh
R/o 4/2876, Bhola Nath Nagar, Delhi32.
2. The National Insurance Co. Ltd.,
ROI, 4th Floor, Jeevan Bharti Bldg.,
New Delhi.
3. Smt. Sangita Devi W/o Sh. Pyare Lal (Performa respondent)
R/o Vill Chandpur, P.O. Murad Ganj, Distt. Jaunpur, U.P. RESPONDENTS 2 A W A R D This award will dispose off a petition under Section 163A of the Motor Vehicle Act, 1988, (herein after referred to as the Act) filed by the petitioners.
2. The facts of the petitioners case in brief are that on 04.09.2004 Shri Ram Sewak (herein after referred to as the deceased) was returning back to Mohan Nagar from Patiala on vehicle No. HR475854 (herein after referred to as the offending vehicle) alongwith cleaner Sh. Sikander @chotu. At about 2.15 A.M. when they reached near Seelampur Red Light the vehicle developed some mechanical problem and came into halt. The vehicle became immobile in between the road and therefore to clear the road the deceased signaled and stopped another vehicle and requested him to tow away his vehicle from behind but the vehicle after getting the way sped away. There were electric wires over the vehicle and out of those wires, one got broken and fell down. The deceased began to remove the said wire in the belief that the said wire was of telephone and got stuck with the wire and expired on the spot. The petitioners claimed compensation of Rs.2,93,337/ lacs from the respondents being driver, owner and insurer of the offending vehicle.
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3. Respondent No. 1 contested the case on the ground, interalia, that it was not an accident but it was an incident and the incident cannot be covered under the Act. He denied remaining allegations and prayed for dismissal of petition.
4. Respondent No. 2/National Insurance Company Ltd. admitted that offending vehicle was insured with it vide insurance policy No. 354501/31/02/6707767 which was valid w.e.f 22.02.2003 to 21.02.2004. It denied remaining allegations and prayed for dismissal of petition.
5. On the pleadings of the parties, following issues were framed :
1. Whether deceased Ram Sewak received fatal injuries involving offending vehicle No. HR 475854?
2. Whether petitioners are entitled to any compensation, if so, from whom and of what amount?
3. Relief.
6. In support of their case, counsel for petitioners examined Sh. Dinesh Kumar, petitioner No. 2 as PW1 and ASI Rashid 4 Ahmed as PW2. No evidence was adduced by respondents/Insurance Company in its defence.
7. After closing of evidence of the parties, I heard arguments of Ld. Counsels for parties and perused file.
8. On perusal of pleadings of parties; examination of evidence on record; and considering the arguments of Ld. Counsels for the parties, I formed my views which are discussed herein below issue wise.
FINDINGS ON ISSUE NO. 1
9. It has been argued on behalf of insurance company that alleged accident is not covered under the Act as the deceased admittedly died when he was out of the offending vehicle. On the other hand, counsel for petitioner argued that alleged accident is covered under the Act and he relied upon a case Babu Vs. Ramesan 1 (1996) ACC 24. It was held therein that the expression "use of a motor vehicle" covers accidents which occur both when the vehicle is in motion and when it is stationary. The word "use" has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a break down or mechanical defect of accident. 5
10. In a case Rita Devi & Ors.Vs. New India Assurance Co. Ltd. & Anr. 2000 III AD (S.C) 261, it was held that : "we find that the deceased a driver of the auto rickshaw was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw then it cannot be said that the death so caused to the driver of the auto rickshaw was an accident murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the auto rickshaw.
11. Another case Union of India Vs. Bhagwati Prasad dead & Ors. 2002 ACJ 721, there was a collusion of a taxi and a passenger train on a manned level crossing due to negligence of railway staff as the railway crossing was kept open for traffic at a time when the train was to pass through resulting in death of some passengers in taxi and others sustaining injuries. The Apex Court held that jurisdiction of Tribunal could not be divested on a finding being 6 arrived at later point of time that it was the negligence of other joint tort feasor and not the negligence of motor vehicle in question.
12. In case of United India Insurance Company Ltd. Vs. Amir Basha & Ors. III 2003 ACC 104, (DB) it was held that ; "It is also relevant to refer a recent judgment of the Supreme Court in Kaushnuma Begum Vs. New India Assurance Co. Ltd., I (2001) SLT 300=I (2001) ACC 151=2001 ACJ 428. In that case, a front tyre of a jeep burst while in motion. The vehicle became became unbalance and turned turtle, crushing to death a person walking on the road. The Tribunal after holding that there was neither rashness nor negligence in driving the vehicle, hence the driver has no liability and as such the owner has no vicarious liability to pay compensation to the dependants of the deceased and ultimately dismissed the claim petition, but awarded compensation under no fault liability. The order of the Tribunal was upheld by the High Court, against which the claimants preferred an appeal to the Supreme Court. Their Lordships following the rule of strict liability propounded in Rylands Vs. Fletcher, 1861 (73) AII E.R.1, held that the accident occurred when the vehicle was in use and the rule of strict liability propounded in Rylands Vs. Fletcher is applicable in claiming compensation made in respect of motor accidents. It is clear from the above decisions and in view of the object of the enactments, both under the 7 Motor Vehicles Act, 1939 and 1988 the expression "caused by" and "arising out of"
have a wider connotation. Though the accident should be connected with the use of motor vehicle, but the said connection need not be direct and immediate. The expression "arising ouf of use of motor vehicle" as mentioned in Section 92A of the 1939 Act and Section 165 of 1988 Act enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment. From the expression employed namely "accident arising out of the use of a motorvehicle" in the place of "accident caused by the use of motor vehicle" it is clear that the Legislature wanted to enlarge the scope of the word "use" and not to restrict it for denying compensation in deserving cases; accordingly we are of the view that the test should be whether the accident was reasonable proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then. We should not forget that these provisions are made in order to help the victims. We are of the view that restrictive interpretation should not be given for the word "use". We has to be given a wider meaning. We are also of the view that "use of motor vehicle"
need not necessarily be so intimate and closely direct as to make it "a motor accident" in the sense in which that expression is used in common parlance. Accordingly, we hold that the death of Absar arose out of the use of motor vehicle, and the claimants/respondents 1 and 2 herein are entitled to compensation for the death of their son 8 Absar".
13. Turning to the case in hand and on perusal of evidence on record, I am of the view that it has been established that deceased died when he alighted from the offending vehicle due to technical fault and when he tried to remove the electric wire, he was electrocuted. PW1 on this aspect deposed that Sh. Ram Sewak was his father and he died on 4.9.2003. PW2 deposed that he was IO of the case of DD No. 37A dated 4.9.2003. He went on the spot i.e. Road No. 16, Red Light Seelampur and he found that a person was lying dead and an electric wire was wrapped around him. He called the technical person from electricity department and got his P/M conducted. During investigation, it revealed that deceased Sh. Ram Sewak was trying to remove the broken electricity wire and he was driver of the offending vehicle. SHO of PS Seelampur filed attested copy of FIR No. 321 dated 4.9.2003 recorded at PS Seelampur in respect of alleged accident and P/M report of deceased.
14. In view of case law discussed herein above, and the evidence on record, I am of the view that the present case is covered under the Act. The arguments of Ld. Counsel for insurance company is not convincing. Therefore, issue No. 1 is 9 decided in favour of petitioners and against the respondents and it is held that deceased Ram Sewak sustained fatal injuries by electrocuted involving offending vehicle. FINDINGS ON ISSUE NO. 2
15. Since, it has been held herein above that Sh. Ram Sewak sustained fatal injuries involving offending vehicle, therefore, petitioners have become entitled to get compensation from the respondents. Let us now see as to what amount of compensation, petitioners are entitled to get and from whom? MULTIPLIER
16. PW1 on this aspect deposed that his father Sh. Ram Sewak died in a road side accident on 4.9.2003 leaving behind Smt. Jai Rani as his widow and PW1 as his son and Smt. Sangita Devi R3 has his daughter. Copy of ration card has been filed and proved by PW1as Ex. PW1/1. It contains the age of deceased Ram Sewak as 45 years. Date of issuance of ration card is not clear. The P/M report contains the age of deceased as 55 years. Copy of D/L of Sh. Ram Sewak has already been filed on judicial record and this contains the date of his birth as 18.11.1950. On calculation, the 10 age of deceased comes to about 54 years on the date of accident. Therefore, considering the age of deceased between 50 to 55 years, I am of the view the multiplier of 11 is applicable in the present case.
COMPENSATION
17. PW1 on this aspect deposed that his father used to get salary of Rs. 3200/ p.m. Petitioner failed to file any document of his income. Therefore, the income has to be assessed on the basis of minimum wages which were prevalent on the date of accident and those were Rs. 3060.90 p.m for semi skilled person. 1/3rd of his salary has to be reduced in consideration of his expenses had he been alive, as per II Schedule appended to the Act. On calculation, the amount of compensation comes to Rs.3060 - 1/3rd = 2040.60 x 12 X 11= 269359.
18. Keeping in view all the relevant factors and evidence on record, I am of the view that compensation which may be payable to the petitioners may, broadly, be narrated as per following details :
1. Compensation on loss of dependency :Rs. 2,69,359.00
2. Loss of consortium :Rs. 5,000.00 11
3. Love & Affection and Loss of Estate :Rs. 12,500.00
4. Funeral Expenses :Rs. 2,000.00 Total :Rs. 2,88,859.00 LIABILITY
19. It is admitted case that offending vehicle was insured with insurance company. Insurance company has neither pleaded nor proved any violation of any terms and conditions of insurance policy. Therefore, Respondent No.1 being the owner is liable to pay compensation to the petitioners and Respondent No. 2 is liable to indemnify and actually pay the same to the petitioners. Issue No. 2 stands decided accordingly.
RELIEF : ORDER
20. Consequent upon the decision of issue Nos. 1 and 2 in favour of the petitioners and against the respondents petition is decided in favour of the petitioners and against the respondents and respondent No. 2 being insurer of the offending vehicle is directed to pay Rs.2,88,859.00 (Rupees Two Lacs Eighty Eight Thousand Eight Hundred Fifty Nine only) together with interest @ 7% from the date of filing of petition till the date of realization to the petitioners minus amount of interim compensation, if any, paid to the petitioners. Out of the award amount, petitioner No. 1 being the wife and the main sufferer will get 60%. The balance will be payable to petitioner No. 2. Out of their respective shares, 12 Rs. 50,000/ each be released and the balance be kept in FDR for the period of five years in the bank of their choice.
21. Respondent No.2 is, accordingly, directed to deposit the award amount with this Tribunal by way of crossed cheque within one month from the date of this award.
22. The award amount be released to the petitioners on deposit with this Tribunal.
File be consigned to record room.
Announced in the open court on
20th February, 2008 ( DR. T.R. NAVAL )
PRESIDING OFFICER
MACT : KKD COURTS
DELHI
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