Delhi District Court
Smt. Indrawati (Widow Of Deceased) vs Sh. Surender on 18 January, 2019
MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019
IN THE COURT OF SH. VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 4621/16 (Old MAC Petition No. 101/12)
1. Smt. Indrawati (Widow of deceased)
Widow of Late Sh. Parmanand,
R/o Village Kisranti(47),
Rohtak, Haryana.
2. Sh. Somveer(Son of deceased)
S/o Late Sh. Parmanand,
R/o Village Kisranti(47),
Rohtak, Haryana.
(Deleted from array of parties)
3. Sh. Satinder (Son of deceased)
S/o Late Sh. Parmanand,
R/o Village Kisranti(47),
Rohtak, Haryana.
(Deleted from array of parties)
4. Smt. Bimla (Daughter of deceased)
W/o Sh. Surender,
R/o 628/10, SE10,
Gurugram, Haryana.
(Deleted from array of parties)
.......Petitioners
VERSUS
1. Sh. Surender,
S/o Sh. Narain Singh,
R/o VPO Kisranti,
District Rohtak,
Haryana.(Driver)
Smt. Indrawati. Vs. Surender & Ors. Page 1 of 29
MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019
2. Sh. Sonu,
S/o Sh. Dharampal,
R/o Village Jardakpur,
Tehsil Bahadurgarh,
District Jhajjar,
Haryana (Registered owner)
3. Reliance General Insurance Company Ltd.
(Insurer) .......Respondents
Date of Institution : 29.02.2012
Date of Arguments : 05.01.2019
Date of Decision : 18.01.2018
APPEARANCES: Sh. Ramesh Chander, adv for petitioner.
Respondents no. 1 & 2 are exparte.
Sh. Sujit Jaiswal, adv for respondent no. 3.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioners are seeking compensation for the fatal injuries sustained by Sh. Parmanand, in the wake of Detailed Accident Report (DAR) filed by police corresponding to the investigation carried out in FIR no. 393/11 U/s 279/338 IPC registered at PS. Bawana with regard to Motor Vehicular Accident which occurred on 17.11.2011 at 10:00 am near Shiv Mandir, Auchandi, Delhi, involving vehicle i.e. Tractor bearing registration no. HR13E8427 (alleged offending vehicle) allegedly being driven in rash and negligent manner and without following traffic rules by respondent no.
Smt. Indrawati. Vs. Surender & Ors. Page 2 of 29MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019
1. DAR was treated as claim petition U/s 166(4) of Motor Vehicles Act (hereinafter referred to as M.V. Act).
2. It is averred in the DAR petition that on 17.11.2011, Sh. Parmanand (since expired) alongwith his nephew namely Yashbir, was travelling in Tractor bearing registration no. HR13E8427 for selling of wheat at Anaj Mandi, Narela, Delhi. The said tractor was being driven by respondent no. 1. At about 10:30 am, when they reached near Shiv Mandir, Auchandi Border, Parmanand got down from the said tractor to attend the call of nature. When he again tried to board the aforesaid tractor, the respondent no. 1 suddenly started his tractor, due to which he fell down on the road and was crushed between the tyres of loaded trolley of said tractor. He was removed to M.V. Hospital, Pooth Khurd, Delhi, where he was medically examined vide MLC No. 3365, wherefrom, he was referred to LNJP Hospital, where he was declared dead. Thereafter, postmortem on his body was conducted vide PMR No. 1101/11 on 18.11.11. FIR No. 393/11, U/s. 279/338 IPC was registered at PS. Bawana with regard to accident in question. It is claimed that the accident took place due to rash and negligent driving of Tractor no. HR13E8427 by its driver/respondent no.1. The said Tractor was found to be owned by respondent no. 2 and it was insured with Reliance General Insurance Company Ltd /respondent no. 3 during the period in question.
Smt. Indrawati. Vs. Surender & Ors. Page 3 of 29MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019
3. Although, the respondents no. 1 & 2 i.e. driver and registered owner have put their appearance before this Tribunal on 29.02.12 i.e. at the time of filing of DAR, however, they failed to file their WS despite grant of sufficient time and opportunities. They also stopped appearing before the Tribunal on the subsequent dates and consequently, they were proceeded against exparte and their defence was struck off vide order dated 08.02.2016 passed by my Ld. Predecessor.
4. In its written statement, the insurance company/R3 has raised statutory defence that deceased Parmanand, Yashbeer and Surender (R1) had borrowed the aforesaid tractor from its owner for their work and thus, they can not be termed as 'third parties' in this case and insurance company is not liable to pay any compensation amount due to said reason. However, it has admitted that the aforesaid tractor was insured with it in the name of respondent no. 2, vide policy no. 1501912343100005 having validity from 23.12.2010 to 22.12.2011. It has further claimed that the aforesaid tractor was meant to be used for agricultural purposes but same was being used for carrying goods to the market, which was not permitted as per the terms and conditions of insurance policy. However, contents of DAR have not been denied by it.
5. From pleadings of the parties, the following issues were framed by Ld. Predecessor vide order dated 08.02.2016 : Smt. Indrawati. Vs. Surender & Ors. Page 4 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019
1) Whether the deceased Parmanand suffered fatal injuries in road traffic accident on 17.11.14 at about 10:00 am near Shiv Mandir, Village Auchandi, Bawana, Delhi, within the jurisdiction of PS. Bawana, due to rashness and negligence on the part of the driver Devender(SicSurender) Singh who was driving tractor bearing registration no. HR13E8427, owned by Sonu and insured with Reliance General Insurance Co.
Ltd.?OPP.
2) Whether the Lrs of deceased are entitled to any compensation if so to what amount and from whom?OPP
3) Relief.
6. In support of her claim, the petitioner has examined two witnesses i.e. herself as PW1 and PW2 Sh. Yashbeer (alleged eyewitness). She closed her evidence on 02.05.2017. On the other hand, no evidence has been adduced by respondents no. 1 & 2, they both being already exparte. The respondent no. 3 has examined one witness i.e. Sh. Pramod Sah, Legal Manager (Claims) of Insurance Company as R3W1 and closed its RE on 14.11.17 through its counsel.
7. Before proceeding further, it may be noted that vide order dated 20.01.15 passed by my Ld. Predecessor, it was directed that the Smt. Indrawati. Vs. Surender & Ors. Page 5 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 petitioner shall not be entitled to any interest w.e.f. date of expiry of period of limitation for filing substitution application u/o 22 Rule 3 CPC(as claimant namely Somveer had expired on 15.07.2013) till arguments on the said application are addressed. Record shows that period of limitation for moving the said application, which is 90 days, expired on 14.10.13. Arguments on the substitution application were addressed as per record on 08.02.16. Thus, right to claim interest, if any, has been curtailed from 14.10.13 till 08.02.2016.
8. It may also be noted here that remaining legal heirs of deceased gave no objection in favour of Smt. Indrawati as reflected in the proceedings and application moved u/o 22 Rule 3 CPC by claimant Smt. Inderawati for deletion of the name of her deceased son Somveer from the array of petitioners, was allowed by my Ld. Predecessor on 08.02.16.
9. I have already heard the arguments addressed by ld counsels for the parties. I have also gone through the written arguments filed on behalf of petitioner. Both the sides were directed to submit their respective submissions in Form VI A vide order dated 06.10.2018 but they have not submitted the same on record till date. My findings on the issues are as under: Smt. Indrawati. Vs. Surender & Ors. Page 6 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 ISSUE NO. 1.
10. For the purpose of this issue, the testimony of PW2 Sh. Yashbeer (alleged eyewitness) is relevant. He deposed that at about 9:00 to 10:00 am, he alongwith his chacha Parmanand and one Shri Bhagwan, were going to sell the crops at Anaj Mandi on Tractor Trolley. He further deposed that he did not remember the registration number of the said tractortrolley but it was being driven by Surender. He further deposed that on the road in between Kharkhoda and Bawana, his uncle Parmanand got down from the tractor to attend nature's call. While getting down from the tractor, the leg of Parmanand got entangled with katta loaded on the tractor and he fell down. Parmanand had asked the driver to stop the tractor. When the driver slowed down the tractor for stopping it, Sh. Parmanand fell down and came under the left rear wheel of the said tractor. The public persons had called the police. He further deposed that his statement was not recorded by the police. He again said that police had made some enquiries from him in the hospital. He had taken Parmanand to hospital, from where he was referred to some other hospital. His statement was recorded in the criminal case against Surender. He also deposed that when the driver had applied brakes on being asked by Parmanand, there was jerk due to which he had fallen down. During his crossexamination on behalf of respondent no. 3, he deposed that 78 persons were travelling in the trolley attached with the tractor. Trolley was Smt. Indrawati. Vs. Surender & Ors. Page 7 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 fully loaded with sacks of wheat. He admitted that there was no negligence on the part of driver namely Surender in the said accident. He did not know who had taken the tractor from its owner on the said date. Respondents no. 1 & 2 did not crossexamine this witness despite grant of opportunity.
11. While referring to the relevant portion of crossexamination of PW2, counsel for insurance company argued that negligence on the part of R1 in causing the accident while driving the aforesaid tractor, could not be proved in this case. He therefore urged that this issue should be decided against the claimant and claim petition is liable to be dismissed on this ground. On the other hand, counsel for claimant vehemently argued that the accident had occurred due to negligent driving of aforesaid vehicle by respondent no. 1, as claimed by PW2 during his chief examination and therefore, this issue should be decided in favour of the claimant.
12. No doubt, PW2 admitted during his cross that there was no negligence on the part of R1 in the said accident but said portion of his testimony has to be considered in the context in which it was stated by the witness. It is well settled law that the entire testimony of witness has to be read as a whole and not in piecemeal. During his chief examination, PW2 has duly explained the manner in which the accident had taken place, by testifying that when Parmanand wanted to attend the call of nature, he was getting down from the tractor but his leg entangled with sack of wheat Smt. Indrawati. Vs. Surender & Ors. Page 8 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 loaded therein and he fell down. He also deposed that when Parmanand had requested driver i.e. R1 of said tractor for stopping it, its driver slowed down the tractor and during the said process, Parmanand came under left rear wheel thereof. The attending circumstances as reflected on record from the ocular testimony of PW2 and the documents including the documents of criminal case record as filed alongwith DAR, would speak for themselves thereby pointing out towards the negligent driving on the part of respondent no. 1 as he failed to stop the said vehicle and continued to drive the same even when Parmanand fell down under the above noted circumstances and did not care to ensure that victim actually gets down from the vehicle in order to attend the call of nature. There is another aspect of the matter involved herein. It was the bounden duty of the driver of aforesaid vehicle to stop the said vehicle on extreme left side of the place after taking necessary precautions that no other vehicle is moving at the said place at that time and his stoppage of vehicle does not lead to any obstruction in the movement of other vehicles at the said public place, so that victim could have got down from the vehicle easily in order to attend the call of nature. There is nothing on record to show that R1 took sufficient safeguards and precautions in this regard. Said conduct on his part would clearly attract negligence on his part. The very fact that the victim had been crushed under the rear wheel of the aforesaid vehicle, would leave no scope for any doubt that use of aforesaid tractor was involved in the occurrence of accident in question. Moreover, none of the respondents led Smt. Indrawati. Vs. Surender & Ors. Page 9 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 any evidence to rebut the testimony of this witness during the course of inquiry. Thus, there is no reason to disbelieve the uncontroverted testimony of this witness made on oath.
13. Apart from above, it may be noted that it is well settled legal position as laid down by Hon'ble Apex Court as well as by various High Courts in plethora of judgments delivered from time to time that in claim petitions preferred U/s 160/144 M.V Act, the claimants have to prove on the basis of preponderance of probabilities that accident was caused due to rash and negligent driving of alleged offending vehicles by its drivers. It is no more resintegra that claim petition filed under relevant provisions of M.V Act, is the outcome of social welfare legislation and the proceedings are summary in nature and do not require strict compliance of rules of evidence and pleadings. It needs no emphasis that in case replies filed by respondents, are evasive then it is deemed that they have admitted the averments made by the claimants. The purpose of granting compensation is to ameliorate the sufferings of the victims of Motor Vehicle Accidents and the niceties, hyper technicalities, procedural wrangles and tangles and mystic maybes have no role to play and same should not be any ground to dismiss the claim petitions and to defeat the rights of the claimants. While saying so, I am fortified by the decisions rendered by Hon'ble Apex Court in the cases titled as " N.KV. Bros (P) Ltd Vs. M. Karumai Ammal", 1980 ACJ 435 (SC); " Sohan Lal Passi Vs. P. Sesh Reddy", 1996 ACJ 1044 Smt. Indrawati. Vs. Surender & Ors. Page 10 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 (SC) and " Dulcina Fernandes Vs. Joaquim Xavier Cruz", 2013 ACJ 2712 (SC). It is also relevant to mention here that while deciding claim petition under M.V Act, it is the duty of Claims Tribunal to follow the principles of justice, equity and good conscience and to adopt more realistic, pragmatic and liberal approach.
14. The aforesaid issue recently came up for discussion before Hon'ble Apex Court in the case of "Vimla Devi & Ors. Vs. National Insurance Company Limited & Ors.", Civil Appeal No. 11042 of 2018, decided on 16.11.18. After referring to the previous judicial precedents on the point in issue and the fact that M.V. Act is a social welfare legislation, Hon'ble Apex Court held in para 29 of its judgment as under: "xxxxx
29. In our view, what more documents could be filed than the documents filed by the appellants to prove the factum of the accident and the persons involved therein.
xxxxx"
15. In the above cited decision, the facts were almost similar and the claimants had not examined any eyewitness. Still, Hon'ble Apex Court held that in view of filing of criminal case record including chargesheet showing that driver of alleged offending vehicle had been chargesheeted for causing the accident due to rash and negligent driving of said vehicle and the driver himself did not enter into witness box, claimants were able to Smt. Indrawati. Vs. Surender & Ors. Page 11 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 prove the issue of accident being caused due to rash and negligent driving of said vehicle by said driver on the basis of preponderance of the probabilities.
16. It is also pertinent to note that the respondent no.1/driver of aforesaid Tractor, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of Tractor bearing no. HR13E8427 by him.
17. Moreover, it is an undisputed fact that FIR No. 393/11 (supra) was registered at PS. Bawana with regard to accident in question. Copy of said FIR (which is part of DAR Ex. PW1/2 colly) would show that same was registered on 17.11.11 i.e. on the date of accident itself. Thus, FIR is shown to have been registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of Tractor bearing registration no. HR13E8427 at the instance of petitioner herein.
18. Not only this, the respondent no. 1 namely Surender Singh (accused in State case) has been charge sheeted(which is part of DAR Ex.Smt. Indrawati. Vs. Surender & Ors. Page 12 of 29
MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 PW1/2 colly) for offences punishable U/s 279/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending Tractor bearing no. HR13E8427 by him. Same would also point out towards rash and negligent driving of Tractor No. HR13E8427 by respondent no. 1.
19. Apart from above, copy of MLC (which is part of DAR Ex. PW1/2 colly) of deceased prepared at M.V. Hospital, would reveal that he had been removed to said hospital on 17.11.11 at 10:50 am with alleged history of RTA. He is shown to have sustained multiple injuries as mentioned therein. Said injuries are consistent with the injuries which are sustained in motor vehicular accident. Copy of PM Report (which is also part of DAR Ex. PW1/2 colly) of deceased would show that cause of his death is opined due to shock consequent upon blunt force impact to the lower limb. All the injuries were antemortem in nature and were possible in road traffic accident. The injuries as mentioned in the relevant column of external injuries of the report, are also consistent with the injuries which are sustained in road traffic accident. Again, there is no challenge to the aforesaid documents from the side of respondents including insurance company.Smt. Indrawati. Vs. Surender & Ors. Page 13 of 29
MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019
20. Moreover, in response to notice U/s 133 M.V Act ( which is part of DAR Ex PW1/2 colly) served upon respondent no. 2 i.e. registered owner of Tractor bearing no. HR13E8427, he gave written reply that the aforesaid tractor was being driven by respondent no. 1 at the time of accident. Same would also corroborate the ocular testimony of PW2 to the extent that said vehicle was being driven by respondent no.1 at the time of accident.
21. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of pre ponderence of probabilities that Parmanand had sustained fatal injuries in road accident which took place on 17.11.2011 at 10:00 am near Shiv Mandir, Auchandi, Delhi,, due to rash and negligent driving of tractor bearing no. HR13E8427 by the respondent no. 1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.ISSUE NO. 2
22. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.Smt. Indrawati. Vs. Surender & Ors. Page 14 of 29
MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 LOSS OF DEPENDENCY
23. As already stated above, the claimant/petitioner is the widow of deceased. PW1 Smt. Indrawati has deposed in her evidence by way of affidavit(Ex. PW1/A) that Parmanand was working as Bodyguard of His Excellency The President of India and had retired from said service and was getting monthly pension of Rs. 9,500/. She further deposed that after the death of her husband, the pension was reduced to Rs. 5,000/ per month. Thus, she has suffered loss of Rs. 4,500/ per month. She further deposed that deceased was working in agricultural fields and used to save Rs. 5,000/ per month. She also deposed that she had two sons and one daughter and all were married and after the death of her husband, her son namely Sh. Somveer had also expired on 15.07.13 and her another son namely Sh. Satender was in judicial custody and was convicted for life imprisonment. Thus, she is the only legal heir of deceased. She has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copies of her voter I card and Ex PW1/1(colly) Aadhaar Card
2. DAR Ex. PW1/2(colly)
3. Copy of pension books Ex. PW1/3 & Ex.PW1/4
4. Certified copy of challan of Ex. PW1/5(colly) FIR Smt. Indrawati. Vs. Surender & Ors. Page 15 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019
24. During her cross examination on behalf of respondent no. 3, she deposed that she had already filed all the documents pertaining to pension received by her husband. She denied the suggestion that her deceased husband was not getting Rs. 9,500/ per month as pension. She further deposed that she had no document to show that her deceased husband was working in fields and was earning Rs. 5,000/ per month. She denied the suggestion that she had not suffered any financial loss due to death of her husband. The respondents no. 1 & 2 did not crossexamine this witness, they both being already exparte.
25. After referring to the testimony of PW1 and the documents brought on record, counsel for petitioner vehemently argued that since monthly pension was reduced to Rs. 5,000/ from Rs. 9,500/ per month due to untimely death of deceased in road accident, there was loss of monthly income to the extent of Rs. 4,500/. He however fairly conceded that no evidence has been led on record to show that deceased was also earning Rs. 5,000/ per month by working in agricultural fields at the time of accident.
26. Having considered the aforesaid submissions made on behalf of claimant in the light of material available on record, I find substance therein. Considering the fact that claimant had suffered loss of monthly pension to the extent of Rs. 4,500/ due to unfortunate road accident Smt. Indrawati. Vs. Surender & Ors. Page 16 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 leading to the death of Parmanand, said amount has to be taken intor consideration in order to calculate the loss of dependency.
27. It may be noted that in copy of Ration Card( which is part of DAR Ex. PW1/2 colly), the age of deceased is mentioned as 65 years. Although, the date of issuance of said ration card is not discernible therefrom but the age of deceased is stated to be 68 years at the time of accident and which part of testimony of PW1 is not disputed from the side of respondents. Hence, I am inclined to accept the age of deceased to be 68 years at the time of accident. The multiplier of 5 would be applicable in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
28. It has been admitted by PW1 that all the three children of deceased were already married at the time of accident, Thus, they can not be considered as financially dependents upon the earning of deceased at the time of accident. However, his widow i.e. the petitioner herein would be considered as financially dependent upon him. Considering the fact that there was one dependent at the time of accident, there has to be deduction of ½ as held in the case of Pranay Sethi mentioned supra. Thus, the total of loss of dependency would come out to Rs. 1,35,000/(Rs. 4,500/ X 1/2 X 12 X 5).Smt. Indrawati. Vs. Surender & Ors. Page 17 of 29
MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 LOSS OF LOVE & AFFECTION
29. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra, has been pleased to observe in para 18 of the judgment that the Constitution Bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
30. In view of celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned Supra a sum of Rs. 40,000/ is awarded in favour of petitioner no. 1 Smt. Indrawati (being widow of deceased) towards loss of consortium.
LOSS OF ESTATE & FUNERAL EXPENSES
31. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioner on account of loss of estate and funeral expenses.Smt. Indrawati. Vs. Surender & Ors. Page 18 of 29
MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 The total compensation is assessed as under:
1. Loss of dependency Rs. 1,35,000/
2. Loss of consortium Rs. 40,000/
2. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 2,05,000/
32. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company tried to avoid the liability of insurance company on the ground that there was breach of terms and conditions of insurance policy in this case inasmuch as tractor was attached with trolley and thus, same was being used for commercial purposes. Thus, insurance company is not liable to indemnify the insured and is not liable to pay any compensation to the petitioner. In support of his aforesaid contentions, he heavily relied upon the testimony of R3W1 examined on behalf of insurance company during the course of inquiry.
33. In order to appreciate the aforesaid submission, it would be relevant to refer to the relevant documents i.e. DL (which is part of DAR Ex. PW1/2 colly) in the name of respondent no. 1 and the insurance policy (Ex. R3W1/3)in respect of TractorTrolley in question. The perusal of copy of DL of respondent no. 1 Sh. Surender Singh, would show that said DL was Smt. Indrawati. Vs. Surender & Ors. Page 19 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 issued in respect of HGV and HPV only and same was valid as on the date of accident in question.
34. It is an admitted fact on record that the offending tractor was attached with trolley while it had caused the accident in question. It is also an admitted position that said trolley was loaded with sacks of wheat at that time. The perusal of insurance policy (Ex. R3W1/3), which is an undisputed document even from the side of insurance company, would show that same had been issued in respect of Trailor having validity from 23.12.10 till 22.12.11. It was the duty of insurance company to prove that the offending tractortrolley was being used for commercial purpose. However, no evidence whatsoever has been led by insurance company to prove the same. Instead, the only relevant witness i.e. R3W1 namely Mr. Parmod Sah, Legal Manager(Claims) of Reliance General Insurance Company Limited examined by Insurance Company / R3 has simply deposed in his evidence by way of affidavit (Ex. R3W1/A) that insured vehicle was a tractor, on which no person other than driver can travel as per seating capacity of tractor as mentioned in its RC and since deceased was travelling thereon illegally, his risk was not covered under the insurance policy.
35. Now, the question arises as to whether in a fact situation like the present one, where tractor is attached with trolley being used for Smt. Indrawati. Vs. Surender & Ors. Page 20 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 carrying agricultural produce, it can be said that the vehicle was being used for commercial purpose. The answer to this question, in my opinion, has to be in negative.
36. In the case of "Bajaj Allianz General Insurance Company Ltd Vs. Tarun Kaura & Ors.," FAO No. 2887/08 decided on 02.03.2010, Hon'ble High Court of Punjab & Haryana High Court has held that a person who has a valid license for driving a tractor, can also drive a trolley attached to it, as a trolley is an agricultural equipment.
37. Now turning back to the facts of the present case. It is an undisputed position on record that the offending tractortrolley was being used for carrying agricultural produce i.e. wheat at the time of accident and thus, the purpose of its use cannot be termed as commercial. There is no substance in the argument raised on behalf of insurance company that merely because trolley was not expressly insured in the insurance policy (Ex. R3W1/3), it can be allowed to avoid its liability. The identical question arose before Hon'ble High Court of Andhra Pradesh in the case titled as "Asari Pothalingam & Ors., Vs. Lambadi Mamji & Anr, 2012 ACJ 2117(A.P). In the said case also, only tractor was insured but the said tractor was attached with trolley at the time of accident which led to death of one labourer travelling therein. Similar contention was made on behalf of insurance company that since trolley was not insured, it is not liable to pay Smt. Indrawati. Vs. Surender & Ors. Page 21 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 any compensation for damage caused to third party by trolley. While rejecting the said contention, it was held in para 17 of the judgment, after referring to previous decision delivered by Division Bench of A.P. High Court reported at 2009 ACJ 514(A.P), that no separate insurance is contemplated for a trailor and when the trailor is attached to the tractor, which is insured, it becomes a part of the tractor. Similar view has been taken by Division Bench of Punjab and Haryana High Court in the case titled as " United India Insurance Company Limited Vs. Surender & Ors.", 2006 ACJ 1285 as also by Division Bench of Andhra Pradesh High Court in case reported at 2008 (2) Transport and Accidents Cases 582 (A.P).
38. Counsel for insurance company also sought to avoid its liability to pay the compensation amount on the ground that deceased was travelling as an unauthorised passenger/gratuitous passenger in the offending Tractor bearing registration no. HR13E8427 at the time of accident in question. Hence, there was fundamental breach in the terms and conditions of the insurance policy on the part of insured and insurance company is entitled to be absolved from its liability to pay the compensation amount in this case. In order to buttress the aforesaid submissions, he heavily relied upon the testimony of R3W1 i.e. Legal Manager of Insurance Company examined during the course of inquiry, as also on the decisions of Hon'ble Apex Court in the matter titled as " National Insurance Co Ltd.Smt. Indrawati. Vs. Surender & Ors. Page 22 of 29
MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 Vs. Cholleti Bharatamma", AIR 2008 SC 484, " National Insurance Co Ltd. Vs. Bhukya Tara & Ors.", 2009 (3) T.A.C. 385 (SC), " National Insurance Co Ltd. Vs. Rattani & Ors.", 2009 (1) T.A.C. 420 (SC) and "
Manager, National Insurance Co Ltd. Vs. Saju P. Paul & Anr.", 2013 STPL (Web) 8 SC.
39. On the other hand, counsel for claimant vehemently argued that the insurance company is liable to indemnify the insured qua third party risk and at the most, it may be given recovery rights based on the principle of " Pay & Recover". He urged that insurance company should not be absolved from its liability to pay the compensation amount in this case. In support of said submissions, he relied upon the following judgments:
(a) National Insurance Co Ltd. Vs. Swarn Singh & Ors., 2004 ACJ 1 (SC).
(b) New India Assurance Co Ltd. Vs. Vauki Devi & Ors., MAC APP No. 340/10 decided on 22.02.13 by Hon'ble Delhi High Court.
(c) National Insurance Co Ltd. Vs. Baljeet Kaur & Ors., 2004 ACJ, 428 (SC).
(d) Manuara Khatun & Ors. Vs. Rajesh Kumar Singh & Ors., 2017 ACJ 1031 (SC).
(e) Bhom Singh & Anr. Vs. Reliance General Insurance Co Ltd. & Anr., MAC APP No. 81/18 decided on 27.07.18 by Hon'ble Delhi High Court.
(f) Shivaraj Vs. Rajendra & Anr., Civil Appeal Nos. 82788279 of 2018 decided on 05.09.2018 by Hon'ble Supreme Court of India.
(g) Singh Ram Vs. Nirmala & Ors., Civil Appeal No. 2103 of 2018 decided on 06.03.2018 by Hon'ble Supreme Court of India.
Smt. Indrawati. Vs. Surender & Ors. Page 23 of 29MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019
40. In order to appreciate the aforesaid contentions raised on behalf of both the sides, it would be appropriate to discuss the testimony of R3W1 examined on behalf of insurance company. His entire testimony is completely silent on the aforesaid aspect. Rather, he has admitted during his crossexamination on behalf of claimant that third party risk was covered under the policy.
41. At this juncture, it may be noted here that by virtue of Motor Vehicles (Amendment) Act 1994, Section 147 of the said Act came to be amended. The expression "including owner of the goods or his authorized representative carried in the vehicle" was added in Section 147(1)(b)(i) of M.V. Act. In view of the said amendment carried out in the year 1994, the risk of owner of the goods or his authorised representative carried in the vehicle, is also covered.
42. As already noted above, the claimant has claimed that deceased was travelling in the offending tractor alongwith agricultural produce for the purpose of loading and unloading thereof at the time of accident but at the same time, it has been established from the testimony of PW2 that deceased was sitting in the rear portion i.e. in the trolley attached with the tractor.
Smt. Indrawati. Vs. Surender & Ors. Page 24 of 29MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019
43. Hon'ble Apex Court has categorically held in the case of "
National Insurance Co Ltd. Vs. Cholleti Bharatamma", (mentioned supra) that even owner of the goods or the authorised representative of the owner of goods, are required to sit in the cabin of the insured vehicle and not with the goods in the rear portion, in order to claim protection U/s 147 of the M.V Act 1988. Considering the fact that deceased was undisputedly travelling in the rear portion of the vehicle, it is concluded that he was unauthorized/gratuitous passenger in the insured vehicle i.e. Tractor bearing registration no. HR13E8427.
44. This brings me down to the next question as to whether in case of gratuitous passenger, insurance company should be absolved from its liability to pay the compensation amount or it should be granted recovery rights. In the above noted decisions relied by counsel for insurance company, it has been held that insurance company cannot be saddled with the liability to pay the compensation amount in such a situation. However, it may be noted here that the decisions cited by counsel for insurance company have been delivered by two Judges Bench of Hon'ble Apex Court. The last cited decision is shown to have been decided on 03.01.13. However, counsel for claimant has relied upon decisions, two of which i.e. "
National Insurance Co Ltd Vs. Baljeet Kaur & Ors." and " Singh Ram Vs, Nirmala & Ors." (mentioned supra), have been delivered by three Smt. Indrawati. Vs. Surender & Ors. Page 25 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 Judges Bench of Hon'ble Apex Court. In the case of Baljeet Kaur (supra), deceased was found to be travelling as passenger in goods vehicle and it was held in para 21 of the judgment that insurance company should satisfy the awarded amount in favour of the claimant and to recover the same from the owner of the vehicle. Similar view has been taken by two Judges Bench of Hon'ble Apex Court in the cases Manuara Khatun & Ors. Vs. Rajesh Kumar Singh & Ors., 2017 ACJ 1031 (SC) & Shivaraj Vs. Rajendra & Anr., Civil Appeal Nos. 82788279 of 2018 decided on 05.09.2018 by Hon'ble Supreme Court of India, as also by Hon'ble Delhi High Court in recent decision in the case of "Bhom Singh & Anr. Vs. Reliance General Insurance Co Ltd. & Anr.", MAC APP No. 81/18 decided on 27.07.18 by Hon'ble Delhi High Court.
45. While applying the dictum of law laid down by Hon'ble Apex Court as well as by Hon'ble Delhi High Court in the above referred decisions to the facts of the present case, it is held that the insurance company is liable to satisfy the third party risk by paying the compensation amount at the first instance and thereafter, to recover the said amount from the insured i.e. respondent no. 2. (Reliance placed on decision dated 26.09.2017 in FAO no.7555/2015 in the matter titled as "MS Middle High School and another Vs. Usha and others" by Hon'ble High Court of Punjab and Haryana and as upheld by Hon'ble Apex Court in SLP no.31406/2017 titled as "MS Middle High School Vs. HDFC ERGO Smt. Indrawati. Vs. Surender & Ors. Page 26 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 General Insurance Company Ltd. & others" decided on 22.11.2017). Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
46. In view of the aforesaid discussion, I award compensation of Rs. 2,05,000/ alongwith interest @ 9% per annum in favour of petitioners and against the respondents jointly and severally w.e.f. date of filing of the petition i.e. 29.02.12 till the date of its realization (except for the period w.e.f. 14.10.13 till 08.02.2016) (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016). However, it would be open to the insurance company to recover the award amount from respondent no. 2 after payment of compensation amount, in accordance with law. Issue no. 3 is decided accordingly.
APPORTIONMENT
47. Statement of petitioner in terms of Clause 26 MCTAP were recorded on 08.08.17. Having regard to the facts and circumstances of the case and in view of the fact that claimant is an old aged lady having completed 69 years of age as of now, it is hereby ordered that entire compensation amount shall be immediately released to her through her Smt. Indrawati. Vs. Surender & Ors. Page 27 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 saving bank account no. 80571700052089 with Haryana Gramin Bank, District Rohtak, Haryana.
48. During the course of hearing final arguments, counsel for claimant stated at Bar that claimant was entitled to exemption from deduction of TDS. Form No. 15H of claimamt Smt. Inderawati was also placed on record.
49. Respondent no. 3, being insurer of offending vehicle is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the entire compensation amount of claimant in the aforesaid saving bank account mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimant. Copy of this award be given dasti alongwith Form no. 15H furnished by claimant (after retaining its copy on record) to counsel for insurance company. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Smt. Indrawati. Vs. Surender & Ors. Page 28 of 29 MACP No. 4621/16 (Old MACP No. 101/12) FIR No. 393/11; PS. Bawana DOD: 18.01.2019 Rohini Court, Branch, Delhi for information and necessary compliance. Form IVA and Form V in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Digitally signed by VIDYA VIDYA PRAKASH
Announced in the open PRAKASH Date:
2019.01.19
Court on 18.01.2019
11:24:16 +0530
(VIDYA PRAKASH)
Judge MACT2 (North)
Rohini Courts, Delhi
Smt. Indrawati. Vs. Surender & Ors. Page 29 of 29