Delhi District Court
Smt.Sunita Devi vs Smt.Sunita Devi & Ors. (L.Rs Of ... on 1 May, 2023
MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023
IN THE COURT OF VINOD YADAV: PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL: ROHINI COURTS: DELHI
MAC Petition No.147/2018
1. Smt.Sunita Devi, (Daughter of deceased)
D/o Late Smt.Kailasiya,
W/o Late Shri Om Prakash,
R/o House No.321/322, Dhramveer Mandir Wali Gali,
Azadpur, Delhi-110033.
Also At: Alimau Majre Maupara Bandiupur,
Khaga Fatehpuri, UP-212652.
2. Smt.Golan Devi, (Daughter of deceased)
D/o Late Smt.Kailasiya,
W/o Shri Ram Naresh,
R/o Village Gardipar, Majre (Gazipur Khurd),
Post Patti Shah, Fatehpur, UP-212652.
3. Smt.Chheddi, (Daughter of deceased)
D/o Late Smt.Kailasiya,
W/o Shri Rampal,
R/o Alimau Mazare, Maupara, Mauyara,
Fatehpur, Hathgaon, UP-212652.
4. Smt.Kajal, (Daughter of deceased)
D/o Late Smt.Kailasiya,
W/o Shri Narender Kumar,
R/o Gali No.2, Samta Vihar, Mukandpur Vistar,
Pansali, North-West Delhi, Delhi-110042.
5. Shri Shiv Shahay, (Son of deceased)
S/o Late Smt.Kailasiya & Shri Ram Lal,
R/o Alimau Majre, Maupara, Mauyara,
Fatehpur, Hathgaon, UP-212652.
.....Petitioners
Versus
Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 1 of 26
MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023
1. Shri Riyaz Ahmad Mir, (Driver)
S/o Shri Ghulam Mohiuddin Mir,
R/o Hanipora, Chatina Hama, District Pulwama,
Jammu & Kashmir-192301.
2. Shri Muzaffar Ahmad Gassi, (Registered Owner)
S/o Shri Mohammad Shafi Gassi,
R/o Khanabal, Lidder Matoo,
Anantnag, Jammu & Kashmir-192101.
3. Shri Mehboob Akram Dar, (Possessory Owner)
S/o Shri Mohd. Akram Dar,
R/o Lwaya pora, Dalwan, Charri Sharif,
Char-Sharief, Badgam, Chadura,
Jammu & Kashmir-191112.
4. M/s United India Insurance Company Limited, (Insurer)
th
DRO-I, 8 Floor, Kanchanjunga Building,
Barakhamba Road, New Delhi.
(Policy bearing No.1114073117P107234641 for the period from
25.08.2017 to 24.08.2018)
.....Respondents
PARTICULARS
1. UID/CNR Number DLNT01-001983-2018
2. Under Section Detailed Accident Report (DAR)
3. Date of Institution of petition 01.03.2018
4. Date of Arguments 01.05.2023
5. Date of Decision/Final Order 01.05.2023
6. Final Order Allowed
APPEARANCES:
Ms.Babita Tyagi, Ld. Counsel for the L.Rs of deceased/petitioner(s).
Shri Ramesh Chandra, Ld. Counsel for driver and owner (registered owner
already ex-parte vide order dated 04.05.2018).
Ms.Neeru Garg, Ld. Counsel for the Insurance Company.
Petition under Section 166 & 140 of Motor Vehicle Act, 1988 for grant of compensation
Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 2 of 26
MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023
01.05.2023
AWARD:
BACKGROUND PREFACE/INTRODUCTION
The petitioners being the children/legal heirs of Late Smt.Kailasiya, aged about 70 years, are seeking compensation in the wake of Detailed Accident Report (hereinafter referred to as "DAR") filed by police, corresponding to the investigation carried out in case FIR No.425/2017, dated 07.10.2017, U/s 279/304-A IPC, registered at Police Station Adarsh Nagar, Delhi with regard to Motor Vehicular Accident which took place on 07.10.2017, at about 3.30 PM, on the road in front of Shop No.1A, Timber Market, GTK Road, Azadpur, Delhi, involving truck bearing registration No.JK-03D-4190 (offending vehicle), being driven by respondent No.1/Riyaz Ahmad Mir in a rash and negligent manner. Vide order dated 01.03.2018, Detailed Accident Report (hereinafter referred to as "DAR") filed by police was treated as claim petition under Section 166(4) of Motor Vehicles Act, 1988 (hereinafter referred to as "MV Act").
2. The facts of the case in brief, as borne out from the record are that 07.10.2017, an old aged lady namely Smt.Kailasiya, W/o Shri Ram Lal was standing by the side of GTK Road, in front of Balaji Timber & Stone, Shop No.1A, timber market, Azadpur, Delhi. She used to beg at the said place daily. On the said day, at about 3.30 PM, respondent No.1 while driving the offending vehicle at a very fast speed as also in a rash and negligent manner hit against Smt.Kailasiya, as a consequence whereof she suffered grievous injuries. A huge crowd gathered at the spot and somebody from the public made a call at number 100. PCR van arrived at the spot and removed Smt.Kailasiya to Babu Jagjivan Ram Memorial Hospital, Delhi (in short BJRM Hospital), where she was examined vide MLC No.142832 Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 3 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 (E.No.226247) and declared "brought dead" (hereinafter referred to as "deceased"). Thereafter, on 08.10.2017, postmortem upon the dead body of deceased was conducted at BJRM Hospital itself vide PM Report No.1003/17, whereby the cause of death was opined due to "haemorrhagic shock consequent to multiple injuries to the body. All the injuries were ante-mortem, produced by blunt force/surface impact, fresh in duration and could be caused in road taffic accident."
3. (i) FIR No.425/2017, dated 07.10.2017, U/s 279/304-A IPC was registered at PS Adarsh Nagar with regard to the said accident. The police went about doing its job. It investigated and filed "DAR", which vide order dated 01.03.2018 was treated as a claim petition under 166 (4) of Motor Vehicles Act, 1988 (in short "MV Act").
(ii) During the course of investigation, respondent No.1/Riyaz Ahmad Mir was found to be driver of the offending vehicle at the relevant time while respondent No.2/Muzaffar Ahmad Gassi was found to be registered owner thereof. Moresover, the offending vehicle at the relevant time was found to be in possession of respondent No.3/possessory owner namely Shri Mehboob Akram Dar. It further came to fore during the course of investigation that the Driving Licence of respondent No.1 bearing No.7686/MVD/Ang, issued by Licensing Authority, Anantnag/Pulwama, Motor Vehicle Department, Government of Jammu & Kashmir, was meant for driving MPMV 407 mini bus & Auto-Rickshaw only.
(iii) Furthermore, as on the date and time of accident, the offending vehicle was found to be lying insured with respondent No.4/M/s United India Insurance Company Limited (hereinafter referred to as "insurance company") vide Policy bearing No.1114073117P107234641 valid for the period from 25.08.2017 to 24.08.2018.
Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 4 of 26MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023
4. Now, let us have a bird's eye view of the case set up by the petitioners. Petitioners No.1 to 5 are the married daughters of deceased, while petitioner No.5 is the married son of deceased. It has been the case of petitioners that deceased was aged about 70 years at the time of accident; she used to earn about Rs.10,000/- per month by selling eatables like namkeen, biscuits, kurkure etc., at the road side patri/footpah at Azadpur Chowk, Delhi. As such, they have claimed suitable compensation alongwith requisite interest quotient under various heads of MV Act.
5. (i) After being served in the matter, respondents No.1 and 3, i.e driver and possessory owner (who claimed himself to be SPA holder of registered owner/respondent No.2) filed joint written statement in the matter, inter alia taking a specific plea that respondent No.1/driver was not at fault in driving the offending vehicle and they have been falsely implicated in the matter at the behest of L.Rs of deceased as well as the police officials in order to extort money from them. However, it has been admitted that the offending vehicle was lying insured with respondent No.4/insurance company on the date and time of accident and as such, it has been prayed that it is respondent No.4 being insurer is liable to compensate the petitioners.
(ii) Since, respondent No.2/registered owner did not appear in the matter despite being duly served, accordingly vide order dated 04.05.2018, he was proceeded "ex-parte" in the matter.
6. Respondent No.4/Insurance Company vide its reply/written statement denied its liabilities in the matter inter alia taking preliminary objection(s) to the effect that all the claimants/petitioners being major, married and earning for themselves were not dependent upon the deceased. Further, objection was taken to Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 5 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 the effect that on the date and time of accident, respondent No.1 was not holding a valid and effective Driving Licence as the Driving Licence issued to him was meant for driving MPMV mini-bus and auto-rickshaw only and the same was not endorsed for driving heavy vehicle. The offending vehicle being a "Heavy Transport Vehicle (HMV)", thus there is clear breach/violation of the terms and conditions of insurance policy in question, as such the insurance company is not liable to pay any claim/compensation. However, it has been admitted that the offending vehicle was lying insured with it vide Policy bearing No.1114073117P107234641 valid for the period from 25.08.2017 to 24.08.2018. It has been further contended that offending vehicle was also not having a valid and effective fitness as on the date of accident. However, at the same time, it has further been prayed that in case the liability is fastened upon the insurance company, it may be granted "recovery rights" against respondents No.1 to 3.
7. (i) Now, I am to required enquire into the following aspects. First: "What happened, and how did it happen". Second: "How to compensate the petitioners/L.Rs of deceased". Third: Effect of respondent No.1/driver not holding a valid and effective Driving Licence for driving a "Heavy Transport Vehicle (HMV)" on the date and time of accident, which is the defence taken by insurance company".
(ii) For deciding the aforesaid aspects, it would be appropriate to have a glimpse of the issues framed in the matter. From the pleadings of the parties, following issues were framed in the matter vide order dated 04.05.2018:
(1) Whether the deceased Smt.Kailasiya suffered fatal injuries in road traffic accident on 07.10.2017, at 3.30 PM, on the road in front of Shop No.1A, Timber Market, GTK Road, Azadpur, Delhi, within the jurisdiction of PS Adarsh Nagar, due to rash and negligent driving of truck No.JK-03D-4190 by its driver namely Riyaz Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 6 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 Ahmad/R-1, owned by Shri Muzaffar Ahmad Gassi/R-2 and insured with M/s United India Insurance Company Limited/R-3? OPP.
(2) Whether the L.Rs of deceased are entitled to any compensation, if so, to what amount and from whom? OPP. (3) Relief.
EVIDENCE ADDUCED Petitioners' Evidence:
8. In support of their claim, petitioners/claimants examined Smt.Sunita Devi, petitioner No.1/married daughter of deceased as PW-1 in the matter. Thereafter, PE in the matter was closed vide order dated 19.03.2021. Respondents' Evidence:
9. On the other hand, despite being granted enough opportunities, none of the respondents led any evidence in the matter. Accordingly, RE in the matter was also closed vide order dated 19.03.2021.
REASON & IMPACT OF THE ACCIDENT
10. I have heard arguments advanced at Bar by learned counsel for the L.Rs of deceased/petitioners, learned counsel for driver and possessory owner as well as learned counsel for respondent No.4/insurance company and carefully perused the entire material on record. My findings on the issues are as under.
ISSUE No.(1)
11. The onus to prove this issue was upon the petitioners/claimants. Admittedly, PW-1/Smt.Sunita Devi is not an eye witness in the matter as she was not present at the spot of accident on the date and time of accident. Taking a clue from the aforesaid fact, learned counsel for respondents No.1 and 3 has made a Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 7 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 strong pitch that no accident had taken place with the offending vehicle and the said respondents have been falsely implicated in the matter with the ulterior motive to extort money from them. Respondent No.1 was driving the offending vehicle at a normal speed, obeying all traffic rules. He has further very vehemently argued that petitioners/claimants' have miserably failed to prove the rash and negligent act on the part of respondent No.1 in driving the offending vehicle on the date and time of accident, as they have not examined any "eye witness" of the accident in the matter.
12. (i) I have given thoughtful consideration to the arguments advanced at bar and carefully gone through the entire material on record. I am afraid, the contention raised by learned counsel for respondents No.1 and 3 that no eye witness of the accident has been examined by petitioners/claimants is not of much help to him, as respondent No.1 has failed to don the witness box to prove his side of the story. He was the best person to have proved the defence taken by him in the matter, but for the reasons best known to him he did not examine himself in the matter and thus it does not lie in his mouth to rake up the issue of non-examination of "eye witness"
by the petitioners/claimants.
(ii) Secondly, this Tribunal is very well conscious of the fact that standard of proof in such like matters is one of pre-ponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true (reference Civil Appeals No.4010-
4011/2020, titled as, "Anita Sharma & Ors. V/s The New India Assurance Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 8 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 Company Limited & Anr.", decided by Hon'ble Supreme Court of India vide judgment dated 08.12.2020).
13. Furthermore, it is an undisputed fact that case FIR No.425/2017, dated 07.10.2017, U/s 279/304-A IPC was registered at PS Adarsh Nagar with regard to the accident in question promptly and without any delay. The contents of said FIR would show that offending vehicle was being driven by respondent No.1/driver at a fast speed and in a rash and negligent manner. Not only this, respondent No.1/driver Riyaz Ahmad Mir (accused in State case) has also been chargesheeted for offences punishable under Sections 279/304-A IPC. Same would also point out towards rash and negligent driving of the offending vehicle by respondent No.1/driver.
14. Further, there is no gainsaying that respondent No.1/driver of the offending vehicle 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 the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that accident had occurred due to his rash and negligent driving of the offending vehicle.
15. (i) Apart from above, copy of MLC (bearing No.412832/17, dated 07.10.2017) of deceased, prepared at BJRM Hospital is also available on record (being part of DAR), which shows that she had been removed to said hospital by police/PCR van on 07.10.2017 at about 16:24 hours with alleged history of RTA. Though, the said MLC has not been proved on record, however, at the same time, there is no challenge to the said document from either side.
Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 9 of 26MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023
(ii) Even from the postmortem report No.1003/17, dated 08.10.2017 (of BJRM Hospital) in respect of deceased (which is also a part of DAR), it is clearly apparent that the cause of death of deceased has been opined due to "haemorrhagic shock consequent to multiple injuries to the body. All the injuries were ante- mortem, produced by blunt force/surface impact, fresh in duration and could be caused in road taffic accident."
16. Furthermore, Rule 7 of the Delhi Motor Accident Claims Rules lends authenticity to the documents filed alongwith the DAR. For the sake of ready reference, said Rule is re-produced as under:
xxxxx
7.Presumption about reports.- The contents of reports submitted to the Claims Tribunal in Form "A" and Form "D" by investigating police officer and concerned registering authority respectively, and confirmation under clause (b) of rule 5 by the insurance company shall be presumed to be correct, and shall be read in evidence without formal proof, till proved to the contrary.
xxxxx
17. Furthermore, it is established law that in a claim petition under the Motor Vehicle Act the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In case of "Kaushnamma Begum and others V/s New India Assurance Company Limited" reported as, (2001) 2 SCC 9, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 10 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
18. (i) It may further be mentioned here that the standard of proof of negligence as required in a claim petition u/s 166 M.V Act is on the touchstone of preponderance of probability, as held by Hon'ble Supreme Court of India in case of "Bimla Devi V/s Himachal Road Transport Corporation [(2009) 13 SCC 530]". In the said case, the Hon'ble Supreme Court has been pleased to observe as under:
xxxxx "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
xxxxx
(ii) The Hon'ble Gauhati High Court in case reported as, "[2012 (4) GLT 516]", titled as, "Godavari Devi Sharma and Ors/ V/s United India Insurance Company Ltd. and Ors." has been pleased to observe as under:
xxxxx (14) Moreover, while conducting the inquiry into a claim under Section 166 of the M. V. Act, the Tribunal is not expected to search for proof or evidence beyond reasonable doubt, rather it is preponderance of probability, what the tool is, for assessment of the evidence. The Tribunal can arrive at its finding on the prima facie materials, such as the First Information Report to presume existence of the certain facts, in absence of other evidence which might debase such presumption."
xxxxx Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 11 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023
19. In view of the aforesaid discussion and the evidence which has come on record, it is held that the rashness and negligence on the part of respondent No.1/driver is clearly visible and as such, he was responsible not only for this accident, but also for everything that followed thereafter. Accordingly, this issue is answered in favour of petitioners/claimants.
COMPENSATION: ASSESSMENT & DISTRIBUTION ISSUE No.(2)
20. This issue is the most ticklish, yet the most important one. The reasons are obvious. The human loss suffered by legal representatives of any deceased cannot be measured/ compensated in monetary terms, yet this Tribunal has to award just and reasonable compensation. In this regard, I am guided by Section 168 of the Act which enjoins the Claims Tribunal to hold an inquiry to 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.
21. In celebrated case of "Sarla Verma and Others Vs. Delhi Transport Corporation and Another", (2009) 6 Supreme Court Cases 121, which has been reiterated by the Constitution Bench of Hon'ble Supreme Court in case titled as "National Insurance Company Vs. Pranay Sethi & Ors." decided on 31.10.2017 (2017) 16 SCC 680, the Hon'ble Supreme Court of India has laid down general principles for computation of compensation in death cases. The relevant paras of the judgment are reproduced here as under:
xxxxx
9. Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 12 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 age of the deceased; (b) income of the deceased; and (c) the number of dependents. These issues to be determined by the Tribunal to arrive at the loss of dependency are: (i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:
Step-1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step-2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several mponderables in life and identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step-3 (Actual Calculation) The annual contribution to the family(multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family. Thereafter, a conventional amount in the range of Rs.5,000/- to Rs.10,000/- may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs.5,000 to Rs.10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 13 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 hardship caused to the legal heirs of the deceased. The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added."
xxxxx LOSS OF DEPENDENCY/LOSS OF ESTATE
22. Now, the first question which arises for consideration is as to whether the petitioners are entitled to loss of dependency or loss of estate. This question came up for consideration on several occasions before our own Hon'ble High Court as well as before various other Hon'ble High Courts. In the matter titled as "A Manavalagan Vs. A. Krishnamurthy & Ors.", I (2005) ACC 304 (DB), Hon'ble Division Bench of Karnataka High Court has summarized the principles enunciated on this issue in para 19 of the judgment.
Same reads as under:
xxxxx
(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependant members of his family as result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed (Note: for example, if the dependants of a deceased Hindu are a widow aged 35 years and mother aged 75 years, irrespective of the fact that they Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 14 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 succeed equally under the Hindu Succession Act, the Tribunal may award a larger share to the widow and a smaller share to the mother, as the widow is likely to live longer). But, in the second category of cases, no such adjustments or alternation of shares is permissible and he entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with the personal law governing succession, as the amount awarded and recovered forms part of the estate of deceased.
(ii) Where the claim is by the depdendants, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate.
(iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased. A conventional sum for loss of expectation of life is added.
(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.
xxxxx Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 15 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023
23. The aforesaid legal position has been reiterated by Hon'ble High Court of Delhi in the celebrated decision of "Keith Rowe Vs. Prashant Sagar & Ors.", II (2010) ACC 64 as well as by Hon'ble Karnataka High Court in the case titled as "Jacob Vs. Managing Director, Karnataka State Road Transport Corporation", 2018 ACJ 91.
24. (i) Now, coming back to the facts of the present case. PW-1/Smt.Sunita Devi (one of the daughters of deceased) in her affidavit by way of evidence Ex.PW1/A has categorically stated that her deceased mother was aged about 70 years at the time of accident; she was earning about Rs.10,000/- per month by selling eatables like namkeen, biscuits, kurkure etc., at the footpath of Azapur Chowk, Delhi. She has proved on record the following documents:
(a) Detailed Accident Report (DAR) as Ex.PW1/1 (Colly);
(b) Copy of her Aadhar Card as Ex.PW1/2 (OSR).
(ii) In her cross-examination by the respondents, she admitted that she
is not an eye witness of the accident in question. She could not prove on record any documentary proof of avocation and earning of her deceased mother at the time of accident. However, she denied the suggestion that her deceased mother was not earning Rs.10,000/- per month at the time of accident. She further denied the suggestion that her deceased mother had not been residing with her for the last 20 years. She further stated that they are four siblings, i.e one brother and four sisters.
25. (i) As regards the contention of learned counsel for the insurance company that all the petitioners being major, married and not dependent upon the Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 16 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 deceased and as such, they are not entitled for any compensation in the matter, it is noted that according to Section 2(11) of Code of Civil Procedure, 1908 (in short the 'CPC'), "legal representative" means a person who, in law, represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996, i.e. under Section 2(1) (g).
(ii) Furthermore, as observed by Hon'ble Supreme Court of India in case reported as, "(AIR 1989 SC 1589)", titled as, "Custodian of Branches of BANCO National Ultramarino -Vs- Nalini Bai Naique", the definition contained in Section 2(11), CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead, it stipulates that a person who may or may not be legal heir, competent to inherit the property of the deceased, can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai and Anr. (AIR 1987 SC 1690) a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and minor child.
26. Claimants/petitioners are the legal heirs to the estate of the deceased. Having considered the facts of the present case on the touchstone of the principles discussed in the above referred decisions, it is quite crystal clear that the claimants/petitioners shall be entitled to loss to estate and not Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 17 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 loss of dependency, in view of the reason that the claimants have failed to lead any cogent or definite evidence to show that they were financially dependent upon the earnings of deceased at the time of accident. It is an undisputed fact that deceased Smt.Kailasiya was an old aged lady and she was beggar at the time of accident but it is nowhere the case of claimants that they were financially dependent upon her income. The entire testimony of PW-1 is completely silent on this aspect.
27. Though the petitioners/claimants have pleaded that the deceased was earning a sum of Rs.10,000/-per month, but they have not adduced any documentary evidence to prove the employment and income of deceased. The petitioners have also not filed any documentary proof of educational qualifications of the deceased. In these circumstances the income of the deceased is taken as per minimum wages of an unskilled worker applicable at the time of accident, which were Rs.13,584/- (date of accident being 07.10.2017). In view of aforesaid, the petitioners are entitled to 1/3rd income towards the loss of estate i.e Rs.4,528/- per month (Rs.13,584.00/3).
28. As per the copy of Aadhar Card of deceased placed on record (being part of DAR), her Date of Birth (DOB) being reflected therein is 01.01.1948. None of the respondents have disputed the DOB of deceased being reflected in her Aadhar Card. The date of accident in the matter is 07.10.2017. As such, deceased was about aged about 69 years 09 months and 06 days as on the date of accident. Thus, the multiplier of "5" would be applicable in view of pronouncement made by Constitutional Bench of Hon'ble 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.
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29. Considering the fact that deceased was aged about 69 years as on the date of accident, no amount is awarded towards future prospects. Thus, the total of "loss of estate" would be Rs.2,71,680/- (Rs.4,528/- x 12 x 5). Hence, a sum of Rs.2,72,000/-(rounded off) is awarded under this Head in favour of the petitioners/ claimants.
COMPENSATION UNDER NON-PECUNIARY HEADS LOSS OF LOVE & AFFECTION
30. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal No. 3093 of 2020 dated 07.09.2020 the petitioners are not entitled to be compensated under this head. Further, 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 non-pecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
31. In view of the judgment of Hon'ble Supreme Court in case titled as, "New India Assurance Company Limited V/s Somwati & Ors.", Civil Appeal No.3093 of 2020, dated 07.09.2020, I am of the considered opinion that the petitioners/claimants are entitled for payment of Rs.40,000/- each towards loss of consortium. Furthermore, as per judgment of Pranay Sethi (supra), the amount awarded under this Head should be enhanced @ 10% in every three years. This judgment was passed by Hon'ble Supreme Court on 31.10.2017. Consequently, a sum of Rs.40,000/-+Rs.4,000/- (10% of Rs.40,000/-) = Rs.44,000/- x 5 = Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 19 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 Rs.2,20,000/- (Rs.44,000/- each for all the five claimants/ petitioners) is awarded to petitioner(s)/claimant(s) under this head.
FUNERAL EXPENSES
32. 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/-+Rs.1,500/- (enhancement @ 10% of Rs.15,000/-) = Rs.16,500/- is awarded in favour of petitioners/claimants on account of funeral expenses.
33. Thus, the total compensation in the matter is assessed as under:
S.No. Head Amount (Rs.)
(1) Loss of Estate 2,72,000.00
(2) Loss of Consortium (Rs.44,000/-x 5) 2,20,000.00
(3) Funeral Expenses 16,500.00
TOTAL 5,08,500.00
34. (i) Now, the question which arises for determination is as to which of the
respondents is liable to pay the compensation amount. Though, it is a matter of
record that on the date and time of accident, offending vehicle was lying insured with respondent No.4 vide Policy bearing No.1114073117P107234641 valid for the period from 25.08.2017 to 24.08.2018, however, the learned counsel for insurance company sought to avoid the liability of insurance company to pay the compensation amount on the ground that the Driving Licence possessed by driver of offending vehicle, i.e respondent No.1/Riyaz Ahmad Mir at the relevant time was meant for driving only MPMV 407 mini-bus and auto-rickshaw and he was not authorized to drive heavy transport vehicle/heavy goods vehicle. It is contended that the offending vehicle being a "Heavy Transport Vehicle (HMV)", thus there is Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 20 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 clear breach/violation of the terms and conditions of insurance policy in question, as such the insurance company is not liable to pay any claim/compensation. In order to substantiate the said plea, learned counsel for the insurance company has drawn my attention to the report bearing No.297/MVD/Ang., dated 20.12.2017 of the Licencing Authority/Regional Transport Officer, Anantnag, Kashmir qua the Driving Licence No.7686/MVD/Ang pertaining to respondent No.1/driver.
35. I have given thoughtful consideration to the arguments put forth by learned counsel for respondent No.4/insurance company in this regard.
36. A perusal of Form 23 (CMV Rule 48) as well as "Vehicle Particulars Details", duly certified and issued by State Transport Department, Government of Jammu & Kashmir (being part of DAR), in respect of the offending vehicle reveals that its unladen weight is 7210 Kg. The Hon'ble Supreme Court in Civil Appeal No.841/2018, titled as, "M/s Bajaj Alliance General Insurance Company Limited V/s Rambha Devi & Ors." (Date of Decision: 08.03.2022), while making a reference to the celebrated case of "Mukund Dewangan V/s Oriental Insurance Company Limited", (2017) 14 SCC 663, on the issue involved aforesaid has been pleased to observe as under:
xxxxx
2. The referral order dated 03.05.2018 notes that a Three-
Judge Bench of this Court in Mukund Dewangan v.
Oriental Insurance Company Limited, (2017) 14 SCC 663, considered inter alia question whether a person holding a driving licence in respect of "light motor vehicle", could on the strength of that licence, be entitled to drive a "transport vehicle of light motor vehicle class" having unladen weight not exceeding 7500 kgs. The referral order quoted the conclusions drawn in paragraphs 60 to 60.4 in Mukund Dewangan (supra):
Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 21 of 26MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 "60. Thus, we answer the questions which are referred to us thus:
60.1. "Light motor vehicle" as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994.
60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, "unladen weight" of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form.
60.3. The effect of the amendment made by virtue of Act 54 of 1994 w.e.f. 14-11-1994 while substituting clauses (e) to
(h) of Section 10(2) which contained "medium goods vehicle" in Section 10(2)(e), "medium passenger motor vehicle" in Section 10(2)(f), "heavy goods vehicle" in Section 10(2)(g) and "heavy passenger motor vehicle" in Section 10(2)(h) with expression "transport vehicle" as substituted in Section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of Section 10(2)(d) and Section 2(41) of the Act i.e. light motor vehicle.
60.4. The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 22 of 26 MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."
xxxxx
37. The Hon'ble High Court of Delhi, while dealing on somewhat similar similar aspect in aspect in case reported as, "MAC.APP No.31/2009", titled as, "New India Assurance Company Limited V/s Savitri Devi & Ors." (DOD:
06.03.2012) has been pleased to observe as under.
xxxxx
11. The definition of LMV as given in Section 2(21) of the Motor Vehicles Act (the Act) is very wide so as to include a transport vehicle omnibus or a motor a tractor or a road roller, the unladen weight any of which does not exceeds 7500 kg.
xxxxx
38. As per Section 2(15) of M.V. Act, the term 'gross vehicle weight', means in respect of any vehicle the total weight of the vehicle and load certified and registered by the Registering Authority as permissible for that vehicle. Section 2(16) of said Act provides that 'heavy goods vehicle' means any goods carriage the gross vehicle weight of which, or a tractor or a road roller, the unladen weight of which exceeds 12000/- kg. Section 2(21) of the Act further provides that 'light motor vehicle' means a transport vehicle the unladen weight of which does not exceed 7500 kg. Section 2(23) of the Act further provides that 'medium goods vehicle' means any goods carriage other than a light motor vehicle or a heavy goods vehicle.
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39. The conjoint reading of aforesaid provisions makes it abundantly clear that any transport vehicle having unladen capacity/weight of less than 7500 kg falls in the category of LMV, whereas such vehicle having unladen weight above 12000 kg fall in the category of HGV and remaining such vehicles falls in the category of MGV.
40. Now turning back to the facts of the present case. It has already been observed in the preceding paragraphs that a perusal of Form 23 (CMV Rule 48) as well as "Vehicle Particulars Details", duly certified and issued by State Transport Department, Government of Jammu & Kashmir (being part of DAR), in respect of the offending vehicle reveals that its unladen weight is 7210 Kg. That being so, it is quite apparent that there was valid and effective Driving Licence for the category of LGV/LMV in favour of respondent No.1 as on the date of accident in question. Hence, I am of the view that there was no fundamental breach in the terms and conditions of insurance policy on the part of insured. Consequently, the aforesaid plea raised on behalf of insurance company is hereby rejected. Keeping in view the existence of valid insurance policy, respondent No.4/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue No.2 is decided accordingly.
ISSUE No.3: RELIEF
41. (i) In view of the aforesaid discussion, I award compensation of Rs.5,08,500/- (Rupees Five Lakhs Eight Thousand Five Hundred Only) alongwith interest @ 7% per annum in favour of petitioners/claimants and against the respondents w.e.f the date of filing of the petition, i.e. 01.03.2018 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd.
Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 24 of 26MACP No.147/2018: FIR No.425/2017: PS Adarsh Nagar DOD: 01.05.2023 Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016). However, it is hereby noted that since the petitioners/claimants have not got recorded their statements under Clause 29 MCTAP so far, accordingly vide order dated 06.05.2022, their interest quotient was ordered to be curtailed/stopped w.e.f 19.03.2021 till the time their aforesaid statement is recorded. Accordingly, it is hereby ordered that petitioners/claimants shall not be entitled to interest quotient w.e.f 19.03.2021 till today, i.e 01.05.2023.
APPORTIONMENT
42. Despite being given due opportunities, the petitioners/claimants have so far not got recorded their statements under Clause 29 MCTAP. However, considering the fact that Award amount in the matter is Rs.5,08,500/- and there are five claimants/petitioners, who appears to be financially not very sound, recording of their statements under Clause 29 MCTAP is dispensed with.
43. Having regard to the facts and circumstances of the case in totality, it is hereby ordered that out of the total compensation Award of Rs.5,08,500/-, all the five claimants/petitioners shall be entitled to share amount in equal proportions, i.e Rs.1,01,700/- (Rupees One Lakh One Thousand Seven Hundred Only) each alongwith proportionate interest quotient.
44. The respective share amount(s) of claimants/petitioners @ Rs.1,01,700/- each alongwith requisite interest quotient be immediately released to them on their furnishing copy(ies) of their bank passbook(s)s and requisite identity document(s). Bank Manager concerned is directed to do the needful in this regard.
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45. Respondent No.4/United India Insurance Company Limited, being insurer of the 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 @ 9% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amounts in the accounts of petitioners/claimants, as per the apportionment done hereinabove, 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(s) approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of the Award be given dasti to the petitioners/claimants as also to learned counsel for the insurance company for compliance. Copy of this Award alongwith one photograph each, specimen signatures, copy of bank passbook and copy of residence proof of the petitioners/claimants be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Forms XV & XVII in terms of MCTAP are annexed herewith as Annexure-A. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 01.05.2023 (VINOD YADAV) Judge MACT-2 (North) Rohini Courts, Delhi Certified that above award contains 26 pages and each page is signed by me.
(VINOD YADAV) Judge MACT-2 (North) Rohini Courts, Delhi Smt.Sunita Devi & Ors. (L.Rs of Smt.Kailasiya) V/s Riyaz Ahmad Mir & Ors. Page 26 of 26