Delhi District Court
Smt. Raj Bala vs Sh. Sandeep on 10 May, 2012
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IN THE COURT OF MS.POONAM CHAUDHARY
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.: 155/11
DATE OF INSTITUTION: 7.4.2011
Unique ID No. 02403C0031272011
1. Smt. Raj Bala
W/o Late Sh. Rajesh Kumar
2. Sh. Vikas
S/o Late Sh. Rajesh Kumar
3. Miss Sheetal
D/o Late Sh. Rajesh Kumar
4. Miss Sonam
D/o Late Sh. Rajesh Kumar
5. Miss Priyanka
D/o Late Sh. Rajesh Kumar
6. Rohit
S/o Late Sh. Rajesh Kumar
(being minor petitioner no. 5 and 6 through their mother Smt. Raj
Bala)
R/o
Village Jhajjer, Teh. Sikendrabad,
District Bullandshahar, UP
........... Petitioners
Versus
1. Sh. Sandeep
S/o Sh. Bhagat Singh
R/o 82, Jodhpur Officer Mess, Servant Qtrs.
Pandara Park, New Delhi110001
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2. Sh. Manish
S/o Sh. Kanchi,
76, Jodhpur, Officer Mess, Servant Qtrs.
Pandara Park, New Delhi110001
3. The New India Assurance Company Limited
through its Manager
5 Floor, Jeevan Bharti Building,
th
Connaught Place, New Delhi.
........Respondents
Final Arguments heard on : 30.4.2012 Award reserved for : 10.5.2012 Date of Award : 10.5.2012 AWARD
1. Vide this judgment cum award I proceed to decide the petition U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) filed by the petitioner, for grant of compensation for death in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 14.1.2011 the deceased was travelling on the motorcycle no. DL6SAF6260 as a pillion rider and was going from Jodhpur Officers Mess,Pandara Park to his place of work at CGO Complex. The motorcycle was being driven by respondent no. 1. It was further alleged that at about 8.00 AM when they reached in front of kothi no. 27, Gold Link Road, the driver of the motorcycle lost control and struck against the divider of the road. It was further stated that due to forceful impact of the accident the deceased fell 3 on the road and sustained fatal injuries and he was removed to Safdarjang hospital where he died during treatment on the same day. It was further stated that the deceased was 45 years of age at the time of accident and he was working as Sweeper in CGO, Complex, New Delhi and was drawing salary of Rs. 20,000/ per month. It was further stated that the deceased was the sole bread earner of the family.
3. It was also averred that the accident occurred due to rash and negligent driving of offending vehicle by respondent no. 1. The said vehicle was owned by respondent no. 2 and insured with respondent no. 3 as such all the respondents were jointly and severally liable to pay compensation to the petitioners.
4. It was prayed that Rs. 50 Lacs(Rs. Fifty Lacs) be awarded as compensation to the petitioners against the respondents with interest @ 12% per annum from the date of filing of petition till realization.
5. Respondent no. 1 did not file written statement inspite of opportunity being granted hence his defence was struck off.
6. Respondent no. 2 filed written statement contesting the petition. All the averments made in the petition were denied. It was also alleged that respondent no. 1 had a valid driving licence on the date of accident and the vehicle n o. DL6SAF6260 was owned by respondent no. 2 and insured with respondent no. 3. It was denied that respondent no. 2 was 4 liable.
7. Respondent no. 3 the insurer also contested the petition denying all the averments made in the petition. It was however admitted that the vehicle in question was insured with respondent no. 3 on the date of alleged accident. It was denied that respondent no. 3 was liable.
8. On the pleadings of the parties, the following issues were framed:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 14.1.2011 at Main Road, Gold Lane Road, in front of Kothi no. 27, New Delhi due to rash and negligent driving of vehicle no. DL6SAF6260 by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3? OPP.
2. Whether the petitioners are entitled for compensation, if so, to what amount and from whom? OPP.
3.Relief.
9. In support of their claim petitioners examined PW1 Smt. Raj Bala wife of deceased, she tendered her evidence in examination in chief by affidavit reiterating therein the contents of the petition. PW1 also proved certificates issued by Pradhan of village Jhajjar, Sikendrabad, District Bullandshaher, UP certifying that the petitioners were the legal heirs of deceased who was a resident of village Jhajjhar, Sikendrabad, District Bulandshaher, UP. She also proved her voter's identity card EX.PW1/2, 5 the voter's identity card of petitioner no. 2 as PW1/3, death certificate of the deceased Ex. PW1/4, School certificates of petitioners no. 3 to 6 Ex. PW1/5, PW1/6 and PW1/7, photocopy of salary certificate of deceased Mark A. In her crossexamination she stated that she was not an eye witness to the accident. She also stated that she was illiterate. She also stated that her husband was 45 years of age at the time of accident. She further stated that she had not filed the age proof of deceased. She further testified that she had filed the salary certificate of deceased. She further stated that her son Vikash was 24 years old and her daughter Sheetal was 22 years old at the time of accident and both of them were married. She further deposed that the school certificates of Sonam and Priyanka show same date of birth of both though they were not twins. She further stated that date of birth mentioned in the school certificates was incorrect. She further stated that the parents of the deceased had predeceased him but she did not have their death certificates.
10.Petitioners also examined Sh. D. S. Sundaram, Accounts Officer, DCPW, Ministry of Home Affairs, the employer of deceased who proved the service record of deceased as Ex. PW2/1(colly). In his cross examination he stated that he had prepared the last pay certificate of deceased but he had not brought the original record on the basis of which it was prepared. He further stated that the LR's of deceased got Rs. 6 35,881/ from Group Insurance Policy. He also stated that the income of the deceased was below taxable range. He also stated that deceased was residing in government accommodation as such he was not been paid HRA. He further stated that after every 10 years employees were entitled to promotion, increments but thrice only in the entire service. He further stated that the deceased had got one promotion and increment. Petitioners thereafter closed their evidence.
11. On the other hand respondent no. 2, the insured examined himself as R2W1, he filed his evidence by affidavit stating that he was the registered owner of the vehicle no. DL6SAF6260 which was insured with New India Assurance Company. He also stated that Sandeep Kumar was known to him and had taken his motorcycle for some work and when he enquired about the driving licence , Sandeep had shown his driving licence. He also stated that Sandeep had a valid and effective driving licence at the time of accident. In his crossexamination he stated that he did not know the licencing Authority from where the licence of respondent no. 1 was issued neither he knew the date of issuance of the said licence. He also stated that he did not have a copy of licence. He denied that respondent no. 1 did not have valid driving licence. He also denied that he had not seen the driving licence of respondent no. 1. He further stated that he did not know whether the respondent no. 1 was 7 challaned under Section 3/181 Motor Vehicle Act for not possessing a valid driving licence at the time of accident. Respondent no. 2 thereafter closed its evidence. Respondent no. 3 did not lead evidence in spite of opportunity being granted, accordingly RE was closed.
12. I have heard the Ld. Counsel for the parties and my findings on various issues are as under:
ISSUE NO. 1 :
13. As the petition has been filed U/s 166 Motor Vehicle Act it was incumbent upon the petitioners to prove that the accident was caused due to the rash and negligent driving of the offending vehicle by respondent no. 1.
14. To determine negligence of driver of offending vehicle it has been held in 2009 ACJ 289 National Insurance Ltd. Vs. Pushpa Rana and Ors as follows:
"Negligence Evidence Admissibility of document Certified copy of criminal court, such as FIR recovery memo and mechanical inspection report of vehicle are documents of sufficient prove to reach the conclusion that driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard".
15. The petitioners relied upon the Detailed Accident Report filed in form 54 alongwith copies of criminal record i.e. FIR no. 4/11 registered under 8 Section 279/337A IPC at PS Tuglak Road with regard to the accident against the driver of the offending vehicle/respondent no. 1, charge sheet filed against respondent no. 1 under Section 279/304A IPC, site plan, mechanical inspection report of the offending vehicle and its seizure memo. The respondent no. 1 the driver did not lead evidence disputing the manner and factum of accident. Whereas the owner insured lead evidence stating that he was the registered owner of the vehicle involved in the said case. He further stated that the driver possess a valid driving licence. He also did not dispute the factum and manner of accident. Even respondent no. 3 did not dispute the manner of accident. Thus as the police investigation concluded that the accident was caused due to rash and negligent driving of the offending vehicle no. DL6SAF6260 by respondent no. 1 and he is an accuse in the criminal case filed by police, it has been prima facie established that the deceased sustained fatal injuries in the accident caused by rash and negligent driving of respondent no. 1. Accordingly issue no. 1 is decided in favour of petitioners against the respondents.
ISSUE NO. 2
16. As issue no. 1 has been decided in favour of the petitioner they are entitled to compensation.
17. PW1 proved the certificate issued by the Pradhan of Panchayat Ex. 9 PW1/1 certifying that the deceased was a permanent resident of Village Jhajjer, Tehsil Sikandrabad, District Bulandshahar, UP and he died on 14.1.2011 and he was survived by his wife Raj Bala, sons Vikash and Rohit and daughters Sheetal, Sonam and Priyanka. Ex. PW1/1 was not challenged in the crossexamination of PW1, I accordingly hold that the petitioner are the legal heirs of deceased.
18.As regards the quantum of compensation PW1 deposed that deceased was 45 years of age and he was working as Sweeper in police wireless, CGO Complex, New Delhi and was drawing salary of Rs. 16,500/ per month. Petitioners have also examined PW2 Sh. D. S. Sundaram, accounts Officer of employer of deceased who proved service book of deceased as well as his pay certificate according to which deceased was drawing salary of Rs. 17,274/.
19. As per the service record of the deceased his date of birth was 10.8.1963. Thus at the time of accident he was around 48 years of age had a permanent job. The Hon'ble Supreme Court in the case of Sarla Verma Vs DTC 2009(6) SCC 121 has settled the principles relating to the addition to income towards future prospects it has been held that whenever the age of deceased was between 4050 years and he had a permanent job the actual salary (less tax) should be increased by 30% towards future prospects, to arrive at the monthly income of the 10 deceased. By adding 30% towards the future prospects as deceased was about 48 years of age the deemed gross salary of deceased would have been 17,274/+5182.2 = Rs. 22456.2/ per month which may be rounded off Rs. 22,455/. As per the income tax rate applicable for the financial year 20102011, 10% is to be deducted towards income tax, the net income of deceased after said deduction comes to Rs. 20,209.5/ per month which may be rounded off Rs. 20,210/ per month.
20. As the deceased was survived by six dependents ¼ is to be deducted towards personal and living expenses of the deceased. After deduction of ¼ of Rs. 20,210/ the contribution of the deceased to his family would have been Rs. 15,157.5/ which may be rounded as of Rs. 15,157/ per month.
21.As deceased was 48 years of age on the date of accident. The multiplier applicable in view of Judgment of Sarla Verma Vs DTC (Supra) is of 13. The total loss of dependency thus comes to Rs. 15,157/ x 12 x 13 = Rs. 23,64,492/ . I also award Rs. 10,000/ each towards loss of love and affection, loss of estate and funeral expenses and loss of consortium. The total compensation is determined as under:
Loss of dependency : Rs. 23,64,492/
Funeral Expenses : Rs. 10,000/
Loss of consortium : Rs. 10,000/
Loss of estate : Rs. 10,000/
Loss of Love and Affection : Rs. 10,000/
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TOTAL : Rs. 24,04,492/
RELIEF
22. I accordingly award Rs. 24,04,492/ (Rs. Twenty Four Lacs Four Thousand Four Hundred Ninety Two only) with interest at the rate of 9% per annum in view of judgement of Hon'ble High Court in MAC APP No. 385/2007 titled United India Insurance Co. Vs. Kanwar Lal & Ors. decided on 27.4.2012 from the date of filing of petition till its realisation including, interim award, if any already passed in favour of the petitioner against the respondents. The liability of all the respondents being joint and several. Petitioner no. 1 will have a share of 75% in the awarded amount and petitioner no. 2 to 6 will have a share of 5% each.
23. For safeguarding the compensation amount from being frittered away by the claimants due to their ignorance, illiteracy, susceptibility to exploitation of the victim or their family certain guidelines have been given by Hon'ble Supreme Court in G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 and in (2010) 2 Supreme Court Cases 607 in Jai Prakash Vs. National Insurance Co. Ltd. and Others. In view of the directions contained in the above judgements the award amount is to be disbursed as follows:
24. 10% of the share of petitioner no. 1, 2 and 3 be released and their remaining 90% amount be kept in FDRs in their names in a Nationalized 12 Bank in a following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
25. As per the school certificate of petitioner no. 4, 5 and 6, they are minor. The entire amount of petitioners no. 4, 5 and 6 shall be kept in FDR in Nationalized Bank in their names till they attain majority and for five years thereafter.
26. The interest on the fixed deposits shall be paid monthly. The monthly interest shall be credited automatically in the saving accounts of the claimants. Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimants along with the photocopy of the FDR. The original fixed deposit receipt shall be handed over to the claimants at the end of the fixed deposit period. Photo identity card shall be issued to the claimants and 13 the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant. No cheque book shall be issued to the claimants without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
27. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week.
APPORTIONMENT OF LIABILITY:
28. respondent no. 3 had disputed its liability on the ground that it is a case of no driving licence as such the insurer, respondent no. 3 is not liable and submitted that as per the copy of the charge sheet placed on record with the DAR the driver was challenged under Section 279/304A IPC and Section 3/181 Motor Vehicle Act which clearly reveals that it is a case of no driving licence.
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29. On the other hand the owner had lead evidence stating that driver had a valid driving licence but in his crossexamination he stated that he did not know the name of licencing authority from where the licence was issued to respondent no. 1 neither did he have a copy of the driving licence of respondent no. 1. Respondent no. 3 did not lead evidence to prove that it is a case of no driving licence.
30. Ld. Counsel for petitioner argued that as insurer/respondent no. 3 failed to prove that the driver did not have the driving licence thus insurance company is liable to pay compensation and in this regard Ld. counsel for petitioner has placed reliance upon 2011 ACJ 131 Oriental Insurance Company Limited Vs Kamlesh and others wherein it has been held as follows:
"Motor Vehicle Act 1988, Section 149(2) (a) (ii) Motor Insurance Driving Licence Liability of insurance company insurance company seeks to avoid its liability on the ground that driver of the offending vehicle did not have valid and effective driving licence Insurance Company has not taken any specific plea in its written statement regarding driving licence Owner of the vehicle stated that she does not know if driver was having driving licence or not and she has never enquired from the driver about driving licence nor she has ever seen it Not enquiring by owned about driving licence from driver does not mean that he was not having a valid driving licence Challan filed against driver for non 15 possessing of driving licence but no evidence thereafter Tribunal held that merely filing of challan does not mean that it is proved that driver was not holding a valid driving licence - Insurance company failed to prove notice under Order 12, rule 8, C. P. C., purported to have been issued by it for furnishing a copy of driving licenceWhether Tribunal was justified in concluding that insurance company failed to prove that driver of offending vehicle had no valid licence and is liableHeld: yes".
31. Thus, as Insurance company failed to discharge its onus of proving that driver did not have a valid and effective driving licence on the date of accident. The onus of proving that driver of the offending vehicle did not have a licence was on the Insurance company as respondent no. 3 which complained that there was breach of terms of the contract.
32. As regards the onus of proof of insurer it has been held in the judgment of Hon'ble Supreme court in Narcinva V. Kamat Vs. Alfredo Antonio Doe Martins, 1985 ACJ 397 (SC) as follows:
"When the insurance company complains of a breach of the terms of contract, which would permit it to disown its liability under the contract of insurance, the burden is squarely on the insurance company to prove that the breach has been committed by the other party to the contract. The test in such a situation would be 'who would fail, if no such evidence is led'. With this principle of law in view, evidence has to be judged Merely nonproduction of driving licence or non examination of the driver of the vehicle is not enough 16 nor any adverse inference can be drawn against the person holding that because of nonexamination of the driver or nonproduction of the licence, the burden is discharged by a mere question in the cross examination nor the owner is under any obligation to furnish the evidence so as to enable the insurance company not to wriggle out of its liability under the contract of insurance"
33. On the other hand Ld. Counsel for Insurance company placed reliance upon IV (2009) CPJ 25 (SC) in National Insurance Company Ltd. Vs. Meena Aggarwal as follows:
InsuranceMotor Accident ClaimTerms and Conditions violatedVehicle insured for personal use, being used for commercial purposeDriver not holding valid licenceClaim allowed on nonstandard basis by State and National CommissionsInsurer directed to pay 75% of assessed amountCivil Appeal filedOwner of vehicle has to take care about validity of licence of driverOwner would be liable to pay compensation, if driver not holding licence at allNo reason indicated by State and National commissions, in holding that there was no fundamental breach of policyOrders unsustainable set aside.
34. But the facts of the case relied upon by Ld. Counsel for Insurance company is distinguishable from the facts of the case as no notice was given by Insurance company to the driver and owner to produce the driving licence and it had not discharged its onus of proof.
35. Thus even though challan has been filed under Section 3/181 CPC for not possessing the driving licence but no evidence has been led by 17 insurer to prove that the driver and owner were called upon to produce the driving licence and they failed to do so. The insurance company thus failed to prove that driver did not have a valid driving licence it is held jointly and severally liable. Respondent no. 3/Insurer is directed to deposit the award amount within 30 days with interest at the rate of 9% from the date of filing of petition till its realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
An attested copy of award be given to the parties.
File be consigned to Record Room.
Announced in the open court.
On 10.5.2012 (POONAM CHAUDHARY)
JUDGE: MACT1 : NEW DELHI