Delhi District Court
Smt. Rinki vs Delhi International Airport Pvt. Ltd. ... on 12 November, 2013
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 153/11/10 & 160/11/09
IN THE MATTER OF :
(i) MACT No. 153/11/10
1. Smt. Rinki
W/o late Sh. Nidhish Yadav
2. Master Aryan
S/o late Sh. Nidhish Yadav,
Minor through his natural guardian
Smt. Rinki, his mother.
3. Sh. Ram Das Yadav (Father)
S/o late Sh. Ram Swarup Yadav,
All residents of:
P.O. Ginauli Kisanpur,
Distt. Hathras (U.P.)
Also at:
H.No. 701, Gali No. 1,
Ration Wali Shop,
Raj NagarII, Palam,
New Delhi.
... Claimants
Versus
1. Delhi International Airport Pvt. Ltd. (Owner)
Udaan Bhawan, Terminal 1B,
Indra Gandhi International Airport,
New Delhi.
MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 1 of 46
MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
2. National Insurance Co. Ltd. (Insurer)
Regd. Office - 3, Middleton Street,
Post Box No. 9229,
Kolkata, West Bengal.
... Respondents
FILED ON : 12.03.2010
RESERVED ON : 30.10.2013
DECIDED ON : 12.11.2013
(ii) MACT No. 160/11/09
1. Smt. Neena Verma
W/o late Sh. Ashok Chand Verma,
2. Sh. Rajat Babbar
S/o late Sh. Ashok Chand Verma,
3. Sh. Ankit Babbar
S/o late Sh. Ashok Chand Verma,
All R/o H.No. 445B, BlockK,
Gali No. 12, Mahipalpur Extension,
New Delhi37.
... Claimants
Versus
1. Delhi International Airport Pvt. Ltd. (Owner) Udaan Bhawan, Terminal 1B, Indra Gandhi International Airport, New Delhi.
2. National Insurance Co. Ltd. (Insurer) Regd. Office - 3, Middleton Street, Post Box No. 9229, Kolkata, West Bengal.
MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 2 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
3. Sh. Nidhish Yadav (Driver also died in accident) Through his LRs: A. Smt. Rinki W/o Late Nidish Yadav B. Aryan (Minor U/N Guardian) S/o Late Nidish Yadav C. Sh. Ramdas Yadav (Father) S/o Sh. Ram Swarup Yadav All R/o Vill. Nangla Gulabi, P.O. Ginoli - Koshanpur, P.S. Sikandra Rao, Distt. Hathras, U.P. Presently: H. No. 701, Gali No. 1, Ration wali shop, Raj Nagar Palam, New Delhi.
... Respondents
FILED ON : 24.12.2009
RESERVED ON : 30.10.2013
DECIDED ON : 12.11.2013
: J U D G M E N T :
1. These two claim petitions are filed under Section
166 and 140 of the Motor Vehicles Act, 1988 for grant of
compensation.
2. Claim Petition No. 153/11/10 titled as Smt. Rinki & Ors. v. DIAL and Anr. is filed by the widow, minor son and elderly father of late Sh. Nidhish Yadav who had suffered fatal injuries while he was driving an "Airfield Crash Fire Tender". In this case, Delhi International Airport (P) Ltd. is Respondent No. 1 being the owner of the said Fire Tender and National Insurance Co.
MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 3 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
Ltd. is the Respondent No. 2 being the insurer of the said Fire Tender.
3. Second Claim Petition No. 160/11/09 titled as Smt. Neena Verma & Ors. v. DIAL & Anr. is filed by the widow and two sons of the deceased Sh. Ashok Chand Verma who was also present in the "Fire Tender" being Senior Coordinator and had also suffered fatal injuries in the said accident. In this Claim Petition, Respondent No. 1 is DIAL, owner of the Fire Tender, Respondent No. 2 is the insurer of the Fire Tender and Respondent No. 3 are the legal heirs of the deceased driver of the said Fire Tender.
4. Since both Sh. Nidhish Yadav and Sh. Ashok Chand Verma had suffered fatal injuries in the same accident and as owner and insurer of the vehicle are same in both the claim petitions, both the claim petitions were consolidated as common question of law and facts are involved in both these claim petitions. Therefore, now both the claim petitions are being disposed of vide a common award.
5. A perusal of both these claim petitions shows that late Sh. Nidhish Yadav, late Sh. Ashok Chand Verma, Sh. Naresh Babu Dixit, Sh. Manoj Singh Rajput and Sh. Sayyad Ali Manjar were deployed on Fire Fighting Tender - ROSENBAUER. All five of them were employed in Airside Management Department, DIAL.
6. On 29.05.2009, around 10.30 p.m., this team of 5 persons was given a task to reach a destination in the airport in a period of one and half minute in the Fire Fighting Tender to test MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 4 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
their preparedness in the event of an aeroplane catching fire.
7. On the way to destination, the Fire Tender had met with an accident resulting in fatal injuries to Sh. Nidhish Yadav and Sh. Ashok Chand Verma. Other three persons present in Fire Tender fortunately escaped with grievous/simple injuries.
8. Whereas the legal heirs of late Sh. Ashok Chand Verma have alleged that the accident had taken place due to negligence of the deceased driver Sh. Nidhish Yadav, the legal heirs of Sh. Nidhish Yadav have alleged that the headlights of the Fire Tender were not working properly and in the darkness it had overturned and therefore denied any negligence on the part of the deceased driver.
9. Claimants Smt. Rinki & Ors. have stated that the deceased Sh. Nidhish Yadav was 31 years of age at the time of accident and was earning Rs. 15,000/ per month. They have claimed a compensation of Rs. 75,00,000/ with pendentelite interest from the date of filing of the claim petition till realization.
10. Claimants Smt. Neena Verma & Ors. have stated that the deceased Sh. Ashok Chand Verma was 54 years of age at the time of accident and was earning Rs. 85,149/ per month. They have claimed a compensation of Rs. 1,00,00,000/ from the respondents.
11. Both the claim petitions are vehemently resisted by the owner as well as insurer of the offending vehicle.
12. Respondent No. 1 has resisted the claim petitions on two grounds. First on the ground that the accident had taken MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 5 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
place due to exclusive negligence of Sh. Nidhish Yadav/Sh. Ashok Chand Verma. Second on the ground that both the claimants had filed claim petitions before Ld. Commissioner, Workmens Compensation. Pursuant to those Claim Petitions, a cheque of Rs. 2,78,260/ was deposited in the case of Sh. Ashok Chand Verma and a cheque of Rs. 4,15,960/ was deposited in the case of Sh. Nidhish Yadav. These cheques were received by the legal heirs of Sh. Ashok Chand Verma as well as Sh. Nidhish Yadav. Therefore, the defence taken is that both the claim petitions are barred by Section 167 of the Motor Vehicles Act, 1988.
13. However, it was also stated simultaneously that the vehicle was insured by National Insurance Co. Ltd. Therefore, liability, if any, to pay the compensation is of the said insurer.
14. Multiple objections raised by the insurance company are that (i) the accident had taken place within the premises of DIAL which is not a public place; (ii) neither the vehicle was registered under the Motor Vehicles Act nor any permit was issued; (iii) policy was an "Act Policy Only". Employees of the owner of the vehicle were not covered; (iv) the deceased were neither posted nor employed on the Fire Tender and were unauthorised occupants on that vehicle; (v) in the case of Smt. Neena Verma & Ors., an objection was taken that LRs of the deceased driver are not impleaded as party respondents. Therefore, the said claim petition is bad for non joinder of necessary parties. (At a later stage, LRs of the deceased driver were impleaded as party respondents) and (vi) the driver was driving the vehicle without authority and without a valid driving MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 6 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
license.
15. In the case of Smt. Rinki & Ors., following issues were framed: (1) Whether the petitioners are entitled to receive any compensation from respondents, if so, then its amount and from which of the respondents?
(2) Relief.
16. In the case of Smt. Neena Verma & Ors., following issued were framed: (1) Whether Sh. Ashok Chand Verma S/o Sh. Vidhya Prakash sustained fatal injuries in a motor vehicle accident dtd 29/05/2009 due to rash or negligent driving of vehicle i.e. Fire Tender ROSEN Baver7 by R3? ...OPP (2) Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? ...OPP (3) Relief.
17. In the case of Smt. Rinki & Ors., widow of the deceased had entered in the witness box as PW1 and proved (i) certified copy of Final Report Form/ Abated Report as Ex. PW1/1,
(ii) D.D. No. 3 A dated 30.05.09, recorded at P.S. IGI Airport, Delhi as Ex. PW1/2 (iii) FIR No. 239/09 registered at P.S. IGI Airport under Section 279/337/304 A of IPC as Ex. PW1/3, (iv) site plan of the place of accident as Ex. PW1/4, (v) Post Mortem Report of MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 7 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
the deceased Sh. Nidhish Yadav as Ex. PW1/5, (vi) her Ration Card as Ex. PW1/6, (vii) death certificate of the deceased as Ex. PW1/7, (viii) matriculation certificate of the deceased as Ex. PW1/8, (ix) Intermediate certificate of the deceased as Ex. PW1/10, (x) mark sheet of B.A. PartIII as Ex. PW1/10, (xi) mark sheet of M.A. (Final) of the deceased as Ex. PW1/13, (xii) Election Card of Claimant No. 1 as Ex. PW1/12, (xiii) Election Card of father of the deceased as Ex. PW1/3, (xiv) pay slip of the deceased as Ex. PW1/14, (xv) Certificate given to the deceased by Fire Training Centre on completion of 44th Basic Course, as Ex. PW1/15, (xvi) appointment letter of the deceased as Ex. PW1/18 and (xvii) Certificate given by Delhi IGI Airport to the deceased on completion of 3 week inhouse Airport FireFighter Refresher Course as Ex. PW1/16, (xviii) Diploma awarded to the deceased by ROSENBAUER International on completion of the course of Operation & Preventive Maintenance for the ROSENBAUER as Ex. PW1/17.
18. Sh. Tarun, Assistant Manager (HR) of DIAL was examined by the claimants as PW2. He produced full and final settlement pay slip of the deceased which was exhibited as Ex. PW2/1 and appointment letter of the deceased was also produced by this witness which was proved as Ex. PW2/2.
19. Third witness examined by the claimants was PW3 Sh. Sayyad Ali Manzar who was one of the employees present in the Fire Tender when it met with an accident. This witness was examined to show the sequence of events leading to the accident.
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20. No other witness was examined by LRs of the deceased driver Sh. Nidhish Yadav.
21. On behalf of DIAL, i.e. Respondent No. 1/ owner of the vehicle, Sh. Shiv Nath Singh, Assistant Manager (HR) had entered in the witness box as R1W1.
22. No witness was examined on behalf of insurance company in this claim petition.
23. In the case of Smt. Neena Verma and Ors., the widow of the deceased i.e. Claimant No. 1 had entered in the witness box as PW1 and proved her Ration Card as Ex. PW1/1, certified copy of FIR, charge sheet, site plan, MLC, death report of the deceased as Ex. PW1/2, certified copy of insurance cover and driving license of the driver late Sh. Nidhish Yadav as Ex. PW1/3 and 4, her Voter Card as Ex. PW1/A and passport of her son as Ex. PW1/A (it should have been referred as Ex. PW1/B), ITR filed by the deceased for assessment year 200809 as Ex. PW1/H (it should have been mentioned as Ex. PW1/C).
24. Second witness examined by these claimants was Sh. Varun, Assistant Manager (HR) of DIAL as PW2 who proved year to date statement for the period of April, 2008 to March, 2009, year to date statement for the period April, 2009 to March, 2010, pay slip of Sh. Ashok Chand Verma for the month of May, 2009, appointment letter given to the deceased late Sh. Ashok Chand Verma, letter addressed to widow of the deceased enclosing gratuity amount of Rs. 96,346/ and letter enclosing cheques for monthly pension in favour of widow of the deceased, full and final settlement pay slip and inter office memo as per which MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 9 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
widow of the deceased was given Rs. 10 lacs on account of Group Personal Accident Insurance as Ex. PW2/1 collectively.
25. Claimants have also examined one Sh. Manoj Singh Rajput as PW4 (he should have been referred as PW3). This witness was also present in the vehicle when it met with the accident. He was examined to explain sequence of events leading to the accident.
26. No other witness was examined by these claimants.
27. On behalf of DIAL, statement of Sh. Shiv Nath Singh, Assistant Manager (HR) was recorded as R1W1.
28. In this case, insurance company examined Sh. Rajesh Ranjan, its Administrative Officer as R2W1 who exhibited true copy of policy as Ex. R2W1/1, notice under Order 12 Rule 8 of CPC sent to DIAL to produce original registration certificate, permit, fitness, policy/cover note and driving license of the driver as Ex. R2W1/2 and the postal receipts as per which these notices were sent were proved as Ex. R2W1/3.
29. No other witness was examined by any other party in these two claim petitions.
30. In the case of Mrs. Rinki & Ors., arguments were addressed by Sh. S.K. Verma, learned Counsel for claimants and in the case of Mrs. Neena Verma & Ors., arguments were addressed by Sh. Devinder Singh Khatana, learned Counsel for the claimants. For Respondent No. 1/owner of the Fire Tender, arguments were addressed by learned Counsel Sh. R.K. Kohli and on behalf of insurer, arguments were addressed by learned Counsel Sh. Mehtab Singh.
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31. Written arguments were also filed on behalf of counsel for owner of Fire Tender.
32. First, a finding shall be returned on the issue whether the accident had taken place due to negligence of Respondent No. 1? This is Issue No. 1 in the case of Smt. Neena Verma & Ors.
33. Issue No. 1 of Claim Petition of Smt. Neena Verma & Ors.:
34. Claimants in Claim Petition of Rinki & Ors. have stated that in the darkness of the night, the vehicle had overturned. They have stated that head lights of the vehicle were not working at the time of accident. Therefore, according to them, the accident is not due to rash and negligent driving of deceased driver Sh. Nidhish Yadav.
35. On the other hand, Respondent No. 1 and 2 have stated in their written statement that the accident took place due to exclusive negligence of Sh. Nidhish Yadav.
36. Certified copy of Final Report Form i.e. Abated Report is filed on record by both the claimants. A perusal of that Report shows that the conclusion of the Investigating Officer was that on 29.05.09, at around 10.17 p.m., the vehicle Crash Fire Tender ROSENBAUER 7 had gone with the permission from Airport Operation Control Centre for routine Response Time Test Drill. While applying breaks to stop that vehicle between zulu 6 and 7, the vehicle lost control and begin to skid and fell down in a seasonal drain between Runway3 and Zulu Taxi resulting in the death of its driver and Sh. Ashok Chand Verma. Since the driver had died in the accident, Abated Final Report was prepared and MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 11 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
filed in the court.
37. This Tribunal has evidence of Sh. Manoj Singh Rajput as well as Sh. Sayyad Ali Manjar who were members of the team and were present in the vehicle when it met with the accident.
38. Therefore, their testimony is very important to find out sequence of events leading to the accident.
39. Sh. Manoj Singh Rajput who was examined in MACT No. 160/11/09 which is Claim Petition of Smt. Neena Verma & Ors. as PW4 (though he should have been referred as PW3) has stated that: "As per standard operation procedure, every month response time for fire services personal is checked. They are given a spot where they have to reach within one and a half to two minutes. This accident had taken while the Fire Tender was reaching the spot given to the team."
40. He further stated that: "In his efforts to reach the spot within given time, the deceased driver had missed the road and had come on a grassy patch. Due to night visibility was also poor and there was no proper lighting. The driver had applied sudden brakes as a result of which the vehicle skidded and overturned. The vehicle had not collided with any other object."
41. There is no cross examination of this witness by any of the respondents. Meaning thereby the testimony of this witness that (i) due to night, visibility was poor and (ii) there was no proper light is totally unassailed.
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42. Now let us consider the evidence of another eye witness who was also present in the vehicle at the time of accident. This witness is Sh. Sayyad Ali Manjar and was examined as PW3 in Claim Petition No. 153/11/10 titled as Rinki & Ors. He also stated that they were on Response Test in which they had to reach a predetermined point in a fixed time. All of a sudden, at taxi i.e. Air Craft Runway, there was a light and the vehicle was severed to avoid that light and thereafter the vehicle moved at such a speed that he could not understand what had happened.
43. This witness was cross examined by counsel for Respondent No. 1 where he stated that though the vehicle was being driven at a speed but it cannot be said that the driver was negligent. This witness also added that the driver and other deceased were not wearing seat belts.
44. According to the evidence of these two witnesses who were present in the vehicle when it met with the accident, the driver was driving at a fast speed. Driving at a fast speed in this situation was a necessity because Fire Tender had to reach given spot in 90 to 120 seconds.
45. Evidence of PW3 Sh. Sayyad Ali Manjar shows that there was some light at Taxi i.e. Air Craft Runway and the driver had severed the vehicle to avoid that light (from falling on his eyes) and thereafter the vehicle moved at a high speed and overturned. According to this witness, accident was not due to negligence of driver.
46. No suggestion was given to this witness that the MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 13 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
accident was due to negligence of the driver.
47. Unchallenged testimony of Sh. Manoj Singh Rajput is that there was poor visibility and there was no proper light. Since the vehicle had missed the road and had come on a grassy patch, the driver had applied sudden brakes but the vehicle lost control and skidded.
48. Deceased driver was driving the Fire Tender as if he was in a SOS situation and as if some aircraft was on fire. It had to reach predetermined destination within a period of 90 to 120 seconds. There was no light provided at the place where the accident took place. Some light had fallen on the eyes of the driver. Neither the Fire Tender was having anti glare glass nor driver was wearing anti glare glasses. It appears that the said light had blinded the driver. The driver had severed the Fire Tender to one side to avoid that light. Since the vehicle was at a fast speed, the driver lost control and it overturned.
49. There is no evidence in rebuttal that there was sufficient light where the accident took place. There is no evidence that no light had fallen on the eyes of the driver at the time of accident. There is no evidence that headlights of the offending vehicle were working at the time of accident. There is no suggestion given to the two witnesses who were present in the Fire Tender when the accident took place that the accident was due to negligence of the driver or that they were deposing falsely to help the claimants get compensation.
50. The deceased driver was an expert driver as he had undergone extensive training in driving the Fire Tender. That is MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 14 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
evident from Ex. PW1/1517 which shows that the driver had completed 44th Basic Course at Fire Training Centre from 12.02.07 to 04.06.07. He had completed the course of Operation & Preventive Maintenance for ROSENBAUER from 07.07.08 to 12.07.08 and he had successfully completed three weekinhouse Airport Fire Fighter Refresher Course from 10.11.08 to 29.11.08.
51. Therefore, in view of clear evidence of two eye witnesses, it is held that the accident was not due to negligence of the deceased driver but due to failure of DIAL to ensure proper light at the place of accident and for want of anti glare glass on the Fire Tender / anti glare glasses for the deceased driver. If there was proper light provided at the place of accident the Fire Tender had anti glare glasses or the driver had anti glare glasses, the driver would not have got blind due to falling of sudden light on his eyes and accident would have been averted.
52. Next question is whether claimants would be entitled to compensation when the driver was not negligent and two lives were lost due to lack of adequate infrastructure at the airport?
53. Counsel for the claimants in the case of Smt. Rinki & Ors. has relied on SCCL, Bishrampur & Ors. Vs. Bharti Devi & Ors., 2013 ACJ 210 to contend that when the accident had taken place not due to negligence of the deceased driver, the owner is liable to pay compensation. He has relied on para 6 of this judgment which is as under: "Para 6. This court shall first examine the question as to whether the deceased was MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 15 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
himself responsible for causing the accident. The claimants have examined Wipro, son of Trinath, AW 2, who is an eyewitness as he was present at the place of accident. He has been extensively crossexamined by the appellants. In para 12 of his crossexamination, he has denied in no uncertain terms that the deceased jumped out of the vehicle out of panic. In para 13 of the crossexamination, he has further explained the manner in which the accident took place to state that when the deceased had reached the place where the soil was to be extracted, the dumper (haulpak) turned turtle and the accident took place. He has denied the suggestion that since the deceased jumped out of the vehicle, the haulpak turned turtle of its own. He has also stated that he used to attend duties along with the deceased. The appellants nonclaimants' witnesses have confirmed that Wipro, AW 2, is their employee and is working as dozer operator in the colliery. Sanjay Kumar Das, NAW 2, has also admitted that though employer has deposited the amount of compensation before the Commissioner for Workmen's Compensation, the said amount is still in deposit and has not been withdrawn b y the claimants. T.K. Lahari, NAW 3, has also made statement in para 13 of the cross examination that the deceased died because he was crushed under the dumper (haulpak) when it turned turtle. From the above discussion about the evidence adduced by parties with respect to the manner in which the accident has taken place, it would be apparent that the haulpak turned turtle and the deceased died as he was crushed under the haulpak. There is absolutely no evidence to the effect that deceased himself was negligent in driving the haulpak and was responsible for causing the accident. Thus, the finding recorded by the MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 16 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
Claims Tribunal that the deceased was not responsible for the accident is borne out from the evidence and is not perverse."
54. In the case of DTC v. Vidya Rani 2004 (109) DLT 121, the defence of appellant that the accident had taken place due to sudden failure of brakes and there was no negligence of the driver, therefore, no compensation is payable to claimants was repelled by the Hon'ble High Court of Delhi as under: "3. I have carefully considered the arguments advanced by learned counsel for the appellant but I have not been able to make myself agreeable with him that the appellant is not liable to pay compensation because of the accident having been caused for reasons beyond the control of driver. The Supreme Court in S. Kaushnuma Begum and others v. The New India Assurance Co. Ltd., AIR 2001 Supreme Court 485 has clearly held that the jurisdiction of the tribunal is not restricted to decide the claims arising out of the negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action. It was held that where the deceased pedestrian was knocked down by jeep when its front tyre burst and consequently the vehicle became disbalanced and turned turtle, the owner can be made vicariously liable for damages to dependants of victim even if there is no negligence on the part of driver or owner of motor vehicle. Even apart from Section 140 which envisages no fault liability claim for compensation can be sustained by applying Rule in Rylands v. Fletcher, (186173) All ER MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 17 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
(Reprint) 1 unless any one of exceptions to Rule can be applied. It was held that no fault liability envisaged in Section 140 of the Motor Vehicles Act is distinguishable from the rule of strict liability. In the former the compensation amount is fixed and is payable even if any one of the exceptions to the Rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. It was held that the provisions of the Motor Vehicles Act permit that compensation paid under 'no fault liability' can be deducted from the final amount awarded by the tribunal.
4. Besides the aforesaid judgment of the Supreme Court, Section 163A of the Motor Vehicles Act also contemplates the payment of compensation notwithstanding that the accident was not caused because of the negligence of the driver of the motor vehicle involved in the accident. In this view of the matter, I do not find any merit in the contention of Mr. Dhir that the accident having taken place due to sudden failure of brakes, the appellant will not be liable to pay compensation to the claimants. There being no merits in this appeal, the same is dismissed with no order as to costs."
55. In the case of Veena Kumari v. Jasbir Singh, 2003 (7) AD (Delhi) 558, the Claims Tribunal had dismissed claim petition for the reason that the bus had overturned because the driver suddenly applied brakes to avoid accident with a two wheeler scooter which had suddenly come in front of the bus, therefore, MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 18 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
it was held that the driver cannot be said to be driving the bus in a rash and negligent manner. The contention of appellants / claimants that even assuming that the accident was not caused due to the rash and negligent driving of the bus by its driver, the respondents can still not escape from their liability to pay compensation was upheld relying on the case of the judgment of the Hon'ble Supreme Court in S. Kaushnuma Begum (Supra).
56. In the case of National Insurance Co. Ltd. v. Prembai Patel & Ors.; AIR 2005 SC 2337, the Hon'ble High Court of Jabalpur had saddled liability to pay compensation on the owner as the vehicle driven by the deceased driver was not in a road worthy condition. In that case, the driver of the truck had died as the truck had overturned while carrying a heavy load of firewood. Legal Heirs of the deceased had filed a claim petition stating therein that the truck was more than 15 years old, had been poorly maintained and was not in a roadworthy condition. While the driver was driving the truck, its arm bold had broken down and on account of heavy load it got overturned in which driver was crushed and he died immediately. Owner of the truck had contested the claim petition on the ground that the driver was driving after consuming liquor and he himself was negligent while driving the truck. Owner had denied that the truck was not in a roadworthy condition.
57. The Claims Tribunal had dismissed the claim petition for the reason that the accident had taken place due to negligence of driver himself. However, in appeal, the Hon'ble High Court of Jabalpur held that the accident had taken place MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 19 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
not due to negligence of driver but due to breaking down of arm bolt of the truck and awarded a compensation of Rs. 2,10,000/ with interest @ 12% p.a. from the date of filing of claim petition.
58. Though this finding that the deceased was not responsible for the accident and the accident had taken place on account of breaking of the arm bolt of the truck and the owner of the vehicle had not taken adequate care in maintaining the vehicle and keeping the same in roadworthy conditions was not assailed before the Hon'ble Supreme Court but it was held that there is no reason to take a contrary view.
59. Therefore, in view of the fact that the accident had taken place not due to any negligence of the driver but due to lack of proper infrastructure which was not provided by the DIAL, therefore, compensation will be paid by the owner and as the vehicle was insured, by the Insurance Company to an extent of its liability as per the policy.
60. Before deciding compensation payable to the claimants, two arguments advanced on behalf of insurance company - non maintainability of claim petitions as policy was Act Policy only and employees of owner were not covered and accident had not taken place in a Public Place, therefore no compensation is payable are taken up for consideration.
61. In the case of Prem Bai (supra), the objection of the Insurance Company was that its liability is restricted to that, which is provided under the Workmen's Compensation Act, 1923 and it is not liable to satisfy the entire award made in favour of the claimants who were legal heirs of the deceased driver of the MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 20 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
truck of the owner. It was also argued that the owner while getting his vehicle insured, had paid only that much amount of premium as was required to cover the liability under the Workmen's Act. He had not paid such premium so as to cover the entire amount of liability qua an employee and therefore liability of the appellant would be a restricted one and it would not be liable to satisfy the entire award in favour of claimants.
62. In para 6 to 17, the Hon'ble Supreme Court held as under: "6. A person, who has sustained injury or where death has resulted from an accident all or any of the legal representatives of the deceased can claim compensation by moving an application under Section 166 of the Act by filing a claim petition before the Motor Accident Claims Tribunal. Section 3 of the Workmen's Compensation Act lays down that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter II of the said Act. Section 167 of the Motor Vehicles Act, 1988 lays down that notwithstanding anything contained in the Workmen's Compensation Act, 1923 where the death of, or bodily injury to, any person gives rise to a claim for compensation under the Act and also under the Workmen's Act, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. The claim petition had been filed by respondents 3 to 6 claiming compensation for the death of Sunder Singh, who was an employee of respondent No. 2, in MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 21 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
an accident arising out of and in the course of his employment. Therefore, they could claim compensation under either of the Acts. But they chose the forum provided under the Motor Vehicles Act. In a petition under the Workmen's Act the injured or the legal heirs of the deceasedworkmen have not to establish negligence as a precondition for award of compensation. But the claim petition before the Motor Accident Claims Tribunal is an action in tort and the injured or the legal representatives of the deceased have to establish by preponderance of evidence that there was no negligence on the part of the injured or deceased and they were not responsible for the accident. The exception to this general rule is given in Section 140 of the Act where the Legislature has specifically made provisions for payment of compensation on the principle of nofault liability.
7. The High Court, after a careful analysis of the evidence on record, has held that the deceasedSunder Singh was not responsible for the accident. The accident occurred on account of breaking of the arm bolt of the truck and the owner of the vehicle had not taken adequate care in maintaining the vehicle and in keeping the same in roadworthy condition. This finding has not been assailed before us, nor is there any reason to take a contrary view.
8. The main question which requires consideration in this appeal is, whether the appellantinsurance company is liable to pay the entire amount of compensation awarded to the claimants or its liability is restricted to that which is prescribed under the Workmen's Act. In this connection learned counsel for the appellant has drawn our attention to the MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 22 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
insurance policy, which had been taken by the owner for the concerned vehicle, and, especially to the following endorsements made therein :
1. Policy No. 320801/31/ 9293/21/01753 A POLICY FOR ACT LIABILITY
2. PREMIUM (Act Liability) Rs.1245/
3. Limitation as to use : For Act only Cover At the end of the policy the following is written: "IMPORTANT NOTICE The Insured is not indemnified if the Vehicle is used or driven otherwise than in accordance with this Schedule. Any payment made by the Company by reason of wider terms appearing in the Certificate in order to comply with the Motor Vehicles Act, 1988 is recoverable from the insured. See the clause headed AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY in the policy.
NOTE : This Schedule, the attached Policy and the Endorsements mentioned hereabove shall be read together and any word or expression to which a specific meaning has been attached in any part of this Policy or the Schedule shall bear the same meaning wherever it may appear."
9. The learned counsel for the appellant has submitted that the owner of the truck had got his vehicle insured by paying only that much amount of premium which, so far as his employees were concerned, covered the liability to the extent it is provided under the Workmen's Act. It has been submitted that the words "a policy for Act Liability" or "Act Liability" clearly indicate that the liability of the insurance company was not an unlimited one but that which was mandatorily required under the Act so as to cover the liability under the MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 23 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
Workmen's Act and no further. Learned counsel has further submitted that in order to cover unlimited liability the owner has to pay higher amount of premium and in such a case the words "a policy for Act Liability" or "Act Liability" are not written. The insurance policy being in the nature of a contract, the parties are bound by it and, therefore, the appellant cannot be saddled with any extra liability to pay the entire amount of compensation, which has been awarded to the claimants.
10. The learned counsel for the respondents has, on the other hand, submitted that having regard to the provisions of Sections 147 and 149 of the Act, the owner having got his vehicle insured, the insurance company is liable to satisfy the entire award made in favour of the claimants and there is no provision in law under which its liability may be restricted or curtailed.
11. The contentions raised turn on the interpretation of subsection (1) of Sections 147 and 149 of the Act and the same are being reproduced below : "147. Requirements of policies and limits of liability. (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which
(a) is issued by a person who is an authorized insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in subsection (2)
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 24 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place :
Provided that a policy shall not be required
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee
(a) engage in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation ................. (omitted as not relevant)
149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks. (1) If, after a certificate of insurance has been issued under subsection (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause
(b) of subsection (1) of section 147 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 25 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments."
12. The heading of Chapter XI of the Act is Insurance of Motor Vehicles Against Third Party Risks and it contains Sections 145 to 164. Section 146(1) of the Act provides that no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of Chapter XI. Clause (b) of sub section (1) of Section 147 provides that a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in subsection (2) against any liability which may be incurred by him in respect of death of, or bodily injury to any person or passenger or damage to any property of a third party caused by or arising out of the use of the vehicle in public place. Subclauses (i) and (ii) of clause (b) are comprehensive in the sense that they cover both 'any person' or 'passenger'. An employee of owner of the vehicle like a driver or a conductor may also come within the purview of the words 'any person' occurring in subclause
(i). However, the proviso (i) to clause (b) of sub section (1) of Section 147 says that a policy shall not be required to cover liability in respect of death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 26 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
out of and in the course of his employment other than a liability arising under the Workmen's Act if the employee is such as described in subclauses (a) or (b) or (c). The effect of this proviso is that if an insurance policy covers the liability under the Workmen's Act in respect of death of or bodily injury to any such employee as is described in subclauses
(a) or (b) or (c) of proviso (i) to Section 147(1)
(b), it will be a valid policy and would comply with the requirements of Chapter XI of the Act. Section 149 of the Act imposes a duty upon the insurer (insurance company) to satisfy judgments and awards against persons insured in respect of third party risks. The expression "such liability as is required to be covered by a policy under clause (b) of subsection (1) of section 147 (being a liability covered by the terms of the policy)" occurring in sub section (1) of Section 149 is important. It clearly shows that any such liability, which is mandatorily required to be covered by a policy under clause
(b) of Section 147(1), has to be satisfied by the insurance company. The effect of this provision is that an insurance policy, which covers only the liability arising under the Workmen's Act in respect of death of or bodily injury to any such employee as described in subclauses (a) or (b) or (c) to proviso (i) to Section 147(1)(b) of the Act is perfectly valid and permissible under the Act. Therefore, where any such policy has been taken by the owner of the vehicle, the liability of the insurance company will be confined to that arising under the Workmen's Act.
13. The insurance policy being in the nature of a contract, it is permissible for an owner to take such a policy whereunder the entire liability in respect of the death of or bodily injury to any such employee as is described in subclauses MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 27 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
(a) or (b) or (c) of proviso (i) to Section 147(1)(b) may be fastened upon the insurance company and insurance company may become liable to satisfy the entire award. However, for this purpose the owner must take a policy of that particular kind for which he may be required to pay additional premium and the policy must clearly show that the liability of the insurance company in case of death of or bodily injury to the aforesaid kind of employees is not restricted to that provided under the Workmen's Act and is either more or unlimited depending upon the quantum of premium paid and the terms of the policy.
14.The aforesaid interpretation of the relevant provisions applicable to the case in hand is in consonance with the view expressed by a Constitution Bench in New India Assurance Co. Ltd. v. C.M. Jaya and others (2002) 2 SCC 278, where, while interpreting the provisions of Section 95(2) of Motor Vehicles Act, 1939, the Court held as under in para 10 of the report : "............................The liability could be statutory or contractual. A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in Section 95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. In such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term or clause in the policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. If it is so done, it amounts to rewriting the statute or the contract of insurance which is not permissible." The Bench also referred to earlier decisions MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 28 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
rendered in New India Assurance Co. Ltd. v. Shanti Bai (1995) 2 SCC 539 and Amrit Lal Sood v. Kaushalya Devi Thapar (1998) 3 SCC 744, and observed that in case of an insurance policy not taking any higher liability by accepting a higher premium, the liability of the insurance company is neither unlimited nor higher than the statutory liability fixed under Section 95(2) of the Motor Vehicles Act, 1939. It was further observed that it is open to the insured to make payment of additional higher premium and get higher risk covered in respect of third party also. But in the absence of any such clause in the insurance policy, the liability of the insurer cannot be unlimited in respect of third party and it is limited only to the statutory liability.
15. Though the aforesaid decision has been rendered on Section 95(2) of the Motor Vehicles Act, 1939 but the principle underlying therein will be fully applicable here also. It is thus clear that in case the owner of the vehicle wants the liability of the insurance company in respect of death of or bodily injury to any such employee as is described in clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) should not be restricted to that under the Workmen's Act but should be more or unlimited, he must take such a policy by making payment of extra premium and the policy should also contain a clause to that effect. However, where the policy mentions "a policy for Act Liability" or "Act Liability", the liability of the insurance company qua the employees as aforesaid would not be unlimited but would be limited to that arising under the Workmen's Act.
16. The High Court, in the impugned judgment, has held that if the legal representatives of the deceasedemployee approach the Motor MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 29 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
Accident Claims Tribunal for payment of compensation to them by moving a petition under Section 166 of the Act, the liability of the insurance company is not limited to the extent provided under the Workmen's Act and on its basis directed the appellantinsurance company to pay the entire amount of compensation to the claimants. As shown above, the insurance policy taken by the owner contained a clause that it was a policy for "Act Liability" only. This being the nature of policy the liability of the appellant would be restricted to that arising under the Workmen's Act. The judgment of the High Court, therefore, needs to be modified accordingly.
17. The judgment of the High Court insofar as it relates to quantum of compensation and interest, which is to be paid to the claimants (respondent Nos. 3 to 6 herein) is affirmed. The liability of the appellantinsurance company to satisfy the award would be restricted to that arising under the Workmen's Act. The respondent Nos. 1 and 2 (owners of the vehicle) would be liable to satisfy the remaining portion of the award."
63. In the case of Prashant Dutta vs. National Insurance Co. Ltd. & Ors., MAC APP. No. 556/2007 dated 30.03.2012 the deceased was a conductor on the insured vehicle. Claims Tribunal had fastened liability on the driver and owner. However, in appeal liability was fastened on the Insurance Company in terms of Workmen's Compensation Act. Para 4 of the judgment is as under: "4. The liability of the insurance company in respect of the Workmen's Compensation in MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 30 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
respect of the driver and conductor of the offending vehicle under Section 147(1) of the Motor Vehicles Act is statutory and, therefore, respondent No.1 would be liable to pay the Workmen's Compensation. The insurance policy of the offending vehicle has been placed on record as AnnexureF (colly.) with the appeal in which respondent No.1 has charged the premium for Workmen's Compensation to the employee. Under Section 147(1) of the Motor Vehicles Act, 1988, the insurance company is required to compulsorily cover the liability in respect of the death or bodily injury of the driver and conductor in the case of public service vehicle. The contention of respondent No.1 that they have charged for premium for one employee is untenable in view of the statutory requirement of Section 147 (1) of the Motor Vehicles Act to cover the driver and the conductor. Even if the contention of respondent No.1 that the policy covered one employee is accepted, the policy should be construed to cover the deceased. In that view of the matter, this Court is of the view that respondent No.1 is liable to pay Workmen's Compensation in respect of death of the deceased and the remaining amount of compensation is liable to be paid by the appellants. "
64. Now let us consider the insurance policy in hand. It is issued with regard to Miscellaneous and Special type of vehicles. It is liability only policy. It covers use for Five Brigade or Salvage Corps Purposes. A sum of Rs. 800/ is charged as premium for third party basic coverage and Rs. 25/ for WC to employee 1.
65. Under Sub Clauses (i) and (ii) of Clause (b) of Section 147 of M.V. Act, 1988, Insurance Company is liable to pay MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 31 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
compensation on the death of driver of the vehicle to an extent provided under WC Act. Therefore, liability of the Insurance Company qua LRs of deceased driver Late Shri Nidish Yadav would be only to an extent provided for in WC Act. Rest shall be payable by the owner of the vehicle. So far as liability qua LRs of Late Shri Ashok Chand Verma is concerned, since Insurance Company had undertaken to cover one employee only, compensation shall be payable by owner of the vehicle.
66. So far as second objection of the Insurance Company that the accident has not taken place in a public place, therefore, claim petition is not maintainable, the same is also not acceptable.
67. Public place is defined under Section 2(34) as under: "Public Place" means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage."
68. A perusal of this definition would show that an aerodrome would be a public place inasmuch as public have a right of access to aerodrome after having an air ticket.
69. In the case of New India Assurance Company Ltd. v. Sunita Bhandari reported as 2008 (10) AD (Delhi) 605, the question before the Hon'ble High Court of Delhi was whether a school is not a public place. Reference was made to the case of G. Bhuvanswari & Ors. v. M. Sorna Kumar & Ors. (2000) ACJ MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 32 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
1343 where accident had taken place inside a factory where the victim had been working and it was argued that since the accident took place inside the factory Insurance Company or owner are not liable to compensate to the family of the deceased. Rejecting the aforesaid contention, the division bench made following observations: "5. Ld. Counsel for the appellants / claimants submitted that even if the accident had happened in the private place, the place is accessible to the members of public and is available for their use, enjoyment and avocation, it is a public place and not a private place, as the other people have got right of entry. He places reliance on the decision of the full bench of this court in the case of United India Insurance Company Ltd. v. Parvathi Devi, 1999 ACJ 1520 (Madras), wherein this court has held that public place includes place where public have an access whether free or controlled in any manner.
6. In the instant case, the accident had happened in the factory premises. The place is accessible to the members of the public and available for the use of public, who have dealings with the factory. Following the decision of the full bench of this court, we are of the view that the place where the occurrence had happened is a public place and the respondent no. 2 insurance company is liable to pay the compensation as per provisions of the Act."
70. It was further held by the Hon'ble High Court of Delhi that: "13. A similar view has been taken by a full bench of the Madras High Court in the case of MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 33 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
United India Insurance Company Ltd. v.
Parvathi Devi & Ors. 1999 (ACJ) 1520. The relevant portion of which, reads as under:
16. The definition of public place is very wide. A perusal of the same reveals that the public at large has a right to access though that right is regulated or restricted. It is also seen that this act is beneficial legislation, so also the law of interpretation as to be construed in the benefit of public. In the overall legal position and the fact that if the language is simple and unambiguous, it has to be construed in the benefit of the public, we are of the view that the word 'public place where ever used as a right or controlled in any manner whatsoever, would attract Section 2(24) of the Act. In view of this, as stated the private place used with permission or without permission would amount to be a 'public place.'
71. In view of what we have discussed above, we hold that the expression 'public place' for the purpose of chapter 8 of the Motor Vehicles Act, 1939 will cover all places including those of private ownership where members of the public have an access whether free or controlled in any manner whatsoever."
71. Thereafter, the Hon'ble High Court in the case of Sunita Bhandari (referred above) held that 'In this case, 'school' cannot be excluded from the definition of public place for similar reasons as aforesaid. Thus, the arguments of Ld. Counsel for the appellant regarding accident have not taken place in a public place cannot be accepted.'
72. The objection of Insurance Company that the MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 34 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
deceased were gratuitous passengers is noted to be rejected. Late Shri Nidish Yadav was the driver and Late Shri Ashok Chand Verma was Senior Coordinator posted on fire tender. Therefore, they can't be called gratuitous passengers.
73. So far as owner of the vehicle is concerned, there were two objections. Objection visavis non maintainability of claim petitions in view of Section 167 of M.V. Act was already rejected vide order dated 04.02.2012. Extracts of that order are as under: "Since 08.12.10 this matter is being adjourned from time to time on the maintainability of this claim petition. The question of maintainability has arisen in view of objection of Respondent No. 1 in its written statement in para 4 which is as under: "The petitioners had also filed claim petition before the Ld. Commissioner Workmen Compensation, Hari Nagar, New Delhi. In pursuance to the Claim Petition filed by the Petitioners before the Ld. Workmen Commissioner, the answering Respondent had deposited a cheque dated 22.12.09 for a sum of Rs. 2,78,260/ drawn on SBI Bank, Malviya Nagar, New Delhi. The aforesaid cheque was duly received by the Petitioners on 22.12.09 from the Ld. Workmen Commissioner. Arising out of the said payment, the present petition is barred by section 167 of Motor Vehicles Act, 1988."
Relevant Section of Motor Vehicles Act, 1988 is Section 167 which reads as under: "Option regarding claims for compensation in certain cases: Notwithstanding anything contained in the Workmen's Compensation MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 35 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both."
Ld. Counsel for Respondent No. 1 has stated that the compensation was deposited by the employer with the Labour Commissioner which was later on received by present claimants and therefore present claim petition would be hit by Provision of Section 167 of Motor Vehicles Act, 1988. He further states that it makes no difference whether the claimants applied to the Labour Commissioner and then employer deposits the compensation or employer deposits the compensation first and claimants take the compensation later. He submits in both contingencies Section 167 of Motor Vehicles Act, 1988 would apply.
He has relied on four judgments in support of his case which are:
1. Sarla Devi & Ors. Vs. Jhangi Ram & Ors., 1989 ACJ 94;
2. Shaik Imam Bi and Anr Vs. Oriental Fire & Genl. Ins. Co. Ltd. & Ors. 1989 ACJ 291;
3. Kalawati Vs. Balwant Singh & Anr. 1986 ACJ 550 &
4. Oriental Insurance Co. Ltd. Vs. Sudip Ranjan Deb & Ors., 2009 ACJ 22 A perusal of citations relied upon by Counsel for Respondent No. 1 shows that in all the four citations, claimants had themselves knocked the door of Labour Commissioner and thereafter compensation was released in their MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 36 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
favour which is not the case here.
Counsel for claimants has argued that suo moto deposit by employer and its receipt by claimants will not deprive the claimants to avail benefit of more beneficial social legislation which is Motor Vehicles Act, 1988.
The question raised by Respondent No. 1 is no more resintegra.
The Hon'ble High Court of Delhi in the case of MCD Vs. Mukesh Kumar FAO 152/12 dated 01.04.09 while dealing with similar situation has held as under: "The first ground of challenge by the appellant is that the claim petition was not maintainable as the claimants had taken the compensation under the Workmen's Compensation Act. The learned Tribunal has considered this plea in para 19 of the award. The claimants/respondents no. 1 to 5 never applied for compensation under the Workmen's Compensation Act. The appellant suo moto deposited the compensation under the Workmen's Compensation Act which will not dis entitle the claimants from seeking the compensation under the Motor Vehicles Act as Section 167 of the Motor Vehicles Act gives the option to the claimants to seek compensation either under the Workmen's Compensation Act or Motor Vehicles Act and the claimants/respondents clearly opted for compensation under Motor Vehicles Act."
Resultantly, the objection of Respondent No. 1 is rejected because in this case also claimants had not filed any claim before the Labour Commissioner and the employer had deposited MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 37 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
the compensation before Ld. Labour Commissioner on its own. However, the compensation received by claimants from Labour Commissioner shall be adjusted from the final award which this Tribunal shall pass finally."
74. During this inquiry, no evidence was given by owner that the claimants had filed a claim petition before Commissioner, Workmen's Compensate Act. Suo motto deposit of compensation by the owner before Commissioner, Workmen's Compensation Act will not non suit claimants in these claim petitions. However, compensation given under Workmen's Compensation Act will be deducted from final award because claimants can't receive compensation under Workmen's Compensation Act as well as under Motor Vehicles Act.
75. Though there is no such pleading that an employees LRs cannot take compensation from the owner of the vehicle, but this defence is raised now in written arguments of the owner. For this reliance is placed on Oriental Insurance Co. Ltd. Vs. Meena Variyal, (2007 ACJ 1284).
76. In that case, it had not come on record clearly whether deceased himself was driving the car at the time of accident or alleged driver was driving the car. The alleged driver was not impleaded as party respondent. As per information given to the police by the alleged driver, the deceased was driving the car negligently. Therefore, the Claims Tribunal had fastened liability on the owner and absolved the Insurance Company. However, in appeal, Insurance Company was directed MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 38 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
to pay the compensation by the Hon'ble High Court.
77. In appeal of the Insurance Company, the Hon'ble Supreme Court had set aside the order of Hon'ble High Court and restored order of Claims Tribunal fastening liability on the owner. Therefore, the judgment relied upon by the owner is not helpful for absolving owner to pay the compensation. As already noted, a three judges judgment of the Hon'ble Supreme Court in the case of Prembai Patel (supra) in similar circumstances has fastened liability on Insurance Company to an extent of coverage under Workmen's Compensation Act and rest on the owner.
78. This judgment was relied upon by the Hon'ble High Court of Delhi in the case of National Insurance Company Limited Vs. Krishna, MAC APP. No. 229/04 dated 06.08.2012.
79. In the case of Prashant Dutta (Supra), the Hon'ble High Court had directed that compensation payable by the Insurance Company shall be as per Workmen's Compensation Act and rest shall be payable by the owner.
80. Therefore, in this case also, liability of the Insurance Company qua driver shall be only as per Workmen's Compensation Act and rest shall be payable by the owner. In the case of death of Shri Ashok Chand Verma, entire liability shall be of the owner because he was not a conductor in a public carriage and was not being carried in a goods vehicle. ISSUE NO. 2:
81. Having dealt with all the objections of the respondents, now compensation payable to the claimants will be ascertained.
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82. First, case of Smt. Rinki and Ors. is taken up for consideration.
83. Shri Nidhish Yadav was employed as Junior Assistant with Delhi International Airport (P) Ltd. w.e.f. 11.02.2008 at a salary of Rs. 15,000/ per month. This is evident from Ex. PW2/2. He was also given Transport Allowance Rs. 800/ per month. This amount is not to be treated as part of salary. Therefore, salary of the deceased would be treated as Rs. 14,200/ per month. He was in a permanent employment. His age on the date of accident was less than 40 years. The deceased had future prospects. Adding 50% towards that, assumed income of the deceased would be Rs. 14,200/ + Rs. 7,100/ = Rs. 21,300/ per month. He has left behind three dependents. Therefore, one third is to be deducted for his personal expenses. Loss of dependency, therefore, will be Rs. 21,300/ minus Rs. 7,100/ = Rs. 14,200/ per month. Date of birth of the deceased was 01.01.1978. On the date of accident i.e. 29.05.2009, he was nearly 31 years of age. Therefore, multiplier of 16 shall apply.
84. Therefore, for loss of dependency for the claimants, they are awarded a compensation of Rs. 14,200/ x 12 x 16 = Rs. 27,26,400/.
85. Additionally, they are awarded a compensation of Rs. 1,00,000/ for Loss of Consortium for the widow of the deceased, Rs. 1,00,000/ for Loss of Love, Care and Guidance for minor son of the deceased, Rs. 25,000/ for Cremation Charges and Rs. 10,000/ for Loss of Estate.
86. Thus, total compensation payable to the claimants MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 40 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
will be Rs. 29,51,400/. However, as one of the eye witnesses namely PW3 Shri Sayeed Ali Manzar in Claim Petition No. 153/11/10 as stated that the deceased driver and another deceased were not wearing seat belts, 10% compensation shall be deducted for self negligence of the deceased himself. If the deceased driver was wearing seat belts the impact of the accident may have been less. Therefore, 10% of the compensation shall be deducted from the compensation awarded in favour of the claimants.
87. Therefore, total compensation payable to the claimants now will be Rs. 26,56,260/.
88. Compensation if awarded vide interim award shall be deducted from this amount.
89. Out of this, a sum of Rs. 4,15,960/ already given to them by DIAL as per Workmen's Compensation Act shall also be deducted.
90. Therefore, now claimants will be given by the owner / DIAL, a sum of Rs. 22,40,300/ with interest @ 7.5% per annum from the date of this claim petition i.e. 12.03.2010 till realization.
91. However, Insurance Company will pay a sum of Rs. Rs. 4,15,960/ to the owner of the vehicle which is already given by the owner to the claimants before Commissioner, Workmen's Compensation Act which as per policy was the liability of the Insurance Company.
92. Financial needs of the claimants were ascertained.
93. Therefore, following directions are given for apportionment of compensation: MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 41 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
i. 35%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Claimant No. 1, widow of the deceased. This amount shall be deposited by the Insurance Company in the name of Smt. Rinki. Out of this compensation, 10% compensation shall be released in her favour immediately. Balance compensation shall be deposited in 10 FDRs of equal amount for a period of 1 to 10 years in any nationalised bank of the choice of Claimant No. 1. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1 regularly.
ii. 40% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 2, minor son of the deceased. This payment shall be deposited by Insurance Company in the name of Master Aryan. This compensation will be kept in an FDR in any nationalised bank of the choice of Claimant No. 1 till the time he attains age of 21 years. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1.
iii. 25% of the total compensation with proportionate interest shall be payable in favour of Shri Ram Das Yadav Claimant No. 3, father of the deceased. The same shall be released in his favour immediately without any precondition of FDR considering his advanced age.
iv. All the original FDRs shall remain with the bank. Only copies thereof will be given to the claimants. However, pass book will be given to the claimants. No cheque book shall be issued to the claimants.
v. No loan or advance will be given against these deposits.
vi. FDRs shall not be prematurely encashed without MACT No. 153/11/10 Smt. Rinki Vs. Delhi International Airport Pvt. Ltd. & Anr. Page No. 42 of 46 MACT No. 160/11/09 Smt. Neena Verma Vs. Delhi International Airport Pvt. Ltd. & Ors.
leave of this Tribunal.
94. Next, compensation payable to the claimants Smt. Neena Verma & Ors. is taken up for consideration.
95. Income of the deceased was Rs. 64,751/ per month as per salary slip for the month of May, 2009. After deducting transport allowance of Rs. 800/, his income shall be Rs. 64,00/ per month or Rs. 7,68,000/ per annum.
96. Deceased was 54 years of age at the time of accident. Therefore, no compensation is to be given for loss of future prospects. There are three dependants. Therefore, deduction for personal expenses will be one third.
97. After deducting incometax, annual income will be Rs.6,80,400/ and after deducting one third for personal expenses, loss for the family will be Rs. 4,53,600/ per annum. Applying a multiplier of 11, loss of dependency shall be Rs. 49,89,600/.
98. Additionally, Claimant No. 1 widow of the deceased is awarded a compensation of Rs. 1,00,000/ for Loss of Consortium, Rs. 25,000/ for Loss of Love and Affection, Rs. 25,000/ for Cremation Charges and Rs. 10,000/ for Loss of Estate.
99. Thus, total compensation payable to the claimants will be Rs. 51,49,600/. However, as the deceased was not wearing seat belts at the time of accident 10% compensation shall be deducted for personal negligence of the deceased. Therefore, compensation payable would be Rs. 46,34,640/.
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100. Out of this, a sum of Rs. 2,78,260/ given to them by DIAL as per Workmen's Compensation Act shall also be deducted.
101. Therefore, now claimants will be given by the owner / DIAL, a sum of Rs. 43,56,380/ with interest @ 7.5% per annum from the date of this claim petition i.e. 24.12.2009 till realization.
102. Following directions are given for apportionment of compensation: i. 40%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Claimant No. 1, widow of the deceased. This amount shall be deposited by the Insurance Company in the name of Smt. Neena Verma. Out of this compensation, 10% compensation shall be released in her favour immediately. Balance compensation shall be deposited in 10 FDRs of equal amount for a period of 1 to 10 years in any nationalised bank of the choice of Claimant No. 1. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1 regularly.
ii. 20%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Claimant No. 2, son of the deceased. (Since this claimant is given compassionate appointment, he is awarded only 20% of the compensation). This amount shall be deposited by the Insurance Company in the name of Shri Rajat Babbar. Out of this compensation, 10% compensation shall be released in his favour immediately. Balance compensation shall be deposited in 3 FDRs of equal amount for a period of 1 to 3 years in any nationalised bank of the choice of Claimant No. 2. Monthly interest will be credited in the Saving Bank Account of Claimant No. 2 regularly.
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iii. 40%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Claimant No. 3, son of the deceased. This amount shall be deposited by the Insurance Company in the name of Shri Ankit Babbar. Out of this compensation, 10% compensation shall be released in his favour immediately. Balance compensation shall be deposited in 3 FDRs of equal amount for a period of 1 to 3 years in any nationalised bank of the choice of Claimant No. 3. Monthly interest will be credited in the Saving Bank Account of Claimant No. 3 regularly.
iv. All the original FDRs shall remain with the bank. Only copies thereof will be given to the claimants. However, pass book will be given to the claimants. No cheque book shall be issued to the claimants. v. No loan or advance will be given against these deposits.
vi. FDRs shall not be prematurely encashed without leave of this Tribunal.
103. Let compensation be deposited by the owner as well as Insurance Company as per their liabilities within 30 days from today under intimation to the claimants as well as their counsel by registered post. In case even after passing of 90 days the insurance company fails to deposit this compensation, it shall be recovered by attaching its bank account with a cost of Rs. 5,000/ as per directions of the Hon'ble High Court of Delhi in the case of New India Assurance Co. Ltd. v. Kashmere Lal & Ors., 2007 ACJ 688.
104. Nazir of this court will also send intimation of deposit of compensation to the claimants as well as to their counsel.
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105. Ahlmad will put up this file with the report from Nazir regarding deposit of compensation again on 20.02.2014.
106. Copy of this order be given free of cost to all the parties.
107. File be consigned to the Record Room.
Announced in the Open Court On the 12th day of November, 2013 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
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