Delhi District Court
Smt. Rashmi Chaturvedi (Aged 44 Yrs.) vs Sh. Raja Ram Mandal (Driver) on 24 May, 2013
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS, NEW DELHI
MACT Nos. 249/12 & 383/12
(i) MACT No. 249/12
IN THE MATTER OF :
1. Smt. Rashmi Chaturvedi (Aged 44 yrs.)
W/o Sh. Sandeep Chaturvedi
2. Sh. Sandeep Chaturvedi (Aged 49 yrs.)
S/o Sh. Man Mohan Chaturvedi
Both R/o: Phoota Mehal, Jain Mohalla
Near Jain Mandir, Rampur, U.P.
... Petitioners
Versus
1. Sh. Raja Ram Mandal (Driver)
S/o Sh. Mahesh Mandal
R/o Village E111, Shakur Basti
J.J. Colony, Delhi.
Also R/o Village & P.O. Raghar Pura
P.S. Sursand, Distt. Sita Mani, Bihar.
2. Sh. Balbir Singh Raheja (Owner)
S/o Sh. Avtar Singh
R/o B3/253, SF Block
B3 Paschim Vihar, Delhi.
3. The Oriental Insurance Co. Ltd. (Insurer)
Oriental House, A25/27,
Asaf Ali Road, New Delhi110002.
....Respondents
MACT Nos. 249/12 & 383/12 Page 1 of 28
FILED ON : 24.02.2012
RESERVED ON : 23.05.2013
DECIDED ON : 24.05.2013
(ii) MACT No. 383/12
IN THE MATTER OF :
1. Sh. Amit Chauhan
S/o Sh. Mithai Lal Chouhan
R/o H.No. 103A,
Gali No. 9, Shalimar Village
Delhi110088.
... Petitioner
Versus
1. Sh. Raja Ram Mandal (Driver)
S/o Sh. Mahesh Mandal
R/o Village E111, Shakur Basti
J.J. Colony, Delhi.
Also R/o Village & P.O. Raghar Pura
P.S. Sursand, Distt. Sita Mani, Bihar.
2. Sh. Balbir Singh Raheja (Owner)
S/o Sh. Avtar Singh
R/o B3/253, SF Block
B3 Paschim Vihar, Delhi.
3. The Oriental Insurance Co. Ltd. (Insurer)
Oriental House, A25/27,
Asaf Ali Road, New Delhi110002.
....Respondents
MACT Nos. 249/12 & 383/12 Page 2 of 28
FILED ON : 24.09.2012
RESERVED ON : 23.05.2013
DECIDED ON : 24.05.2013
J U D G M E N T :
1. These two claim petitions are filed by the claimants under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Whereas Claim Petition No. 249/12 titled as Smt. Rashmi Chaturvedi & Anr. v. Sh. Raja Ram Mandal & Ors. is a claim petition filed by parents of Sh. Vidhu Chaturvedi who had suffered fatal injuries in a road traffic accident, MACT No. 383/12 titled as Sh. Amit Chauhan v. Sh. Raja Ram Mandal & Ors. is a claim petition filed by Claimant Sh. Amit Chauhan who was injured in the same accident in which Sh. Vidhu Chaturvedi had lost his life.
3. Respondent No. 1 the driver, Respondent No. 2 the owner and Respondent No. 3 the insurer of the offending vehicle in both these claim petitions are same.
4. Both the Claim Petitions have arisen out of same road traffic accident resulting in registration of FIR No. 14/12 under Section 349/338/304 A of IPC at P.S. Dwarka North.
5. Therefore, both the claim petitions are being disposed of vide a common award.
6. First contents of Claim Petition being MACT No. 249/12 titled as Smt. Rashmi Chaturvedi & Anr. v. Sh. Raja Ram Mandal & Ors. are being taken up for consideration.
MACT Nos. 249/12 & 383/12 Page 3 of 287. In this claim petition claimants have stated that on 13.01.12, at about 11.00 a.m., Sh. Vidhu Chaturvedi (hereinafter referred to as the deceased) was a pillion rider on a motorcycle bearing registration no. DL8STC0143 which was being driven by Sh. Amit Chauhan as per traffic rules and regulations. When they reached near Dwarka More, P.S. Dwarka North, New Delhi, a truck bearing no. DL1GB4032 driven by Respondent No. 1 in a rash and negligent manner came from the back side and struck against their motorcycle as a result of which the deceased came underneath the rear wheel of the truck and sustained multiple grievous injuries.
8. The deceased was taken to Deen Dyal Upadhyay Hospital where doctors on duty declared him brought dead. Claimants have stated that the deceased had lost his precious life solely due to rash and negligent driving of Respondent No. 1.
9. Claimants have stated that the deceased was 23 years of age at the time of his death and he was earning Rs. 28,010/ per month by doing a private job of Senior Executive in Reliance Industries.
10. Therefore, claimants have claimed a compensation of Rs. 25 lacs with interest @ 12% p.a. from the date of filing of the claim petition till its realisation.
11. A common written statement was filed by Respondent No. 1 and 2 stating therein that although the accident had taken place between the motorcycle driven by Sh. Amit Chauhan and their alleged offending vehicle but the accident had MACT Nos. 249/12 & 383/12 Page 4 of 28 taken place due to sole negligence of motorcyclist who had dashed his motorcycle against the alleged offending vehicle resulting in fatal injuries to the pillion rider.
12. It was also stated that their vehicle was insured with Respondent No. 3 who is liable to pay the compensation, if found payable by this Tribunal.
13. Rest of the contents of claim petition were denied.
14. Insurance company also filed its written statement and took a preliminary objection that in case the driver of the alleged offending vehicle was not having a valid and effective driving license at the time of accident, in that event insurance company shall not be liable to pay any compensation to the claimants or to indemnify the insured.
15. Rest of the contents of claim petition were denied but factum of insurance of the offending vehicle on the date of accident was admitted.
16. From the pleadings of parties, following issues were framed:
1. Whether Shri Vidhu Chaturvedi S/o Shri Sandeep Chaturvedi sustained fatal injuries in a motor vehicle accident dated 13.01.2012 caused due to rash or negligent driving of vehicle Truck bearing i.e. DL1GB4032 being driven by Respondent No. 1, owned by Respondent No. 2 and insured with Respondent No. 3? ..... OPP
2. Whether the petitioners are entitled to claim MACT Nos. 249/12 & 383/12 Page 5 of 28 compensation, if so, what amount and from whom? .... OPP
3. Relief.
17. Claimants examined Sh. Puneet Jain, Sr. Manager, Delhi Airport Metro Express Pvt. Ltd. (Reliance Infrastructure) as PW1. He proved appointment letter given to the deceased Sh. Vidhu Chaturvedi as Ex. PW1/1, salary slips for the month of September, October, November, December 2011 and January, 2012 as Ex. PW1/2. He deposed that as per Bio Data given by the deceased, he was a BTech from Kurukshetra University which he had passed in First Division in the year 2009. He deposed that as per their records, date of birth of the deceased was 13.11.1988 and he was a permanent employee.
18. PW1 further deposed that his company had given 14% increase in Cost to Company (CTC) in this year and the annual increase on an average is 10% to 15% p.a. He deposed that every three to four years promotional increments are also given to the employees @ 6% on CTC.
19. In cross examination by counsel for Respondent No. 1 and 2, he deposed that in their company there is no condition of probation period and he denied a suggestion that the deceased was not in permanent employment or was on a probation.
20. In cross examination by counsel for insurance company, he deposed that annual increments are linked with the performance of an employee. Promotion is also based on MACT Nos. 249/12 & 383/12 Page 6 of 28 performance. He deposed that being a Senior Manager of the company, he can depose that employees are given promotion in three to four years. He also deposed that monitory relief will be given to the claimants under Group Personal Accident's Scheme for which a sum of Rs. 13/ per month was deducted from the salary of the deceased. He also produced Group Personal Accident's Insurance Schedule and proved the same as Ex. PW1/1 and Policy to show that there is no Probation Period in the company as Ex. PW1/2. (These documents should have been exhibited as Ex. PW1/1A and Ex. PW1/2A as in the earlier deposition of this witness, the appointment letter was exhibited as Ex. PW1/1 and the salary slips were exhibited as Ex. PW1/2).
21. Mother of the deceased entered in the witness box as PW2. She stated in her evidence by way of affidavit similar facts as were already stated by her in her claim petition. She proved High School Certificate and degree i.e. Bachelor of Technology from Kurukshetra University obtained by the deceased as Ex. PW2/1 and 2 respectively, her PAN Card as Ex. PW2/3, PAN Card of her husband as Ex. PW2/4, Voter Card of both the claimants as Ex. PW2/5 and 6 respectively.
22. In cross examination by counsel for insurance company, she deposed that she is a Post Graduate and is working with Rural Development, Raipur, U.P. since 1992. She was not an income tax assessee and her gross salary per month is around Rs. 15,000/ per month. She deposed that after this accident, her MACT Nos. 249/12 & 383/12 Page 7 of 28 husband is not doing anything and her husband is also not an income tax assessee. He had not filed ITR at any stage of his life. He was doing business in the name of M/s. Vidhata Sales and he was dealing with electronic articles. She stated that her husband had stopped business even prior to the accidental death of their son. He was not having any Sales Tax Number with regard to business in question. She deposed that so far she has not received any monitory relief on the death of her son, on the basis of Group Personal Accident's Insurance. She denied a suggestion that on the death of her son they have suffered no financial loss.
23. No other witness was examined on behalf of claimants.
24. So far as respondents are concerned, Respondent No. 2 had entered in the witness box and relied on Transport Emergency Card given by the IOCL to contend that the driver was authorised to drive vehicle carrying hazardous goods on the date of accident.
25. To prove this card, he had summoned a witness from IOCL. Sh. A.K. Singh, R2W2 Senior Manager (Plant) Delhi Bottling Plant, Tikrikalan, Delhi proved attested copy of Training Card given to the driver of the offending vehicle by IOCL Delhi Bottling Plant. This card was proved as Ex. R2W2/1. He deposed that this card bears his signatures at Point A and drivers are given Half Day Refresher Course Training for self handling of LPG Cylinders. This card is valid for one year. A driver has to attend training every MACT Nos. 249/12 & 383/12 Page 8 of 28 year. A driver driving a truck carrying LPG Cylinders does not need a license with an endorsement for hazardous goods if he has undergone training with IOCL.
26. In cross examination by counsel for insurance company, he deposed that he has not brought copy of driving license retained by them before giving training to Respondent No. 1.
27. On behalf of insurance company, its Administrative Officer Sh. V.D. Talwar entered in the witness box as R3W1 and deposed that the driver was not having endorsement on his driving license for hazardous goods. He proved Insurance Policy as Ex. R3W1/1. He also proved notice sent to driver as well as owner of the vehicle to produce original Policy alongwith Registration Certificate, permit and driving license. These notices were exhibited as Ex. R3W1/2 and 3, postal receipts as per which these notices were sent were proved as Ex. R3W1/4 and 5. He deposed that they have not received any driving license from the driver/owner authorising the driver to drive vehicle carrying hazardous goods.
28. In cross examination by counsel for Respondent No. 1 and 2, he admitted that on the last date owner of the vehicle had showed him Transport Emergency Card given by IOCL to the driver of vehicle in question. He deposed that as per investigation report of the Investigating Officer, driving license is in order but it is not having endorsement for hazardous goods.
29. Since this claim petition and claim petition filed by eye witness to the accident Sh. Amit Chauhan were being heard MACT Nos. 249/12 & 383/12 Page 9 of 28 together on same dates from time to time, evidence of eye witness was not recorded in this claim petition as both the claim petitions were to be decided vide a common order.
30. Now the facts in the case of Sh. Amit Chauhan v. Sh. Raja Ram Mandal & Ors. which is MACT No. 383/12 are being taken up for consideration.
31. In this case claimant has stated that on the date of accident he was Product Supervisor with Delhi Airport Metro Express Pvt. Ltd. and was earning Rs. 15,323/ per month.
32. Rest of the allegations vis a vis negligence of Respondent No. 1 in causing the accident are same as were made by other claimants Smt. Rashmi Chaturvedi & Anr. in Claim Petition No. 249/12.
33. This claimant has claimed a compensation of Rs. 12 lacs with interest @ 12% p.a. from the date of accident till its realisation.
34. Respondents have also filed their written statements which are identical to the written statements filed and already noted and discussed while dealing with the claim petition of Smt. Rashmi Chaturvedi & Anr.
35. In this case, following issues were framed:
1. Whether the petitioner received injuries in an accident on 13.01.2012 caused by Respondent No. 1, while driving Truck bearing No. DL1GB4032 rashly and negligently, owned by Respondent No. 2 and insured with Respondent No. 3? ..... OPP MACT Nos. 249/12 & 383/12 Page 10 of 28
2. If yes, what is the amount of compensation which the claimant is entitled to receive and from which respondent? .... OPP
3. Relief.
36. In this case Sh. Puneet Jain, Senior Manager, Delhi Airport Metro Express Pvt. Ltd. entered in the witness box as PW1 and produced salary details of this claimant for the month of November, December 2011 as Ex. PW1/1 and 2 respectively. He proved leave record of this claimant as Ex. PW1/3. He deposed that claimant Sh. Amit Chauhan had availed 109 days leave from 13.01.12 till 01.05.12 and he was given salary for leave period. He deposed that this claimant had claimed reimbursement of Rs. 5,25,000/ for cost of his treatment. Rs. 3,00,000/ were given to him by the insurance company which covers employees of Delhi Airport Metro Express Pvt. Ltd. and Rs. 2,25,000/ were given by employer of this claimant as a Special Case as claimant was injured while coming for duties.
37. In cross examination, he deposed that petitioner is no more in employment of Delhi Airport Metro Express Pvt. Ltd. as he had resigned voluntarily in November, 2012. He deposed that so far as hospitalization expenses are concerned claimant has not suffered any financial loss.
38. Claimant Sh. Amit Chauhan entered in the witness box as PW2 and filed his evidence by way of affidavit and proved his MACT Nos. 249/12 & 383/12 Page 11 of 28 educational qualification certificates as Ex. PW2/12, PAN Card as Ex. PW2/3, Passport as Ex. PW2/4, driving license as Ex. PW2/5.
39. In cross examination, he denied a suggestion that the accident had taken place due to his own negligence. His statement was recorded by the police after few months of the accident as at the time of accident he was not in a position to give statement to the police. He deposed that he was hit by the offending vehicle from behind.
40. Evidence of R2W2 Sh. A.K. Singh, Senior Manager, Delhi Bottling Plant, IOCL as well as of R3W1 Sh. V.D. Talwar were also recorded in this claim petition but the statement of R2W2 as well as R3W1 are already noted and discussed while dealing with the claim petition of Smt. Rashmi Chaturvedi & Anr.
41. No other witness was examined by any other party.
42. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1
43. Burden of proving this issue is on the petitioners.
44. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, it is for the petitioners to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
45. This is sine qua non for getting the relief.
46. Sh. Amit Chauhan was the motorcyclist who was driving the motorcycle bearing registration no. DL8STC0143. He MACT Nos. 249/12 & 383/12 Page 12 of 28 has stated that he was driving the same observing all the traffic rules and regulations. He has stated that the offending vehicle had hit their motorcycle from behind and was being driven in a rash and negligent manner.
47. Respondent No. 1 has denied allegations of rash and negligence made against him in his written statement and has stated that the accident took place due to sole negligence of the motorcyclist.
48. However, when Sh. Amit Chauhan entered in the witness box, he was not cross examined by Counsel for Respondent No. 1 and 2 inspite of opportunity given.
49. Therefore, allegations of claimants that the deceased Late Sh. Vidhu Chaturvedi had suffered fatal injuries and claimant Sh. Amit Chauhan had suffered grievous injuries due to rash and negligent driving by Respondent No. 1 have remained unrebutted and unchallenged in absence of any cross examination of Sh. Amit Chauhan and in absence of any evidence on the part of Respondent No. 1.
50. Moreover, Police after investigation in the matter has filed charge sheet against Respondent No. 1 under Section 279/338/304 A of IPC which is also prima facie suggestive of negligence of the Respondent No. 1 in driving the offending vehicle in a rash and negligent manner.
51. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as MACT Nos. 249/12 & 383/12 Page 13 of 28 under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society"
52. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It MACT Nos. 249/12 & 383/12 Page 14 of 28 was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
53. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (Supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in F.I.R No. 955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach MACT Nos. 249/12 & 383/12 Page 15 of 28 the conclusion that the driver was negligent. Proceedings under the 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. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
54. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
55. Therefore, this issue is decided in favour of petitioner and against the respondents. ISSUE NO. 2:
56. First compensation payable to claimants Smt. Rashmi Chaturvedi & Anr. v. Sh. Raja Ram Mandal & Ors. in MACT No. 249/11 is being taken up for consideration.
57. As per evidence of PW1 Senior Manager of Delhi Airport Metro Express Pvt. Ltd., the deceased was a permanent employee who would have earned increase from time to time. He was an engineer having BTech Degree from Kurukshetra University. As per Ex. PW1/1, he was earning Rs. 4 lacs p.a. Perusal of Ex. PW1/2 MACT Nos. 249/12 & 383/12 Page 16 of 28 shows that his gross earnings were Rs. 28,010/ per month.
58. However, pay slips will not be true reflection of the income of the deceased as he was entitled to performance linked incentives per annum.
59. There is no evidence that performance of deceased was poor and he would not have earned performance linked incentives.
60. Therefore, in the considered opinion of this Tribunal, annual income of the deceased would be considered as Rs. 4 lacs.
61. However, 10% thereof is to be deducted towards income tax.
62. Once, Rs. 40,000/ is deducted, the annual income of the deceased would be Rs. 3,60,000/.
63. Since deceased was a bachelor, 50% thereof will be deducted for personal expenses and loss of dependency for the parents will be Rs. 1,80,000/.
64. Next question is regarding compensation for loss of future prospects.
65. Evidence of PW1 shows that the deceased was a permanent employee and was given 14% increase on Cost to Company this year. He has stated that annual increase on an average is 10% to 14% p.a. He has also deposed that every three to four years, promotional increments are also given to the employees @ 6% on CTC.
MACT Nos. 249/12 & 383/12 Page 17 of 2866. Perusal of Ex. PW2/2 shows that the deceased had obtained degree in June, 2008 in first division from Kurukshetra University in Bachelor of Technology (Electronics and Communication Engineering). Therefore, the deceased had a bright future. It cannot be ruled out that he had a chance of getting jobs at higher salary after his experience with Delhi Airport Metro Express Pvt. Ltd.
67. The Hon'ble Supreme Court of India in the case of Sarla Verma v. DTC 2009 (6) Scale 126 has provided for awarding 50% compensation for loss of future prospects where deceased was less than 40 years of age.
68. Therefore, claimants are also entitled to compensation to an extent of 50% for loss of future prospects.
69. Once, Rs. 90,000/ is added towards loss of future prospects, the loss of dependency for the claimants would be Rs. 2,70,000/ p.a.
70. Age of claimant no. 1/the mother of the deceased on the date of accident was around 44 years. Therefore, as per Sarla Verma Vs DTC, 2009 (6) SCALE 129 the multiplier that will apply will be of 14 and total Loss of Dependency for the petitioners would be Rs. 37,80,000/ i.e. Rs. 2,70,000/ x 14.
71. Additionally claimants are also entitled to a compensation of Rs. 25,000/ for Loss of Love and Affection, Rs. 25,000/ for Cremation Charges and Rs. 10,000/ for Loss of Estate.
72. Therefore, total compensation payable to the MACT Nos. 249/12 & 383/12 Page 18 of 28 claimants would be Rs. 38,40,000/ which shall be paid with interest @ 7.5% p.a. from the date of filing of this claim petition which is 24.02.12 till its deposit in the Tribunal.
73. In view of submissions of counsel for claimants, following directions are given for apportionment of compensation: (1) 60%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 1, Mother of the deceased. Out of this compensation 25% shall be released in her S.B. Account to be opened in SBI, Dwarka Courts, New Delhi in the name of A/c. Rashmi Chaturvedi. Remaining compensation shall be kept in 10 FDRs for a period from 1 to 10 years. Monthly interest will be credited in the Saving Bank Account of Petitioner No. 1 regularly.
(2) 40% out of the total awarded compensation with proportionate interest shall be payable in favour of Petitioner No. 2, Father of the deceased. Out of this compensation 10% shall be released in his S.B. Account to be opened in SBI, Dwarka Courts, New Delhi in the name of A/c. Sandeep Chaturvedi. Remaining compensation shall be kept in 5 FDRs for a period from 1 to 5 years. Monthly interest will be credited in the Saving Bank Account of Petitioner No. 2 regularly.
(3) All the original FDRs shall remain with the bank. Only copies thereof will be given to the petitioners. However, pass book will be given to the petitioners. No cheque book shall be issued to the petitioners.
(4) No loan or advance will be given against these deposits.
MACT Nos. 249/12 & 383/12 Page 19 of 28(5) FDRs shall not be prematurely encashed without leave of this Tribunal.
(6) Petitioners shall cooperate with the bank by providing requisite documents and by completing required formalities for opening Saving Bank and FDR Accounts.
(7) Petitioners shall be at liberty to get their Saving Bank Account and FD Accounts transferred to any branch of SBI of their choice if so desired.
(8) Respondents will intimate this Tribunal before the deposit of the compensation award with State Bank of India, Dwarka Courts, New Delhi.
(9) After the FDRs are prepared the bank will send a copy thereof before this Tribunal for placing the same on the records of this Claim Petition.
74. Next compensation payable to Sh. Amit Chauhan, Claimant in MACT No. 383/12 is taken up for consideration.
75. This claimant had suffered grievous injuries i.e. facial fracture. He was admitted in Max Super Specialty Hospital on 13.01.12 and discharged on 25.01.12. He was diagnosed as Pan Facial Fractures with Nasal Bone Fracture.
76. Therefore, for Pain and Suffering, he is awarded a compensation of Rs. 45,000/.
77. All the bills for his treatment were reimbursed to him by his employer. However, he had to avail leave for 109 days. His salary at the time of accident was Rs. 15,791/.
MACT Nos. 249/12 & 383/12 Page 20 of 2878. Therefore, for Loss of Salary for 109 days he is entitled to a compensation of Rs. 57,373/.
79. For Special Diet and Conveyance Charges, he is awarded a compensation of Rs. 15,000/.
80. With the kind of injuries suffered by him he would have needed the help of an attendant at least for a period of two months.
81. It is well settled that a victim of an accident has to be compensated in terms of money even if gratuitous services are rendered by a family member.
82. In Delhi Transport Corporation and Anr. v. Lalita:
AIR 1981 Delhi 558, the Hon'ble High Court of Delhi has held that there cannot be any deduction if domestic help is obtained from a family member. The observations of the Hon'ble High Court are as under: "........... A wrong doer cannot take advantage of this 'domestic element'. If the mother renders service to her, instead of a nurse, it is right and just that she should recover compensation for the value of the services that the mother has rendered to her. Mother's services were necessitated by the wrong doing and the injured should be compensated for it. (Cunnigharn v. Harrison 3 All E.R. 463) The services of a wife and mother are worth more than those of a housekeeper because she is in constant attendance and does many more things than a housekeeper. (Regan v. Williamson (1976) 2 All E.R. 241)."
83. This judgment was again quoted with approval by MACT Nos. 249/12 & 383/12 Page 21 of 28 the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP. No. 762/11 dated 04.07.12.
84. Therefore, he is entitled to a compensation of Rs. 13,312/ towards Attendant's Charges i.e. Rs. 6,656/ x 2.
85. Therefore, total compensation payable to the claimants would be Rs. 1,30,685/ which shall be paid with interest @ 7.5% p.a. from the date of filing of this claim petition which is 24.09.12 till its deposit in the Tribunal.
86. As this claimant has already suffered loss due to leave availed, special diet, conveyance charges and attendant's charges this compensation shall be released in his favour without any precondition of FDR.
87. Next question is which of the respondents is liable to pay this compensation to the claimants.
88. It is an admitted position that the offending vehicle was carrying LPG Cylinders when the accident took place. Therefore, hazardous goods were being carried at the time of accident. Endorsement is required in a driving license of the driver when driving a vehicle carrying hazardous goods. Admittedly, the driver had a license to drive heavy motor vehicle but endorsement for hazardous goods is not there on the license.
89. Ld. Counsel for the insurance company argued that as there is a violation of terms and conditions of policy, recovery rights be granted in favour of insurance company.
90. On the other hand, owner of the vehicle has MACT Nos. 249/12 & 383/12 Page 22 of 28 examined Sh. A.K. Singh, Senior Manager (Plant) of IOCL Delhi Bottling Plant who has stated that driver was given training by IOCL and the training card was proved as Ex. R2W2/1. He deposed that driver was given training for safe handling of LPG Cylinders. This card is valid for one year and a driver is required to undergo training every year. A perusal of Ex. R2W2/1 which is training card for drivers shows that it carries several safety instructions as well as instructions to be followed in case of emergency. This card was issued on 03.01.12 and is valid till 03.01.13.
91. Counsel for owner of the vehicle has relied on National Insurance Co. Ltd. v. A. Ramaswami & Ors. 2008 (ACJ) 516 where following three reasons were given for refusing recovery rights to insurance company when the driver was driving a Heavy Goods Vehicle carrying dangerous and hazardous goods without endorsement on his license for hazardous goods: "(i) In Swaran Singh's case, 2004 ACJ 1 (SC), the Hon'ble Supreme Court has observed that if on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of license, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving license. In the same decision, it has been further observed that minor breaches of license conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, MACT Nos. 249/12 & 383/12 Page 23 of 28 would be treated as minor breaches or inconsequential deviation in the matter of use of vehicles and such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground of denying the benefit of coverage of insurance to the third parties.
(ii) If the facts of the case in hand are considered in the light of the above said observations of the Hon'ble Apex Court, it has to be pointed out that it has not been established by acceptable evidence that the want of above said endorsement was the main or contributory cause for the accident. The absence of the said endorsement in the driving license, Exh. R2, is only a minor and inconsequential deviation with regard to licensing conditions and, therefore, it would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties. Further, it has to be pointed out that to avoid its liability to the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. The insurer must also establish 'breach' on the part of the owner of the vehicle and the burden of proof wherefor would be on the insurer. Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid license by the driver or his qualification to drive during the relevant time, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the MACT Nos. 249/12 & 383/12 Page 24 of 28 conditions of driving license is/are so fundamental as are found to have contributed to the cause of the accident.
(iii) In this case the insurer appellant herein has not established breach on the part of the owner of the vehicle. In the considered view of this court the absence of the said endorsement in license, Exh. R2, is not so fundamental. Further it has neither been pleaded nor established by acceptable evidence that failure on the part of the holder of license, Exh. R2 to undergo the training prescribed under Rule 9 of the Rules is in any way contributed to the cause of the accident. The main purpose of the qualification and training prescribed in rule 9 of the Rules seems to equip the driver of the tanker lorries transporting hazardous substances to meet certain emergencies and to make him aware of certain basic emergency procedures, in case if any spillage of hazardous substances transported in the vehicle is caused due to an accident. In this case the evidence discloses that the tanker lorry was driven rashly and negligently by its driver and hit against the deceased who was attending to the tyre of the lorry in which he was working as a cleaner near the lorry which was parked on the side of the road. The failure on the part of the driver of the tanker lorry to undergo the training prescribed under rule 9 of the Rules does not seem to have in any way contributed to the cause of the accident. The Tribunal has recorded a finding of negligence on the part of the driver of the tanker lorry. The evidence on record does not show that the absence of endorsement under rule 9 of the Rules in license, Exh. R2, has contributed to the accident. Hence in the light of the law laid MACT Nos. 249/12 & 383/12 Page 25 of 28 down by the Apex Court in Swaran Singh's case, 2004 ACJ 1 (SC), it has to be held that the insurer appellant herein is not entitled to avoid its liability to indemnify the insured and the contention of the insurer is liable to be rejected."
92. Counsel for owner has also relied on Baghelkhand Filling Station & Anr. v. Brij Bhan Prasad & Ors. 2006 ACJ 2503 where in para 13 and 15, the Hon'ble High Court has held as under: "13. A perusal of the aforesaid relevant rules would show that endorsement in the driving license of the applicant is necessary to the effect that he is authorised to drive a goods carriage carrying goods of dangerous of hazardous nature to human life. This endorsement was of course not seen on the driving license of respondent No. 3, by the appellants. But, it is equally true that driver was holding a license to drive a tanker. It is not the case of the respondents that accident had taken place on account of the fact that there was no endorsement to drive such a vehicle. The endorsement neither increases the efficiency of the driver nor in its absence the efficiency of the driver is likely to be reduced in any manner whatsoever. It only certifies additionally that he is authorised to drive a goods carriage carrying goods a dangerous or hazardous nature. For driving such a vehicle, no further expertise or driving skill is required. This could be as well as on the part of the driver as well as on the part of appellants herein, but this lapse was not responsible for the cause of accident.
15. Thus, the crux of the matter would be MACT Nos. 249/12 & 383/12 Page 26 of 28 whether such a breach that is to say not having obtained necessary endorsement as required under subrule (3) of rule 9 of the Rules, the accident occurred due to that non endorsement has been discussed hereinabove, the said endorsement is not required to be given to the driver after having gone through any specialised training or after having passed any special test. Any driver who has held a driving license to drive a tanker would be entitled to this endorsement subject to fulfilling of other conditions as contemplated in subrule (3) of rule 9, but they do not deal with the professional skill of driving. With regard to professional skill of driving, he has already been clarified by the licensing authority at the time of granting of license to him. It is not the case of the respondents that his driving license was not obtained properly."
93. Therefore, in this case also the driver was holding a license to drive a tanker but there was no endorsement authorising him to drive a goods carriage carrying goods of dangerous and hazardous nature. However, for the reasons noted above the Hon'ble High Court had declined recovery rights to the insurance company.
94. In present case also the driver was having a license to drive Heavy Motor Vehicles. He had undergone training at IOCL for handling LPG Cylinders in an emergency condition. The accident has not taken place for want of skill of the driver in handling hazardous goods and the accident has not taken place due to blast in LPG Cylinders or for any other cause connected with MACT Nos. 249/12 & 383/12 Page 27 of 28 carrying of hazardous goods in the offending vehicle.
95. Therefore, compensation would be payable by insurance company which be deposited by the insurance company within 30 days from today under intimation to the petitioners as well as counsel for the petitioners by Registered A.D. Post.
96. Nazir of the court is also directed to send court notice of deposit to claimants as well as their counsels.
97. Ahlmad will put up a copy of this order with report from Nazir regarding deposit of compensation again on 26.08.2013.
98. Address of counsel for petitioner for serving the notice of deposit of compensation is as under: Sh. J.S. Yadav, Advocate Chamber No. 250, Patiala House New Delhi.
99. Copy of this order be given dasti to all the parties.
100. File be consigned to the Record Room.
Announced in the Open Court.
On the 24th day of May, 2013 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
MACT Nos. 249/12 & 383/12 Page 28 of 28