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Delhi District Court

Shri Maan Singh vs Shri Anil Jain on 1 March, 2014

       IN THE COURT OF SHRI ARUN BHARDWAJ
    PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
      TRIBUNAL-II, DWARKA COURTS: NEW DELHI


MACT No. 337/12

IN THE MATTER OF : -

   1. Shri Maan Singh, (Father)
      S/o Shri Najer Singh

   2. Smt. Ranjeet Kaur,(Mother)
      W/o Shri Maan Singh

     BOTH RESIDENCE:

     New T Block R/Z-2,
     Part-II, Uttam Nagar,
     New Delhi.
                                                             ... Claimants

                                 Versus


   1. Shri Anil Jain,     (Owner)
      S/o Shri Jay Mohan Jain,
      R/o D-26, East Uttam Nagar,
      New Delhi.

   2. The Oriental Insurance Co. Ltd.,          (Insurer)
      F-14, United India Life Building,
      Connaught Place,
      New Delhi - 110 001.
                                        ... Respondents

Filed on         :      18.07.2012
Heard on         :      01.03.2014
Decided on       :      01.03.2014


MACT No.337/12   Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr.   Page 1 of 21
                         -:J U D G M E N T:-

1. On 28.05.2012, at around 5:40 a.m., Shri Charanjeet Singh (hereinafter referred as the deceased) while driving Motorcycle No. DL-8SAT-3240 met with a road traffic accident resulting in fatal injuries to him.

2. At P.S. Dwarka South, FIR No. 113/12 was registered under Section 279/337/304 A of IPC.

3. Investigating Officer investigated in the matter and recorded statement of one Shri Sidhant Jain who was the pillion rider on the motorcycle driven by the deceased at the time of accident.

4. The statement of the said pillion rider was that he is a resident of D-26, East Uttam Nagar, New Delhi and is employed with Gen Pact Company at Gurgaon. On 28.05.2012, at about 5:15 a.m., he had left for his office to Gurgaon and his colleague Shri Charanjeet Singh had come to his house and both of them had left for Gurgaon on his motorcycle DL-8SAT-3240. On the way, near Madhu Vihar Drain, due to Honey Bee bite near his eye, he stopped his motorcycle and Shri Charanjeet Singh who was the pillion rider started driving the motorcycle. After they crossed red light of Sector -2, Dwarka and reached near bus stop of DTC Bus Depot, one stray dog came running and to avoid him Shri Charanjeet Singh turned his motorcycle to right side when the motorcycle collided with the road divider resulting in serious injuries to the motorcyclist on his head. He had MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 2 of 21 removed the accident victim to DDU Hospital in a private car but during treatment he died.

5. On the basis of statement of the pillion rider, Investigating Officer filed cancellation report before Ld. Magistrate which was accepted.

6. Investigating Officer filed D.A. Report before this Tribunal enclosing cancellation report duly accepted by the Ld. Magistrate.

7. Claimant No. 1 appeared before this Tribunal and stated that an independent claim petition under Section 166 of the Motor Vehicles Act, 1988 is already filed against owner and insurer of the motorcycle. Therefore, proceedings in D.A. Report were closed.

8. In the present claim petition which was filed under Section 166 and 140 of the Act, claimants who are parents of the deceased have stated that the deceased was 24 years old and he was doing a private job as Process Associate in Genpact India at Gurgaon at a salary of Rs.13,174/- per month.

9. Other facts vis-a-vis sequence of events leading to the accident were also stated as were already stated by Shri Sidhant Jain, the pillion rider, before the Investigating Officer.

10. Claimants claimed a compensation of Rs. 25,00,000/- from Respondent No. 1 being owner of the vehicle and claimed this amount from Respondent No. 2 being insurer of the vehicle.

11. Respondent No. 1 stated in his written statement that the present petition is bad for want of ingredients of Section 166 of the Motor Vehicles Act as admittedly the vehicle involved in the accident was driven by the deceased himself at the time of accident and as such present petition is liable to be dismissed.

12. Respondent No. 2 stated in its written statement that the present petition is not maintainable under the purview of law time being inforce because the deceased namely Shri Charanjeet Singh was driving the vehicle bearing No. DL-8SAT-3240 (Yamaha Motorcycle) and met with the accident due to his own negligence. The vehicle was being driven by the deceased rashly, negligently, in utter disregard of the traffic rules and regulations and hence met with the accident. In view of this, it was stated that the Insurance Company of the alleged offending vehicle is not liable to pay any compensation under the terms and conditions of policy and the legal heirs of the deceased are not entitled to file the petition under any provisions of Motor Vehicles Act against the Insurance Company.

13. Therefore, in the light of objections raised by respondents following preliminary issue was framed: -

1. Whether this petition under Section 166 of the Motor Vehicles Act, 1988 is maintainable? ... OPP

1. At this stage, an application was filed on MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 4 of 21 behalf of the claimants to convert the claim petition to one under Section 163 A of the Motor Vehicles Act, 1988.

2. It was stated in this application that the deceased at the time of accident was pursuing M.Com from Indira Gandhi National Open University and was to appear in Term End Examination to be held in June, 2012.

3. The said application was opposed on behalf of counsel for the Insurance Company for the reason that it is a case of self negligence and claimants are neither entitled to compensation under Section 166 nor under Section 163 A of the Act.

4. Since the question whether the accident was due to self negligence of the deceased could be ascertained only after recording evidence, the application was allowed and claim petition was converted to one under Section 163 A of the Act.

5. After this amendment, following issues were framed: -

1. Whether Shri Charanjeet Singh son of Shri Maan Singh had sustained fatal injuries on his person in an accident which took place on 28.05.2012 due to involvement of vehicle bearing Registration No. DL-

8SAT-3240 owned by Respondent No. 1 and insured with Respondent No. 2? ... OPP

2. In case, Issue No. 1 is decided in favour of the claimants, to what amount of compensation he is MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 5 of 21 entitled to and from whom.

3. Relief.

1. Father of the deceased entered in the witness box as PW1 and stated similar facts vis-a-vis sequence of events leading to the accident as were already stated by the pillion rider before the Investigating Officer and as were also stated by the claimants in their claim petition.

2. However, now the he deposed that the deceased was earning Rs. 40,000/- per annum. PW-1 proved his Voter Card as Ex. PW1/1, his PAN Card as Ex. PW1/2, Voter Card of mother of the deceased as Ex. PW1/3 and Death Certificate of the deceased as Ex. PW1/4.

3. The witness was not cross-examined on behalf of counsel for Respondent No. 1.

4. However, PW-1 was thoroughly cross- examined by counsel for the Insurance Company.

5. PW-1 deposed in his cross examination that he is not an eye witness to the accident; his son was an employee of M/s. Genpact, Gurgaon for the last eight months at a salary of Rs. 3,300/- per month, he had filed on record copy of salary slip of the deceased as per which his income was Rs. 13,174/- per month.

6. Other suggestions contrary to his case were denied by him.

7. No other witness was examined by the MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 6 of 21 claimants and no witness was examined by any of the respondents.

8. Arguments were addressed by Shri S.K. Verma, learned counsel for the claimants and Shri Shyam Singh, learned counsel for the Insurance Company.

9. The first argument on behalf of Insurance Company is that the income of the deceased was Rs.

13,174/- per month or Rs. 1,58,088/- per annum. Therefore, claimants cannot file claim petition under Section 163 A of the Motor Vehicles Act as there is cap of Rs. 40,000/- per annum for availing provisions of Section 163 A of M.V. Act.

10. Second argument is that the deceased was driving the motorcycle himself. Therefore, for own negligence of the accused, claimants cannot get any compensation.

11. On behalf of claimants reliance is placed on a judgment dated 08.09.08 rendered by Hon'ble High Court of Gujrat in the case of United India Ins. Co. Ltd. v. Govindbhai which was passed in F.A. No. 2285/08. In this case compensation was awarded in a claim petition filed under Section 163 A of the Act to the legal heirs of the driver of the scooter and Respondent No. 1 was the owner and Respondent No. 2 was the insurer.

12. On the basis of pleadings of the parties, issue-wise findings are as under:-

ISSUE NO. 1: -

13. For the purposes of awarding MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 7 of 21 compensation under Section 163 A of the M.V. Act, claimants have to prove that the death or permanent disablement occurred due to accident arising out of the use of motor vehicle in question.

14. It is an admitted position of the parties that the deceased had suffered fatal injuries while driving motorcycle No. DL-8SAT-3240 owned by Respondent No. 1 and insured by Respondent No. 2.

15. A perusal of cancellation report filed by the Investigating Officer after investigating in the matter also shows that the deceased had suffered fatal injuries due to accident arising out of the use of motorcycle in question.

16. Therefore, Issue No. 1 is answered in favour of the claimants holding that the deceased had suffered fatal injuries due to accident arising out of use of motorcycle No. DL-8SAT-3240.

ISSUE NO. 2: -

17. The motorcycle is owned by Shri Anil Jain. Before the accident, it was being driven by Shri Sidhant Jain who claimed that he was driving "His" motorcycle.

18. Relationship of Shri Sidhant Jain with Shri Anil Jain is not clear.

19. Shri Sidhant Jain had given this motorcycle to the deceased for driving.

20. Therefore, in the absence of any evidence of relationship between the deceased and the insured, it cannot be said that the deceased had entered into the MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 8 of 21 shoes of insured.

21. Therefore, it cannot be said that the deceased and the insured were one and the same person for the purposes of disposal of this claim petition.

22. Section 147 of the Motor Vehicles Act provides as under: -

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 policy which -

(a)

(b)

(i)

(ii) 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 liability arising under the Workmen's Compensation Act, 1923 (8 of 1983), in respect of the death of, or bodily injury to any such employee -

(a) engaged in driving the vehicle, or

(b)

(c) MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 9 of 21

(ii) (2) (3) (4) (5)

23. The policy in question is a package policy.

24. Even in an Act policy, compensation is payable to an employee of the insured engaged in driving the vehicle.

25. This case has comparable facts with the facts of a case titled as National Insurance Company Ltd. Vs. Sinitha and Ors., SLP (C) No. 6513 of 2007, in which judgment was rendered by the Hon'ble Supreme Court of India on 23.11.2011.

26. In the case of Sinitha (Supra), one Shijo was riding a motorcycle where one George K. was the pillion rider. While giving way to a bus coming from the opposite side, the motorcycle hit a big laterite stone lying on the tar road. On impact, the motorcycle overturned. Resultantly, the rider as also the pillion rider suffered injuries. Shijo succumbed to his injuries on the following day. George K., survived. The motorcycle was insured with the National Insurance Company Ltd. by way of an Act Only Policy.

27. Initially, a claim petition was filed by legal heirs of Shijo under Section 166 of the M.V. Act which was later on converted to one under Section 163 A of the Act.

28. The Tribunal awarded a compensation of Rs. 4,26,650/- with interest @ 6% per annum from the date of filing the claim petition till realization.

29. In appeal, the Hon'ble High Court of Kerala deducted a sum of Rs. 5,000/- awarded for pain and suffering being impermissible under Section 163 A of Act and all other components of compensation awarded by the Tribunal were upheld by the Hon'ble High Court.

30. The Insurance Company further assailed the order of the Hon'ble High Court before the Hon'ble Supreme Court and the first contention advanced at the hands of the learned counsel for the petitioner was that the claimants are not entitled to raise any claim for compensation because the accident in question had occurred solely and exclusively on account of the negligence of the deceased Shijo. It was contended that it was not just and appropriate to award compensation wherein the claimants represented the person "responsible" for the accident. Such a determination would amount to rewarding the representatives of wrong doer.

31. The Hon'ble Supreme Court held that it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163 A of the Act by the pleading and establishing through cogent evidence a "fault" ground ("wrongful act" or "neglect" or "default").

32. The Hon'ble Supreme Court further held that negligence is a factual issue and can only be MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 11 of 21 established through cogent evidence. It was further held that no witness was produced by the petitioner Insurance Company before the Tribunal to prove that the accident was due to negligence of Shijo. The Hon'ble Supreme Court held that it cannot be overlooked that the solitary witness who had appeared before the Tribunal had deposed that this accident had happened because the rider of the motorcycle had given way to a bus coming from the opposite side. Had he not done so, there may have been a head on collision. Or it may well be, that the bus coming from the opposite side was being driven on the wrong side.

33. It was further held that in a claim raised under Section 163 A of the Act, the claimants have neither to plead nor to establish negligence. Negligence can be established by the owner or the Insurance Company (as the case may be) to defeat a claim under Section 163 A of the Act.

34. It was held that it was imperative for the petitioner - Insurance Company to have pleaded negligence, and to have established the same through cogent evidence. In the absence of evidence, to contradict the factual position that while giving way to a bus coming from opposite side, the motorcycle being ridden by Shijo, hit a large laterite stone lying on the tar road, whereupon the motorcycle overturned, and the rider and the pillion rider suffered injuries, it is not possible to conclude, that Shijo was "negligent."

35. In this case also, only one witness was examined who was not an eye witness to the accident.

36. However, statement of pillion rider Shri Sidhant Jain recorded by the Investigating Officer under Section 161 of Cr. P.C. is on record.

37. As per this, the accident had occurred because abruptly a dog running on the road had come in front of the motorcycle and to save him the motorcyclist had turned to right side but it collided with divider resulting in fatal injuries to the motorcyclist.

38. Therefore, neither the owner nor the insurer has proved the accident was due to negligence of deceased himself.

39. Moreover, in the case of Deepal Girishbhai Soni v. United India Ins. Co. Ltd., 2004 ACJ 934 (SC) it is held that Section 163 A of the Act covers cases where even negligence is on part of the victim. It is by way of an exception to Section 166 and the concept of Social Justice has been duly taken care of.

40. In the case of Shijo (Supra), the second contention advanced by the petitioner - Insurance Company was that Shijo being the rider of the motorcycle cannot be treated as a third party. It was pointed out, that the claim under Section 163 A can only be raised at the behest of a third party.

41. This argument of insurer was rebutted by the Hon'ble Supreme in para 19 as under: -

"19. To substantiate his second contention, it would be essential for the petitioner to establish, that Shijo having occupied the shoes of the owner, cannot be treated as the third party. Only factual details brought on record through reliable evidence, can discharge the aforesaid onus. During the course of hearing, despite our queries, learned Counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be the employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between the Shijo and the owner, the petitioner - Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These, or other witnesses, who could have brought out the relationship between the owner and Shijo, were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders. Since, the relationship between the Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude, that Shijo while riding the motorcycle on the fateful day, was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing, that the rider Shijo represented the owner, and as such, was not a third party, in terms of the judgment rendered by this Court in Oriental Insurance Company Limited case (Supra).

The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned Counsel for the petitioner."

42. In this case also it was essential for the insurance company to establish that deceased having occupied the shoes of the owner, cannot be treated as the third party. Only factual details brought on record through reliable evidence could have discharged the aforesaid onus. Deceased was not employee of the owner. He was not even shown as the representative of the owner. Even when father of the deceased entered in the witness box, no question was put to him to establish the relationship between the deceased and the owner. PW-1 or Sh. Sidhant Jain who was pillion rider on the motorcycle at the time of accident or the owner/insured could have brought out the relationship between the owner and the deceased. However, the insurer did not examine Sh. Sidhant Jain or the owner/insured and when father of deceased entered in the witness box as PW- 1, no effort was made to elicit from him relation between deceased and owner/insured. The insurance company has therefore, not discharged the onus which rested on its shoulders. Since, the relationship between the deceased and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible to conclude that deceased while riding the MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 15 of 21 motorcycle on the fateful day, was an agent, employee or representative of the owner. It was open to the insurance company to defeat the claim for compensation raised by the claimants by establishing, that the deceased represented the owner, and as such, was not a third party.

43. The insurance company has failed to discharge the said onus. Therefore, contention of insurance company that the deceased cannot be treated as a third party cannot be acceded.

44. Another objection of the insurance company in this claim petition is that the father of the claimant has stated in claim petition that income of the deceased was Rs. 13,174/- per month. Therefore, this claim petition under Section 163 A of the Act is not maintainable.

45. The answer to this objection of the insurance company is in the judgment rendered by the Hon'ble High Court of Delhi in the case of Rukmani Devi v. New India Assurance Co. Ltd. & Anr., 2009 ACJ 2202 where in para 10 it is held as under:-

"10. As regards grant of compensation in all such cases under Section 163 A of the Motor Vehicles Act, the same is payable as indicated in the Second Schedule to the Motor Vehicles Act to the legal heirs of the victim or to the victim of the accident itself, as the case may be. The Second Schedule to the Motor Vehicles Act places restriction at Rs. 40,000/- p.a. while no such restriction is there under Section 166 of the Motor Vehicles Act. Can such a restriction MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 16 of 21 placed in the Second Schedule to the Motor Vehicles Act prohibit filing of the claim petition itself where the income is pleaded at more than Rs. 40,000/- p.a.? In my considered view, the answer has to be in the negative. It is not merely by pleading a particular income that the right to file petition under Section 163 A can be denied. In a particular case which is otherwise covered within the ambit and scope of Section 163 A of Motor Vehicles Act, the claim petition cannot be dismissed merely on the ground that the income pleaded therein in the petition is more than Rs. 40,000/- p.a. It is ultimately the proof of income which would determine the grant of relief under Section 163 A of the Motor Vehicles Act, but restriction of Rs. 40,000/- p.a. as indicated in the Second Schedule to the Motor Vehicles Act cannot also be taken as a cap as the Government has failed to revise the structural formula of the Second Schedule to the Motor Vehicles Act as mandated by Section 163 A of the Motor Vehicles Act. Second Schedule to the Motor Vehicles Act was to be revised from time to time keeping in view the cost of living by an appropriate notification in the official gazette by the Central Government but since the time of its insertion w.e.f. 14.11.1994 no revision has taken place even after lapse of about more than 13 years. Since the criteria of revision was based on the cost of living, therefore, this Court has taken a consistent view by taking the help of Minimum Wages Act to revise the minimum wages after taking into account rise in the price index and inflation rates. There has been an average increase of up to 4% to 6% in the price index each MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 17 of 21 year and within a gap of about 10 years there has been an increase of wages in the Minimum Wages Act which comes out as more than double of the wages comparing the wages in the year 1994. For instance wages of an unskilled worker in the year 1994 when the Second Schedule came into effect was Rs. 1420/- which came to be Rs. 3,312/- in the year 2006, the year in which the award was made. This would show an increase of 233.2% and based on the same analogy, it can be said that such an increase can be taken into consideration without considering the said cap of Rs. 40,000/- p.a. in the structured formula of the Second Schedule to the Motor Vehicles Act."

46. In the case of Suman Malhotra & Anr. v. Gulfam & Ors., 2013 (6) AD (Delhi) 60 the Hon'ble High Court of Delhi has again said in para 7 that in Rukmani Devi (supra), the aforesaid case was considered and finally answered that the Tribunal has to consider the claim petition whether the income of the deceased was more than Rs. 40,000/- p.a.; but it is no where said that if in any petition the income of the deceased was claimed more than Rs. 40,000/-, then a victim of the accident cannot file the claim petition under Section 163 A of the Act.

47. In this case though father of the deceased has stated in the claim petition which was earlier filed under Section 166 of the Act that income of the deceased was nearly Rs. 13,000/- per month but this fact is not proved on MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 18 of 21 record.

48. PW-1 has stated that income of the deceased was Rs. 3,300/- per month. In absence of any evidence that income of the deceased was more than Rs. 40,000/- p.a., the objection raised by counsel for insurance company is not sustainable.

49. That leaves only question to be determined is regarding compensation payable to the claimants.

50. For this, reliance is placed on Second Schedule appended to the Act.

51. Claimants have stated that the age of the deceased was 24 years at the time of his fatal injuries. As per driving license of the deceased his date of birth was 04.04.1988. The date of accident is 28.05.12. Therefore, he was nearly 24 years of age at the time of accident.

52. Assuming his annual income to be Rs. 40,000/- per month and deducting 1/3rd for his personal expenses, the income of the deceased would be Rs. 26,666/- p.a.

53. Applying a multiplier of 17, compensation payable would be Rs. 4,53,333/-.

54. Additionally, a sum of Rs. 2,000/- is to be awarded for Cremation Charges and Rs. 2,500/- for Loss of Estate.

55. Therefore, total compensation payable would be Rs. 4,57,833/- which shall be payable with interest @ 7.5% p.a. from the date of filing of this claim MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 19 of 21 petition which is 18.07.12 till its realization.

56. 60% of the compensation would be payable to the mother of the deceased. 10% thereof would be released immediately. Rest will be deposited in 3 FDRs of equal amount for a period of 1 to 3 years. However, monthly interest would be given to Claimant No. 2 regularly.

57. 40% of the compensation would be payable to the father of the deceased. 10% thereof would be released immediately. Rest will be deposited in 3 FDRs of equal amount for a period of 1 to 3 years. However, monthly interest would be given to Claimant No. 1 regularly.

58. The compensation shall be deposited directly with State Bank of India, Dwarka Courts Branch, New Delhi under intimation to claimants as well as counsel for claimants. Intimation shall also be given to this Tribunal at the time of deposit of compensation.

59. In case, the compensation remains unpaid even after 90 days of the passing of the award, the same shall be recovered by attaching the bank account of Insurance Company along with a cost of Rs. 5,000/- in terms of judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688.

60. Nazir of this Court will also send intimation of deposit of compensation to the claimants as well as to their counsel.

61. Ahlmad will put up this file with a report MACT No.337/12 Shri Maan Singh & Anr. Vs. Shri Anil Jain & Anr. Page 20 of 21 from Nazir regarding deposit of compensation again on 01.06.2014.

62. Copy of this order be given Dasti to all the parties and a copy be sent to the State Bank of India, Dwarka District Courts Branch, New Delhi as well.

63. File be consigned to the Record Room.

Announced in the Open Court On the 1st day of March, 2014.

(ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL-II DWARKA COURTS, NEW DELHI.