Delhi District Court
Smt. Geeta vs Icici Lombard General Insurance Co. Ltd on 6 January, 2009
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IN THE COURT OF MS. SEEMA MAINI : JUDGE
MOTOR ACCIDENTS CLAIMS TRIBUNAL : DELHI
Petition No. : 418/2007
Date of filing of the petition : 05022007
Date of reservation for judgment : 17122008
Date of award : 06012009
In the matter of:
1. Smt. Geeta
W/o Late Sh. Vijender
2. Mr. Amit Kumar
S/o Late Sh. Vijender
3. Miss Jyoti
D/o Late Sh. Vijender
4. Mr. Sunny
S/o Late Sh. Vijender
5. Mr. Sagar
S/o Late Sh. Vijender
6. Miss Sandhya (Minor Petitioner No. 6 through
D/o Late Sh. Vijender Smt. Geeta her mother as natural
Guardian and next friend.)
All Residents of:
H. No. 23, Priyadarshni Colony,
Jamuna Bazar, Delhi110006.
7. Smt. Premwati,
W/o Late Sh. Ram Lal,
H. No. 5, Priya Darshni Colony,
Jamuna Bazar, Delhi110006. ............. Petitioners
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Versus
1. ICICI Lombard General Insurance Co. Ltd.
Birla Towers 5th Floor,
25, Barakhamba Road,
New Delhi110001.
2. M. Kamil
S/o Kamal Ahmad,
2242, Naya Mohalla,
Gali Quasimjan, Ballimaran,
Delhi110006.
3. M. Amil
S/o Sh. Kamal Ahmad,
R/o 2242, Naya Mohalla,
Gali Quasimjan, Ballimaran,
Delhi110006. ........Respondents
APPLICATION U/S 166 & 140 OF MOTOR VEHICLE ACT 1988 FOR GRANT OF COMPENSATION APPEARANCE:
Sh. G. N. Rathi, Counsel for Petitioner.
Sh. Bharat Bhushan, Counsel for Respondent no. 1 Sh. M. Hussain, Counsel for Respondent no. 2 and Respondent no. 3.
JUDGMENT / AWARD :
1. The instant case has been filed on behalf of the petitioner u/s 166/140 of the Motor Vehicle Act, 1988 as amended till date (hereinafter referred to as the act) for grant ...3...
of compensation on account of death of Sh. Vijender, husband of petitioner no. 1, in a road accident caused by the rash and negligent driving of the offending vehicle by respondent no. 3.
2. The brief facts as stated in the petition are that on 181206 at about 7:15 a.m., Sh. Vijender, since deceased, being employed as a Safai Karamchari in the MCD, was sweeping the road in front of the main building of GPO, Kashmiri Gate, Delhi. At that very time, a motorcycle bearing registration No. DL1SM7149 came on the road from the Kashmiri Gate side, being driven at a high speed by the driver, in a rash and negligent manner, totally in disregard of the traffic regulations and hit Sh. Vijender, since deceased, causing him to fall on the road. After causing the accident, the motorcycle travelled for some distance alongwith the driver and the other passenger and thereafter, fell on the road. Vijender was removed to the Trauma Centre by his wife, who was an eyewitness of the accident, who also being a Safai Karamchari, was discharging her official functions, near the spot of the accident. The MLC of the injured/deceased was prepared but soon after admission in the hospital, Vijender succumbed to his injuries and expired in the hospital. The post mortem of the deceased was also conducted. On the statement of the petitioner no. 1, the wife of the deceased, the FIR No. 618/06 dated 181206 was registered at P.S. Kashmiri Gate u/s 279/337/304A IPC and respondent no. 3 Mohd. Amil, the driver of the offending vehicle, was arrested, the offending vehicle was seized and thereafter, was released on superdari to respondent no. 2, Mohd. Kamil, the owner of the vehicle. The deceased was survived by his wife (Petitioner no. 1), five children (Petitioner no. 2 to 6) and his mother (Petitioner no. 7), over all dependent upon him and hence, the present petition for grant of compensation.
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3. The written statement was filed by respondent no. 2 Mohd. Kamil, the owner of the offending motorcycle wherein he stated that the petition was a false one as the deceased Vijender did not meet with the fatal accident with his motorcycle but rather on the date of accident, the deceased was hit by a Maruti Car, the driver of which absconded, and that when he reached near the spot, driving his motorcycle, accompanied by his brother, respondent no. 3, as a pillion rider, he saw Sh. Vijender, since deceased, lying injured on the road and only on humanitarian ground, the respondent no. 2 helped Vijender and took him to the hospital. It was further stated that Vijender died in the hospital due to been the negligence of the doctors. It was further stated by respondent no. 2 that at the relevant time, he was going on his motorcycle to leave his younger brothers and sisters to their school. He, however, admitted that his motorcycle was involved in the accident, though falsely, by the police. He further stated that his motorcycle was insured with R1, ICICI Lombard General Insurance Company Ltd.
4. The WS was also filed on behalf of R3 Mohd. Amil wherein again it was stated that the petition was without any cause of action against R3 as he was neither the owner of the motorcycle bearing No. DL1SM7149 nor was he the driver of the same at the relevant time. He admitted that a criminal case bearing No. 618/06 has been registered against him at P.S. Kashmiri Gate but stated that he has been falsely implicated. It was stated on behalf of R3 that on the relevant date, he was not driving the motorcycle in question and that if the same was being driven, it must have been driven by his brother Mohd. Kamil, who was also the owner of the motorcycle.
5. Respondent no. 1 ICICI Lombard General Insurance Company Ltd. also filed its WS wherein it was stated that the petitioner did not have any cause of action to file the ...5...
petition against R1. It was admitted that the offending motorcycle bearing No. DL1S M7149 was insured with R1 vide the insurance policy cover note no. TD 2986882, in favour of Mohd. Kamil, which was valid from 181006 to 171007. However, it was stated that the offending vehicle was being driven by R3 at the relevant time, who was a minor, not holding a valid and effective driving licence at the time of the alleged accident and as such, there had been a willful breech of the terms and conditions of the insurance policy by the insured i.e. R2 and hence, R1 was not liable to pay compensation, if any, to the petitioners and that liability, if any, was only of R2.
6. On the basis of the pleadings of the parties, the following issues were framed by the predecessor of this court on 210507 :
1) Whether the death of Vijender was caused due to rash and negligent driving of offending vehicle No. DL1SM7149 being driven by respondent No. 3 ?
2) To what amount, the petitioners are entitled for compensation and from whom ?
3) Relief.
7. The evidence was led by the petitioners wherein petitioner no. 1 examined herself as PW1 on affidavit which she proved as Ex. PW 1/X. She categorically reiterated the averments made by her in the petition deposing that the motorcycle bearing No. DL1SM7149 was being driven in a rash and negligent manner at a very high speed by R3, i.e. Mohd. Amil and that he hit against her husband Vijender, who was sweeping the road at the relevant time, causing his total injuries. It was stated that at the time of his accident/death, the deceased was 43 years of age and was of sound health and ...6...
physique, being gainfully employed with the MCD, drawing a salary of Rs. 7,929/ per month, having bright chances of promotion. It was also stated that in the near future, the deceased would have drawn a salary of Rs. 15,000/ per month while at the time of retirement, he would have drawn a salary in the sum of Rs. 36,000/ per month. She further deposed that she being the widow, petitioner no. 2 to 6 being the children and petitioner no. 7 Smt. Premwati being the mother of the deceased were the only LRs of the deceased. The father of the deceased had predeceased him. It was also stated that the mother of the deceased i.e. petitioner no. 7 was gainfully employed as the Safai Karamchari with the MCD. She also stated that the offending vehicle was being driven at a very fast speed in a rash and negligent manner and that after hitting the deceased, the deceased was dragged by the motorcycle for some distance, after which the motorcycle alongwith the occupant thereupon, all fell on the road. The deceased suffered multiple grievous injuries while the driver of the motorcycle including the other riders on the motorcycle also sustained injuries and all were removed to the Trauma Centre, where the husband of petitioner no. 1 succumbed to injuries and died. The copies of the FIR, the death summary, post mortem report, MLC and the site plan showing the spot of the accident were brought on record by the petitioner as Ex. PW 1/1 to PW 1/5 respectively. In her cross examination, she categorically denied the suggestions on behalf of R2 and R3 that the accident did not occur due to the negligence of the driver of the motorcycle or that the accident took place with a maruti car. It was also denied by her that the respondent no. 2 and 3 were falsely roped in or that they had helped the deceased and the petitioner on humanitarian grounds in removing the deceased to the nearby hospital. In her cross examination, she further admitted that she was an eyewitness of the accident, since she was also present at the spot of accident, on account of her duty in the MCD as Safai Karamchari and that she had noted the number of the motorcycle herself.
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8. The certified copies of the criminal record, comprising of 17 sheets comprising of the charge sheet, the statement of petitioner no. 1, on the basis of which the rukka was prepared, the FIR, site plan, mechanical inspection report of the offending motorcycle, copy of the insurance cover note, the death summary/post mortem report, the MLC of injured/deceased were brought on record collectively as Ex. C1 with the permission of the court by the counsel for the petitioner.
9. PW2 Sh. Avnesh Kumar, UDC from the MCD, Civil Line Zone, Delhi entered the witness box and deposed that the deceased Vijender was working as a Safai Karamchari in ward no. 114 at the time of accident. He had joined the MCD on 1041984, his basic salary at the time of joining was Rs. 196/ per month while at the time of his death, his basic salary was Rs. 3,790/ per month, while his total salary at the time of death was Rs. 10,196/ per month. He also gave the breakup of the salary of the deceased and also deposed that the date of birth of the deceased, as per the official records, was 10021962 and that he would have retired on 28022022. Furthermore, he produced a certificate issued by the Superintendent (Sanitation), MCD, Civil Line Zone which was taken on record as Ex. PW 2/A, which shows the salary of the deceased in December 06 to be Rs. 9,634/. The certificate further detailed that had the deceased been living, his salary in January 08 would have been 10,496/ while on his superannuation i.e. on 28022022, the salary of the deceased would have been Rs. 21,881/ approximately. It further specified that the post of Safai Karamchari was a nonpromotional post.
10. After the close of PE, respondent no. 1 led his RE, examining Sh. Gaurav Malhotra, the Manager (Legal) of the Insurance Company as R1W1. He produced on ...8...
record the office record of the insurance policy no. 3005/50537843/00000 insuring the offending motorcycle which was valid from 181006 to 171007 as Ex. R1W1/C. He further deposed that the matter was got investigated through their investigator and that it was revealed that the driver of the offending vehicle i.e. R3, at the time of the accident, was a minor. The report and the copy of the birth certificate of R3 which was obtained during the course of investigation was brought on record as Ex. R1W1/A and Ex. R1W1/B respectively. It was further deposed that the Insurance Company had issued a notice u/o 12 rule 8 CPC to the insured i.e. R2 and the office copy of the same was brought on record as Ex. R1W1/D, the postal receipts and the A.D. card are Ex. R1W1/E and Ex. R1W1/G while the reply to the said legal notice by R2 is Ex. R1W1/H.
11. R2 also entered the witness box as R2W1 and deposed on affidavit which he proved as Ex. R2W1/X. He deposed that the deceased did not meet with an accident with his motorcycle but that on 181206, when he was passing the site of the accident on his motorcycle Mohd. Amil being the pillion rider, saw the deceased lying on the road and that people had gathered and were saying that he had been hit by a maruti car. He deposed that R3, Mohd. Amil was not driving the motorcycle and that he was never allowed by the deponent to drive the same. In his cross examination, he admitted that the FIR was not registered against him but the case involving his motorcycle was registered against Mohd. Amil i.e. R3, his brother. In his cross examination, he further stated that he was not present at the place of accident when the police arrived at the spot. He, however, denied the suggestions that at the time of accident, the motorcycle was being driven by R3 and that R3 was driving the motorcycle with his consent. He further admitted that his brother R3, was a minor at the time of accident and was not possessing ...9...
any driving licence. Furthermore, in his cross examination by the counsel for petitioner, he admitted that on 181206, his motorcycle was involved in the accident at Kashmiri Gate near GPO and further admitted the suggestion that his brother had not taken the motorcycle with his permission. He further admitted that his brother Mohd. Amil i.e. R3 had taken the motorcycle to drop his younger brothers and sisters to the school. He admitted that the motorcycle had slipped with his younger brothers and sisters who sustained injuries and were taken to the hospital and this information was given to him by R3 in the hospital since he was not present at the spot. He further admitted that four persons were sitting on the motorcycle, all sustained injuries and that their MLCs were prepared in the hospital in the case FIR No. 618/06.
12. I have heard Sh. G. N. Rathi, counsel for petitioner, Sh. Bharat Bhushan, counsel for R1, Sh. M. Hussain, counsel for R2 and R3, perused the record, scrutinized the evidence adduced and have also gone through the relevant case law and my issue wise finding is as under: ISSUE NO. 1: Whether the death of Vijender was caused due to rash and negligent driving of offending vehicle No. DL1S M7149 being driven by respondent No. 3 ?
It was the emphatic testimony of petitioner no. 1 Smt. Geeta on oath that her husband Sh. Vijender sustained fatal injuries in road accident due to the rash and negligent driving of the motorcycle bearing no. DL1SM7149 by its driver M. Amil i.e. R3. She stated that she was an eyewitness of the accident, being on duty as Safai ...10...
Karamchari in the MCD alongwith her husband Vijender who was also working in the same capacity, sweeping the road in front of GPO, Kashmiri Gate. Her testimony to this effect that she was an eyewitness of the accident and was present at the spot being on duty as a Safai Karamchari was not refuted by any of the respondents either in the WS or during the cross examination of PW1. Her presence at the spot is further fortified by the fact that it was on her statement that the FIR bearing no. 618/06 was lodged in respect to the accident at P.S. Kashmiri Gate and the FIR clearly states the factum of the accident having been caused due to the rash and negligent driving of the offending motorcycle. The injured/deceased was brought to the LNJP Hospital on the same day at about 8:15 a.m. by the petitioner no. 1 Geeta, as clear from the MLC with the history of being injured in the road side accident in front of GPO, Kashmiri Gate. The injured/deceased was admitted in the hospital, and at that time, he was conscious but disoriented and restless, he was bleeding from his ears and the nose, having sustained lacerated wounds over the right side of forehead and abrasions over both the knees. The MLC, death summary and the post mortem report of the deceased, the certified copy of which was brought on record collectively as Ex. C1, having been given by Dr. Vinod, M.D. of the Maulana Azad Medical College, that the deceased has died due to hemorrhage and shock consequent upon multiple injuries to his body. All the injuries were antemortem in nature, recent in duration and were possible in the road side vehicular accident. The mechanical inspection report of the offending motorcycle, the certified copy of which was also brought on record collectively as Ex. C1, having been carried out on 181206 itself, revealed that the motorcycle was badly damaged and broken from the upper side and the left side, the indicators and the speedometer also broken, making it clear that the motorcycle was involved in an accident on 181206, the day of the accident.
The categorical and the uncontroverted testimony of the eyewitness P1, the ...11...
registration of the FIR and the conclusion of the police investigation that it was the rash and negligent driving of the offending motorcycle by R3, that the accident was caused and further the arrest of R3 in the criminal case and the post mortem report of the deceased, all make it prima facie clear that the deceased died in the road side accident due to the involvement of the offending motorcycle bearing no. DL1SM7149, driven by R3, in a rash and negligent manner. Hence, issue no. 1 is decided in favour of the petitioner and against the respondents.
ISSUE NO. 2: To what amount, the petitioners are entitled for compensation and from whom ?
Petitioner no. 1 Smt. Geeta is the widow of the deceased, she also being the eyewitness of the accident. It has been stated on oath by petitioner no. 1 as PW1 that she being the widow and petitioner no. 2 to 6, being the children of the deceased, while petitioner no. 7 Smt. Premwati, being the mother of the deceased, are the only surviving LRs., father of the deceased already having predeceased him. No contrary evidence was led by the respondents to rebut this claim of the petitioner. Petitioner no. 1 and 2 also produced their photo election ICard showing the name of deceased having been shown as the husband and father of the claimants respectively in it. Therefore, the testimony of the petitioner remained unrebuted and uncontroverted on this aspect. It is, therefore, decided that the petitioners no. 1 to 7 are the only legal heirs of the deceased.
Since issue no. 1 has been decided in favour of the petitioners to the effect that the deceased had died due to the injuries sustained by him in the accident with the offending vehicle, the petitioners are entitled to compensation under the Motor Vehicle ...12...
Act 1988 as amended till date under the following heads: LOSS OF DEPENDENCY : The petitioner no. 1 stated in her testimony that the deceased was employed in the capacity of a Safai karamchari in the MCD and was drawing a salary of Rs. 7,292/ per month and that he was in a settled service with bright chances of promotion in the near future. She was corroborated on this core, by PW2 Sh. Avnesh Kumar, UDC from MCD, Civil Line Zone, who asserted that the deceased Vijender was working as a Safai Karamchari in ward no. 114, his date of birth being 10021962. Therefore, on the date of accident, the deceased was 43 years of age. As per the certificate Ex. PW 2/A having been issued by the Superintendent, MCD, Civil Line Zone, the salary of the deceased in December 06, when the accident took place, was Rs. 9,634/. The said certificate Ex. PW 2/A further makes it clear that as Safai Karamchari, there was no scope of any promotion but that in January 08, the salary of the deceased would have been 10,496/ while on his superannuation on 28022022, his pay would have been Rs. 21,881/ approximately.
It is further clear from the admission of PW1 that she was also employed as a Safai Karamchari in MCD while the mother of the deceased i.e. petitioner no. 7, was also so employed in MCD. The five children, petitioner no. 2 to 6 of the petitioner no. 1 and deceased, were all dependent upon their parents, none of them being gainfully employed and therefore, it was the earnings of the deceased and petitioner no. 1 ...13...
with which the household expenses of their family were being met. From the testimony of PW1 and the certificate from the MCD Ex. PW 2/A, which has not been controverted by the respondents, it is established that on the date of accident, the salary of the deceased was Rs. 9,634/ per month which is rounded off to Rs. 9,700/ per month.
It was deposed by PW1 that the deceased was 43 years of age at the time of his death. This fact was corroborated by PW2, an official witness, who deposed that as per the official records, the date of birth of the deceased was 10021962, and that he would have retired on 28022022, meaning thereby that at the time of accident, he was 43 years of age.
In General Manager, Kerala State Road Transport Corporation vs. Susamma Thomas and Ors., 1994 ACJ 01 SC, it has been categorically held by the Hon'ble Apex Court that:
"The determination of the quantum must answer what contemporary society 'would deem to be a fair sum such as would allow the wrongdoer to hold up his head amount his neighbours and say with their approval that he has done the fair thing'. The amount awarded must not be niggardly since the 'law values life and limb in a free society in generous scales'."
It was further held:
"In a fatal accident action, the accepted measure of damages awarded to the dependants is the pecuniary loss suffered by them as a result of the death. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal ...14...
and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last. The multiplier represents the number of years' purchase on which the loss of dependency is capitalised."
In U.P. State Road Transport Corporation and others vs. Trilok Chandra and others 1996 (2) ACJ 831 S.C. following the dictums in the Susamma Thomas case (supra), it was further held that "under the II schedule, the maximum multiplier can be upto 18 and cannot exceed 18."
In Sarla Dixit & Another vs. Balwant Yadav & Others 1996 ACJ 581 S.C., the Hon'ble Apex Court reiterated that:
"The multiplier method is the accepted method of ensuring a 'just' compensation which will make for uniformity and certainty of the awards."
It was further observed that in the case of fatal accidents, the future prospects of the deceased in his job/vocation/profession also ...15...
needs to be assessed in order to arrive at the amount which could be termed 'just' compensation. It was held:
"The average gross future monthly income could be arrived at by adding the actual gross income at the time of death, to the maximum which he would have otherwise got had he not died a premature death and dividing that figure by two. From that gross monthly income at least 1/3rd will have to be deducted by way of his personal expenses and other liabilities."
Reverting back to the instant case, it is established that the salary of the deceased on the date of accident was Rs. 9,700/ per month. The certificate Ex. PW 2/A has clearly mentioned that there was no scope for any promotion for the deceased, as Safai Karamchari was a nonpromotionary post. However, the salary on the superannuation of the deceased has been mentioned to be Rs. 21,000/ but which is on hypothetical, and rather an exaggerated and unexplained premise. Therefore, I deem it expedient to adopt the formula which has been specified by the Hon'ble Apex Court in Sarla Dixit Case (supra). As per statement of petitioner no. 1 and uncontroverted statement of PW2, the age of the deceased on the date of accident was 43 years which I am inclined to accept and therefore, as per schedule II, the multiplier of 15 would be applicable.
It is also a well settled principle of law as held in catina of judicial pronouncements that the deceased must have spent 1/3 of his income on himself.
Therefore, the total loss of dependency would be 9,700/ x 15 x 12 x 2/3 which is equal to 11,63,333, which is rounded ...16...
off to Rs. 11,64,000/. Hence, petitioners are entitled to Rs. 11,64,000/ for loss of financial dependency.
LOSS OF LOVE AND AFFECTION/CONSORTIUM: In Kailashwati vs. Balbir Singh, II 2008 ACC 49 (Delhi), our own Hon'ble High Court has awarded Rs. 50,000/ as loss of consortium and Rs. 30,000/ as loss of love and affection. The deceased was a man of 43 years of age, in his prime and was enjoying good health and physique. The loss of love and affection to the family and the emotional trauma that wife, children and aged mother would have undergone, cannot be assessed in monetory terms. I, however, considering the overall facts and circumstances of the case, award a sum of Rs. 30,000/ to the petitioners towards loss of love and affection.
There was a loss of consortium to the wife which is assessed at Rs. 50,000/. FUNERAL EXPENSES:
I award a sum of Rs. 5,000/ to the petitioners on account of funeral expenses.
LOSS OF ESTATE: I award a sum of Rs. 5,000/ to the petitioners on account of loss of estate.
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ISSUE NO. 3 : RELIEF.
In view of my findings on issue no. 1 and 2 above, petitioners are awarded the following compensation: LOSS OF DEPENDENCY RS. 11,64,000/ LOSS OF LOVE AND AFFECTION RS. 30,000/ LOSS OF CONSORTIUM RS. 50,000/ FUNERAL EXPENSES RS. 5,000/ LOSS OF ESTATE RS. 5,000/ _____________ TOTAL RS. 12,54,000/ Hence, the petitioners are awarded a compensation of Rs. 12,54,000/ alongwith interest @ 7.5 % p.a. from the date of filing of the petition i.e. 50207 till its realization.
13. Counsel for the Insurance Company contended that the Insurance Company was not liable to pay the compensation amount as there was a breech of the terms and conditions of the policy of the offending motorcycle by the insured i.e. R2 M. Kamil. It was elucidated that the offending vehicle, at the time of accident, was being driven by R3 M. Amil, who was a minor and was thus, not possessing the requisite driving licence. On the other hand, it was contended on behalf of the petitioner as well as on behalf of R1 and R2, in order to avoid liability in respect of third party claim, it is for the insurer to plead and prove that the insured was guilty of an infringement or violation of the terms and conditions of the insurance polity and that such infringement or violation on the part of the insured was willful. Furthermore, the counsel for petitioner contended that even if it was found that there was a willful breech of the terms and conditions of the insurance polity by the insured i.e. R2, the Insurance Company cannot frustrate the claim of the ...18...
petitioners, by avoiding its liability but after paying the compensation, can at the most be granted recovery rights against the insured, to recover the compensation amount. In support of their contentions, petitioners placed reliance upon Oriental Insurance Company Ltd. vs. Zaharulnisha and Ors. 2008 ACJ 1928 Supreme Court, Daddappa vs. Branch Manager, National Insurance Company 2008 ACJ 581 Supreme Court, National Insurance Company vs. Baljit Kaur, 2004 ACJ 428 Supreme Court and National Insurance Company Ltd. vs. Swaran Singh 2004 ACJ (1) Supreme Court.
14. R1W1 in his testimony brought on record the birth certificate of R3 as Ex. R1W1/B which clearly showed the date of birth of R3 was 8021990, R3, therefore, being a minor on the date of accident. During the examination in chief of R1W1, the mode of proof of the said birth certificate was objected to by the opposite counsels but it may be mentioned that the proceedings before the tribunal are not bound by the rigors of the CPC and therefore, cannot be made redundant only on technical grounds. Furthermore, the factum of R3 being a minor on the date of accident, was categorically admitted by R2 in his cross examination. However, the stand of R2 was inconsistent in as much as in his WS and his examination in chief as R2W1, he stated that the accident was not caused with his motorcycle and that it was he who was driving the motorcycle while R3 was the pillion rider and that he had stopped to held the injured/deceased who was lying on the road and had removed him to the hospital on humanitarian ground but his vehicle was falsely implicated in the criminal case. In his cross examination, however, he admitted that he was not present at the place of accident when the police arrived at the spot and that a case was registered against R3 and he was ...19...
arrested in the criminal case. He further admitted in his cross examination, that on 181206 at about 7:15 a.m., his motorcycle was involved in an accident in Kashmiri Gate area, and that his brother, R3, was taking the younger brothers and sisters to the school on the motorcycle and that the motorcycle slipped because of several people were present on the spot where the accident of the deceased had already taken place. He further asserted in his cross examination that the information about the accident was given to him by R3 in the hospital where the MLCs of all his four brothers and sisters were prepared. From the shifting testimony of R2, it is obvious that he is not a reliable person in as much as he has taken wrong stand that no accident took place with his motorcycle but that it was falsely implicated in the criminal case, even though the mechanical inspection report dated 181206 clearly corroborates the factum of the motorcycle having been involved in forceful accident, R3 being arrested from the spot and other brother/sisters of R2 & R3 also having been injured in the accident.
15. It is admitted by R2 in the cross examination that his motorcycle was being driven by R3 who had taken his younger brothers and sisters to the school on the motorcycle. The owner of the motorcycle was R2 and his younger brothers and sisters including R3 were staying with him. The younger siblings had to go to school, and it was probably a routine, with which R2 was duly familiar. The fact that R3 took R2's motorcycle to drop the younger brothers and sisters to the school was obviously with the tacit or implied consent of R2 who very well knew that R3 was a minor and was not possessing a requisite driving licence. In these circumstances, I am of the opinion that there was a willful breech of the terms and conditions of the admitted insurance policy Ex. R1W1/C. ...20...
16. The law on the subject has been settled by the celebrated judgment of the Hon'ble Supreme Court titled as National Insurance Company Ltd. vs. Swaran Singh, 2004 I AD (SC) 491. While summarizing the findings in the said case, the Hon'ble Apex Court held that:
" (iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in subsection (2) (a) (ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards 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."
It was further laid down "Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149 (2) read with subsection (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. such determination of claim by the Tribunal will be enforceable and the money found will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner u/s 174 of the Act as ...21...
arrears of land revenue."
17. The same principle was followed in the other judgments titled Oriental Insurance Company Ltd. vs. Zaharulnisha and Others, National Insurance Company vs. Baljit Kaur 2004 ACJ 428 Supreme Court, etc. cited (supra). It is, therefore, clear from the testimony of R1W1/A and the various admissions made by R2 as well as corroboratory evidence adduced by the petitioners, the deceased died due to the injuries sustained by him in the road accident with the offending motorcycle which was driven in a rash and negligent manner by R3 who was not holding a valid driving licence, being a minor at the relevant time. There was, thus, a breech of terms and conditions of the policy by the insured R2.
18. The respondent no. 1 being the insurer, respondent no. 2 being the owner of the offending vehicle and respondent no. 3 being the driver of the offending vehicle are jointly and severaly liable to pay the compensation to the petitioner. However, the Insurance Company in view of the discussion above, is entitled to the recovery rights and can recover the compensation amount by taking appropriate steps.
19. In view of my findings on issue no. 1 and 2, petitioner no. 1, being the widow, petitioner no. 2 to 6, being the children and petitioner no. 7, being the mother of the deceased are entitled to a compensation of Rs. 12,54,000/ with interest @ 7.5% p.a. As per the record, no interim compensation has till date been awarded. The compensation amount is approportioned as under : ...22...
Petitioner no. 1 : Rs. 7,04,000/ (alongwith proportionate interest)
Petitioner no. 2 : Rs. 1,00,000/ ''
Petitioner no. 3 : Rs. 1,00,000/ ''
Petitioner no. 4 : Rs. 1,00,000/ ''
Petitioner no. 5 : Rs. 1,00,000/ ''
Petitioner no. 6 : Rs. 1,00,000/ ''
Petitioner no. 7 : Rs. 50,000/ ''
20. Petitioner no. 1 Smt. Geeta is the widow of the deceased. Out of the total compensation amount, Rs. 7,04,000/ is awarded to petitioner no. 1 alongwith proportionate interest. Out of this amount, a sum of Rs. 1,04,000/ alongwith proportionate interest be given to the petitioner no. 1 in cash. The remaining amount of Rs. 6,00,000/ alongwith proportionate interest be deposited in the form of an FDR in a nationalized bank, in FDRs of not less than Rs. 50,000/ each. Two of the said FDRs shall be for a period of two years, two FDRs shall be for a period of three years and the remaining FDRs shall be for a period of five years, without the facility of advance/loan or withdrawal. However, petitioner no. 1 shall be entitled to withdraw the monthly or the quarterly interest, as applicable.
21. Petitioner no. 2 to 6 are all awarded a compensation of Rs. 1 lac each with proportionate interest. The entire amount of all the five petitioners be deposited in the form of FDR of not more than Rs. 50,000/ each, in any nationalized bank for a period of 3 years without the facility of advance/loan or advance. However, the petitioners no. 2 to 6 shall be entitled to the monthly or the quarterly interest, as applicable. Since petitioner no. 6 is a minor, the withdrawal of the quarterly interest against her share shall be withdrawn by her natural guardian Smt. Geeta, petitioner no. 1.
...23...
22. Petitioner no. 7 Smt. Premwati, being mother of the deceased, is also employed as a Safai Karamchari in MCD. Therefore, she is awarded a compensation of Rs. 50,000/ with proportionate interest, out of which Rs. 40,000/ be deposited in the form of an FDR in a nationalized bank for a period of 3 years without the facility of advance/loan or withdrawal. However, petitioner no. 7 shall be entitled to the monthly or the quarterly interest, as applicable.
23 Respondent no. 1, ICICI Lombard General Insurance Co. Ltd., is directed to place on record the cheques of compensation within 30 days from today i.e. the date of award. No order as to costs. Copy of the order be given dasti to the retainer of the Insurance Company for compliance and a copy of the order be also given free of cost to the remaining parties. File be consigned to the Record Room. ANNOUNCED IN THE OPEN COURT on 6th of January, 2009 (SEEMA MAINI) JUDGE:MACT:DELHI