Delhi District Court
Tara Devi vs Praveen Tomar on 26 March, 2018
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
Suit No.: 642/16
Unique Case I.D No.: MACT/8276/2016
1. Tara Devi
W/o Late Datatrey Pandey
2. Priyanka Kumari
D/o Late Datatrey Pandey
3. Nibha Kumari
D/o Late Datatrey Pandey
Residents of:
H. No. A-48/214, Bhagat Singh Gali,
Near Shiv Mandir, Mandawali, Delhi
Permanent Address:
VPO Udhura, PS Brahampur,
Buxar, Bihar-802 130
D-611/16
Unique Case I.D No.: MACT/6163/2016
Manish Kumar Paswan
S/o Sh. Premi Paswan
R/o H. No. A-48/212, Bhagat Singh Gali,
Near Shiv Mandir, Mandawali,
Delhi.
..... Petitioners
VERSUS
1. Praveen Tomar
S/o Late Mahipal Tomar
Village Sadaullahpur, Baraut,
Baghpat, U.P.-250611
..... Driver-owner
2. ICICI Lombard General Insurance Co. Ltd.
ICICI Lombard House, 414, Veer Savarkar Marg,
Near Sidhi Vinayak Temple, Prabhadevi, Mumbai-400 025
..... Insurer
..... Respondents
Date of Institution : 08.06.2016
Date of reserving : 15.03.2018
Date of Judgment : 26.03.2018
JUDGEMENT
DAR No.: 611/2016 Manish Kumar Paswan vs Praveen Tomar & Ors. 1 of 16 PLEADINGS:
1. Mr. Datatrey Pandey, (the deceased), 47 years, was riding pillion on the motorcycle make Bajaj Pulsar bearing registration No. DL 7S BS 5975 (the motorcycle) driven by Mr. Manish Kumar Paswan (the injured), on their way to Noida from Akshardham, at about 04.35 p.m. on 12.03.2016 at NH-24, near foot over bridge (FOB), Noida Link Road, Delhi when the motorcycle make Hero Honda Splendor Pro bearing registration No. UP 17K 5866 (the offending vehicle), allegedly driven in rash and negligent manner, hit the motorcycle and consequently, Mr. Datatrey Pandey died and Mr. Manish Kumar Paswan suffered simple injuries. Smt. Tara Devi, Priyanka Kumari and Nibha Kumari, being wife and unmarried daughters of the deceased, and Mr. Manish Kumar Paswan instituted accident claim cases vide suit No. 642/16 and D-611/16 for seeking compensation in the context of detailed accident reports (DAR) submitted by ASI Ved Prakash, CMVAI Cell, East District, Delhi Police under section 166 (4) of the Motor Vehicles Act, 1988 (MV Act) on the basis of the evidence collected during investigation of FIR No. 131/16 under section 279/337/304A of the Indian Penal Code, 1860 (IPC) registered at PS Mayur Vihar impleading driver-owner and the insurer of the offending vehicle as the respondent No. 1 and 2.
2. The respondent No. 1 / driver-owner of the offending vehicle, in his written statement, contended that he has not caused any accident. He claimed false implication. He denied his liability to pay compensation.
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3. The respondent No. 2 / insurer of the offending vehicle, in its written statement, conceded that it had insured the offending vehicle in the name of the respondent No. 1 for the period in question. It pleaded breach of terms and conditions of the insurance policy on the ground that the respondent No. 1 was not holding a valid and effective driving license and he has been prosecuted under section 3/181 of the MV Act. It also challenged the age of the deceased. It stated that the age of the deceased is mentioned as 53 years in the police record.
ISSUES:
4. On the pleadings, in Suit No. 642/16, following issues were framed:
(i) Whether Mr. Datatrey Pandey died in a motor vehicular accident on 12.03.2016 at about 04.35 p.m. near foot over bridge (FOB), Noida Link Road, Delhi within jurisdiction of PS Mayur Vihar due to rash and negligent driving of motor vehicle bearing registration No. UP 17K 5866 by the respondent No. 1 / Praveen Tomar?
(OPP)
(ii) Whether the respondent No. 1 / Praven Tomar was holding a valid and effective driving license to drive the motorcycle on the date of the accident, if not, its effect?
(OPR1)
(iii) Whether there was breach of any term and condition of insurance policy, if so, its effect?
(OPR2)
(iv) Whether the petitioners are entitled to compensation, if so, to what amount and from whom?
(OPP)
(v) Whether the petitioners are entitled to interest on the award amount, if so, at what rate of interest and for which period?
(OPP)
(vi) Relief DAR No.: 611/2016 Manish Kumar Paswan vs Praveen Tomar & Ors. 3 of 16
5. On the pleadings, in D-611/16, following issues were framed:
(i) Whether Mr. Manish Kumar Paswan suffered injuries in a motor vehicular accident on 12.03.2016 at about 04.35 p.m. near foot over bridge (FOB), Noida Link Road, Delhi within jurisdiction of PS Mayur Vihar due to rash and negligent driving of motor vehicle bearing registration No. UP 17K 5866 by the respondent No. 1 / Praveen Tomar?
(OPP)
(ii) Whether the respondent No. 1 / Praveen Tomar was holding a valid and effective driving license to drive the motorcycle on the date of the accident, if not, its effect?
(OPR1)
(iii) Whether there was breach of any term and condition of insurance policy, if so, its effect?
(OPR2)
(iv) Whether the petitioner is entitled to compensation, if so, to what amount and from whom?
(OPP)
(v) Whether the petitioner is entitled to interest on the award amount, if so, at what rate of interest and for which period?
(OPP)
(vi) Relief PETITIONER'S EVIDENCE:
6. Mr. Manish Kumar Paswan appeared as PW-1. He deposed about the mode of accident. He relied on his driving license Ex.PW1/A.
7. Smt. Tara Devi, wife of the deceased, appeared as PW-2. She filed evidence by way of affidavit Ex.PW2/1. She relied on voter card of the petitioners Ex.PW2/A (colly), voter card of the deceased Ex.PW2/B and criminal case record Ex.PW2/C. DAR No.: 611/2016 Manish Kumar Paswan vs Praveen Tomar & Ors. 4 of 16 RESPONDENT'S EVIDENCE:
8. The respondent No. 1 appeared as R1W1. He filed his evidence by way of affidavit Ex.R1W1/1. He relied on copy of learner's license Ex.R1W1/X, copy of driving license Ex.R1W1/A, insurance cover of the offending vehicle Ex.R1W1/B and registration certificate of the offending vehicle Ex.R1W1/C. FINAL ARGUMENTS:
9. I have heard arguments of Ms. Sulekha Thakur, Advocate for the petitioners, Ms. Khushboo, Advocate for the respondent No. 1 and Sh. Mohd. Rafi, Advocate for the respondent No. 2 / insurer and examined the record.ISSUE NO. 1
10. Proof of rash and negligent driving of the offending vehicle is sine qua non. In order to discharge the burden of proof, Manish Kumar Paswan appeared as PW-1. He was driving the motorcycle on the pillion of which the deceased was riding. He suffered injuries in the accident. The corresponding criminal case was promptly registered on his statement at 09.20 p.m. on 12.03.2016 within 5 hours and 35 minutes from the time of accident. In his evidence, he has vividly described the sequence of events leading to the accident. His evidence is in sync with his statement, as recorded in FIR, on the aspect of mode of accident. The respondent No. 1, though denied the accident in his written statement and affidavit Ex.R1W1/A, admitted, in his cross-examination, that 'he had not given reply to the notice under section 133 of MV Act as he was driving the vehicle at the time of accident'.
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11. What emerged from the evidence of PW-1 Manish Kumar Paswan is that the motorcycle driven by him and offending vehicle were moving in the same directions and the offending vehicle overtaken him from left side and suddenly, taken a right turn without any indication or signal and in that process, it had hit the motorcycle on which the deceased and PW-1 Manish Kumar Paswan were moving and consequently, they fell down on the road and suffered injuries.
12. Rash and negligent driving of the offending vehicle is evident from the fact that it had overtaken the motorcycle from its left side and the respondent No. 1 taken sudden right turn without any indication or signal. The respondent No. 1 has not explained as to why he could not avoid the accident. He has not deposed his account of the accident. He escaped from the place of the accident alongwith offending vehicle and such conduct establishes his culpability. The speed of the offending vehicle can be judged from the impact of the collision that it resulted into instant death of the deceased.
13. As noted in MLC, the deceased was admitted in Kailash Hospital and Heart Institute, Noida at 05.00 p.m. on 12.03.2016 as a case of road traffic accident (RTA) in 'brought dead' condition. The cause of death of the deceased was 'coma as a result of ante-mortem head injuries'
14. According to MLC, PW-1 Manish Kumar Paswan was examined at 05.20 p.m. on 12.03.2016 in Kailash Hospital and Heart Institute, Noida as a case of road traffic accident (RTA).
He had wound on right knee measuring 2 cm x 2 cm and left upper forearm measuring 6 cm x 4 cm.
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15. It is, therefore, proved that the deceased died and Mr. Manish Kumar Paswan suffered injuries in a motor vehicular accident due to rash and negligent driving of the offending vehicle by the respondent No. 1.
16. Therefore, issue No. 1 is decided in favour of the petitioners and against the respondents.
ISSUE NO. 2 AND 317. The respondent No. 2 / insurer pleaded breach of terms and conditions of insurance policy on the ground that the respondent No. 1 was not holding a valid driving license to drive the offending vehicle. The respondent No. 1 did not produce driving license at the time of the investigation and therefore, he has been prosecuted under section 3/181 of M.V. Act. However, during the inquiry, the respondent No. 1 relied on license No. UP17 00022552016 Mark 'R1W1/X' and license No. UP17 20160003848 Ex.R1W1/A.
18. The respondent No. 1 was holding a driving license vide license No. UP17 00022552016 issued on 30.01.2016 for LMV (NT) and motorcycle with gear Mark 'R1W1/X'. He was issued driving license bearing license No. UP17 20160003848 on 07.04.2016 for LMV and motorcycle with gear (MCWG). The date of accident is 12.03.2016. It is, therefore, evident that the respondent No. 1 was holding a learner's license on the date of the accident. It is not the case of the respondent No. 1 that he was accompanied by any person having valid driving license at the time of the accident. Therefore, the plea of the insurance company about breach of terms and conditions of insurance policy deserves to be accepted.
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19. In HDFC Ergo General Insurance Co. Ltd. versus Subhash Chand & Ors., MAC APP. 788/2014 decided on 18.05.2016, the insurance company, during the inquiry, pleaded that the driver was holding a learner's license at the time of the accident. The Tribunal rejected plea of the insurance company about breach of terms and conditions of the policy on the ground that learner's license was valid and effective license. Insurance Co. reiterated its plea in the appeal. Hon'ble High Court of Delhi held, as under:
"Section 3 of the Motor Vehicles Act, 1988 declares that no person shall drive motor vehicle in public place unless he holds an effective driving license issued to him authorizing him to drive a vehicle. Rule 3 of the Central Motor Vehicle Rules, 1989 declares that the provisions contained in Section 3(1) shall not apply to a person while receiving instruction or gaining experience in driving with the object of presenting himself for a test of competence to drive so long as such person is holder of an effective learner's license and such person is accompanied by an instructor holding an effective driving license to drive the vehicle, he (such instructor) sitting in such a position as to control or stop the vehicle. In the absence of any evidence showing the presence of any other person with the second respondent (learner) who may have been holding a valid or effective driving license, the plea of the insurer about the breach of terms and conditions of the insurance company must be accepted. The insurance company is granted recovery rights against the owner and driver."
20. Issue No. 2 and 3 are decided in favour of the respondent No. 2 / insurer and against the respondent No. 1. However, the respondent No. 2 / insurer cannot be exonerated. Third party interest cannot be defeated by breach of terms and conditions of the policy. The respondent No. 2 / insurer is granted recovery rights against the respondent No. 1.
DAR No.: 611/2016 Manish Kumar Paswan vs Praveen Tomar & Ors. 8 of 16 Suit No. 642/16 ISSUE NO. 4
21. The petitioners being wife and unmarried daughters of the deceased are entitled to seek compensation for his death.
DETERMINATION OF INCOME OF THE DECEASED:
22. The case of the petitioners, as pleaded in the petitioner, was that the deceased was doing a private job and earning Rs. 15,000/- p.m. However, Smt. Tara Devi, wife of the deceased, in her affidavit Ex.PW2/1, deposed that 'the deceased was doing private job and earning Rs. 10,000/- per month'. The petitioners have not led any evidence to prove avocation and income of the deceased. In her cross- examination, she stated that her husband was working as a security guard in Connaught Place. She did not know the place of employment of the deceased. In these circumstances, the Tribunal is constrained to take recourse to minimum wages as applicable at the relevant time. The deceased was residing in Delhi. This fact can be gathered from the criminal case record, particularly, FIR, MLC and post-mortem report. PW-2 Smt. Tara Devi was categorical in affirming that the deceased was working for gain in Delhi. Therefore, rates of minimum wages as applicable in Delhi can be considered as benchmark. The income of the deceased is assessed as Rs. 9,178 per month, it being prevalent minimum wages payable to an unskilled worker in Delhi.
DAR No.: 611/2016 Manish Kumar Paswan vs Praveen Tomar & Ors. 9 of 16 DEDUCTION TOWARDS PERSONAL EXPENSES:
23. The deceased was survived by his wife and two unmarried daughters. Therefore, one-third of the income of the deceased is deducted towards his personal living expenses in accord with the ruling in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121. APPLICATION OF MULTIPLIER:
24. Smt. Tara Devi, wife of the deceased placed a copy of voter card of the deceased Ex.PW2/B. According to voter card of the deceased Ex.PW2/B, the deceased was born in the year 1969. The deceased was 47 years old. Therefore, multiplier of 13 as applicable to age group between 46 to 50 years would apply.
25. Ld. counsel for the respondent No. 2 contended that the age of the deceased is mentioned as 53 years in post- mortem report and therefore, it will have precedence over the age mentioned in voter card of the deceased Ex.PW2/B.
26. The tribunal does not subscribe the view as taken by the respondent No. 2 for determination of the age of the deceased. In the case of NATIONAL INSURANCE CO LTD versus BHAGIRATH & ORS., MAC.APP. 877/2014 decided on 09.05.2016, Hon'ble High Court of Delhi determined the age of the deceased on the basis of election identity card.
27. In the case of RAJIV MITTAL versus DAYA NAND VERMA & ANR., MAC.APP. 10/2010 decided on 10.05.2016, Hon'ble High Court of Delhi observed that there is no reason why the age noted in the medical records should be preferred as a better proof as against the ration card.
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28. In the case of NEW INDIA ASSURANCE CO LTD versus NIRMALA DEVI & ORS., MAC.APP. 575/2007 decided on 11.05.2016, the age of the deceased was determined on the basis of ration card in preference to post-mortem report.
29. The post-mortem report does not state the basis of the said mention of age recorded by the autopsy doctor. In the presence of better proof of age in the form of voter card, the age mentioned in the post-mortem report cannot be considered for selection of multiplier.
FUTURE PROSPECTS:
30. The case of the deceased would fall under the category of 'self-employed'. He was below 50 years. Following the ruling of a Constitution Bench of the Supreme Court delivered on 31.10.2017 in SLP (C) 25590/2014, National Insurance Company Ltd. Vs. Pranay Sethi and Ors., there will be addition of income to the extent of 25%. LOSS OF DEPENDENCY:
31. Applying the multiplier of 13 after making deduction to the extent of one-third towards personal living expenses and addition of 20% of future prospects, the loss of dependency is computed as (9,178 x 2 / 3 x 125 / 100 x 12 x 13) 11,93,140/- (rounded of) Rs. 11,94,000/-.
NON-PECUNIARY DAMAGES:
32. As per dispensation in Pranay Sethi (supra), Rs. 40,000/- towards loss of consortium and Rs. 15,000/- each on account of loss of estate and funeral expenses are added.
DAR No.: 611/2016 Manish Kumar Paswan vs Praveen Tomar & Ors. 11 of 16 D-611/16 ISSUE NO. 4:
33. The petitioner / Manish Kumar Paswan suffered injuries in the accident. He is entitled to seek compensation for the injuries suffered by him.
34. Mr. Manish Kumar Paswan (PW-1), in his statement, stated that he suffered simple injuries in the accident. According to MLC, he sustained 'wound on right knee measuring 2 cm x 2 cm and wound on left upper forearm measuring 6 cm x 4 cm'. He is awarded an amount of Rs. 5,000/- as compensation for 'pain and suffering' and an amount of Rs. 5,000/- towards 'special diet and conveyance'.
35. In Suit No. 642/16, the compensation awarded to the petitioners is computed, as under:
Sl. No. Head of compensation Amount
1. Loss of dependency Rs. 11,94,000/-
2. Non-pecuniary damages Rs. 70,000/-
TOTAL Rs. 12,64,000/-
36. In D-611/16, the compensation awarded to the petitioner is computed, as under:
Sl. No. Head of compensation Amount
1. Pain and suffering Rs. 5,000/-
2. Special diet and conveyance Rs. 5,000/-
TOTAL Rs. 10,000/-
LIABILITY:
37. The respondent No. 2 / insurer shall pay the compensation amount to the petitioners. However, the respondent No. 2 / insurer is granted recovery rights against the respondent No. 1 through appropriate proceedings.
DAR No.: 611/2016 Manish Kumar Paswan vs Praveen Tomar & Ors. 12 of 16 AWARD Suit No. 642/16
38. The petitioner No. 1, 2 and 3 are awarded compensation in the sum of Rs. 12,64,000/- alongwith interest @ 9% per annum from the date of filing of the petition (08.06.2016) till the date of award. The respondent No. 2 / insurer shall deposit the award amount with the tribunal within 30 days and otherwise, the award amount will carry interest @ 9% per annum from the date of filing of the petition till realization. [See: judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.] APPORTIONMENT AND MODE OF DISBURSAL:
39. The petitioner No. 1 / wife and the petitioner No. 2 and 3 / daughters shall be entitled to the award amount in the ratio of 60:20:20.
40. In accordance with order dated 13.02.2017 in FAO 842 / 2003 in the case of Rajesh Tyagi & Ors. vs Jaibir Singh & Ors. by Hon'ble High Court of Delhi, Manager, UCO Bank, KKD Courts, Delhi is directed to secure Rs. 7,20,000/- out of Rs. 7,58,400/-, as awarded to the petitioner No. 1 / Smt. Tara Devi, in 36 FDRs of Rs. 20,000/- each in her name for the period of 1 month to 36 months respectively and balance amount of Rs. 38,400/- be released into her savings bank account, as and when informed to the bank by the Tribunal.
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41. Manager, UCO Bank, KKD Court is directed to secure Rs. 2,52,800/- as awarded to the petitioner No. 2 / Priyanka Kumari in the form of FDR for 3 years in her name.
42. Manager, UCO Bank, KKD Court is directed to secure Rs. 2,52,800/- as awarded to the petitioner No. 3 / Nibha Kumari in the form of FDR for 3 years in her name.
43. Interest component of the award amount is awarded to the petitioner No. 1 / Smt. Tara Devi which will be secured in her name in the form of FDR for the period of 5 years.
44. Manager, UCO Bank, KKD Court, Delhi shall retain the original fixed deposit receipts. A copy of the fixed deposit receipts alongwith a statement be provided to the petitioners.
No loan, advance or security will be permitted in respect of the fixed deposit receipts. There shall not be premature release of any of fixed deposit receipt without permission or order of the tribunal. On maturity, fixed deposit receipts will be transferred to the savings bank accounts of the petitioners, as informed to bank, by the tribunal.
D-611/16
45. The petitioner is awarded compensation in the sum of Rs. 10,000/- alongwith interest @ 9% per annum from the date of filing of the petition (08.06.2016) till the date of award. The respondent No. 2 / insurer shall deposit the award amount with the tribunal within 30 days and otherwise, the award amount will carry interest @ 9% per annum from the date of filing of the petition till realization. [See: judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.] DAR No.: 611/2016 Manish Kumar Paswan vs Praveen Tomar & Ors. 14 of 16
46. Copy of award be supplied to the petitioners and the respondents for compliance. File be consigned to record room.
Announced in the open Court Sh. Sanjay Sharma
Dated: 26th March, 2018 Presiding Officer MACT (East)
Karkardooma Court, Delhi
Digitally signed by
SANJAY SHARMA
SANJAY Location: East
District,
SHARMA Karkardooma Courts,
Delhi
Date: 2018.03.26
16:12:29 +0530
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DAR No. 611/16
26.03.2018
Present : Ms. Sulekha Thakur, Advocate for the petitioner.
Sh. Pankaj Bhushan, Advocate for R1 / driverowner. Sh. Mohd. Rafi, Advocate for R2 / Insurance Co.
Vide separate judgment, award is passed. To come up for compliance on 25.05.2018.
Sanjay Sharma PO MACT (East)/KKD Delhi/26.03.2018 DAR No.: 611/2016 Manish Kumar Paswan vs Praveen Tomar & Ors. 16 of 16