Delhi District Court
Police Station Okhla Industrial Area vs Regn.No.6242010 (Fir No.357/2 on 6 November, 2012
IN THE COURT OF MS. NIRJA BHATIA :
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL :
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
Regn.No.624/2010
FIR No.357/2010
Police Station Okhla Industrial Area
Injury Cases
1 Ms.Kavita Daughter of late Shri Amar Singh,
2 Smt.Jai Devi Wife of late Shri Amar Singh,
Both residents of :
A-79, Mohalla Mahipal Neta, Lal Kuan, Block-A,
Near Badarpur, PS Pul Pehladpur, New Delhi.
3 Shri Mishri Lal Son of Shri Bachhi Yadav,
R/o B-12, Okhla Industrial Area, Phase-I, New Delhi.
Fatal Case
1 Smt.Santosh Kumari Wife of late Shri Jagdish Lal,
2 Shri Gulshan Kumar Son of late Shri Jagdish Lal,
3 Smt.Deepti Daughter of late Shri Jagdish Lal,
4 Ms.Barkha Daughter of late Shri Jagdish Lal,
5 Ms.Komal Daughter of late Shri Jagdish Lal,
All residents of :
25-A, Pocket A-3, DDA Flats, Kalkaji Extension, New Delhi-19.
......Petitioners
VERSUS
Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 1 of 21
1 Tej Narayan Chaudhary Son of Shiv Poojan, (driver)
R/o A-323, Jhuggi Indra Kalyan Vihar, Okhla, Phase-I, New Delhi
2 Virender Prasad Son of Ayodhya Prasad, (owner)
R/o B-13/A, Indra Kalyan Vihar, Okhla, Phase-I, New Delhi.
3 Future Generali India Insurance Company Limited,
SCO 30 & 31, Sector-16, 1st Floor, Main Market,
(Above Sabka Bazar), Faridabad, Haryana-121002
.....Respondents
----------------------------
Date of institution : 24.11.2010
Date of reserving the judgment : 06.11.2012
Date of pronouncement : 06.11.2012
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AWARD
Vide this common order, I shall dispose of the claims respect of injury/fatal cases arising out from DAR based on FIR No.357/2010, PS Okhla Industrial Area.
2 The facts relevant for the decision have been detailed by the IO, SI Nizamuddin stating that on 17.10.2010, on receiving the information of accident, when he reached Crowne Plaza Hotel, he found one Champion, bearing registration No.DL 1L L-8326 in accidented condition. The injured had been admitted to the hospital by then. When he reached AIIMS Trauma Centre, he found one Mishri Lal son of Bachhi Lal, one Jai Devi wife of Amar Singh and Kavita D/o Amar Singh hospitalized while one unknown had been found unfit for statement. The injured Mishri Lal came forward to make the statement and disclosed that the injured persons had gone to watch the Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 2 of 21 burning of effigies of Ravan on the occasion of Dussehra festival whereafter, after watching the Mela and enjoying the festival at Nehru Place, he sat at the instance of the driver of Champion, bearing registration No.DL 1L L-8326 (the offending vehicle) and in the same vehicle, the other injured persons and one old aged man (unknown) aged about 60 years, were made to sit and when it reached Crowne Plaza Hotel Today, it overturned due to rash and negligent driving of the erring driver who was plying the Champion. The erring driver immediately fled from the spot while he along with Jai Devi and Kavita sustained the injuries. The old aged man became unconscious. At the instance of the above complaint, the IO conducted the investigation as in the meanwhile, the unknown person died and his identity was established as Jagdish Lal, further proceedings were conducted and after filing the charge- sheet, the IO filed the DAR in consonance of the guidelines issued by Hon'ble High Court in case titled, Rajesh Tyagi Versus Jaivir, FAO No.842/2003. 3 The IO also produced all the parties at the time of filing the DAR. The insurance company refused to make the offer claiming that it has defence whereafter the WS was filed. Since, the driver/owner did not file the replies, their defence was struck of.
4 The issues thereafter, were framed separately vide order dated 17.1.2011 to the following extent :
1 Whether the deceased/petitioner suffered fatal/ grievous injuries in the accident which took place on 17.10.2010 involving Champion No.DL 1L L-8326 due to rash and negligent driving of Tej Narain, owned by Virender Prasad and insured with Future Generali India Insurance Co.? OPP Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 3 of 21 2 Whether the petitioners are liable for compensation?
If so, to what amount and against which of the respondents?
3 Relief.
5 The parties thereafter were asked to lead their evidenced. The petitioners through counsels, tendered their examination affidavits. As in the meanwhile, the driver/owner completely stopped causing appearance, they were proceeded ex-parte vide order dated 31.10.2011. After the conclusion of PE, the insurance company through its official, Ms.Rakhi Anand, tendered her examination affidavit. The witness was cross-examined whereafter the RE was closed. Submissions have been addressed by the learned counsels for the parties. I have heard the same and have carefully perused the record. My findings on the issues are as follows :
ISSUE NO.1 : NEGLIGENCE :
6 Since, the present petition is instituted under Section 166 MV Act, it was incumbent upon the petitioners to establish the factum of negligence attributable to the erring driver, Tej Narayan, in plying the offending Champion, bearing registration No.DL 1L L-8326, rashly and negligently. Since, the present matter is based on DAR proceedings as per the directions of Hon'ble High Court and approved by Hon'ble Supreme Court in case titled, Jai Prakash Versus National Insurance Company, 1 (2010) ACC 1 SC, the IO after having received the information of accident, has conducted the investigation and besides filing the charge-sheet, has filed the detailed report. The facts leading to the accident have been narrated by Mishri Lal who was also travelling in the offending Champion at the time of accident, disclosing that on the day of incident, he had gone to watch the festival of Dussehra and while returning, the erring driver stopped himself and other persons at about Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 4 of 21 6.25 PM on the pretext of leaving them to their house in his vehicle, Champion. It is stated that the erring driver was plying the vehicle in rash and negligent manner and at fast speed and when the offending vehicle reached near Crowne Plaza Today Hotel Opposite Maa Anand Mai Marg at about 6.40 PM, it over-turned in front of the petrol pump, resulting in petitioners' suffering the injuries, whereas one old man who was also sitting in the vehicle, became unconscious whereafter they were removed to AIIMS Trauma Centre for management. The old man later on expired during treatment whereafter his identity was established as Jagdish Lal. The MLC of the petitioners and the post-mortem report of deceased Jagdish Lal were prepared at AIIMS Hospital, reflecting the injuries commensurating to have been caused in the road traffic accident.
7 Further, despite causing appearance at the initial stage, the driver/owner have chosen not to file the replies denying the allegations made against the erring driver whereafter they stopped causing appearance and were proceeded ex-parte. The respondents also opted not to cross-examine the petitioners, contradicting the allegations levelled against the erring driver. For the reasons best known to them, the driver/owner also did not opt to lead their own version by producing any evidence on record. Since, the respondents chose to stay away from the proceedings as no question was put to the petitioners on the aspect of negligence and as Mishri Lal who has made statement being the natural eye-witness levelling the allegations of rashness against the erring driver which have remained unrebutted, I find no reason to disbelieve his testimony. In the circumstances above, adverse inference is to be drawn against them. Further, the IO has conducted the investigation in detail.
Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 5 of 218 It be observed that the IO being a public and a neutral person, was expected to conduct the investigation fairly and since there is no allegations of bias levelled against him, the investigation conducted by him, i.e., preparation of site plan, seizure of the offending vehicle and conducting of its mechanical inspection, inditing its involvement in the accident, hence are believed. During the investigation, the IO also arrested the erring driver and seized the documents relating to the offending vehicle and the D/L of the erring driver. Hence, sufficient material has been placed on record to prove the factum of negligence on the part of erring driver, Tej Narayan in plying the offending Champion, rashly and negligently and in causing the accident. 9 Even otherwise, it is pertinent to observe that the degree of proof required for proving the negligence on the part of the driver in the present proceedings, is not as vigorous as is required in proving the guilt of the accused in criminal trial. The intent of the present legislation is benevolent and the entire purpose of the legislation is likely to be defeated if in each case the petitioner is asked to prove beyond reasonable doubt the involvement and negligence on the part of the driver. In reaching to the above opinion, I am guided by the judgment of Kaushnuma Begum and others Versus New India Assurance Limited, 2001 ACJ 421 SC as well as the case reported as National Insurance Company Limited Versus Pushpa Rana, 2009 ACJ 289, wherein it is held that mere involvement of a vehicle is sufficient to establish and hold the claim petition to be maintainable. It is held that even the certified copy of charge-sheet may not be asked for if the petitioner is able to satisfy on record the involvement of the offending vehicle through the copy of FIR and the mechanical inspection report. The issue hence, is decided in favour of the petitioner and against the respondents.
Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 6 of 21Claim in respect of Petitioner Kavita MEDICAL BILLS 10 The petitioner has filed on record three original medical bills, amounting to Rs.992.50 in respect of the medicines purchased by her, due to the injuries suffered in the accident. The amount of the same, which is rounded off to Rs.993/- hence, is awarded in favour of the petitioner towards treatment expenses.
PAIN & SUFFERINGS 11 The petitioner Kavita has suffered fracture of clavicle. She was given initial treatment on the date of accident, i.e., 17.10.2010 whereafter no record regarding hospitalization has been filed. There is no discharge summary of AIIMS Trauma Centre, however, one MLC is placed showing that she suffered grievous injuries. The record is filed in terms of findings of fracture of clavicle.
12 Though, no amount is sufficient to compensate the trauma suffered, however, in order to mitigate the sufferings, some reasonable amount is to be offered. Having regard to the above and in view of the judgments in case titled, Raj Kumar Versus Ajay Kumar, decided on 18.10.2010 in Civil Appeal No.8981/2010 and in view of the principles enumerated in the celebrated judgment of R.D.Hattangadi Versus Pest Control (India) (P) Ltd., (1995) 1 SCC 551, award for an amount of Rs. 20,000/- is passed in favour of the petitioner towards pain & sufferings. DIET & CONVEYANCE 13 Though, the petitioner has not filed on record any material to show the actual amount spent on account of diet, yet considering the fact that the petitioner suffered fracture of clavicle as stated above, she is awarded Rs.5,000/- for special diet as she would have needed nourishing diet for her Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 7 of 21 recuperation from the injuries. Besides, another amount of Rs.5,000/- is also awarded in favour of the petitioner towards conveyance charges. LOSS OF INCOME 14 There is no loss of income shown as it is not stated that the injured at the time of accident, was employed or gained as such, however, presuming that she must remained indisposed due to the injuries, loss of income for one month, equivalent to that of unskilled worker on the basis of Minimum Wages Act, amounting to Rs.5,278/- hence, is awarded in favour of the petitioner.
The total compensation is assessed as under :-
Treatment Expenses Rs. 993/-
Pain & Suffering Rs.20,000/-
Diet & Conveyance Rs.10,000/-
Loss of Income Rs. 5,278/-
Total Rs.36,271/-
Hence, the petitioner is awarded a total amount of Rs.36,271/-. Claim in respect of Petitioner Smt.Jai Devi MEDICAL BILLS 15 The petitioner has filed on record one one original medical bill, amounting to Rs.204/- in respect of the medicines purchased by her due to the injuries suffered in the accident. The amount of the same, i.e., Rs.204/- hence, is awarded in favour of the petitioner towards treatment expenses. PAIN & SUFFERINGS 16 The petitioner Smt.Jai Devi has suffered soft tissue injury. The nature of injury is reported to be simple in nature as per the MLC prepared by the doctor of AIIMS Trauma Centre.
Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 8 of 2117 Though, no amount is sufficient to compensate the trauma suffered, however, in order to mitigate the sufferings, some reasonable amount is to be offered. Having regard to the above and in view of the judgments in case titled, Raj Kumar Versus Ajay Kumar, decided on 18.10.2010 in Civil Appeal No.8981/2010 and in view of the principles enumerated in the celebrated judgment of R.D.Hattangadi Versus Pest Control (India) (P) Ltd., (1995) 1 SCC 551, award for an amount of Rs. 5,000/- is passed in favour of the petitioner towards pain & sufferings. DIET & CONVEYANCE 18 Though, the petitioner has not filed on record any material to show the actual amount spent on account of diet, yet considering the fact that the petitioner suffered simple injuries, she is awarded Rs.2,500/- for special diet as she would have needed nourishing diet for her recuperation from the injuries. Besides, another amount of Rs.2,500/- is also awarded in favour of the petitioner towards conveyance charges.
LOSS OF INCOME 19 There is no loss of income shown as specific employment of the petitioner is not shown. In Para 5 of the examination affidavit, the petitioner has averred that she has lost the opportunity of employment as maid in Senbase Play School, Vishwakarma Colony, Near Lal Kuan, New Delhi, however, no proof of income is filed. There is no proof of employment with M/s.Sanbase Play School as is alleged. In such circumstances, the factum of employment of the petitioner with M/s.Sanbase Play School and income @ Rs.3,000/- per month is not shown. However, having regard to the fact that she at least would have worked as a house-wife and must have remained indisposed due to the injuries, in terms of judgment in case titled, Lata Wadhwa Versus State of Bihar, 2001 (4) RCR (Civil) 673, an amount of Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 9 of 21 Rs.1,500/- for 15 days hence is awarded in favour of the petitioner, towards loss of income.
The total compensation is assessed as under :-
Treatment Expenses Rs. 204/-
Pain & Suffering Rs. 5,000/-
Diet & Conveyance Rs. 5,000/-
Loss of Income Rs. 1,500/-
Total Rs.11,704/-
Hence, the petitioner is awarded a total amount of Rs.11,704/- Claim in respect of Petitioner, Mishri Lal PAIN & SUFFERINGS 20 As per the MLC, the petitioner Mishri Lal has also suffered simple injuries. Though, no amount is sufficient to compensate the trauma suffered, however, in order to mitigate the sufferings, some reasonable amount is to be offered. Having regard to the above and in view of the judgments in case titled, Raj Kumar Versus Ajay Kumar, decided on 18.10.2010 in Civil Appeal No.8981/2010 and in view of the principles enumerated in the celebrated judgment of R.D.Hattangadi Versus Pest Control (India) (P) Ltd., (1995) 1 SCC 551, award for an amount of Rs. 5,000/- is passed in favour of the petitioner towards pain & sufferings. DIET & CONVEYANCE 21 Though, the petitioner has not filed on record any material to show the actual amount spent on account of diet, yet considering the fact that the petitioner suffered simple injuries, he is awarded Rs.2,500/- for special diet as he would have needed nourishing diet for his recuperation from the injuries. Besides, another amount of Rs.2,500/- is also awarded in favour of the petitioner towards conveyance charges.
Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 10 of 21LOSS OF INCOME 22 The petitioner has claimed that he used to sell food on rehri which fact is also shown in the FIR. In such circumstances, his employment had established, however, the factum of income @ Rs.10,000/- per month is not proved. Accordingly, the income of the petitioner is assessed on the basis of Minimum Wages Act, equivalent to that of semi-skilled worker, @ Rs.5,850/- per month.
23 Keeping in view the fact that the petitioner suffered simple injuries in the accident, loss of income for 15 days, amounting to Rs.2,925/- hence is awarded in favour of the petitioner.
The total compensation is assessed as under :-
Pain & Suffering Rs. 5,000/-
Diet & Conveyance Rs .5,000/-
Loss of Income Rs. 2,925/-
Total Rs.12,925/-
Hence, the petitioner is awarded a total amount of Rs.12,925/-
Claim in respect of deceased Jagdish Lal LOSS OF DEPENDENCY 24 As per affidavit of Shri Gulshan Kumar, it is claimed that deceased Jagdish Lal was self-employed, however, in the examination affidavit, it is shown that he was employed in private job and it is claimed that he was earning Rs.7,000/- per month. It be observed that neither the place of employment nor the nature of duties or the proof of employment or income is filed, however, having regard the fact that the deceased was having his wife and children to support, it is to be presumed that he would have commanding Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 11 of 21 income at least equivalent to that of unskilled worker, @ Rs.5,278/- per month.
25 In view of the judgment of Hon'ble Supreme Court in case titled, Santosh Devi Versus National Insurance Company Ltd. and others in Civil Appeal No.3723 of 2012 passed on 23.4.2012, inflation @ 30% are also awarded to the petitioners as it is apparent from the statement of the witness that they were providing periodic increase in the salary of the deceased with the increase in the rate of inflation. The relevant portion of the judgment reads as under :
"In our view, it will be naive to say that the wages or total emoluments/income of a person who is self- employed or who is employed on a fixed salary without provision for annual increment etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families."
It has also been observed by the Hon'ble Supreme Court that :
"Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 12 of 21 living, the persons falling in the latter category periodically increase the cost of their labour .............. it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 percent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
Being guided by the judgment above, amount of 30% is added in the income of the deceased and is calculated as under :
5,278 X 30% = 1,583.40 5,278 + 1,583.40 = 6,861.40 rounded off to Rs.6,861/-
Deductions Since, the deceased at the time of his death, had three daughters to support as one of his daughter had been married before and the son, PW1 Gulshan Kumar as well as widow of the deceased, the number of dependents is to be treated as '4'. Accordingly, in view of the judgment passed in case tilted, Sarla Verma Versus DTC, passed on 15.4.2009 in SLP No.3483/2008 deductions on account of personal expenses @ 1/4 th is to be made from the dependency. To get the actual dependency of the LRs of the deceased, the following formula is adopted :
6,861 divided by 4 = 1715.25 6,861 - 1,715.25 = 5,145.75 rounded off to Rs.5,145/-
For calculating the yearly dependency of the LRs of the deceased, the amount is to be multiplied with 12 and therefore, the yearly dependency comes to Rs.5,145 X 12 = Rs.61,740/-.Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 13 of 21
Thus, the actual yearly dependency of the petitioners is assessed as Rs.61,740/- which the deceased would have contributed to the family, had he remained alive.
Multiplier The deceased Jagdish Lal as per copy of ration card, is shown to have born in the year 1953, thus he was aged about 57 years at the time of his death due to the accident. Therefore, in view of the law laid down in Sarla Verma Versus DTC, (supra), the multiplier of '9' for the persons falling in the age group of '56-60' is taken to assess the loss of dependency of the deceased. Hence, total loss of dependency of the LRs of the deceased is assessed as 61,740 X 9 = 5,55,660/- The award on account of dependency for the above amount is passed.
FUNERAL EXPENSES
26 The petitioners on record, have not filed any document on account of expenses of funeral of deceased, Jagdish Lal. However, it is presumed that an amount of Rs.10,000/- at least may have been spent on the last rites of the deceased. The amount of Rs.10,000/- is hence, awarded on account of funeral expenses.
LOVE & AFFECTION 27 The deceased left behind him his one son and three daughters. In view of the judgment of Sarla Verms Versus DTC (supra), award for an amount of Rs.10,000/- in favour of the above petitioners is passed towards love and affection.
LOSS OF CONSORTIUM 28 In the present case, the petitioner Smt.Santosh Kumari has suffered loss of life of her husband as well as loss of enjoyment of her life on Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 14 of 21 account of being deprived of the company of her husband and enjoyment of matrimonial bliss. She may not be able to live a normal life after having lost her life partner. I hereby award an amount of Rs.10,000/- in favour of the petitioner on account of Loss of Consortium.
LOSS OF ESTATE 29 In view of the circumstances detailed above, the petitioners are also entitled for loss of estate in respect of death of Jagdish Lal. Accordingly, an amount of Rs.10,000/- is passed in favour of the petitioners towards loss of estate.
The total compensation is assessed as under :-
Loss of Dependency Rs.5,55,660/-
Funeral Expenses Rs. 10,000/-
Love & Affection Rs. 10,000/-
Loss of Consortium Rs. 10,000/-
Loss of Estate Rs. 10,000/-
Total Rs.5,95,660/-
Hence, the petitioners are awarded a total amount of Rs. 5,95,660/-.
RELIEF 30 I hereby award an amount of Rs.36,271/- in respect of petitioner, Kavita : an amount of Rs.11,704/- in respect of petitioner, Jai Devi : an amount of Rs.12,925/- in respect of petitioner, Mishri Lal and an amount of Rs.5,95,660/- in respect of deceased Jagdish Lal, as compensation with interest @ 9% per annum, from the date of filing the present petition, i.e., 24.11.2010 till the date of realisation of the amount, in favour of the petitioners and against the respondents.
Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 15 of 2131 The driver, R-1 is the principal tort feasor whereas R-2 and R-3, being the owner and the insurance company, are the joint tort feasors, and are vicariously liable for the acts of the driver. 32 The insurance company has raised the defence that the vehicle was being plied in breach of policy conditions. It is stated that the passengers were taken in goods vehicle in contravention to the rules and hence, the insurance company is not liable to indemnify the driver/owner. The witnesses, Jai Devi, Kavita and Mishri Lal at whose instance the FIR is recorded, have admitted that all of them were travelling in the goods vehicle. The purpose of travelling in the goods vehicle is reflected for watching Dussehra festival. In such circumstances, apparently the vehicle was not being plied in furtherance of the purpose for which it was meant as the vehicle was not meant for carrying the passengers for transportation. Since, there is breach of policy conditions, the insurance company is directed to discharge the liability of the award amounts and to recover the same from the driver/owner. The Hon'ble High Court in MAC APP.No.783/2012, titled New India Assurance Company Ltd. Versus Laxmi Yadav and others, decided on 25.7.2012, had an occasion to enumerate the legal proposition in respect of liability of the insurance company qua the third party. The observations of the Hon'ble High Court are enumerated as below :
"The question of statutory liability to pay the compensation was discussed in detail by a two Judge Bench of the Supreme Court in Skandia Insurance Company Limited v. Kokilaben Chandravadan, (1987) 2 SCC 654 where it was held that exclusion clause in the contract of Insurance must be read down being in conflict with the main statutory provision enacted for protection of victim of accidents. It was laid down that the victim would be entitled to recover the compensation from the insurer irrespective of the breach of the condition of policy. The three Judge Bench of the Supreme Court in Sohan Lal Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 16 of 21 Passi v. P. Sesh Reddy, (1996) 5 SCC 21 analyzed the corresponding provision under the Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988 and approved the decision in Skandia (supra). In New India Assurance Co., Shimla v. Kamla and Ors., (2001) 4 SCC 342, it was held as follows :
22. To repeat, the effect of the above provisions is this: when a valid insurance policy has been issued in respect of a vehicle as evidenced by a certificate of insurance the burden is on the insurer to pay to the third parties, whether or not there has been any breach or violation of the policy conditions. But the amount so paid by the insurer to third parties can be allowed to be recovered from the insured if as per the policy conditions the insurer had no liability to pay such sum to the insured.
...........
24. The principle laid down in the said decision has been followed by a three-Judge Bench of this Court with approval in Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21.
25. The position can be summed up thus: The insurer and the insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid driving licence........."
6. Again in United India Insurance Company Ltd. v. Lehru & Ors., (2003) 3 SCC 338, in Para 18 of the report the Supreme Court referred to the decision in Skandia (supra), Sohan Lal Passi (supra) and Kamla (supra) and Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 17 of 21 held that even where it is proved that there was a conscious or willful breach as provided under Section 149(2)(a) (ii) of the Motor Vehicle Act, the Insurance Company would still remain liable to the innocent third party but may recover the compensation paid from the insured. The relevant portion of the report is extracted hereunder:
"18. Now let us consider Section 149(2). Reliance has been placed on Section 149(2)(a)(ii). As seen, in order to avoid liability under this provision it must be shown that there is a "breach". As held in Skandia and Sohan Lal Passi cases the breach must be on the part of the insured. We are in full agreement with that. To hold otherwise would lead to absurd results. Just to take an example, suppose a vehicle is stolen. Whilst it is being driven by the thief there is an accident. The thief is caught and it is ascertained that he had no licence. Can the insurance company disown liability? The answer has to be an emphatic "No". To hold otherwise would be to negate the very purpose of compulsory insurance.........."
7. The three Judge Bench of the Supreme Court in National Insurance Company Limited v. Swaran Singh & Ors., (2004) 3 SCC 297 again emphasized that the liability of the insurer to satisfy the decree passed in favour of the third party was statutory. It approved the decision in Sohan Lal Passi, Kamla and Lehru. Para 73 and 105 of the report are extracted hereunder:-
"73. The liability of the insurer is a statutory one. The liability of the insurer to satisfy the decree passed in favour of a third party is also statutory.
8. This Court in MAC APP. No.329/2010 Oriental Insurance Company Limited v. Rakesh Kumar and Others and other Appeals decided by a common judgment dated 29.02.2012, noticed some divergence of opinion in National Insurance Company Limited v. Kusum Rai & Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 18 of 21 Ors., (2006) 4 SCC 250, National Insurance Company Limited v. Vidhyadhar Mahariwala & Ors., (2008) 12 SCC 701; Ishwar Chandra & Ors. v. The Oriental Insurance Company Limited & Ors., (2007) 10 SCC 650 and Premkumari & Ors. v. Prahalad Dev & Ors., (2008) 3 SCC 193 and held that in view of the three Judge Bench decision in Sohan Lal Passi and Swaran Singh, the liability of the Insurance Company vis-à-vis the third party is statutory. If the Insurance Company successfully proves the conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner or driver, as the case may be."
33 Hence, the insurance company is directed to deposit the awards amount within 30 days from today along with interest @ 9% per annum, failing which it shall be liable to pay penal interest @ 12% per annum.
34 In the judgment of Union of India and others Versus Nansari and others, MACA 682/2005, decided on 13.1.2010, which has been affirmed by the Hon'ble Supreme Court in order dated 17.12.2009 in SLP (Civil) No. 11801-11804/2005, the Hon'ble High Court have given directions for the protection of the award amount. In view of the aforesaid judgment, it is directed that out of the above awarded amount of Rs.5,95,660/- (Rupees five lac ninety five thousand six hundred and sixty only), an amount of Rs. 95,660/- (Rupees ninety five thousand six hundred and sixty only) be released immediately on its realisation in favour of widow of deceased, namely, Smt.Santosh Kumari.
35 It is also directed that out of the remaining amount of Rs. 5,00,000/- (Rupees five lac only), amounts of Rs.50,000/- each (Rupees fifty thousand only), total amounting to Rs.1,00,000/- (Rupees one lac only) be released in favour of son, Gulshan Kumar (gainfully employed) and the married daughter, Deepti of the deceased.
Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 19 of 2136 It is also directed that out of the remaining amount of Rs. 4,00,000/- (Rupees four lac only), amounts of Rs.1,50,000/- (Rupees one lac fifty thousand only) each, total amounting to Rs.3,00,000/- (Rupees three lac only) be imparted in favour of remaining two daughters of the deceased, namely, Barkha and Komal, which amounts be kept in the State Bank of India by way of FDRs and be released to them at the time of their marriage. 37 The remaining amount of Rs.1,00,000/- (Rupees one lac only), awarded in favour of Smt.Santosh Kumari, be kept in the State Bank of India Branch by way of FDR for a period of two years in her account. The petitioners may approach Shri H.S.Rawat, Nodal Officer (Mobile No. 09717044322), for opening of the accounts after receiving the copy of the award, whereafter the amount of Smt.Santosh Kumari, shall be released to her as under :
38 50% of the FDR amount be released to her on the expiry of first year, along with proportionate interest.
39 The remaining amount of 50% of the FDR amount be released to the petitioner on the expiry of second year, along with proportionate interest. The original FDR be kept with the bank which shall issue a photo identity cards to the petitioners to ascertain their identity. The copy of the award shall be given to the parties.
40 It is directed that the FDRs so deposited with the bank, be renewed automatically and the interest thereupon shall be paid monthly, which shall be credited automatically in the savings account of the petitioners. The original FDRs be detained by the bank in safe custody. However, the original passbook shall be issued and given to the petitioners along with the photocopy of the FDRs. The bank is directed to hand over the original FDRs on afflux of time and shall issue the photo identity card to the petitioners to Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 20 of 21 facilitate the withdrawal after due verification. It is further directed that no cheque books shall be issued to the petitioners without the permission of this court.
41 The amounts of the award passed in favour of petitioners, namely, Kavita, Jai Devi and Mishri Lal, shall be deposited in their accounts, with State Bank of India Branch and shall be released whereafter to the petitioners.
42 It is also directed that the insurance company shall make an endorsement of the title of the case, suit number, name of the parties and other relevant details while depositing the cheques in the bank. The compliance be made by all concerned.
43 Copy of the order shall be kept for receiving the compliance. File be consigned to the record room after completion of necessary formalities.
Announced in open Court ( NIRJA BHATIA )
Dated : 6.11.2012 PO : MACT-02, (SE)
Saket Courts, New Delhi
Regn.No.6242010 (FIR No.357/2010, PS Okhla) (Kavita etc. Vs. Tej Narayan Chaudhary etc.) Page 21 of 21