Delhi District Court
Sh. Dalip Thakur vs Sh. Pradeep Thakur on 12 March, 2007
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IN THE COURT OF SH. DILBAG SINGH
JUDGE, MACT, DELHI
PETITION NO. : 233/05
Date of filing of Petition : 25.08.2005
Date of Award : 12.03.2007
In re:
1.Sh. Dalip Thakur
S/o Sh. Tripti Thakur
2.Smt. Malti Devi
W/o Sh. Dalip Thakur
Both Resident of:
D-197, Lakshmi Park, Nangloi,
Delhi - 110041 .....Petitioners
VERSUS
1.Sh. Pradeep Thakur
Son of Sh. Tripti Thakur
D-197, Lakshmi Park, Nangloi,
Delhi - 110041
2.Sh. Satya Narain Jha
Son of Sh. Ghuran Jha
R/o 80, Bhutwali Gali, Ashok Mohalla,
Mandir Marg, Nangloi, Delhi -110041
3.The National Insurance Company Ltd.
DIV no. 10, Flat no. 101-106, N-1, BMC House,
Connaught Place, New Delhi 110001
.....Respondents
PETITION NO : 234/05
Date of filing of Petition : 25.08.2005
Date of Award : 12.03.2007
In re:
1.Ms. Priyanka (Minor) aged 11 years
2.Ms. Chanchal (Minor) aged 7 years
3.Ms. Anchal (Minor) aged 5 years
Contd....
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4.Ms. Rekha @ Sheetal (Minor) aged 3 years (claimant no. 1 to 4 minors daughters of Sh. Pradeep Kumar Thakur, through their grand mother natural guardian and next friend Smt. Urmila Devi W/o sh. Tripti Thakur All residents of D-197, Lakshmi Park, Nangloi, Delhi - 110041 ...... Petitioners VERSUS
1. Sh. Pradeep Thakur Son of Sh. Tripti Thakur D-197, Lakshmi Park, Nangloi, Delhi - 110041
2. Sh. Satya Narain Jha Son of Sh. Ghuran Jha R/o 80, Bhutwali Gali, Ashok Mohalla, Mandir Marg, Nangloi, Delhi -110041
3. The National Insurance Company Ltd.
DIV no. 10, Flat no. 101-106, N-1, BMC House, Connaught Place, New Delhi 110001 .....Respondents APPLICATION UNDER SECTION 163-A OF THE MOTOR VEHICLE ACT, 1988, FOR GRANT OF COMPENSATION APPEARANCES:
Sh. Vinod Kumar, Advocate, for the petitioners/claimants.
Sh. V.K. Jha, Adv. for R-1 and R-2 Sh. J. N. Goel, Adv. for respondent-3 Insurance Co. .
JUDGEMENT/AWARD
1. By this common judgment I shall dispose of above noted two petitions initially filed u/s 166 & 140 of Motor Vehicles Act, 1988, as amended upto date (hereinafter referred as the 'Act') and converted to Section 163-A in pursuance to the Contd....
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application dated 06.03.2006 allowed on 14.03.2006 for grant of compensation on account of death of Sh. Mohan Thakur and Smt. Chandira Devi in a vehicular accident.
2. Succinctly stated the averments of the petitioners are:
On 23.06.2005 deceased Mohan Thakur, Smt. Chandira Devi, her mother in law namely Urmila Devi, Ms. Priyanka aged 11 years, Ms. Chanchal aged 7 years, Ms. Anchal aged 5 years Ms. Rekha @ Sheetal aged 3 years (children of Smt. Chandira Devi) were coming to Delhi from Bihar. Car was being driven by Pradeep Thakur who is also the father of the children. When car reached village Rasauli (Barabanki) U.P, driver of WagonR lost his balance and hit truck bearing No. UP-53T-4820 which was standing by the side of the road at about 8:30 p.m. The occupants of the WagonR sustained injuries, Mohan Thakur died on the way to hospital. Smt. Chandira Devi was referred to K. G. Hospital Lucknow after being given first aid at District Hospital Barabanki. She was removed to Gandhi Memorial and Associated Hospital Lucknow and she also succumbed to the injuries. A daily diary entry was lodged at P.S. Safardarjang, Barabanki. Smt. Chandira Devi deceased was doing stitching and embroidery work and earning Rs.3000/- per month. She was also looking after the children. Deceased Mohan Thakur after passing his 12th Class from Bihar was going to join some coaching institute for entrance test for Chartered Accountant. Other averments of the petitioners are not being adverted to for the reason that petitions were later on converted to 163-A compensation for which is to be awarded under a structured formula as provided in the schedule appended to Section 163-A.
3. Notices of the petitions were given to the respondents who appeared and contested. R-1 and R-2 admitted most of the averments of the petitioners in their written statements. R-1 Contd....
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averred that he is husband of deceased and father of the petitioner. That R-1 is the relative of R-2 who is the owner of the vehicle. That R-2 had given the vehicle to R-1 and R-1 is not an employee of R-2. R-2 in para no. 23 of the written statement submitted that he had no knowledge that R-1 was traveling with all his family members. That he came to know about the accident later on. That R-1 was having a valid D/L and the insurance company is liable.
4. R-3 in its written statement has taken its statutory objections as contemplated u/s 149 (2) of the Act. It was averred that according to the admission of the petitioners in para no. 10 of the petition, eight persons were travelling in the WagonR against permitted capacity of four persons. It was also averred that there is a collusion between petitioner, R-1 and R-2 for the reason that no FIR was lodged and information to the police was given on 26.06.2005 whereas the accident took place on 23.06.2005. That district hospital had not informed the police and this goes to show that the case is false and fabricated and no accident took place. It was also averred that petition was not maintainable on account of non arraying of driver, owner, insurance company of truck bearing no. UP-53T-4820. However, factum of car no. DL4C-AA 3554 being insured vide policy no. 9080610 for the period 15.05.2005 to 14.05.2006 is admitted.
5. From the pleadings of the parties following common issues were framed on 22.11.2005:
i) Whether deceased Mohan Thakur and Smt. Chandira Devi received fatal injuries due to rash and negligent driving of the wagonR bearing no. DL4C-AA-3554 by the respondent no. 1 ?
ii) Whether the claimants are entitled to compensation, and if so, what amount and against whom?
Contd....
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iii)Relief.
6. I deem it pertinent to mention that on account of averments made in the written statements orders on interim compensation were deferred on 22.11.2005 and necessity of the same did not arise thereafter on account of orders dated 14.03.2006 when an application for conversion of petition from section 166 to section 163-A was allowed. I also deem it pertinent to mention that R-3 insurance company as well as R-1 and R-2 had not objected to the conversion as stand so recorded in the orders dated 14.03.2006 of my Ld. Predecessor.
7. Petitioners in support of their case have examined PW- 1 Smt. Urmila Devi, PW-2 Sh. Dalip Thakur and PW-3 Dr. M. Pandey (PW-2 has been given inadvertently to Dr. M. Pandey as PW-2 was also given to Dalip Thakur, however, the same is only an inadvertant clerical mistake and does not affect the merits of the case in any manner whatsoever).
8. PW-1 is Smt. Urmila Devi who has proved her affidavit as Ex. PW1/x. PW-1 has testified that deceased was aged about 26 years and was earning about Rs.3000 per month. She also testified that Smt. Chandira devi died due to an accident which took place at village Rasauli, P.S. Safdarjang, Barabanki, U.P at about 8:30p.m. She has proved the discharge slip as Ex PW-1/1, MLC and postmortem report as Ex. PW-1/2 collectively. She has also testified that driver of WagonR car hit the truck. She has proved the daily diary of 26.06.2005 as Ex PW-1/3. She has also proved the cremation receipt as Ex PW-1/4, copy of D/L as Ex PW-1/5, copy of insurance policy as Ex PW-1/6, copy of RC of offending vehicle as Ex PW-1/7, photo copy of ration card as Ex PW-1/8, receipt for C. T. Scan report as Ex. PW-1/9, medicines bills as Ex PW-1/10. Patient attendant slip and Contd....
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discharge slip dated 24.06.2005 of Bara Banki Hospital as Ex PW-1/11 and Ex PW-1/12 and photo copy of R.C of accidental car as Ex PW-1/13.
9. This witness was cross examined on 12.05.2006. during cross examination this witness has testified that she was traveling in the car at the time of accident.
10. PW-2 is Mr. Dalip Thakur who has proved his affidavit as Ex PW2/x. He has also proved documents Ex. PW1/1 to PW1/12. (exhibition should have been as Ex. PW2/1 to Ex. PW2/12). PW-2 Dr. M. Pandey has proved the carbon copy of the postmortem report of deceased Mohan Thakur as Ex. PW2/A.
11. R-1 has examined himself as RW-1. R-2 has not led any evidence. R-3 could not lead any evidence despite numerous opportunities and R.E was closed by my Ld. predecessor. An effort was made by Ld. counsel for insurance company to lead evidence and request of Mr. J.N. Goel was specifically turned down by my Ld. predecessor vide orders dated 19.10.2006 who observed that taking one's family for a ride without the knowledge of the owner cannot be termed as a violation of terms and conditions of the policy. Sh. J. N. Goel, Ld. counsel for R-3 moved an application which was disallowed by me vide orders dated 03.02.2007.
12. Arguments were heard at the bar. Ld. Counsel for the claimant Sh. Vinod Kumar, Ld. counsel Sh. V. K. Jha for R-2 and Ld. counsel Sh. J. N. Goel for R-3 Insurance Company were heard at length. They have argued in consonance with the averments of their petitions and written statements respectively. They have also based their arguments on the examination in chief and cross examination of the witnesses.
Contd....
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13. I have perused the records of the case and considered the submissions. My issue- wise findings are as follows:
ISSUE NO. 114. At the outset, I would like to mention that in view of the conversion of the petitions from petition u/s 163-A rashness and negligence is not required to be proved and only fact required to be proved is that accident took place on account of use of a motor vehicle. Petitioners in my considered view have proved the same. Ex. PW1/3 fairly proves that on 23.06.2005 WagonR had dashed into truck no. UP-53T-4820 . It also stands mentioned in Ex.PW1/3 that the occupants of the car had sustained injuries in the accident which took place near village Rasauli at about 8:30 p.m. It also stand mentioned that Mohan Thakur died on his way to hospital and Smt. Chandira died on 24.06.2005 in the hospital.
15. Petitioners have also proved the death certificate of Pradeep Thakur as Ex. PW1/1 and medical certificate of cause of death of Smt. Chandira Devi as Ex.PW1/2. Ex.PW1/1 mentions that Pradeep Thakur had received accidental injuries. Ex.PW1/2 also mentions that death of Smt. Chandira devi took place in an accident. In Ex.PW1/2 (postmortem report) antemortem injuries have been shown as follows:
lacerated wound 3 x 2 c.m. muscle deep on left side of face, contused swelling of 6 x 5 ct. of left side of ocipital region, contused swelling of 6 x 4 ct on left side of head just below ear.
16. Cause of death has been opined due to coma as a result of ante mortem head injuries. Petitioners have also proved on record Ex.PW1/4 which is a slip of cremation ground of 25.06.2005 which shows that she was cremated there. Ex.PW1/9 , Ex.PW1/10 and Ex.PW1/11 also go to show clearly Contd....
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that Smt. Chandira Devi and Mohan Thakur died in a road accident and thus requirement of Section 163-A stand met.
17. There is another independent reason to held that petitioners have proved the deaths having taken place on account of use of motor vehicle and the same is order sheet dt. 14.09.2006 of suit no. 234/05. On behalf of insurance company, Sh. Deepak Kumar appeared and stated that factum of accident and death of deceased were not in dispute. In suit no. 233/05 it was observed that accident was admitted by R-1 as well as by R-
2.
18. In view of the admission of the accident by R-1 and R-2 Insurance company cannot be permitted to deny the factum of accident in view of the mandate of AIR 1998 SC 2968 titled as Shankaryya Vs. United India Insurance Company Ltd.
19. PW-2 Dr. M. Pandey from District Hospital, Bara Banki U.P also proves the factum of death and the testimony has gone unchallenged and un-controverted. Respondents have not cross examined the doctor on account of non-lodging of the report with the police by the hospital authorities.
20. So in view of the above going reason I have no hitch in observing that first aspect stand proved by the petitioners.
ISSUE NO. 221. At the outset itself I would like to dispose of the arguments advanced by Sh. J. N. Goel Ld. counsel for Insurance Company concerning breach of terms and conditions of the policy. Although the contention of the Ld. counsel Sh. J. N. Goel are not tenable in view of the fact that the respondents have not Contd....
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led any evidence and for this simple reason the arguments are not tenable. Still I have considered it expedient to dispose of the arguments in the interest of justice and in order to meet out technical objections.
22. In suit no. 234/05 on 14.09.2006 it was admitted that factum of accident and death of deceased were not in dispute. In view of the statement given by Sh. Deepak Kumar on behalf of Insurance company on 14.09.2006 assertions of Sh. J. N. Goel Ld. Counsel for Insurance Co. in the application dated 06.11.2006 and otherwise concerning non-registration of FIR and delayed information to the police on 26.06.2005 instead of 23.06.2005 do not hold any water and can be straightaway rejected. I deem it pertinent to mention that this application dated 06.11.2006 was rejected by me vide orders dated 03.02.2007. The main reason for rejection of the application was observation of my Ld. Predecessor in the orders dated 19.10.2006 to the effect that taking of the family on a ride by R- 1 without the knowledge of the owner (R-2) cannot be termed as a violation of the terms and conditions of the policy. So this is another reason due to which the arguments of Sh. J. N. Goel Ld. counsel are liable to be rejected who has tried to argue that had he been allowed to lead evidence then he would have proved breach of terms and conditions of policy. I am not in agreement with Sh. J. N. Goel Ld. Counsel for Insurance Co. in this regard as well, as I am of the considered view that even if the opportunity of leading evidence would have been given, even then breach of terms and conditions of policy would not have been proved. I have considered the assertions of R-3 in the written statement and have found that even if assertions are considered as evidence, still the arguments concerning breach of terms and conditions of the policy are not tenable.
Contd....
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23. Arguments of Sh. J. N. Goel Ld. Counsel for Insurance Co. concerning non -registration of FIR is of no help as firstly registration of FIR is not a sine -qua- non for being successful in a claim petition as per mandate of 1994 ACJ 447. Second reason for disallowing the argument is that in the orders dated 14.09.2006 factum of accident and death of deceased stand admitted. Third reason for rejection of the argument is that by virtue of Ex. PW1/3 lodging of information with the police concerning the accident stand proved. Forth reason is that postmortem report go to show that death of the deceased Smt. Chandira Devi and Mohan Thakur took place in a road accident.
24. Respondent insurance company has not placed on record the copy of the policy and has remained contended by placing its reliance on the certificate of insurance. It was the bounden duty of insurance company to place on record insurance policy (may be a copy) as per the mandate, I am ignoring this default of insurance company as well and considering Ex. PW1/6. This document was proved by the petitioner as Ex. PW1/6 . Once the document is considered the objection concerning leading of respondent evidence goes. Although technically speaking respondents were denied the opportunity of leading R.E on account of their conduct in which they delayed leading of R.E unnecessarily but consideration of Ex. PW1/6 in a way sets at naught the orders concerning closure of R.E.
25. Ex. PW1/6 goes to show that it contains avoidance clause, limitation as to use clause, driver clause etc. Relevant for the purpose of disposal of the case is limitation as to use clause which I deem it expedient to extract here- in -below. Limitation as to use 'use only for social, domestic and pleasure purposes and for the insureds business.
Contd....
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The policy does not cover the use for
i).hire or reward, ii) carriage of goods (other than sample or personal Luggage of owner), iii) organized racing iv) race making, v) speed testing vi) reliability trials vii) any purpose in connection with the motor trade.
26. During the course of proceedings as well as during the course of final arguments, the main thrust of arguments of Sh. J. N. Goel Ld. Counsel for Insurance Co. was concerning over loading of the WagonR. He argued that sitting capacity of the WagonR was four persons as per Ex. PW1/6, whereas eight persons were travelling in the same. He had submitted that he would have led evidence concerning over loading and would have proved the policy. The purpose of Sh. J. N. Goel Ld. Counsel for Insurance Co. stand served by virtue of Ex. PW1/6 having been proved by the petitioner and this document being considered by me. So I am considering the question posed by Sh. J. N. Goel Ld. Counsel for Insurance Co. which is to the effect that if more than four persons travel in a car with a sitting capacity of four then it would be a breach of terms and conditions of the policy. Second question of Mr. Goel is that the occupants in the WagonR were travelling as a gratuitous passengers and in view of the mandate of Hon'ble Supreme Court in 'Tilak Singh' case there is no liability of the insurance company.
27. I am of the considered view that merely because eight persons were travelling in the WagonR whereas sitting capacity of the WagonR was four persons cannot be termed as a breach of terms and conditions of the policy. I could not lay my hands on any precedent despite my best efforts in which the question of over loading has been decided with respect to a private car. However, I was in a position to find certain judgments with respect to public transport vehicles in which the over loading Contd....
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had taken place and it was not treated as a breach of terms and conditions of policy. One of the judgments is that of the Madras High Court titled as M. Anandavalliamma & Ors Vs. Aravind Eye Hospital & Anr. reported in II (2004) ACC 144 (DB) Accident and Compensation cases. The judgment has dealt with the issue at length and I deem it appropriate to extract the relevant paras of the judgment which are as follows:
The earliest ruling which has direct relevance to the case is the one reported in Canadian Pacific Railway C. V Leonard Lockhart, AIR 1943 PC 63. In the said judgment, the Court pointed out that there is a clearcut distinction between a restriction or a limitation which pertains to the sphere of employment and those which relate to the manner of performance of his duties within the sphere of his employment. A restriction relating to the number of passengers to be carried only be taken to be a restriction relating to the manner of performance of the driver's duties and it does not related to the sphere of the employment.
28. The above ruling came to be referred to and relied on by a Division Bench of this Court in the case reported in K.R Sivagami V Mahaboob Nisa Bi, 1981 ACJ 399( Madras). In thace case, the taxi was authorized to carry only five passengers, but the driver unauthorizedly carried two more passengers and that as the taxi which was authorized to carry only five passengers carried seven passengers, the accident can be taken to be due to negligence of the driver. In that case, the Court ruled that the driver of the vehicle has carried more than the permitted load of passengers and this is contrary to the conditions of the permit under which the vehicle was allowed to be used as a tourist taxi. The Court held that the non-observance of the rules relating to the number of passengers to be carried, can only be said to be an improper performance of the driver's duties and even Contd....
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assuming that the permit condition not to take more than the permitted number of passengers is taken as a prohibition or restriction, that relates only to the manner of performance of the driver's duties in the course of his employment and that can not in any way limit the sphere of his employment.
29. Yet another citation which will be of much use is reported in B.V Nagaraju V/s Oriental Insurance Company Ltd 1996 ACJ 1178(SC). That was a case where according to the terms of insurance policy, the vehicle was authorized to take six workmen excluding the driver. But, at the time of accident, it carried nine persons. The Insurance Company raised a similar contention, viz, that it is not liable to indemnify. Rejecting the said contention, the Supreme Court observed as under:
"It is plain from the terms of insurance policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when traveling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed in the causing of it is the poser, keeping apart the load it was carrying. Here, it is nobody's case that the driver of the insured vehicle was responsible for the accident. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, can not be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves, had gone to contribute to the cause of the accident.
30. At the conclusion, the Supreme Court has referred to the ruling in Skandia Insurance Co. Ltd V Kokilaben Chandravadan, 1987 ACJ 411(SC) and observed that it paved Contd....
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the way towards reading down the contractual clause. In that case, the Court was considering the breach of condition of excluding driving the vehicle of the insured owner by a person not duly licensed and as to the extent of vicarious liability of the owner in case of an accident in the light of Sections 96(2)(b)(ii) and 84 of the Motor Vehicles Act, 1939.
31. The Supreme Court in Skandia's case(supra), observed as under:-
"When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity there is hardly any choice. The Court can not but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of reading down the exclusion clause in the light of the main purpose of the provision so that the exclusion clause does not cross swards with the main purpose, highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The theory which needs no support is supported by Carter's Breach of Contract vide para 251 to quote:
Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the main purpose rule, which may limit the application of wide exclusion clauses defining a promisor's contractual obligations. For example in Glym Vs margelson & Co(1893) AC 351 at 357 Lord Halsbury L.C stated. It seems to me that in constructing this document which is a contract of carriage between the parties, one must in the first instance look at the whole instrument and Contd....
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not at one part of it only. Looking at the whole instrument and seeing what one must regard..... as its main purpose, if they are inconsistent with what one assumes to be the main purpose of the contract. Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrinaire was rejected by the house of Lords in Suisse Altantique Societ d" Armentent Maritime SA V N.V Rotterdamsche Kolen Centrale, (1967) AC
361. Accordingly, the wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract".
A Division Bench of the Bombay High Court in the decision reported in Shivraj Vasant Bhagwat V.s Shevanta Dataram Indulkar, 1997 ACJ 1014(Bombay) had occasion to consider a case in which the clause in the insurance policy was that carrying of passengers in the vehicle except employees not exceeding six in numbers, where ten employees were taken in the motor truck, whereas the policy also contemplated that maximum of only six persons can be carried. There the Insurance Company claimed that in as much as there is violation of terms and conditions of the policy. It is not liable in any way to pay compensation There the Court ruled thus:
The terms of the policy of insurance has to be construed strictly and to be read down to advance the main purpose of the contract. It is plain from the terms of the insurance policy that the insured vehicle was entitled to carry six workmen excluding the driver. If six person travelling in the vehicle are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could these added persons be said to have contributed to the causing of it. Admittedly all the 11 persons in the truck were working as labourers on the quarry of the appellant, who is also the owner of the truck. Merely because 4 Contd....
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to 5 labourers more than the agreed six labourers were taken in the truck, it can not be said to be such fundamental breach that the owner should in all events be denied the indemnification".
32. In Branch Manager, National Insurance Co Ltd V/s Murugesh, 1998(1) LW 59, a learned Single Judge of this Court had occasion to consider a similar point. There also as against permitted six persons, 13 persons traveled in a lorry, which is in violation of condition of the policy. The learned Single Judge considered various rulings on that point and came to the conclusion as under:
" If we approach to the question in this background, it can not be said that there was any willful breach of any of the conditions of the policy. While disowning the liability, a duty is also cast on the Insurance Company to show that it is because of the presence of the additional persons who were allowed to be in the lorry, the accident happened. Absolutely no evidence was adduced in that regard".
33. The other judgments which support the view that over loading does not amount to violation of breach of terms and conditions of the policy are AIR 1981 Madras 138 titled as K. R. Shivagami Vs. Mahboob Nisha & Ors which was also referred in the above noted case. Radhey Shyam Aggarwal and Ors. Vs Gyatri Devi & Anr. reported in 1998 ACJ 1177.
34. The above judgement go to show clearly that over loading of commercial vehicles is not a violation of policy condition per se and it has to be proved by way of cogent evidence by insurance company that over loading was the cause of accident.
35. In the present case it is nowhere the case of the Contd....
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insurance company that accident took place on account of over loading. No doubt a bald assertion about carrying of four persons has been made in para no. 1 of the WS but the same is of no avail to insurance company. If the facts of the case are perused then it is revealed that majority of the persons being carried were minor children and they cannot be treated as persons . The occupants of the car as per para no. 1 of the preliminary objections of the WS of R-3 were eight. Now let me place on record the details of eight persons. As per para 10 of the petition wherein it stands mentioned that four children their mother, grand mother, Mohan Thakur were travelling in the car which was being driven by Mr. Pradeep Thakur. It is common knowledge that driver is not to be included in the occupants for the purposes of compliance of terms and conditions of registration certificate. So mother, grand mother and Mohan Thakur (three adults) and four children were travelling in the car meaning thereby seven persons. Perusal of the title page of the petition reveals that the children were aged 11 years, 7 years, 5 years and 3 years. In my considered view, it cannot be said to be an over loading as well as violation of the breach of terms and conditions of the registration certificate. It was but natural that children would have travelled along with their family members and if over loading as contended by Ld. counsel Sh. J. N. Goel is taken as over loading than it would amount to acting against rationality and reason.
36. Two more arguments of Sh. J. N. Goel Ld. Counsel for Insurance Co. which require disposal (may be for technical reasons) vis-a-vis concerning gratuitous passengers and presence or absence of knowledge of R-2 concerning travelling of R-1 along with all his family members as averred in para no. 23 of the written statement of R-2 on page-3. Sh. J. N. Goel Ld. Counsel for Insurance Co. has placed his reliance on United India Insurance Company ltd. Vs Tilak Singh and Ors reported Contd....
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in II (2006) Accident and Compensation cases, I (SC) concerning gratuitous passengers. Ld. counsel placed reliance on a line in para no. 21 of the judgment. If the argument of Sh. J. N. Goel Ld. Counsel for Insurance Co. is allowed then it would debar so many persons of private vehicles from claiming compensation from insurance company which can never be the intention of legislature.
37. I had drawn the attention of Sh. J. N. Goel Ld. Counsel for Insurance Co. concerning limitation as to use clause of Ex. PW1/6 and had told him that vehicle in this case was being used by R-1 for domestic purposes as contemplated in Ex. PW1/6 and it cannot be a violation of terms and conditions of the policy. Sh. J. N. Goel Ld. Counsel for Insurance Co. submitted that even if this clause does not help the insurance company, still the judgment of 'Tilak Singh' helps the company. I am not inclined to allow the argument of Sh. J. N. Goel Ld. Counsel for Insurance Co. to prevail as the car was being used for domestic purposes as per policy. Absence or presence of knowledge of R-2 concerning travelling of R-1 along with his family members makes no difference as either way it cannot be said to be a violation of terms and conditions. So the argument concerning absence or presence of knowledge of R-2 concerning travelling by R-1 along with his family members is of no avail to insurance company and I have no hesitation in rejecting the argument advanced by Sh. J. N. Goel Ld. Counsel for Insurance Co. on this count.
38. Coming to the judgment of Tilak Singh's case I could lay my hands on a judgment which comes to the rescue of the claimant and the same is reported in 2007 ACJ 274 titled as Bindu Mandal and Ors Vs. Mandal Aparu Chatopadhy and Anr. Jharkhand. In this judgment Hon'ble High Court in para no. 10 Contd....
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has observed about binding precedent. I am temped to extract para no. 10 and 11 of the judgment wherein the judgment of 'Tilak Singh' stands distinguished. Same is distinguishable in the present case also. Para no. 10 and 11 are as follows:
10. The binding precedence of the judgment has been well discussed by the Apex Court in a case reported in Union of India Vs. Dhanwanti Devi,(1996) 6 SCC 44, wherein their Lordships observed:
"A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the judgment. Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expression which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular fats of the cse in which such expressions are to be found. It would , therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ration and not every observation found therein.
Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and, therefore, judges are to employ an intelligent technique in the use of precedents.
11. In Tilak Singh's case 2006 ACJ 1441 (SC) , the scooter was insured with insurance company. Although , for covering the liability to pillion rider, endorsement of IMT. 70 pertaining to accident to unnamed hirer driver/pillion passenger is required on the insurance policy which may be obtained by payment of additional premium but in the case before the Apex Court no premium was paid for covering the pillion rider. Moreover, the scooter was sold by the original owner to another person and the registration certification of the scooter was transferred but no notice thereof was given by the transferor to the insurance company for the transfer of the insurance. Taking into consideration all these facts their Lordships held that the insurance company is not liable to pay compensation.
Contd....
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39. In the present case, in the clause of use conditions, there is no bar that occupants cannot travel gratuitously in the car. No condition has been imposed upon the owner that he will use the car only for his own use. On the contrary owner is permitted to use the car not only for domestic purposes but also for social and pleasure purposes. He has also been allowed to use it for his business. Thus allowing of the arguments of Sh. J. N. Goel Ld. Counsel for Insurance Co. would amount to restricting the use of the car only for personal domestic purposes of the owner which on the face of it looks absurd and accordingly the arguments are rejected on this count also.
40. In view of the decision of the issue no. 1 as well as disposal of all the probable arguments which could have been advanced on the basis of the pleadings, let me come to the computation of compensation aspect.
Petition no. 233/0541. Deceased Mohan Thakur aged about 18 years died in an accident who was unmarried as per Ex.PW2/X. It has come on record that he was aged about 18 years and was unmarried. During the course of argument it was conceded by counsel for the claimant that petitioner has not been in a position to prove the income aspect of the deceased. So resort to minimum wages shall have to be had. The deceased was 18 years of age and was a matriculate. He can be considered as an unskilled worker at the least. Minimum wages of unskilled worker as on 23.06.2005 were Rs.3492-90 say Rs.3500/-. The factum of deceased being matriculate is not disputed and this aspect stand proved from Ex. PW1/7. However in view of the cap of Rs.40,000/- u/s 163-A monthly income is reduced to Rs.3300/- from Rs.3500/-.
Contd....
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42. I am of the considered view that deceased being an unmarried boy would have spent 50% on his personal expenses and dependency of his parents would have been Rs.1650/- per month.
1650 X 12 = 19,800 per annum Sh. Dalip Thakur has given his age as 35 years in the affidavit. Age of his wife has been given as 27-28 years by Mr. Dalip Thakur in the statement for the purposes of interim compensation on 25.08.2005, I am of the considered view that age of the mother of deceased has not been given properly as she would not have delivered the deceased at the age of 9-10 years which is natural corollary of version of Mr. Dalip Thakur dated 25.08.2005. There is a photocopy of D/L of Sh. Dalip Thakur placed on record (father of the deceased). Date of birth in the same is given as of 1970 of Mr. Dalip Thakur . Age of smt. Malti Devi in Election I. Card has been shown as 22 years as on 01.01.1994 and if the same is believed, then she was about 34 years of age at the time of accident. So Dalip Thakur and his wife can be taken as aged of 35 years and 34 years respectively. D/L and voter card stand exhibited as Ex. PW1/10 and Ex. PW1/11. Thus the multiplier which becomes applicable is that of 16 in view of the age of the parents being 35 years and 34 years. Thus total dependency comes to Rs.3,16,800/-. To this amount are added a sum of Rs.2000/- towards funeral expenses and Rs.2500/- towards loss of estate. So the total compensation comes to Rs. 3,21,300/-.
43. I therefore, find that the claimants are entitled to a total compensation of Rs.3,21,300/-.
RELIEF
44. I, therefore, award the claimants a total compensation Contd....
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of Rs.3,21,300/- (Rupees Three Lakhs Twenty One Thousand and Three Hundred Only) with interest @ 7% from the date of filing of the petition till realization.
45. The apportionment of amount of compensation between the claimants are as under:
i) Sh. Dilip Thakur Rs.1,21,300/- ii) Smt. Malti Devi Rs.2,00,000/-
46. It is directed that a sum of Rs.1,50,000/- from the share of compensation awarded to the claimant no.2 Smt. Malti Devi be invested in a Fixed Deposit of Rs.1,50,000/- with any Nationalized Bank for a period of six years or in the alternative in Monthly Income Scheme of post and telegraphs for a period of six years without any facility of loan, advance or withdrawal but entitling the claimant to withdraw interest.
47. It is further directed that a sum of Rs.75,000/- from the share of compensation awarded to Dilip Thakur be invested in a Fixed Deposit of Rs.75,000/- with any Nationalized Bank for a period of six years or in the alternative in Monthly Income Scheme of post and telegraphs for a period of six years without any facility of loan, advance or withdrawal but entitling the claimant to withdraw interest.
PETITION NO. 234/0548. Deceased Chandra Devi was aged 26 years as per para no.3 of the affidavit as Ex. PW1/X of Smt. Urmila Devi. As per assertions in para no. 3 she was earning Rs.3000/- per month. Smt. Urmila devi was cross examined and she admitted that she cannot show any document concerning the age as well as Contd....
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earning of deceased Chandira Devi. She also admitted that deceased Chandira Devi had not obtained any certificate or diploma for stitching or embroidery. A suggestion was given to her that she was a house wife and was earning Rs.3000/- per month. Giving of this suggestion amounts to an admission on the part of the insurance company that deceased Chandira Devi was a house wife. If we go by the standard of a house wife, the income of the deceased goes much higher than the income asserted by smt. Urmila Devi in the affidavit wherein income has been claimed as Rs.3000/- per month. Thus it is appropriate to consider the income as Rs.3,000/- p.m. So there is no hitch in taking the income as Rs.3000/- per month as so testified by Smt. Urmila Devi as Ex. PW1/X. Annual income thus comes to Rs.3000 x 12 = 36000 1/3rd is deducted towards personal expenses and annual dependency comes to 36000 - 12000 = Rs.24,000/-
Multiplier of 17 is applicable as per ration card Ex. PW1/8 Smt. Chandira Devi was aged 30 years as on 02.04.2004. Thus she was 31 years of age at the time of accident. Thus the total loss of dependency is 24000 x 17 = 4,08,000/- To this amount are added a sum of Rs.2000/- towards funeral expenses Rs.2500/- towards loss of estate and Rs.5000/- towards loss of consortium. So the total compensation comes to Rs. 4,17,500/-.
49. I therefore, find that the claimants are entitled to a total compensation of Rs.4,17,500/-.
RELIEF
50. I, therefore, award the claimants a total compensation of Rs.4,17,500/- (Rupees Four Lakhs Seventeen Thousand Contd....
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and Five Hundred Only) with interest @ 7% from the date of filing of the petition till realization.
51. The apportionment of amount of compensation amongst the claimants are as under:
i) Ms. Priyanka Rs.1,00,000/- ii) Ms. Chanchal Rs.1,00,000/- iii) Ms. Anchal Rs.1,00,000/- iv) Ms. Rekha Rs.1,00,000/- v) Smt. Urmila Devi Rs.17,500/-
52. It is directed that a sum of Rs.3,00,000/- from the share of compensation awarded to claimant no.1 to claimant no. 4 namely Ms. Priyanka, Ms. Chanchal, Ms. Anchal, Ms. Rekha be invested in four Fixed Deposits of Rs.75,000/- (each) with any Nationalized Bank till their attaining the age of majority or in the alternative in Monthly Income Scheme of post and telegraphs till their attaining the age of majority without any facility of loan, advance or withdrawal.
53. The liability to pay compensation is fastened on respondent no. 3 National Insurance Company Ltd. which will be paid to the claimants within 30 days from today as offending car was insured with respondent no. 3 for third party risks.
54. Copy of this order be given to the parties for necessary compliance.
55. File be consigned to record room.
Announced in the open court this the 12th day of March, 2007. (DILBAG Contd....
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SINGH) JUDGE, MACT: DELHI Contd....