Delhi District Court
Suman vs Racchna Rao on 26 September, 2024
MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
IN THE COURT OF MS. RICHA MANCHANDA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No. 5530/16
UID/CNR No. DLNT01-001558-2014
Smt. Sheela,
W/o Late Sh. Kashmira,
R/o J-1403, Mangol Puri,
Delhi.
(Mother of deceased)
................Petitioners
VERSUS
1. Ms. Rachna Rao,
W/o Sh. V.N. Rao,
R/o 181-B,
Block WP Pitampura,
Delhi.
(Registered Owner)
2. United India Insurance Co. Ltd.
202, Vardhman Complex,
C-2, Yamuna Vihar,
Delhi.
(Insurer)
3. Smt. Santosh,
W/o Sh. Suresh
(Mother of deceased driver of offending vehicle)
4. Sh. Suresh,
S/o Late Sh. Chander Ram,
(Mother of deceased driver of offending vehicle)
Page no.1 of total 38
MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
Respondent no. 3 & 4 both R/o. H.No. A-5,
MCD Flat, Roshnara Road, Sabzi Mandi,
Delhi.
...............Respondents
AND
MAC Petition No. 5531/16
UID/CNR No. DLNT01-001559-2014
1. Smt. Suman,
W/o Sh. Raju,
(Mother of deceased)
2. Sh. Raju,
S/o Sh. Sadhu,
(Father of deceased)
Both R/o 30, Murli Wala Kuan,
Sita Saran Colony,
Sabzi Mandi,
Delhi.
................Petitioners
VERSUS
1. Ms. Rachna Rao,
W/o Sh. V.N. Rao,
R/o 181-B,
Block WP Pitampura,
Delhi.
(Registered Owner)
2. United India Insurance Co. Ltd.
202, Vardhman Complex,
C-2, Yamuna Vihar,
Delhi.
(Insurer)
Page no.2 of total 38
MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
3. Smt. Santosh,
W/o Sh. Suresh
(Mother of deceased driver of offending vehicle)
4. Sh. Suresh,
S/o Late Sh. Chander Ram,
(Mother of deceased driver of offending vehicle)
Respondent no. 3 & 4 both R/o. H.No. A-5,
MCD Flat, Roshnara Road, Sabzi Mandi,
Delhi.
...............Respondents
Date of Institution : 02.05.2013
Date of Arguments : 26.09.2024
Date of Decision : 26.09.2024
APPEARANCES:
Sh.Kuldeep Kumar, Ld. Counsel for petitioner(s).
Sh. Pawan Kawrani, Ld. Counsel for registered owner/R-1.
Sh. R.K. Gupta, Ld. Counsel for insurance co./R-2.
None for the respondent no. 3(defence struck off vide order
dated 24.02.2020).
Petition under Section 163A of M.V. Act, 1988
for grant of compensation
AWARD
1. Vide this common order, I shall dispose of both the claim
petitions filed u/s. 163A M.V. Act with regard to fatal injuries
sustained by Sh. Sandeep (aged about 22 years) and Sh. Deepak (aged
about 22 years) in a Motor Vehicular Accident which occurred on
Page no.3 of total 38
MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
24.10.2012 at about 9:00 pm at G.T.K. Road, Bakoli Bus Stand
towards Delhi, Delhi, involving Car bearing registration no. DL2CW-
3352 (offending vehicle) and an unknown truck/dumper. The case vide
FIR No. 376/12, under Section 279/337/304A IPC was registered with
PS Alipur with regard to the said accident in which untrace
report/DAR was filed.
2. Both these claim petitions were consolidated for the purpose
of recording of evidence vide order dated 23.05.2017 passed by Ld.
Predecessor and MACP No. 5530/16 titled as " Sheela & Ors. Vs.
Rachna Rao & Ors" was treated as the leading case. Accordingly, the
evidence was led on behalf of both the sides in the leading case for the
purpose of these matters.
FACTS OF THE CASES
3. As per both the claim petitions, on 24.10.2012 at about 9:00 PM, the accident took place at GTK Road, Bakoli Bus Stand, Delhi, due to fast speed of vehicle no. DL2CW-3352 which was being driven by its driver in a rash and negligent manner and caused the accident. The driver of the said car was also died in the accident. The said vehicle was owned by respondent no. 1 and insured with United India Insurance Co. Ltd./respondent no. 3 during the period in question.
4. The perusal of the record reveals that initially the claim petition was filed under Section 166 and 140 of the Motor Vehicles Page no.4 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
Act by the petitioners against the registered owner Smt. Rachna Rao and insurer (United India Insurance Co. Ltd.) of Car bearing registration no. DL2CW-3352. However after conclusion of their evidence, the petitioners moved an application under Section 151 CPC for conversion of petition from 166 and 140 of the Motor Vehicles Act to the claim petition under Section 163A of the Motor Vehicles Act. The said application under Section 151 CPC moved on behalf of petitioners was allowed vide order dated 03.12.2021 and the claim petition was allowed to be converted from the claim petition under Section 166 and 140 of Motor Vehicles Act to the claim petition under Section 163A of the Act.
5. In her identical but separate written statement filed in both the cases, the respondent no. 1 i.e. registered owner has claimed that she has already sold the vehicle no. DL2CW-3352 to Mr. Tarun Nanda and all the necessary documents to the tune of delivery receipt, Form 29, 30 as well as an affidavit of Sh. Tarun Nanda. She further claimed that she had also informed the concerned Transport Authority about the sale of her vehicle to Sh. Tarun Nanda. Thus, she has no liability to pay the compensation to the petitioners as she has already sold the vehicle at the time of accident. She also claimed that offending vehicle was insured with respondent no. 2 and thus, insurance company is liable to pay compensation, if any to the petitioners. On merits, she has denied the averments made in the claim petition and prayed for its dismissal.
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6. In its separate but identical written statements filed in both the claim petitions, the respondent no.2 i.e. United India Insurance Company Limited claimed that present claim petition is not maintainable u/s. 163-A M.V. Act as the income of the deceased was more than Rs. 40,000/- per annum. It has been further claimed that the policy of the offending vehicle was liability only policy in the name of Ms. Rachna Rao/R-1, whereas the deceased was travelling as a passenger in the aforesaid vehicle and no premium was charged for passenger under the said policy. Therefore, the deceased was not covered under the aforesaid policy. Thus, insurance company is not liable to pay any compensation to the petitioners. On merits, it has denied the averments made in the claim petition and prayed for its dismissal.
7. From the pleadings of the parties, the following issues were framed by Ld. Predecessor vide order dated 16.08.2024 during the course of trial of claim petition under Section 163A of Motor Vehicles Act in both the claim petitions separately:-
1. Whether deceased Sandeep S/o Late Sh. Kashmira Prakash and deceased Deepak S/o Sh. Raju has expired in the road side accident occurred on 24.10.2012 at about 9.00 pm at G.T.K. Road, Bakoli Bus towards Delhi, within the jurisdiction of PS. Alipur, while he was sitting in a car bearing registration no. DL2CW-
3352, being driven by its driver Sh. Ravi (now Page no.6 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
deceased) through his Lrs/R3 & R4, which was owned by Smt. Rachna Rao/R-1, insured with United India Insurance Co. Ltd.? OPP.
2. Whether the petitioners are entitled to any compensation u/s. 163A of M.V. Act and if so, to what amount and from which of the respondents? OPP.
3. Relief.
8. In support of their claim petition under Section 166 and 140 of Motor Vehicles Act, the petitioners had examined two witnesses i.e. Smt. Sheela (mother of deceased Sandeep) as PW-1 and Smt. Suman (mother of deceased Deepak) as PW-2. On the other hand, the respondent no. 1 had examined herself as R1W1. Respondent no. 2 i.e. insurance company had not examined any witness in its evidence. Thereafter claim petition was converted from Section 166 and 140 of Motor Vehicles Act to 163A of the Act. After conversion of claim petition, Ld. Counsel for petitioners made submission that petitioners have already led their evidence and prayed that the said evidence may be read in the present claim petition as well. Ld. Counsel for respondent no. 1 had also made similar submission with respect to evidence led by respondent no. 1 before the conversion of claim petition and he also prayed that the evidence already led on behalf of respondent no. 1 may be read in the present claim petition as well.
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9. I have heard the arguments addressed by Ld. Counsels for petitioners as well as insurance company. I have also gone through the record. My findings on the issues are as under:-
ISSUE NO. 110. The present issue was framed to determine the claim of petitioners under Section 163A of the Motor Vehicles Act. Now in order to get compensation in the claim under Section 163A of the Motor Vehicles Act, the petitioners are just required to prove the involvement of the alleged car bearing no. DL2CW-3352.
11. In order to prove their case the petitioners have examined, PW-1 Smt. Sheela(mother of deceased Sandeep) and Smt. Suman (mother of deceased Deepak) have adduced their evidence by way of their respective affidavits Ex. PW1/A and Ex. PW2/A, wherein they deposed that on 24.10.2012, their sons namely Sandeep and Deepak met with an accident while going in a car no. DL2CW-3352 and died. They both deposed that both deceased were doing private service and earning Rs. 10,000/- per month. They further deposed that deceased were contributing their entire income towards household expenses and petitioners were dependent upon deceased at the time of accident. In order to prove the involvement of the offending vehicle, the petitioners have relied upon the documents filed alongwith the DAR Ex. PW1/3(colly).
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12. Be that as it may, considering the fact that the petitioners are seeking compensation U/s 163-A of M.V Act, they are not required to prove negligence on the part of driver of the offending unknown vehicle, as grant of compensation U/s 163-A of M.V Act is based upon no fault liability.
13. Moreover, the testimonies of PW-1 & PW-2 are also corroborated by photocopy of FIR No. 376/12 and PM report of both the deceased prepared at Government Hospital. The perusal of copy of PM Report dt. 25.10.2012 of deceased Sandeep, would show that cause of death is opined to be due to craniocerebral damage consequent upon blunt force trauma to the head. Further, the perusal of copy of PM Report dt. 25.10.2012 of deceased Deepak, would show that cause of death is opined to be due to cerebral damage consequent trauma to the head. Accordingly, it is hereby held that Sandeep and Deepak had died in motor vehicular accident which took place on 24.10.2012 at about 9:00 pm at G.T.K. Road, Bakoli Bus Stand towards Delhi, Delhi, due to involvement of car bearing no. DL2CW- 3352 being driven by deceased driver Ravi. Issue no. 1 is decided accordingly.
ISSUE NO.2
14. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of Page no.9 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
15. In the matter titled as "Helen C. Rebello Vs. Maharashtra"
reported at SRTC, 1999 (1) SCC 90, Hon'ble Supreme Court held as under:-
"xxxxxx The Court and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances,and attending peculiar or special features, if any."
xxxxx"
COMPENSATION IN MACP NO. 5530/16(DECEASED SANDEEP) LOSS OF DEPENDENCY
16. During the course of arguments, it has been prayed that yearly income of deceased may be treated as Rs. 40,000/-. PW1 Smt. Sheela has deposed in her evidence by way of affidavit Ex. PW1/A that her deceased son was 22 years of age at the time of accident. She Page no.10 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
further deposed that she was financially dependent upon the income of deceased. During her cross examination on behalf of insurance company, she deposed that she did not have any document to show the age of deceased except the Ration Card Ex. PW1/2 filed by her. She further deposed that she did not have any documentary proof to show that deceased was employed and was earning Rs. 10,000/- per month at the time of accident. She denied the suggestion that neither deceased was employed nor he was earning any amount at the time of accident.
17. The case will have to be decided on the basis of law applicable prior to the amendment of 2018 with regard to Section 163A M.V. Act as the accident took place in 2012 and the present petition was filed on 02.05.2013.
18. Ld counsel of petitioners vehemently argued that since no evidence has been led on behalf of respondents for disproving the said fact, the age of the deceased may be taken as 22 years for the purpose of applying the appropriate multiplier in terms of provision contained in Schedule-II of M.V. Act.
19. In the copy of PM report(which is part of DAR) of the deceased Sandeep, his age is mentioned as 23 years. The said document has gone unchallenged and unrebutted from the side of respondents. The accident had occurred on 24.10.2012. Thus, the age of deceased as on the date of accident, is taken as 23 years.
Page no.11 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
20. It is now well settled position that in petition U/s 163-A M.V Act, the multiplier has to be applied as per the age of deceased. Section 163-A M.V Act contains a special provision as to payment of compensation on structured formula basis, as indicated in Second Schedule to the Act. The Second Schedule contains a Table prescribing the compensation to be awarded with reference to the age and income of the deceased.
21. Recently, Hon'ble Delhi High Court in Appeal bearing No. MAC.APP 369/2013 titled as " Sushila Devi & Anr. Vs. Parvesh Kumar & Anr." decided on 25.04.2016, has been pleased to take the aforesaid view while observing in para-3 of the judgment that as per Second Schedule, it is the age of the victim which would control the choice of multiplier.
22. Now, the next question arises as to how many dependents were left behind by deceased Sandeep. PW1 Smt. Sheela has deposed in her evidence by way of affidavit (Ex. PW1/A) that she was the only LR of deceased as her husband had already expired. It has been deposed by PW1 that at the time of accident, deceased was doing private job. After deducting one third from the annual income of deceased towards his personal and living expenses, the annual loss of dependency would come out to Rs. 26,666.66p (Rs. 40,000/- x 2/3). The total loss of dependency would be Rs. 4,53,333.33p (Rs. 26,666.66p x 17) (the age of deceased being 23 years). Accordingly, a Page no.12 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
sum of Rs. 4,53,000/-(rounded off) is awarded on account of loss of dependency.
NON PECUNIARY LOSS
23. As per Schedule-II of M.V Act, the maximum amount which can be awarded under non pecuniary heads in petition U/s 163- A of M.V Act, is Rs. 4500/- ( i.e. Rs. 2000/- on account of funeral expense and Rs. 2500/- for loss of estate). Hence, a sum of Rs. 4500/- is awarded under this head.
The total compensation is assessed as under:-
1. Loss of dependency Rs. 4,53,000/-
2. Non pecuniary heads Rs. 4500/-
Total Rs. 4,57,500/-
Rounded Off Rs. 4,58,000/-
COMPENSATION IN MACP NO. 5531/16(DECEASED DEEPAK) LOSS OF DEPENDENCY
24. During the course of arguments, it has been prayed that yearly income of deceased may be treated as Rs. 40,000/-. PW1 Smt. Suman has deposed in her evidence by way of affidavit Ex. PW2/A that her deceased son was 20 years of age at the time of accident. She further deposed that she alongwith her husband were financially dependent upon the income of deceased. During her cross examination Page no.13 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
on behalf of insurance company, she deposed that she did not have any document to show the age of deceased except the Ration Card Mark A filed by her. She further deposed that she did not have any documentary proof to show that deceased was employed and was earning Rs. 10,000/- per month at the time of accident. She denied the suggestion that neither deceased was employed nor he was earning any amount at the time of accident.
25. The case will have to be decided on the basis of law applicable prior to the amendment of 2018 with regard to Section 163A M.V. Act as the accident took place in 2012 and the present petition was filed on 02.05.2013.
26. Ld counsel of petitioners vehemently argued that since no evidence has been led on behalf of respondents for disproving the said fact, the age of the deceased may be taken as 20 years for the purpose of applying the appropriate multiplier in terms of provision contained in Schedule-II of M.V. Act.
27. In the copy of PM report(which is part of DAR) of the deceased Deepak, his age is mentioned as 19 years. The said document has gone unchallenged and unrebutted from the side of respondents. The accident had occurred on 24.10.2012. Thus, the age of deceased as on the date of accident, is taken as 19 years.
Page no.14 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
28. It is now well settled position that in petition U/s 163-A M.V Act, the multiplier has to be applied at the age of deceased. Section 163-A M.V Act contains a special provision as to payment of compensation on structured formula basis, as indicated in Second Schedule to the Act. The Second Schedule contains a Table prescribing the compensation to be awarded with reference to the age and income of the deceased.
29. Recently, Hon'ble Delhi High Court in Appeal bearing No. MAC.APP 369/2013 titled as " Sushila Devi & Anr. Vs. Parvesh Kumar & Anr." decided on 25.04.2016, has been pleased to take the aforesaid view while observing in para-3 of the judgment that as per Second Schedule, it is the age of the victim which would control the choice of multiplier.
30. Now, the next question arises as to how many dependents were left behind by deceased Deepak. PW1 Smt. Suman has deposed in her evidence by way of affidavit (Ex. PW2/A) that she alongwith her husband were the only LRs of deceased. It has been deposed by PW1 that at the time of accident, deceased was doing private job. After deducting one third from the annual income of deceased towards his personal and living expenses, the annual loss of dependency would come out to Rs. 26,666.66p (Rs. 40,000/- x 2/3). The total loss of dependency would be Rs. 4,26,666.66p (Rs. 26,666.66p x 16) (the age Page no.15 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
of deceased being 19 years). Accordingly, a sum of Rs. 4,27,000/- (rounded off) is awarded on account of loss of dependency.
NON PECUNIARY LOSS
31. As per Schedule-II of M.V Act, the maximum amount which can be awarded under non pecuniary heads in petition U/s 163- A of M.V Act, is Rs. 4500/- ( i.e. Rs. 2000/- on account of funeral expense and Rs. 2500/- for loss of estate). Hence, a sum of Rs. 4500/- is awarded under this head.
The total compensation is assessed as under:-
1. Loss of dependency Rs. 4,27,000/-
2. Non pecuniary heads Rs. 4500/-
Total Rs. 4,31,500/-
Rounded Off Rs. 4,32,000/-
32. Now, let us examine whether respondent No.2/Insurance Company is liable to pay compensation to the petitioners/claimants in the matter or not. For that, an analysis of the Insurance Policy Ex.R1W1/DX1 is liable to be made. Right from the inception, it has been the case of respondent No.2/insurance company that the insurance policy (Ex.R1W1/DX1) in question was a "Liability Only Policy", i.e liability to pay compensation for death or any bodily injuries of third party and not a comprehensive policy.
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33. Per contra, learned counsel for the petitioners/claimants has very vociferously argued that this Court cannot look into this aspect whether it was a limited liability policy or a comprehensive policy. Once the offending vehicle was insured, the Insurance Company is liable to make payment of compensation to the petitioners/claimants.
34. I have heard the rival contentions on this aspect. Let us analyse this issue in the light of law laid down by Hon'ble High Court of Delhi as well as Hon'ble Supreme Court of India. In MAC App.No.176/2009, titled as, "Yashpal Luthra & Anr. V/s United India Insurance Company Limited & Anr." (DOD: 09.12.2009), the issue before the Hon'ble High Court of Delhi was:
xxxxx "Whether under a comprehensive/package policy, the insurance company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car?
xxxxx
35. The Hon' ble High Court called in Court all the stakeholders, i.e Tariff Advisory Committee (TAC) and Insurance Regulatory & Development Authority (IRDA) with a view to settle the law as to whether the pillion rider on a two-wheeler shall be covered under the comprehensive policy. Admittedly, in that case the policy was comprehensive policy and not "Act" policy, like the one in this Page no.17 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
case. In that case, the Hon'ble High Court after analyzing the entire law was pleased to lay down that in case of comprehensive insurance policy where additional premium is paid, the pillion rider shall be covered for the purpose of grant of compensation by the insurance company.
36. In case reported as, "II (2009) ACC 432 (SC)", titled as, "New India Assurance Company Limited V/s Sadanand Mukhi & Ors.", the Hon'ble Supreme Court after analyzing the law on the subject has been pleased to lay down as under:
xxxxx
13. The provisions of the Act, therefore, provide for two types of insurance - one statutory in nature and the other contractual in nature.
Whereas the insurance company is bound to compensate the owner or the driver of the motor vehicle in case any person dies or suffers injury as a result of an accident; in case involving owner of the vehicle or others are proposed to be covered, an additional premium is required to be paid for covering their life and property.
Xxxxx xxxxx
15. Contract of insurance of a motor vehicle is governed by the provisions of the Insurance Act. The terms of the policy as also the quantum of the premium payable for insuring the Page no.18 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
vehicle in question depends not only upon the carrying capacity of the vehicle but also on the purpose for which the same was being used and the extent of the risk covered thereby. By taking an 'act policy', the owner of a vehicle fulfils his statutory obligation as contained in Section 147 of the Act.
The liability of the insurer is either statutory or contractual. If it is contractual its liability extends to the risk covered by the policy of insurance.
If additional risks are sought to be covered, additional premium has to be paid. If the contention of the learned counsel is to be accepted, then to a large extent, the provisions of the Insurance Act become otiose. By reason of such an interpretation the insurer would be liable to cover risk of not only a third party but also others who would not otherwise come within the purview thereof. It is one thing to say that the life is uncertain and the same is required to be covered, but it is another thing to say that we must read a statute so as to grant relief to a person not contemplated by the Act. It is not for the court, unless a statute is found to be unconstitutional, to consider the rationality thereof. Even otherwise the provisions of the Act read with the provisions of the Insurance Act appear to be wholly rational.
xxxxx Page no.19 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
37. In "Civil Appeal Nos.1345-1346 of 2009", titled as, "Oriental Insurance Company Limited V/s Surendra Nath Loomba & Ors.", the Hon'ble Supreme Court has been pleased to hold as under:
xxxxx
13. Recently this Bench in National Insurance Company Ltd. v.
Balakrishnan & Another, after referring to various decisions and copiously to the decision in Bhagyalakshmi (supra), held that there is a distinction between "Act Policy" and "Comprehensive/Package Policy". Thereafter, the Bench took note of a decision rendered by Delhi High Court in Yashpal Luthra and Anr. V. United India Insurance Co.
Ltd. and Another wherein the High Court had referred to the circulars issued by the Tariff Advisory Committee (TAC) and Insurance Regulatory and Development Authority (IRDA).
xxxxx
38. Furthermore, the liability of the Insurance Company in respect of a pillion rider on a two-wheeler as well as that of a passenger in a private car was always a subject matter of dispute. The Hon'ble Supreme Court and various Hon'ble High Courts examined the issue and were of the opinion that the liability of insurance companies is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk (United India Insurance Company Ltd Vs Tilak Singh reported as Page no.20 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
2006(4) SCC 404; Oriental Insurance Company Ltd Vs Jhuma Saha reported as 2007(9) SCC 263 etc).
39. From a fine tooth-comb-analysis of the aforesaid case laws/judgments, it is clearly apparent that if the insurance policy is not comprehensive policy and merely an "Act Only/Liability Only"
policy, like the one in the present case, then respondent No.2/Insurance Company is not liable to pay compensation to the passengers of the car (both the deceased herein).
40. Now, the next question which arises for determination is as to which of the respondents i.e. respondent no. 1/registered owner or respondent no. 3 & 4/Lrs of deceased driver, is liable to pay the compensation amount. Respondent no. 1/registered owner has claimed exemption on the ground that offending vehicle has already been sold by her prior to the accident in question. In order to substantiate the said plea, the respondent no. 1 i.e. registered owner has examined herself as R1W1. She deposed in her evidence by way of affidavit (Ex. R1W1/A) that sons of the petitioners alongwith other occupants were travelling in the car in question and they were under the influence of alcohol because of which their car might have turned turtle. She further deposed that deceased died only due to their own negligence and thus, petitioners are not entitled for any compensation. She deposed that she had already sold the vehicle i.e. Santro Car bearing registration no. DL2C-W-3352 to Mr. Tarun Nanda on Page no.21 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
11.06.2011 and all the necessary documents to the tune of Delivery Receipt, Form 29 & 30 as well as affidavit of Sh. Tarun Nanda were duly executed apart from the copy of the licence which was also handed over by him to her. She further deposed that she had also informed the concerned Transport Authority about the sale of vehicle to Sh. Tarun Nanda after the sale of the same. She further deposed that since, she has already sold the vehicle in question prior to the date of accident and also informed the concerned authority regarding the same, she is not liable to pay any compensation to the petitioners. She also deposed that vehicle in question was insured with respondent no. 2 at the time of accident and thus, it is insurance company which is liable to pay compensation, if any to the petitioners. She has relied upon the following documents:-
S.No. Description of documents Remarks
1. Copy of delivery receipt dated Ex.R1W1/1(colly) 11.06.2021 in respect of sale of (Objected to by vehicle bearing registration no. Ld. Counsel for DL2CW-3352 by Sh. Tarun Nanda petitioners/Lrs of to her alongwith copy of affidavit of deceased on the Sh. Tarun Nanda mode of proof)
2. Copy of letter dated 14.11.2021 Ex.R1W1/2(colly) written and sent by her to RTO, alongwith copy of postal receipt thereof
3. Original statement of Sh. Suresh Ex. R1W1/3 Kumar/R-3 dated 25.10.2016, recorded in MACP No. 5083/2016, titled as "Santosh Vs. Rachna Rao"
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41. During her cross-examination on behalf of petitioners, she deposed that she was the registered owner of offending vehicle at the time of accident. She further deposed that she had not filed any proof to the effect that she was out of town w.e.f. 12.06.2011 to 13.06.2011 for some official work. She deposed that she had sold the offending vehicle to Sh. Tarun Nanda, who further informed before this court that he had sold the same to Sh. Sanjay Kumar. She deposed that she had signed the Forms 29 & 30 at the time of sale of vehicle. She denied the suggestion that she was not out of Delhi on the date and time of accident. She further denied the suggestion that she did not take any steps for transferring of offending vehicle to Sh. Tarun Nanda. During her cross-examination on behalf of insurance company, she admitted that the policy Ex. R1W1/DX1 was got issued by the insurance company. She deposed that the said policy was not purchased by her. She further deposed that she could not tell as to who had purchased the said policy. She further deposed that she did not know whether the passengers travelling in the offending vehicle were covered in the policy or not. She was not cross-examined by Lrs of deceased driver.
42. Ld. counsel for respondent no. 2 vehemently argued that sufficient evidence has already been led during the course of enquiry to prove the factum of sale of offending vehicle by respondent no.1 to Sh. Tarun Nanda on 11.06.2011. In this regard, he heavily relied upon the testimony of respondent no. 1/registered owner recorded as R1W1.
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He contended that registered owner had done everything which was in her control and she has also placed on record copy of delivery receipt alongwith affidavit regarding sale of offending vehicle to Sh. Tarun Nanda on 10.06.2011. Thus, no liability can be fastened upon registered owner to pay any compensation for the road accident caused by deceased driver or subsequent purchaser of the offending vehicle. It was further contended that offending vehicle was sold from 11.06.2011 to 24.10.2012 many times. It is further contended that liability if any is of respondent no. 3 & 4 who are the parents/LRs of deceased driver of aforesaid car. On the other hand, Ld. Counsel for petitioners argued that registered owner is liable to pay the compensation to the petitioners. (Reliance is placed on judgment passed by Hon'ble Supreme Court of India in case titled Naveen Kumar Vs. Vijay Kumar & Ors., Civil Appeal No. 1427 of 2018, decided on 06.02.2018).
43. Similar question arose before Hon'ble High Court of Delhi in the matter titled as "Sidharth Khetrapal Vs. Mohd. Hanif & Ors."
MAC. APP. 524/2008, decided on 14.09.2017. In the said case, Hon'ble High Court had the occasion to deal with the issue as to whether registered owner is jointly and severally liable to pay the compensation amount once, he/she had already sold the offending vehicle to some other person. The relevant portion related to the issue in hand would be discussed a little later.
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44. The expression "owner" is defined in Section 2(30) of the Motor Vehicles Act, 1988 as under:-
"2(30) "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire- purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement."
45. Section 50 of the Motor Vehicles Act, 1988, to the extent it is relevant here, may be quoted as under:-
"50. Transfer of ownership.-- (1) Where the ownership of any motor vehicle registered under this Chapter is transferred,--
(a) the transferor shall,--
(i) in the case of a vehicle registered within the same State, within fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may be prescribed by the Central Government to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee; and
(ii) in the case of a vehicle registered outside the State, within forty-five days of the transfer, forward to the registering authority referred to in sub-clause (i)-- (A) the no Page no.25 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
objection certificate obtained under section 48; or (B) in a case where no such certificate has been obtained,--
(I) the receipt obtained under sub-section (2) of section 48; or (II) the postal acknowledgment received by the transferee if he has sent an application in this behalf by registered post acknowledgment due to the registering authority referred to in section 48, together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted;
(b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration.
(3) If the transferor or the transferee fails to report to the registering authority the fact of transfer within the period specified in clause
(a) or clause (b) of sub-section (1), as the case may be, or if the person who is required to make an application under sub-section (2) (hereafter in this section referred to as the other Page no.26 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
person) fails to make such application within the period prescribed, the registering authority may, having regard to the circumstances of the case, require the transferor or the transferee, or the other person, as the case may be, to pay, in lieu of any action that may be taken against him under section 177 such amount not exceeding one hundred rupees as may be prescribed under sub-section (5):
Provided that action under section 177 shall be taken against the transferor or the transferee or the other person, as the case may be, where he fails to pay the said amount. (4) Where a person has paid the amount under sub- section (3), no action shall be taken against him under section 177.
(7) A registering authority making any such entry shall communicate the transfer of ownership to the transferor and to the original registering authority, if it is not the original registering authority."
46. The expression "owner" as defined in Section 2 (30) of the Motor Vehicles Act, 1988 is to be kept in mind while construing the provision contained in Section 50 which relates to "transfer of ownership". If the ownership of the vehicle is transferred, there is statutory liability cast on the transferor, who would generally be the registered owner, to send intimation to the registering authority within the period specified (depending on whether the transfer is within the same State where the vehicle is registered or outside) about such transfer.
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47. The definition of the expression "owner" as appearing in Section 2 (30) only guides that ordinarily the person in whose name the vehicle stands registered is to be construed as the owner. But this cannot be the decisive factor in construing the issue of vicarious liability. The definition of the word "owner" raises presumption on the basis of registration but such presumption is rebuttable. In terms of Section 50, in case there is a default by the transferor, or the transferee, to send the requisite intimation of the transfer of the vehicle or sale, only the consequences appearing in Sub-section (3) would follow, there being nothing in the said provision of law to indicate that such consequences would include the assumption that the registered owner continues to be vicariously liable or responsible for the use of the vehicle or damage caused in its wake.
48. It is clear from the statutory provision quoted above that in the event of default the law does not envisage any consequences beyond what are conceived in sub-section (3) of Section 50 particularly, on the part of the registered owner of the vehicle to give intimation within the prescribed time to the registering authority about the sale of the vehicle by him/her.
49. An accident claim case is maintained under the provisions of the Motor Vehicles Act, 1988 which is essentially the law of torts codified for such purposes, the prime regime being represented by the 12th Chapter. Section 168 of the Motor Vehicles Act, 1988 being Page no.28 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
germane to the issue raised in these appeals, may be quoted to the extent relevant here, as under:-
"168. Award of the Claims Tribunal.-- (1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be".
50. It is clear from the afore-quoted provision of Section 168 that the claims tribunal, after inquiry into the application for compensation, may grant the award specifying as to the person who is bear the responsibility to pay, such person inclusive of "the insurer or owner or driver of the vehicle involved in the accident or by all or any of them." Noticeably, the law does not refer to the registered owner, but simply uses the expression "owner".
51. The fact that the owner may be a person distinct from the registered owner cannot be denied. In the context of provision Page no.29 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
contained in Section 31 of the erstwhile Motor Vehicles Act, 1939, also governing the subject of "transfer of ownership", which was a similarly worded clause as contained in Section 50 the Motor Vehicles Act, 1988, a Full Bench of of Hon'ble High Court of Delhi in Anand Sarup Sharma vs. P.P. Khurana & Ors., AIR 1989 Delhi 88, had observed as under:-
"13. We have carefully examined the above provisions. In our considered opinion, these provisions do not have the effect of postponing the transfer of property from the seller to the buyer till the transferor and transferee make the requisite report and the vehicle is registered in the name of the transferee. Section 22 simply imposes astatutory obligation. It prohibits the driving of any vehicle by any person unless the vehicle is registered. Non-compliance of these provisions does not have the effect of postponing the transfer of property in the vehicle from buyer to seller. To take a contrary view would result in an absurd result. If a buyer after purchase does not use the vehicle he is the owner. But if after one year he uses it he ceases to be the owner. It is not and cannot be the law.
14. Opening words of section 31 "where the ownership of any motor vehicle registered under the Chapter is transferred" make clear that transfer of ownership has to precede the reports required to be made under section.
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31. Section 31 does not prohibit the transfer of a motor vehicle till the reports are made. These provisions only cast an obligation on the transferor and the transferee to report to the registering authority concerned regarding the transfer of the vehicle after the transfer has already taken place. These provisions have nothing to do with the ownership of the vehicle as such. They merely provide for regulations of use of motor vehicles in public places. Their non-compliance attracts penalties."
52. As observed earlier, the liability on account of damage or injury (including death) caused due to negligent driving of a motor vehicle is essentially a liability in tort. The person at the wheel of the motor vehicles is, generally speaking, the principal tort-feasor. The liability of the owner arises because he is the person who either employed or permitted the driver to be at the wheel of the vehicle at the relevant point of time, such liability being "vicarious". In this context, further observations of Full Bench of Hon'ble High Court of Delhi in Anand Sarup Sharma (supra) to the following effect are enlightening:-
"23. A decree or award, in our opinion, can never be made against a person who has sold the vehicle prior to the date of accident. A driver is always liable if the death or bodily injury is caused due to his rash and negligent driving. This is also the rule that an employer, though guilty of no fault of himself, is liable for damage done by a fault or negligence of his Page no.31 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
servant acting in the course of his employment on the principle that an owner is victoriously liable for the rash and negligent act of his servant. The buyer cannot by any stretch of arguments be termed as the servant of the seller. The seller, therefore, cannot be held liable for the tortious act of the purchaser or his servant, committed during the course of this (purchaser's) employment. The purchaser, in view of the provisions of section 94, no doubt, is barred by statute from using the vehicle without getting it insured. The consequence of non-compliance of the statutory obligation can lead to two consequences, namely, (i) criminal liability and (ii) tortious liability. However, the seller in no case would be liable either under tort or under the statute. This non-compliance by the buyer would not make the seller liable for damages. The fact that he continues to be the registered owner would not make any difference so far as his liability to pay compensation under tort or statute is concerned."
53. An application for payment of compensation is filed before the Tribunal constituted under Section 165 of the Act for adjudicating upon the claim for compensation in respect of accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Use of the motor vehicle is a sine qua non for entertaining a claim for compensation. Ordinarily if driver of the vehicle would use the same, he remains in possession or control thereof. Owner of the Page no.32 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
vehicle, although may not have anything to do with the use of vehicle at the time of the accident, actually he may be held to be constructively liable as the employer of the driver. What is, therefore, essential for passing an award is to find out the liabilities of the persons who are involved in the use of the vehicle or the persons who are vicariously liable. The insurance company becomes a necessary party to such claims as in the event the owner of the vehicle is found to be liable, it would have to reimburse the owner inasmuch as a vehicle is compulsorily insurable so far as a third party is concerned, as contemplated under Section 147 thereof. Therefore, there cannot be any doubt whatsoever that the possession or control of a vehicle plays a vital role."
54. Now let us revert back to the issue in hand.
55. After discussing the legal position on similar issue, Hon'ble High Court of Delhi has been pleased to hold in para no. 25 of the Sidharth Khetrapal (supra) as under:-
xxxxx "The registration of the vehicle in the name of an individual is of import. It generally proceeds on the presumption that the person in whose name the vehicle is registered is the person responsible for its use. This attracts to him the vicarious liability. But then, it being a rebuttable presumption, it cannot be a thumb rule that in all cases the Page no.33 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
registered owner must be held accountable. If the registered owner can show, by credible evidence, like in the present case, that he had no control over the vehicle or that the vehicle was with someone else, over whom, or use of the vehicle by whom, he had no control, he cannot be held accountable, the liability in such case shifting on to the person who had the control over the vehicle."
(emphasis supplied) xxxxxx
56. It was further held in para no. 26 which is as under:-
xxxx
26. In the present case, the delivery receipt (Ex.RW1/4) dated 09.10.2000, duly acknowledged by the third respondent affirms that he had received possession of the vehicle on sale from the second respondent.
This coupled with the agreement (Ex.RW1/3) and, more importantly, the statement recorded by the court of Chief Judicial Magistrate on 27.02.2000 (Ex.RW1/26) giving no objection in favour of the third respondent for release of the vehicle in his favour, as was the prayer of the latter to the said court, which evidence has gone unimpeached in so far as the third respondent is concerned, leaves no room for doubt that the vehicle had actually been sold by the second respondent unto the third respondent, for consideration, on 09.10.2000.
Xxxx Page no.34 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
57. The final conclusion in the case was as under:-
xxxxx
27. In above facts and circumstances, the tribunal has correctly held the third respondent to be the person vicariously liable, rightly exonerating the second respondent of any responsibility.
xxxx
58. Perusal of document Ex. R1W1/1 reveals that the respondent no. 1 had already sold the offending vehicle to one Sh. Tarun Nanda on 11.06.2011 i.e. more than one year prior to the date of accident i.e. 24.10.2012 and she had no control over the same at the time of accident. Moreover, it has been duly admitted by Sh. Suresh Kumar, father of deceased driver/R4 vide his statement recorded by Ld. Predecessor on 25.10.2016 (Ex. R1W1/3) that Santro Car bearing registration no. DL2C-W-3352 was purchased by his son about one year before the accident and also stated that his deceased son Ravi was the possessory owner of the aforesaid vehicle at the time of accident. It is also relevant to mention here that deceased driver was also the owner of the vehicle in question and therefore, registered owner had no power and control over the offending vehicle at the time of accident.
59. Therefore in peculiar circumstances of the case, it is hereby held that the respondent no. 1 namely Ms. Rachna Rao cannot be held Page no.35 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
liable to pay the compensation amount. However, respondent no. 3 & 4 being Lrs of possessory owner of the offending vehicle at the time of accident are liable to pay the aforesaid compensation amount to the petitioners in both the cases. Issue no. 2 is decided accordingly.
ISSUE NO.3 RELIEF
60. In view of my findings on issues no. 1 & 2, following order is passed after relying upon judgment "United India Insurance Co. Ltd. V. Baby Raksha & Ors.", MAC APP. No. 36/2023 on 21.04.2023, on the point of interest.
a) A sum of Rs. 4,58,000/-(Rupees Four Lakhs and Fifty Eight Thousand only) (including interim award amount, if any) in MAC Petition No. 5530/16 alongwith interest @ 7.5% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 02.05.13 till the date of its realization.
b) A sum of Rs. 4,32,000/-(Rupees Four Lakhs and Thirty Two Thousand only) (including interim award amount, if any) in MAC Petition No. 5531/16 alongwith interest @ 7.5% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 02.05.13 till the date of its realization.
Issue no. 3 is decided accordingly.
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APPORTIONMENT
61. Statements of legal heirs of deceased/in terms of Clause 29 MCTAP was recorded on 31.10.2023. Having regard to the facts and circumstances of the case MACP No. 5530/16 and in view of statement of petitioner, it is hereby ordered that entire award amount of Rs. 4,58,000/- (Rupees Four Lakhs and Fifty Eight Thousand Only) alongwith interest shall be immediately released to the petitioner through her bank account, as per rules.
62. In MACP No. 5531/16, it is hereby ordered that out of total compensation amount, the petitioner no. 1 Smt. Suman shall be entitled to share amount of Rs. 3,00,000/- (Rupees Three Lakhs Only) alongwith proportionate interest and the petitioner no. 2 Sh. Raju shall be entitled to share amount of Rs. 1,32,000/- (Rupees One Lakh and Thirty Two Thousand Only) alongwith proportionate interest. It is further ordered that entire share amount of both the petitioners shall be immediately released to them through their respective bank accounts, as per rules.
63. The respondents no. 3 & 4 are directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the aforesaid amount immediately to petitioners in their respective saving bank accounts, on completing necessary formalities Page no.37 of total 38 MACP No. 5530/16 & 5531/16 Sheela & Ors., Suman & Ors. Vs. Rachna Rao & Ors.
as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimant. Copy of this award be sent to both the respondents no. 3 & 4 through SHO, PS. Alipur for information and compliance. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Digitally signed by RICHA RICHA MANCHANDA
MANCHANDA Date:
Announced in the open 2024.09.26
Court on 26.09.2024 03:57:11 +0545
(RICHA MANCHANDA)
Judge MACT-2 (North)
Rohini Courts, Delhi
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