Delhi District Court
Maya Devi Wd/O Late Sh. Jag Ram vs Bharat Bhushan @ Appu S/O Sh. Kewal ... on 16 November, 2015
IN THE COURT OF MR. RAJENDER KUMAR SHASTRI:
PO:MACT1 (NORTH): ROHINI: DELHI
Ex. Petition No. 08/13
1. Maya Devi Wd/o Late Sh. Jag Ram
2. Sh. Narender S/o o Late Sh. Jag Ram
3. Sh. Suresh S/o Late Sh. Jag Ram
4. Ms. Asha D/o Late Sh. Jag Ram
R/o H.No. 264, Gali NO. 5, Khera Gardhi,
Delhi.
.........DH /PETITIONERS
VERSUS
Bharat Bhushan @ Appu S/o Sh. Kewal Krishan
R/o 39,BlockD, Swami Shardanand Park,
Bhalswa Dairy, Delhi.
......JD/RESPONDENT.
ORDER:
1. One Jagram, an employee of Mahanagar Telephone Nigam Ltd. ( MTNL) was waiting for some Auto Rickshaw alongwith his Ex. No. 08/13 Maya Devi & Ors. Vs. Bharat Bhushan @ Appu 1 of pages 12 brother in law namely Jai Prakash , standing under byepass flyover near Railway Station, Khera Ghadi colony. Till 8 p.m., though no autorickshaw happened to pass through that way, death came in the guise of a motorbike. It was being driven by one Bharat Bhushan @ Appu (respondent no.1). After being hit by that motorbike, Sh. Jagram fell down on ground and suffered severe injuries. Driver Bharat Bhushan was over powered by public gathered there. Victim succumbed to injuries and died. A fortuitous stroke reduced a happy family into a group of a destitute widow and three orphan children. Hoping for some pittance, survivors ( legal representatives ) of victim' petitioned before this Tribunal for monetary compensation. After detailed enquiry, predecessor of undersigned allowed their petition. A total sum of Rs. 38,44,840/ was awarded as compensation. Respondent no. 1 ( Sh. Bharat Bhushan) was directed to deposit cheques of awarded amount alongwith interest @ 7.5 % p.a., to be calculated from the date of institution of claim petition, till the date of actual payment, in Union Bank of India, Sector9, Rohini, Delhi.
2. No such amount was paid /deposited by said respondent. Ex. No. 08/13 Maya Devi & Ors. Vs. Bharat Bhushan @ Appu 2 of pages 12 Petitioners approached this tribunal again on 16.04.2013, seeking execution of award passed by it. Respondent no. 1/ JD appeared in court, after being served with a notice. Said JD did not opt to file any appeal etc. and hence a recovery certificate in view of Section 174 of The Motor Vehicle's Act was sent to the Collector Concerned, with direction to recover the amount of award from JD, as amount of Land Revenue. Asstt. Collector, GradeII, Model Town, Delhi filed a report expressing his inability to recover the amount stating that JD had no property in his name, except the offending motorcycle itself. Said bike was ordered to be sold, to fetch some pugil for poor family. JD paid Rs. 1.5 lacs to DH in court on 25.05.2015, stating to have taken a loan from his relatives.
3. Despite having an award passed by a competent tribunal in their favour, petitioners who are LRs of deceased Jagram were left with no remedy. Observing the situation, on 03.03.15, this tribunal issued notice to Government of NCT, Delhi through its Chief Secretary as well as to the Commissioner of Police, Delhi as to why City Government be not directed to pay the amount of award, to the Ex. No. 08/13 Maya Devi & Ors. Vs. Bharat Bhushan @ Appu 3 of pages 12 petitioners.
4. Chief Secretary , Government of NCT did not find said notice worth reply, while Commissioner of Delhi Police said through Additional Commissioner of Police ( Legal Cell) that police or state Govt. did not owe any liability to pay compensation, rather advised this tribunal to invoke Section 357 Cr.P.C. and to recommend the case to State/ District Legal Services Authority ( DLSA) for payment of amount of compensation under Victim Compensation Scheme, floated by Govt. of NCT, Delhi.
5. Opinion of ld. Secretary, DLSA ( North) ,District Courts, Rohini was solicited by this tribunal in this regard. Despite several requests and reminders, no report is received. Ld. Secretary sought adjournments again and again citing meeting of DVCC. It simply added protraction of execution proceedings.
6. One of main objects of The Motor Vehicle's Act is to provide adequate compensation to the victim's of motor accidents. In a case titled as New India Assurance Company Vs. Mahadeo, 2014 (2) T.A.C.( 108) it was held by High Court of Mumbai that the object Ex. No. 08/13 Maya Devi & Ors. Vs. Bharat Bhushan @ Appu 4 of pages 12 of the Legislature is to be provide just compensation, with necessary uniformity in such cases. Similarly, High Court of Himachal Pradesh in case National Insurance Company Vs. Smt. Nirmala Devi III (2014) ACC 509 observed that "it is beaten law of land that granting of compensation is welfare legislation and the hypertechnicalities, mystic may be, procedural wrangles and tangles have no role to play. In case Bajaj Allianz General Insurance Company Ltd. vs. Mohammad Ahsan Mir, 2014 (2) T.A.C. 315. High Court of Jammu & Kashmir noted that Chapters X, XI & XII of the Motor Vehicles Act taken together are a piece of welfare legislation, intended to come to the rescue, to and ensure relief and rehabilitation of victims of vehicular accident and the dependents of the deceased victims and are to be interpreted employing the tool of 'purposive interpretation' so as to achieve the intended object.
7. This heartrending plight of hapless family i.e. petitioners point out failure of Motor Vehicle's Act itself. To enact law is act of legislature ( parliament), judiciary is obliged to interpret law where ever, it is not clear. It is well settled that while interpreting any Ex. No. 08/13 Maya Devi & Ors. Vs. Bharat Bhushan @ Appu 5 of pages 12 provision of law, a judge is duty bound to take into consideration the object, with which that act was passed. Wisdom of parliament tantamounts wish of people, making that country. As described earlier, one of main objects of Motor Vehicle Act is to provide adequate compensation to the victims of vehicular accidents. Perhaps, the legislature could not anticipate a situation, as has arisen in this case, where dependents (LRs) of a person, killed in a vehicular accident could not get compensation, despite having final award in their favour, passed by a tribunal established by law.
8. The Motor Vehicle's Act strictly prohibits any vehicle to be plied on road , unless same is insured. According to section 146 of said Act, no person shall use or allow any other person to use a motor vehicle, in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter. The use of word "shall" by the legislature alongwith "no person" is evident that this requirement of insurance is mandatory. In other words, no vehicle can be allowed to run on the roads, unless it is duly Ex. No. 08/13 Maya Devi & Ors. Vs. Bharat Bhushan @ Appu 6 of pages 12 insured.
9. Although, Sub section 3 empowers appropriate government to exempt any vehicle from this requirement, which is owned by Central Government or State Government or any local authority or any State Transport undertaking but a fund has to be established and maintained by that Government/ authority for meeting any liability, arising out of the use of any vehicle of that authority.
10. Section 158 obliges any person driving a motor vehicle in any public place to produce certificate of insurance to a police officer authorised in this behalf. At the same time, police is empowered to take action against any person, who is found driving any vehicle without proper insurance.
11. If JD/ respondent ( Bharat Bhushan @ Pappu) was allowed to drive a motorcycle without any insurance. All this shows negligence on the part of the police, not to take any action against him and also not to seize that vehicle. It was duty of State through police, not to allow such a vehicle ply on road. Apparently State failed in fulfilling its duty.
Ex. No. 08/13 Maya Devi & Ors. Vs. Bharat Bhushan @ Appu 7 of pages 12
12. Section 168 empowers a claim tribunal to pass an award for compensation, on an application filed in this regard, after giving notice of application to the insurer and also by giving parties an opportunity of being heard. The tribunal has to determine the amount of compensation, which appears to it to be just. It is again for the tribunal to specify the person or persons, to whom compensation shall be paid and further to specify if the amount of compensation is to be paid by insurer or owner or driver of the vehicle, involved in the accident or by all or any of them, as the case may be. There is no enunciation about payment of compensation, by the State. As mentioned above, amount of compensation could not be recovered from the owner / driver and offending vehicle was not insured. Polemic question to be answered here is that in the circumstances as described above, can State Govt. be made liable to pay amount of award.
13. Ubi jus ibi remdium( where there is right, there is remedy) is an old proverb. Having an award in their favour, passed by a competent tribunal established by law, the petitioners have every Ex. No. 08/13 Maya Devi & Ors. Vs. Bharat Bhushan @ Appu 8 of pages 12 right to recover that amount. In the absence of filing any appeal etc., award has become final. Our's is a Social Welfare State and Motor Vehicles Act, under which compensation is to be paid is a Social Welfare Legislation. Ruminating all this, coupled with the fact that police which is an instrumentility of State, is equally blameworthy for allowing an uninsured motor vehicle ply on road, in my opinion, State government is equally liable to pay amount of compensation to the victims i.e. petitioners/ DH's.
14. I do not find much substance in the opinion expressed by Commissioner of Police, Delhi suggesting that the amount can be paid under Victim Compensation Scheme. Preamble of said Scheme reminds that it was launched by Lt. Governor of National Capital Territory of Delhi, in exercise of his power conferred by Section 357 A of The Code of Criminal Procedure, 1973. Clause 5 prescribes the procedure for grant of compensation. Compensation under this scheme can be given either :
(i) On recommendation made by the court, under Sub (2 ) & (3) of section 357A of Cr. P.C. Ex. No. 08/13 Maya Devi & Ors. Vs. Bharat Bhushan @ Appu 9 of pages 12
(ii) On an application, made by any victim or his/her dependents under Sub Section (4) of Section 357A of Cr.P.C.
15. Needless to say that present is an execution petition for recovery of amount of award already passed by a Motor Accident Claim Tribunal on a petition U/s 166 /140 of The Motor Vehicle's Act and not under any provision of The Code of Criminal Procedure. Even otherwise, Clause 11 of said Scheme prescribes for limitation. A maximum of Rs. 3 lakhs to 5 lakhs only can be granted, for loss of life. Present is a case for recovery of Rs. 38,44,840/ alongwith interest @ 7.5 % p.a. from the date of institution of claim petition i.e. 12.05.2011, till the date of actual payment. This much amount can not be paid under present Victim Compensation Scheme .
16. Chief Secretary, Government of NCT is thus directed to pay amount of award i.e. Rs. 38,44,840/ alongwith interest @ 7.5 % p.a. to be calculated from the date of institution till the date of actual payment to the DH/petitioners after deducting amount received from sale of offending motorcycle and Rs. 1,50,000/ paid to DH by the JD, during execution proceedings, within 30 days from today. Ex. No. 08/13 Maya Devi & Ors. Vs. Bharat Bhushan @ Appu 10 of pages 12 However, it can recover said amount from JD/respondent ( Bharat Bhushan @ Appu).
Let a copy of this order be sent to Chief Secretary, Govt. of NCT, Delhi for compliance.
File of execution petition be consigned to record room.
ANNOUNCED IN THE OPEN (RAJENDER KUMAR SHASTRI)
Court today i.e. Nov.16th2015 PO,MACT(1), NORTH DISTRICT
DELHI
Ex. No. 08/13 Maya Devi & Ors. Vs. Bharat Bhushan @ Appu 11 of pages 12
Ex. No. 08/13 Maya Devi & Ors. Vs. Bharat Bhushan @ Appu 12 of pages 12