Delhi District Court
Smt.Omna W/O Shri N.Raghwan vs M/S Hari Om Transport Co on 3 July, 2007
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IN THE COURT OF SHRI DINESH KUMAR SHARMA,
JUDGE MACT, NEW DELHI
Suit No.653/06
1. Smt.Omna w/o Shri N.Raghwan
r/o Narayna Vilasam, Chelikuzhy P.O
Ezhamkulam, Kollam (Distt),
Kerala
2. Smt.Rama Devi d/o Shri N.Raghwan
r/o Narayna Vilasam, Chelikuzhy P.O
Ezhamkulam, Kollam (Distt),
Kerala
... Petitioners.
VERSUS
1. M/s Hari Om Transport Co.,
through its Prop. Sh.Satish Kumar
Malhotra, s/o Sh.Ram Prakash Malhotra
r/o S-493, G.K.1, New Delhi. having its office at C-20
Shivaji Park, Punjabi Bagh, New Delhi
2. The Oriental Insurance Co. Ltd.,
Oriental House, A-25/27, Asaf Ali Road,
New Delhi.
3. Satte s/o Sh.Bihari Lal
r/o Vill. Manki PO & PS Modhi Nagar,
Ghaziabad, U.P. .. .. Respondents.
Date of filing of petition: 26.4.1997
Date of assignment to this court:6.12.06
Date of award:03.7.2007
AWARD
Facts in brief are that Shri R.Jaya Rajan aged 25 years
2
received fatal injuries in a road accident on 30.11.1996. The
accident took place while the deceased was going on his
motor cycle and it hit against the offending vehicle No.DIG
1376 which was allegedly parked negligently on the wrong
side of the road without any parking lights. The deceased was
declared brought dead in the hospital. The deceased was
unmarried and left behind the petitioners as his only legal
representatives. The offending vehicle is owned by M/s Hari
Om Transport Co. (R-1) and it was insured with Oriental
Insurance Company (R-2). Sh.Satte (R-3) was the driver of
the alleged offending vehicle.
2. Upon the petition being filed, summons were sent
to the respondents. R1 did not appear and proceeded
exparte. R 2 in its written statement took a preliminary
objection that there was no negligence on the part of the driver
of the alleged offending vehicle. It has also been pleaded by
the Insurance Company that the insured vehicle is DIG 1326
and not DIG 1376 as mentioned in the petition. I consider that
it is a typographical mistake which has occurred on the part of
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the petitioner. The Insurance Company in its written
statement also took a plea that they are not liable to pay the
compensation as the driver was not holding a valid and
effective driving license at the time of accident. R-3 also did
not come forward to contest the case.
3. On the pleadings of the parties the following issues
were framed vide order dated 27.10.2000:-
1) Whether the deceased R.Jaya Rajan
aged 25 years died in a motor vehicle
accident dt.30.11.96 when he struck his
two wheeler scooter against TDU tanker
bearing No.DIG 1226 which was parked
negligently on the wrong side of the road
and without any parking lights. OPP?
1) Whether the petitioners are entitled for
compensation, if so to what amount and
from whom?OPP
2) Relief.
Vide order dated 20.3.2002, additional the
following addition issue was also framed:-
Issue No.2 A : Whether R 3 was not
holding a valid driving license to drive the vehicle
in question at the time of the accident in question
in violation of the terms and conditions of the policy
of the insurance? If so, its effect? OPR.
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4. Smt.Omna mother of the deceased appeared as PW 1.
Shri Shajan Thomas Director of M/s Wiltron Systems Pvt. Ltd.
employer of the deceased appeared as PW 2. The Insurance
Company examined Shri Prem Pal Singh record clerk RTO
Gaziabad as R2W1 so as to prove that R 3 was not holding a
valid driving license at the time of accident. The Insurance
company also examined Shri Amit Goel Asstt. as RW3/1.
5. I have heard learned counsel for parties perused the
record carefully. I propose to give my findings on the issues
as follows:-
ISSUE NO. 1
6. The Insurance Company has taken a preliminary
objection that they are not liable to pay the compensation as
the petitioners have failed to prove the negligence on the part
of the respondents. It has been submitted that petitioners
have not examined any eye witness so as to prove the
negligence on the part of the respondents.
7. Section 168 of the M. V. Act envisage holding of an
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inquiry by the Tribunal. Section 168 of the Motor Vehicle Act
provides that while holding an inquiry the Tribunal may follow
summary procedure. In N. K.V. Bros Private Limited Vs. M.
Karumai Ammal and others (1980) 3 Supreme Court Cases 457, the
Apex Court interalia held as under:-
' Road accidents are one of the top
killers in our country, especially when
truck and bus drivers operate
nocturnally. This proverbial
recklessness often persuades the courts,
as has been observed by us earlier in
other cases, to draw an initial
presumption in several cases based on
the doctrine of res-ipsa-loquitor.
Accidents Tribunals must take special
care to see that innocent victims do not
suffer and the drivers and owners do not
escape liability merely because of some
doubt here or some obscurity there.
Save in plain case, culpability must be
inferred from the circumstances where it
is fairly reasonable. The court should
not succumb to niceties, technicalities
and mystic maybes. We are emphasizing
this aspect because we are often
distressed by transport operators getting
away with it thanks to judicial laxity,
despite the fact they do not exercise
sufficient disciplinary control over the
drivers in the matter of careful driving.
The heavy economic impact of culpable
driving of public transport must bring
owner and driver to their responsibility
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to their neighbours. Indeed, the State
must seriously consider no-fault liability
by legislation."
8. In respect of rashness or negligence required to be proved in the
present proceedings the Apex Court in Kaushnuma Begum Vs. New
India Assurance Col Limited, 2001 ACJ 428 applied rule of strict
liability as laid down in Rylands Vs. Fletcher, 1861-73 ALL E R 1.
The Hon'ble Supreme Court relied upon its earlier judgment in case of
Gujarat State Road Transport CorporationVs.Ramanbhai
Prabhatbhai,1987 ACJ 561 (SC) , the question considered was
regarding the application of the rule in cases arising out of motor
accidents. In Raman Bhai's case (supra) the Hon'ble Supreme Court
observed as under:-
" Today thanks to the modern
civilization, thousands of motor vehicles
are put on the road and the larges
number of injuries and deaths are
taking place on the roads on account of
the motor vehicle accidents. In view of
the fast and constantly increasing
volume of traffic, the motor vehicles
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upon the roads may be regarded to
some extent as coming within the
principle of liability defined in Rylands
Vs. Fletcher (1868) LR 3 HL 330. From
the point of view of the pedestrian the
road of this country have been rendered
by the use of the motor vehicle highly
dangerous. "Hit and Run" cases where
the drivers of the motor vehicles who
have caused the accidents are not
known are increasing in number.
Where a pedestrian without negligence
on his part is injured or killed by a
motorist whether negligently or not, he
or his legal representatives, as the case
may be , should be entitled to recover
damages if the principle of social justice
should have any meaning at all. In
order to meet to some extent the
responsibility of the society to the deaths
and injuries caused in road accidents
there has been a continuous agitation
throughout the world to make the
liability for damages arising out of
motor vehicle accidents as a liability
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without fault".
9. In the case of Kaushama Begum (Supra) front tyre of jeep burst
as a result, the jeep turned turtle and a pedestrian was crushed to death.
The Tribunal held that there was no rashness or negligence on the part
of the driver of the jeep. As such the claimants were not entitled to
compensation U/ S 166 of the 1988 Act and they were awarded
compensation U/ S 163A of M. V. Act. The Hon'ble Supreme Court
in Para 7 put a question that should there necessarily be negligence of
the person who drove the vehicle if a claim for compensation (due to
the accident involving the vehicle) is to be sustained? The Apex Court
interalia held as under:
"It must be noted that the
jurisdiction of the Tribunal is not restricted
to decide claims arising out of negligence in
the use of motor vehicles. Negligence is only
one of the species of the causes of action for
making a claim for compensation in respect
of accidents arising out of the use of motor
vehicles. There are other premises for such
cause of action.
Even if there is no
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negligence on the part of the driver or
owner of the motor vehicle, but accident
happens while the vehicle was in use, should
not the owner be made liable for damages
to the person who suffered on account of
such accident? This question depends upon
how far the Rule in Rylands v. Fletcher
(1861-73 All ER (Reprint) 1) (supra) can
apply in motor accident cases."
In this case it was further held as under:-
" J. Blackburn has elaborated seven
defences recognized in common law against
action brought on the strength of the rule in
Rylands v. Fletcher (1861-73 All ER (Reprint)
1). They are: (1) Consent of the plaintiff i.e.
volenti non fit injuria.(2) Common benefit i.e.
where the source of the danger is maintained
for the common benefit of the plaintiff and the
defendant, the defendant is not liable for its
escape. (3) Act of stranger i.e. if the escape
was caused by the unforeseeable act of a
stranger, the rule does not apply. (4) Exercise
of statutory authority i.e. the rule will stand
excluded either when the act was done under a
statutory duty or when a statute provides
otherwise. (5) Act of God or vis major i.e.
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circumstances which no human foresight can
provide against and of which human prudence
is not bound to recognise the possibility. (6)
Default of the plaintiff i.e. if the damage is
caused solely by the act or default of the
plaintiff himself, the rule will not apply. (7)
Remoteness of consequences."
10. The Rule in Rylands v. Fletcher (1861-73 All ER
(Reprint) 1) has been referred to by Apex Court in a number of
decisions. While dealing with the liability of industries engaged
in hazardous or dangerous activities P. N. Bhagwati, C. J.,
speaking for the Constitution Bench in M. C. Mehta v. Union of
India, (1987 (1) SCC 395) : (AIR 1987 SC 1086), expressed the
view that there is no necessity to bank on the Rule in Rylands v.
Fletcher. The learned Judge observed as under;
"We have to evolve new principles
and lay down new norms which would
adequately deal with the new problems
which arise in a highly industrialised
economy. We cannot allow our judicial
thinking to be constricted by reference
to the law as it prevails in England or
for the matter of that in any other
foreign country. We no longer need the
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crutches of a foreign legal order."
11. In this regard reference can also be made to
Paramjit Kaur and another Vs. Murarilal Shankya and
others, 2005, ACJ 401. In that case a truck hit a
pedestrian crossing the road resulting in his death. It was
pleaded in defence that driver was driving the truck on his
left side at a slow speed but the deceased crossed the road
suddenly and dashed against the vehicle. The Tribunal
rejected claim application on the ground that burden to
prove rash and negligent driving was upon the claimants and
non examination of eye witnesses is fatal to the claim. It
was held that the burden to prove that driver of the
offending vehicle was not negligent was upon the driver.
The driver did not enter the witness box to prove that there
was no negligence on his part and, therefore, the claimants
are entitled to compensation. It was held in para 10 that:-
"As regards the rash and negligent driving
is concerned, burden was upon the driver of the
offending vehicle to prove that there was no
negligence on his part. Driver has not entered
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the witness box. Even otherwise, U/ S 166 of the
new Motor Vehicle Act it is sufficient to prove
there was an accident and question of rash and
negligent driving is not essential. Section 166 of
the motor Vehicles Act provided that the
application for compensation arising out of an
accident of the nature specified in sub section
(1) of Section 165 shall be filed. Section 165 (1)
provides that the State Government may, by
notification in the official Gazette, constitute one
or more Motor Accidents Claims Tribunals for
such area as may be specified in the notification
for the purpose of adjudication upon claims for
compensation in respect of accident involving
the death of, or bodily injury to, persons arising,
or both. Thus if the accident has arisen out of
the use of motor vehicle then the claimants are
entitled for compensation. It is not necessary to
prove rash and negligent driving. Since, it is
admitted by the owner and driver that the
accident has arisen of use of offending truck
driven by the respondent no.1, we hold that
claimants are entitled for compensation."
In Pushpa Bai Purshotam Dass Vs. Ranjeet Ginning and
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Pressing Company (1977) 3 S. C. R. 372 it was interalia held as
follows:-
" The car was being driven rashly and
negligently. Although no eye witness was
examined PW 1 the brother of the deceased who
went to the spot soon after the accident was
examined. He deposed that the car dashed
against a tree. The tree was on the right hand
side of the road, 4 feet away from the right
hand side of the main metalled road. The road
was 15 feet wide and was a metalled road. On
the other side of the road there were field at
lower level. The tree against which the car
dashed was uprooted about 9 to 10 from the
ground. The car dashed so violently that the
machine of the car went back about a foot from
its original position. The steering wheel of the
engine of the car receded back on the drivers
side and the said impact on the driver's side and
by the said impact the occupants died and front
seal also moved back. The witness was not
cross-examined on these facts. The maxim of
"Res ipsa loquitor" clearly applies in the
present case. In view of the proved facts the
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burden was on the respondents to prove the
inevitable accident".
12. In a case where the petitioner was not present on the
spot and the petitioner failed to examine an eyewitness in the court
can it be deemed that such petitioner cannot be awarded any
compensation. I consider if this proposition is followed strictly the
very purpose of this legislation shall be defeated. In this regard
reference can be made to Eller Vs. Selfridge (1930) 46 T. L. R. 236,
where it was interalia held as under:
"The normal rule is that it is for the
plaintiff to prove negligence but in some cases
considerable hardship is caused to the plaintiff as
the true cause of the accident is not known to him
but is solely within the knowledge of the
defendant who caused it. The plaintiff can prove
the accident but cannot prove how it happened to
establish negligence on the part of the defendant.
This hardship is sought to be avoided by applying
the principle of res-ipsa-loquitor . It means the
accident "speaks for itself" or "tells its own
story".
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13. Reference can also be made to Basant Kaur & Ors Vs.
Chatarpal Singh and Ors, 2003 ACJ 369 wherein the claimants were
widow and children of deceased Darbara Singh. The Claims Tribunal
dismissed the claim petition holding that the negligence on the part of
the driver of truck No. MBN 1637 was not proved. The High Court
while dealing with this question inter alia held as under:-
"Basant Kaur has stated in the claim petition
that truck No. MBN 12637 committed the
accident. After all, this lady is not expected to give
detailed account of the accident, since she was not
present on the spot. She was told about it by the
owner of the truck No. MKO 9729 after the
accident that driver of truck No. MBN 1637 was
driving the vehicle rashly and negligently and
caused the accident. This evidence is relevant and
acceptable for connecting the truck No. MBN 1637
with the accident. That apart, a criminal case U/ S
304A of the IPC has been registered against the
driver of truck No. MBN 1637. This fact is
relevant U/ S 158 (6) of the Motor Vehicles Act,
1988, under which after the accident, the Station
House Officer has to inform the Claims Tribunals
about taking place of accident. This case involves
the driver of truck No. MBN 1637. These facts are
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enough to record the finding that truck No. MBN
1637 was responsible for committing accident and
not truck No. MKO 9729".
14. Recently also in Smt.Anita Devi and others vs. Mahinder
Singh & others FAO No.33/2001 decided on 21.3.2007 in
which it was inter-alia held as under:-
"In civil proceedings or proceedings under the
Act, the question of negligence is decided on
the basis of preponderance of probabilities.
Burden of proof is a matter of law and
pleadings. However, onus and discharge of the
same is a matter relating to adducing of
evidence. Normally, onus to prove negligence
in a claim under section 166 of the act is upon
the claimant. But in some cases this normal
rule can cause considerable hardship. This
can happen when the reason and true cause of
the accident are only within the knowledge of
the respondent. In such cases, it is impossible
for the claimant to establish negligence on the
part of the respondent. Inference as to
negligence may be drawn by courts and
tribunals from proved circumstances by
applying Rule of Res Ipsa Loquitor."
"In the claim petition it is specifically
mentioned that the deceased was knocked
down by the bus. The nature of injuries
suffered by the deceased as per medical
reports show that the bus had run over the
deceased and his skull was crushed. These
facts indicate unequivocally that the bus in
question at the morning hours was being driven
at a reasonably fast speed and had hit the
scooter from the back side crushing the skull of
the deceased. Admittedly, as per the
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respondent insurance company and the
police there was no eye witness to the
accident. The victim has expired. In these
circumstances, I feel principles of res ipsa
loquitur should be applied. Both the driver
and the owner of the bus have failed to
enter appearance. The respondents have
failed to lead evidence to rebut and
establish the cause of the accident.
Accordingly, the respondents are held
liable to pay compensation to the
appellants in the claim petition filed under
Section 166 of the Act."
15. The petitioners have placed on record certified copy of
charge sheet filed against R 3 u/s 279/304-A IPC. The perusal of the
charge sheet indicates that Investigating Officer found on spot vehicle
No.DIG 1326 and motor cycle No.DBC 1634 in accidental
condition. The perusal of the record also indicates that
deceased was declared brought dead in the hospital. In the
catena of judgments it has been held that though generally it is
for the claimant to prove negligence , however, the petition
cannot be rejected outrightly merely on the non-examination of
an eye witness by the petitioner. There may be a case where
the petitioner may not be in a position to produce an eye witness
and if there is sufficient material on the record to indicate the
involvement of the vehicle and factum of accident, the onus
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shifts upon the respondent to prove that there was no
negligence on their part or that the accident took place on
account of the negligence of the deceased himself. The
petitioners have placed on record certified copy of charge sheet
filed against R 3. The certified copy of post mortem report has
also been filed. The postmortem report transpires that the
injuries were ante-mortem in nature and the cause of death is
hemorrhage and shock following injuries to body organs
consequent upon blunt force impact. Both the vehicles were
found on the spot in the accidental condition. R-2 in its written
statement has not disputed the involvement of the vehicle and
factum of accident. R-3 did not come forward to make a
statement that there was no negligence on his part. Therefore in
these circumstances I hold that petitioners have successfully
successfully proved that deceased suffered fatal injuries in road traffic
accident due to rash or negligent act of R-3 involving offending
vehicle No. D1G-1376.
ISSUE No.2
16. PW1 has stated on oath that deceased was unmarried
and was 24 years of age at the time of accident and has left
19
behind the petitioners as his only legal representatives. PW 1
stated that deceased was working as a typist with M/s Wiltron
and was earning Rs.3000/- p.m. In the cross examination the
petitioner stated that deceased had done the course of
stenographer.
17. Sh.Sajan Thomas (PW2) brought the summoned
record and stated that deceased was recruited as Manager
accounts at a salary of Rs.2500/- p.m. PW 2 produced the
original voucher regarding payment of salary and produced
photo state copy of the vouchers as Ex.PW2/1 and Ex.PW2/2.
PW 2 stated that salary of the deceased was increased to
Rs.3000/- p.m. after 3 months. The witness also produced
the first voucher of salary of Rs.2500/-. Cash book register
for the year 1996 was also produced while the original
certificates of the deceased and the same are Ex.PW2/3 and
Ex.PW2/4. In the cross examination the witness produced the
letter of authorization as Ex.PW2/5.
18. The petitioners have placed on record original
secondary school certificate of the deceased. The perusal of
this document indicate that date of birth of the deceased was
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5.5.1971. Thus the deceased was aged 25 years of age at the
time of accident. The petitioners have also placed on record
the certificate which indicate that the deceased had done the
course of stenography (English). I have also gone through the
photo copy of the vouchers on the record which indicate that
deceased was drawing a salary of Rs.3000/- p.m. Thus in
view of the material produced on the record it can safely be
held that deceased was earning around Rs.3000/- p.m. at the
time of accident. However the petitioners have not brought
any evidence on record regarding the future prospect of the
deceased. It is a settled proposition that future prospects can
only be considered if the petitioners have led any positive
evidence. in this regard reference can be made to 2006 ACJ
1058 Bijoy Kumar Dugar vs. Bidyadhar Dutta and others
.
19. The deceased was unmarried. Therefore half of his income can be deducted on account of personal expenses. Thus the loss of financial dependency comes to Rs.1500/- p.m or Rs.18000/- p.a. The multiplier is to be adopted according to the age of the deceased or the claimants which ever is 21 higher. The mother of the deceased has stated that her age to be 72 years. At the age of 72, I consider that appropriate multiplier would be of 5 and the compensation comes to Rs.90,000/-. In addition to it a sum of Rs.10,000/- on account of love and affection and a sum of Rs.10,000/- on account of funeral expenses shall meet the ends of justice. ISSUE No.2A
20. The Insurance company has disputed their liability on the ground that R-3 was not holding a valid driving license on the day of accident. In this regard the insurance company has examined one Prem Pal Singh record clerk RTO Gaziabad. Shri Prem Pal Singh has brought the record of DL No.S963/T/Gaziabad/96. The Insurance company has placed on record certified copy of seizure memo of Driving License. The seizure memo Rx.RW3-1/E also transpires that DL No.S- 963/T/Gaziabad/96 was seized from the possession of accused. The witness stated that as per record said license was issued originally from Agra authority bearing no.10964/Agra/90 on 1.10.1990 and was valid till 30th 22 Sept.2010 in the category of motor cycle and motor car. The said license was endorsed from Gaziabad authority for HMV (Pvt) only w.e.f. 31.12.96 and was valid till 2.12.99. The license was further renewed thereafter. It has been contended on behalf of the Insurance Company that therefore apparently R-3 was not holding a valid driving license as on the day of accident. The Insurance Company has also proved on record the policy Ex.RW3/1-A and the notice sent under order 12 rule 8 C.P.C to the owner and driver of the offending vehicle. The notices were sent through registered post and the postal receipts have duly been placed on record. It is a matter of record that the owner has failed to appear and contest the case. I have also perused the photo copy of the license record which apparently indicates that endorsement of HMV was made only on 3.12.1996. Therefore apparently R 3 was not holding a valid and effective driving license on the day of accident. In these circumstances though at the first instance R 2 being the insurer would be liable to pay the compensation, however the Insurance Company shall be entitled to recover the awarded amount from R-1 as per law.
23Relief
21. In view of the discussion made herein above, I consider and hereby pass an award in the sum of Rs.1,10,000/- which I consider to be just and fair as on the date of accident. The petitioners are also entitled interest @ 7% p.a. for forbearance and detention of money from the date of filing of the petition till realization. R-2 being the Insurance Company is directed to deposit the awarded amount along with interest @ 7% p.a. from the date of filing of the petition till its realization. Out of the amount awarded let 70% be paid to petitioner No.1 and 30% to petitioner No.2. Out of the share of R-1, 75% be kept in FDR in a Nationalized Bank for a period of 5 years. The Insurance Company (R-2) shall be entitled to recover the awarded amount from R-1 as per law Copy of the award be supplied to both the parties. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT Dated on 03.07.2007 (DINESH KUMAR SHARMA) JUDGE:MACT/NEW Delhi 24