Delhi District Court
Kartar vs Surender on 19 October, 2019
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IN THE COURT OF MS. HEMANI MALHOTRA, JUDGE,
MOTOR ACCIDENT CLAIMS TRIBUNAL02, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Petition No.: 76977/2016
FIR No.407/14
PS Moti Nagar
1. Kartar
(Father of deceased Chaman @ Monu)
S/o Sh.Manphool
2. Smt. Kamlesh
(Mother of deceased Chaman @ Monu)
Both R/o H.No.8, Village Dang Khurd,
Tehsil, Tosham, District Bhiwani,
Haryana
.....Petitioners
Versus
1. Surender
S/o Sh. Surajmal
R/o Village Dang Khurd,
Tehsil Tosham, Distt.Bhiwani,
Haryana
(Driver)
2. Air Transport Corporation (Assam) Pvt.Ltd.
At: 37, Rani Jhansi Road,
New Delhi
(Registered Owner)
3. HDFC ERGO General Insurance Company Ltd.
AT: 502, 504, 506, 5th Floor,
Mahatta Tower, 54,
B1, Block, Community Centre,
Janakpuri,
New Delhi
(Insurer) .....Respondents
Date of Institution : 12.01.2015
Date of conclusion of arguments : 17.10.2019
Date of pronouncement of judgment/award : 19.10.2019
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AWARD
1. This judgmentcumaward shall decide the claim petition filed by petitioners
under the provisions of The Motor Vehicles Act, 1988 (hereinafter referred to as
"M.V. Act") as amended up to date to claim compensation for the death of their
son Chaman @ Monu in a road vehicular accident that took place on
09.06.2014. FIR No.407/14 under Sections 279/304A IPC was registered at
Police Station Moti Nagar and chargesheet was filed against respondent
No.1/Surender, driver of Truck bearing registration No.HR55F0983
(offending vehicle).
2. Detailed Accident Report (DAR) was filed by the Investigating Officer (IO)
along with copies of the criminal proceedings including FIR and chargesheet
etc.
3. Brief facts of the vehicular accident as averred in the claim petition are that on
09.05.2014 at about 12:30 AM, deceased Chaman @ Monu was on duty as a
Helper in the offending truck bearing registration No.HR55F0983 owned by
respondent No.2. Since the offending vehicle could not start, deceased was
asked to put an iron rod between the offending vehicle and another truck to
help and push the offending truck so that it could start. When the driver of the
other truck tried to push the offending truck with the help of iron rod,
suddenly, the iron rod slipped and struck the chest of the deceased. Resultantly,
deceased sustained injuries. Thereafter, he was removed to Lady Hardinge
Medical College where he was declared 'brought dead'.
4. Since M/s Air Transport Corporation (Assam) Pvt.Ltd. was the owner of the
offending vehicle which was insured with HDFC ERGO General Insurance
Company Ltd., they were arrayed as respondent Nos.2 and 3 respectively.
5. As no Written Statement was filed by respondent No.1/driver despite
opportunities, thus, vide order dated 01.08.2016 passed by the Learned
Predecessor of this Tribunal, respondent No.1 was proceeded exparte.
6. In the Written Statement filed on behalf of respondent No.2/registered owner,
it was averred that the accident took place due to sole negligence of the
deceased. It was further claimed that since the alleged offending vehicle was
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duly insured with respondent No.3/insurance company, hence, no liability can
be fastened upon respondent No.2.
7. In the Written Statement filed by respondent No.3/Insurance Company, it was
averred that deceased did not sustain fatal injury due to negligence of
respondent No.1/driver of alleged offending vehicle. It was, however, admitted
that the alleged offending vehicle was insured with it vide its Policy bearing
No.2317200067888603 which was valid from 05.04.2014 to 04.04.2015.
8. From the pleadings of the parties, contentions raised and material on record,
the following issues were framed by Learned Predecessor vide order dated
09.02.2016:
ISSUES:
(1) Whether the deceased Sh.Chaman suffered fatal injuries on
09.05.2014 at about 12:30 am at Plot No.63, near Rama Road, Moti
Nagar, Delhi in a vehicular accident involving a Truck bearing
registration No.HR55F0983, due to wrongful act or negligence of
respondent No.1 Surender, who was driving the vehicle? OPP
(2) Whether the petitioners are entitled for compensation? If yes, what
would be the amount and who would be liable to pay?
(3)Relief.
9. The bare perusal of the claim petition filed by LRs of deceased i.e. claimants
reflects that it is a petition filed for grant of compensation simplicitor and not
under any particular provision of M.V. Act. From the facts of the present claim
petition and the DAR, it is evident that the accident in question was not "caused
by" the offending vehicle but had "arising out of" use of offending vehicle.
10. The expression "caused by" and "arising out of" was considered by the Hon'ble
Supreme Court in SHIVAJI DAYANU PATIL & ANR. VS. VATSCHALA UTTAM
MORE reported as (1991) 3 SC CASES 530. The following conclusion is relevant
for deciding the present case as in the aforecited case supra, the expression
"caused by" and the expression "arising out of" were vividly explained and it
was held that arising out of has a wider connotation. The Hon'ble Supreme
Court in the said case referred to Section 92A of the Motor Vehicles Act, 1939
and observed as under:
"Section 92A was in the nature of a beneficial legislation enacted with a
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view to confer the benefit of expeditious payment of a limited amount by
way of compensation to the victims of an accident arising out of the use of a
motor vehicle on the basis of no fault liability. In the matter of interpretation
of a beneficial legislation the approach of the courts is to adopt a
construction which advances the beneficent purpose underlying the
enactment in preference to a construction which tends to defeat that
purpose."
................
.............
(2) The word "use" has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a breakdown or mechanical defect or accident. In the circumstances, it cannot be said that the petrol tanker was not in the use at the time when it was lying on its side after the collision with the truck."
It was further held, "The words "arising out of" have been used in various statutes in different contexts and have been construed by courts widely as well as narrowly, keeping in view the context in which they have been used in a particular legislation. In the context of motor accidents the expressions "caused by" and "arising out of" are often used in statutes. Although both these expressions imply a causal relationship between the accident resulting in injury and the use of the motor vehicle but they differ in the degree of proximity of such relationship. As compared to the expression "caused by", the expression "arising out of" has a wider connotation. The expression "caused by" was used in Sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In Section 92A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This construction of the expression "arising out of the use of a motor vehicle" in Section 92A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment."
11. In UNITED INDIA INSURANCE CO.LTD. VS. AMIR BASHA reported as 2004 (2) SCC 23 (DB), the Hon'ble Division Bench of Madras High Court considered various decisions and held as follows: "3. It is clear from the above decisions and in view of the object of the enactments, both under the Motor Vehicles Act, 1939 and 1988 the expression "caused by" and arising out of have a wider connotation. Though the accident should be connected with the use of motor vehicle, but the said connection need not be direct and immediate. The expression "arising out of use of motor vehicle" as mentioned in Section 92A of the 1939 Act and Section 165 of 1988 Act enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment. From the expression employed namely "accident arising out of the use of a motor vehicle" in the place of "accident caused by the use of motor vehicle", it is clear that the Legislature wanted to enlarge the scope of the word "use" and not to restrict it for denying compensation in deserving cases; accordingly we are of the view that the test should be 5 whether the accident was reasonably proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then. We should not forget that these provisions are made in order to help the victims. We are of the view that restrictive interpretation should not be given for the word "use". We are also of the view that the expression "arising out of the use of motor vehicle" has to be given a wider meaning. We are also of the view that "use of motor vehicle" need not necessarily be so intimate and closely direct as to make it "a motor accident" in the sense in which that expression is used in common parlance.
12. In RITA DEVI VS. NEW INDIA ASSURANCE CO.LTD., 2000 ACJ 801 (SC) , (cited by learned counsel for the petitioners), the Hon'ble Supreme Court interpreted the expression "arising out of the use of the motor vehicle" in the context of death or permanent disablement suffered due to the accident arising out of the use of motor vehicle and gave it even a wider interpretation even to include the situation where a murder can be treated as accident in a given case. In the said case, the death of deceased was caused in the process of committing theft of autorickshaw and it was held that owner of motor vehicle or authorised insurer was liable to pay compensation under Section 163A of the Motor Vehicles Act. It was thus, observed as under: "9. The question, therefore, is : can murder be an accident in any given case? There is no doubt that 'murder', as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a 'murder' which is not an accident and a 'murder' which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder."
13. In view of the wide interpretation given to "arising out of" use of motor vehicle in the law discussed in the aforesaid judgments, the present claim petition is treated as a petition under Section 163A of M.V. Act. Accordingly, issues are re framed as under: ISSUES:
(1) Whether the deceased Chaman @ Monu suffered fatal injuries on 09.05.2014 at about 12:30 am near Plot No.63, Rama Road, Moti 6 Nagar, Delhi in a vehicular accident arising out of use of truck bearing registration No.DLHR55F0983? OPP (2) Whether the petitioners are entitled for compensation? If yes, what would be the amount and who would be liable to pay?
(3)Relief.
14. I have heard the arguments addressed by learned Counsels for the parties and have meticulously gone through the testimonies of the witnesses as well as the court record.
15. My issuewise findings are as follows:
ISSUE No.1:
Whether the deceased Chaman @ Monu suffered fatal injuries on 09.05.2014 at about 12:30 am near Plot No.63, Rama Road, Moti Nagar, Delhi in a vehicular accident arising out of use of truck bearing registration No.DLHR55F0983? OPP
16. In a claim petition filed by LRs of deceased for compensation u/s 163A of M.V. Act, the petitioners are not required to plead or establish that the death in respect of which claim has been made, was due to any wrongful act or negligence of the driver/owner of the vehicle or for any other reason. They need to prove only the involvement/use of the vehicle in the accident to claim compensation against the owner and insurer, according to the second schedule of the Motor Vehicles Act.
17. In order to establish their claim, petitioners examined Smt.Kamlesh, mother of deceased as PW1 and Ramesh, an eyewitness to the accident as PW2.
18. In his evidence, PW2/Ramesh stated that at about 11:30 pm, he received a telephonic call from respondent No.1/Surender, who asked PW2 to reach at Moti Nagar, Rama Road, TPoint as the truck of Surender had broken down. PW2 further stated that he saw that Surender was taking help of driver of another truck and that driver was pushing the truck of Surender from behind. He further stated that a rod was being used in between both the trucks to push the truck of Surender. PW2 further testified that the helper/conductor of offending vehicle who was standing close to the rod sustained fatal injuries 7 when the rod being used to push the offending vehicle, slipped and struck against the helper.
19. In his crossexamination by insurance company, PW2/Ramesh categorically testified that when he reached the spot, the other truck was already standing behind the truck of Surender to push it.
20. In the crossexamination of PW2/Ramesh, respondent No.3/Insurance Company did not dispute the fact that the accident arose out of use of truck bearing registration No.HR55F0983. Accordingly, issue No. 1 is decided in favour of the petitioners and against the respondents.
COMPUTATION OF COMPENSATION:
21. As, in cases under Section 163A of the M.V. Act, vide The Gazette of India Notification No.1829 dated 22.05.2018 the compensation payable in case of death has been assessed as Rs.5,00,000/ (Rupees Five Lakhs) plus five per cent (5%) increase annually w.e.f. 01.01.2019, hence, petitioners, being the parents/LRs of the deceased are held entitled to a compensation of Rs.5,25,000/ (Rs.5,00,000 + Rs.25,000) (Rupees Five Lakhs Twenty Five Thousand).
22. Since, it is an admitted case of Insurance Company that the alleged offending vehicle was insured with it vide its Policy bearing No.2317200067888603 which was valid from 05.04.2014 to 04.04.2015 including the date of accident i.e. 09.05.2014, respondent No.3/Insurance company is under the statutory liability to pay the compensation to the petitioners and is held liable to pay the same.
RELIEF
23. In view of above findings on Issue Nos.1 & 2, I award an amount of Rs.5,25,000/ (Rupees Five Lakhs Twenty Five Thousand) as compensation to the petitioners. Amount of Interim Award, if paid any, be deducted from the compensation amount.
8Apportionment
24. Share of petitioners in the award amount shall be as under: SN Name Relationship with Share in the award deceased amount 1 Kartar Singh Father 50% 2 Smt.Kamlesh Mother 50% Mode of payment and disbursement
25. Respondent No.3/Insurance Company shall deposit the award amount within 30 days from the date of Award in the State Bank of India, Tis Hazari Branch, Delhi in the name of the petitioner(s) under intimation to the petitioner(s) and the Tribunal. In default of payment within the prescribed period, respondent/ Insurance Company shall be liable to pay interest @ 12% p.a. for the period of delay till its realisation.
26. Insurance Company is directed to deposit the award amount or transfer the same by RTGS/NEFT/IMPS to the bank account of the MACT SBI Tis Hazari Courts Complex Branch, Delhi and while making the payment through one of the aforementioned modes, Insurance Company shall also furnish particulars of this case, name of the Tribunal and the date of decision as well. Insurance Company is further directed to submit copy of the award attested by its responsible officer in the bank along with receipt qua depositing/transferring of award amount. Insurance Company is further directed to place on record proof of deposit of the award amount, proof of delivery of notice to petitioner(s) in respect of deposit of the award amount and complete details in respect of calculation of interest etc., if any, in the Tribunal within 30 days with effect from today.
27. In accordance with the order dt. 07.12.2018 passed by Hon'ble Mr.Justice J.R. Midha in RAJESH TYAGI & ORS. VS. JAIBIR SINGH & ORS. IN FAO NO.842/2003, SBI, Tis Hazari Courts Branch is directed to disburse the amount in accordance with MACAD (Motor Accident Claims Annunity Deposit Scheme) formulated by the Hon'ble High Court of Delhi. Mr.Rajan Singh, Assistant General Manager/SBI, has been appointed as Nodal Officer in accordance with the abovesaid order having phone No.02222741336/9414048606 and email 9 id: [email protected]. In case of any assistance or noncompliance, the aforesaid Nodal Officer may be contacted. A copy of this order be sent by email to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the email.
28. In order to avoid the compensation money being frittered away, an amount of Rs.1,25,000/ (Rupees One Lakh Twenty Five Thousand) be released to the petitioners in proprotion to the shares mentioned above immediately in their savings bank account in nationalised bank(s) and balance amount of Rs.4,00,000/ (Rupees Fourt Lakhs) would be kept in accordance with the order dt. 07.12.2018 passed by Hon'ble Mr.Justice J.R. Midha in RAJESH TYAGI & ORS. VS. JAIBIR SINGH & ORS. IN FAO NO.842/2003 as per details mentioned herein:
"An amount of Rs.2,00,000/ (Rupees Two Lakhs) be kept in 20 (twenty) fixed deposits of Rs.10,000/ (Rupees Ten Thousand) each, in the name of petitioner No.1/Kartar (father), for the period of one month to 20 months respectively, with cumulative interest.
An amount of Rs.2,00,000/ (Rupees Two Lakhs) be kept in 20 (twenty) fixed deposits of Rs.10,000/ (Rupees Ten Thousand) each, in the name of petitioner No.2/Smt.Kamlesh (mother), for the period of one month to 20 months respectively, with cumulative interest."
However, money can be withdrawn through withdrawal slip only.
29. The petitioners have filed their PAN Cards during the recording of their statements under Clause 27 of MCTAP. They are directed to submit Form 15G (Form 15H in case of Senior Citizen) to the insurance company in case they are eligible for exemption of deduction of TDS.
30. The following conditions are imposed with respect to the fixed deposits:
(a) The bank shall not permit any joint name(s) to be added in the 10 savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by the bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall freeze the debit card(s) of the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.
31. Copy of the Award be given to the parties free of costs.
1132. Copy of this Award be also sent to concerned learned M.M. and DLSA.
33. Nazir is directed to prepare a separate file for compliance and be put up on 29.11.2019.
File be consigned to Record Room. Digitally signed
by HEMANI
HEMANI MALHOTRA
MALHOTRA Date:
Announced in the open Court 2019.10.19
16:17:31 +0530
on 19th October, 2019
(Hemani Malhotra)
Judge, Motor Accident Claims Tribunal02,
West District, Tis Hazari Courts, Delhi