Delhi District Court
Shri Bharat Singh Vyas vs Jai Kishan on 5 June, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.119/14
Date of Institution: 23.11.2009
IN THE MATTER OF:
1. Shri Bharat Singh Vyas
S/o Shri Shrichand
2. Ms. Preeti
D/o Shri Bharat Singh Vyas
3. Ms. Priya
D/o Shri Bharat Singh Vyas
4. Shri Sunny
S/o Shri Bharat Singh Vyas
Permanent Add:
100, Poorva Dulichand
Nasrat Pura
Ghaziabad.
Present Add:
Village Satbadhi
P.S.Mehrauli, New Delhi. ...Petitioners
Versus
1.Jai Kishan
S/o Shri Govardhan
Suit No. 119/14 Page No. 1 of 55
Bharat Singh Vyas v Jai Kishan
Permanent Add:
Mohalla Jai Prakash Nagar Daulatpur
PS Sihanigate
DisttGhaziabad
Second Add:
H.No. 879, A Block
Pratap Nagar, Delhi.
2. Irshad Ali
S/o Munshi
Village Dhabarshi
P.O. Khas DisttGhaziabad.
3. United India Insurance Company Ltd.
6th Floor Kanchenjunga Building
18 Barakhamba Road
Connaught Place
New Delhi ...Respondents
Final Arguments heard : 22.05.2014 Award reserved for : 05.06.2014 Date of Award : 05.06.2014 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that on 25.09.2009, Deepak (since deceased) was coming from Noida to Panchvati in his car bearing No.UP Suit No. 119/14 Page No. 2 of 55 Bharat Singh Vyas v Jai Kishan 14AS0396. When he reached near Bhatia Flyover in the meantime a tractor trolley bearing No.UP14K6017 which was full of iron rods being driven by the respondent driver in a shooting speed, rash and negligent manner without caring for the rules of the traffic was going ahead and the said driver moved right incidentally due to the said incident the deceased died on spot. It is stated that FIR No.738/2009 under Sections 279/338/427/304A IPC was registered at PS Kotwali in respect of the said accident. The post mortem was conducted by the doctors of District Mortuary, Ghaziabad. It is averred that the petitioners have spent about Rs.50,000/ on funeral expenses. It is averred that the accident took place solely due to the rash and negligent driving of the respondent No.1 who drove the offending vehicle at a very high speed, rashly and negligently. It is averred that the respondent No.1 could have easily avoided and averted the accident, if he drove the offending vehicle at a slow speed, carefully and applied the brakes at the relevant time. It is averred that the respondent No.1 had driven his vehicle in contravention of the traffic rules and was entirely responsible for the accident and hence liable to pay the compensation.
3. It is averred that the deceased was the one and only earning person in his family and was having good health. The deceased was aged 30 years and doing his own business and earning a sum of Rs.20,000/ per month and he could have earned much more in future, and was spending his earning for the betterment and benefit of the petitioners. It is averred that if the deceased had Suit No. 119/14 Page No. 3 of 55 Bharat Singh Vyas v Jai Kishan not died in the accident, he would have earned much more in future and would have lived and worked upto the age of 85 years. It is averred that the petitioners were having great love and affection for the deceased and have suffered and are still suffering great pain, shock, mental torture and agony besides financial loss. It is averred that the deceased has left behind the petitioner No.1 his old age father, two unmarried sisters and one brother who have lost their loveliest thing and were wholly dependent upon the deceased for every walk of life. It is averred that all the petitioners were being maintained and supported by the deceased and the accident had ruined the petitioners physically, mentally and financially. It is averred that the petitioners are in a sense of trauma and do not respond to verbal commands due to the untimely death of the deceased. It is stated that the respondent No.1 is the driver, respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle, therefore all the respondents are jointly and severally liable to pay the compensation to the petitioners. It is prayed that an amount of Rs.50,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
4. Written statement was filed on behalf of the respondent No.2 taking the preliminary objections that as per the averments made in the FIR the alleged accident had been caused by the trolley connected with the offending tractor bearing registration No.UP 14 K 6014 whereas the respondent No.2 is the owner of the tractor bearing registration No.UP 14K 6017 and as such the Suit No. 119/14 Page No. 4 of 55 Bharat Singh Vyas v Jai Kishan claim petition is not maintainable against respondent No.2. It is averred that as per the mechanical inspection report the tractor of the respondent No.2 bearing No.UP 14K 6017 was not in working condition as the same was in an abandoned condition and hence the accident had not been caused due to the tractor of the respondent No.2. It is averred that at the time of the alleged accident the offending tractor was driven by one Jai Kishan who was having a valid and effective driving licence who was under the active employment of one Babbi custodian / purchaser of the tractor of the respondent and who had got released the tractor from the Court on superdari. It is further averred that the accident took place in Ghaziabad, the claimants are permanent residents of Ghaziabad and deliberately the address of Delhi had been given.
5. It is averred that the respondent No.1 / driver of the offending vehicle was having a valid and effective driving licence and the offending vehicle had a valid and effective insurance policy No.222002/31/08/02/00008507 for the period from 22.01.2009 to 21.01.2010 issued by the respondent No.3 and as such if the petitioners were entitled to get the claim the respondent No.3 would pay the same. The averments made in the claim petition were denied. It is averred that the respondent No.2 has been falsely impleaded to get illegal claim. It is further averred that the tractor of the respondent No.2 was not actually involved in the accident and had been wrongly seized by the police knowing fully well that the tractor bearing No.UP 14K 6014 was involved in the accident as per the contents of the FIR. It is stated that the amount claimed Suit No. 119/14 Page No. 5 of 55 Bharat Singh Vyas v Jai Kishan by the petitioners is highly exaggerated and without any justification, basis and is illegal.
6. Separate written statement was filed on behalf of the respondent No.3 taking the preliminary objections that on 25.09.2009 the vehicle No.UP 14K 6017 (tractor) was being used for hire and reward by the owner and was carrying iron rods in contravention of the terms and conditions of the insurance policy hence the respondent No.3 was not liable to indemnify the insured. It is averred that the respondent No.3 is not liable to pay any amount of compensation if it is found that the driver of the vehicle bearing No.UP 14K 6017 was not holding a valid and effective driving licence at the time of the alleged accident or that he was not driving the vehicle as per the instructions of the insured /owner of the vehicle. It is averred that the accident was caused not because of rash and negligent driving of the driver of the offending vehicle but it was the deceased who was negligent while driving his car bearing No.UP 14AS 0396 and he was not adhering to the traffic rules at the time of the accident and it is a case of contributory negligence on the part of the drivers. The averments made in the claim petition were denied. It is averred that the respondent No.3 has no information regarding the involvement of the said vehicle. It is admitted that the vehicle bearing No.UP14K6017 was insured with the respondent No.3 in the name of the respondent No.2 under policy No.222002/31/08/02/00008507 issued for the period 22.01.2009 to 11.01.2010.
Suit No. 119/14 Page No. 6 of 55 Bharat Singh Vyas v Jai Kishan
7. Vide order dated 14.12.2010 of my learned predecessor respondents No.1 and 2 were proceeded exparte. From the pleadings of the parties the following issues were framed on 14.12.2010:
1. Whether the deceased Deepak died in road accident on 25.09.2009 due to rash and negligent driving of vehicle (Tractor Trolley) No.UP14K6017 near Bhatiya flyover, PS Kotwali by respondent No.1, owned by respondent No.2 and insured with respondent No.3? OPP
2. Whether the petitioners are entitled for compensation, if so, to what amount? OPP
3. Relief.
8. An application under Section 170 of M.V. Act read with Section 151 of CPC was filed on behalf of the respondent No.3 which was allowed vide order dated 27.01.2011 by my learned predecessor. By the order of said date interim award of Rs.50,000/ u/s. 140 MV Act was passed in favour of the petitioners and against the respondent No.3. An application was moved on behalf of respondent No.2 under order 9 rule 7 of CPC for setting aside the exparte order which was dismissed in default vide order dated 14.12.2011 by my Ld. Predecessor. Another application moved by the superdar for being impleaded as a respondent was also dismissed vide order dated 14.12.2011. An application was filed on behalf of the respondent No.2 for restoration of the application for setting aside the exparte order which was allowed vide order dated 28.02.2012 of my learned predecessor. Vide order of said date the Suit No. 119/14 Page No. 7 of 55 Bharat Singh Vyas v Jai Kishan application under order 9 rule 7 CPC filed on behalf of the respondent No.2 for setting aside the exparte order was also allowed.
9. On 31.01.2013 it was pointed out that the number of the offending tractor as mentioned in the FIR was UP 14K 6014 whereas the mechanical inspection of vehicle UP 14K 6017 had been conducted and the charge sheet did not mention the number of the offending vehicle which was involved in the accident. On 23.3.2013 it was observed that no steps had been taken and the learned counsel for the petitioner also stated that he did not want to summon any witness in order to prove the said fact and PE was closed.
10. An application was filed on behalf of the respondent No.3 for examining the driver of the offending vehicle to establish that the offending vehicle was carrying iron rods/ garters at the time of the accident whereas the insurance policy covered the use of the vehicle only for agricultural and forestry purposes. However as in the criminal record it was shown that the offending vehicle was carrying iron rods/ garters at the time of the accident, it was held that there was no necessity to examine the driver. Another application was filed on behalf of the respondent No.2 u/s. 151 of CPC but thereafter no witness was produced and the same was dismissed vide order dated 22.05.2014.
Suit No. 119/14 Page No. 8 of 55 Bharat Singh Vyas v Jai Kishan
11. On behalf of the petitioners the petitioner No.1 appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He deposed that the petitioners No.2 and 3 are unmarried sisters and petitioner No.4 is the unmarried brother of the deceased. He stated that all the family members were fully dependent upon the deceased and due to the untimely death of the deceased they had lost their bread earner of the family. He stated that the police of PS Kotwali had registered a criminal case against the respondent No.1/ driver vide Case Crime No.1127/09 FIR No.738/09 which is pending trial before the court of the Chief Judicial Magistrate, Ghaziabad. He stated that the deceased was aged about 30 years, he was not suffering from any ailment like blood pressure, hypertension, diabetes etc. He was doing the business of chappal (M/s Bharat Chappal Store) and earning a sum of Rs.13,770/ per month as per the ITR of assessment year 20082009 and his gross profit was Rs.2,70,870/ and due to the untimely death of the deceased his business had been finished. He stated that the deceased would have lived a long life had his life not been shortened by the tragic accident. PW1 deposed that he suffered grave mental tension, torture and agony due to the death of his son and they had been deprived of love, affection, care, company and protection which was provided by his deceased son. He further deposed that the deceased used to provide them with all assistance, financial as well as emotional during their bad times and with the death of deceased they had lost helping hands besides losing love and affection. He stated that the deceased had left behind PW1 i.e. Suit No. 119/14 Page No. 9 of 55 Bharat Singh Vyas v Jai Kishan old age father, petitioners No.2 and 3 unmarried sisters and petitioner No.4 unmarried brother who had lost their loveliest thing and were wholly dependent upon the deceased for every walk of life and all the petitioners were being maintained and supported by the deceased and the accident had ruined the petitioners physically, mentally and financially.
12. Shri Sanjay Singh appeared in witness box as PW2 and led his evidence by way of affidavit which is Ex.PW2/A. He deposed that he is the eye witness of the case and stated that on 25.09.2009, he was coming back from Lalkuan to go to his house and when he reached on Bhatia More Flyover, in the meantime a tractor bearing No.UP 14K 6017 being driven by the respondent driver in a shooting speed, rash and negligent manner without caring for the rules of the traffic came and hit the deceased. Due to the said incident, the deceased received grievous injuries and died on the spot. The offending vehicle was seized by the police and the driver ran away from the spot. The post mortem was conducted by the doctor of District Mortuary Ghaziabad. He deposed that the accident took place solely due to the rash and negligent driving of the vehicle by the driver who drove the offending vehicle at a very high speed, rashly and negligently and the respondent No.1 could have easily avoided and averted the accident if he drove the offending vehicle at a slow speed, carefully and applied the brakes at the relevant time. He further deposed that the respondent No.1 is the driver, respondent No.2 is the owner and respondent No.3 is the insurer of the offending vehicle and all Suit No. 119/14 Page No. 10 of 55 Bharat Singh Vyas v Jai Kishan the respondents were jointly and severally liable to pay the compensation to the petitioners. PE was closed on 05.08.2011.
13. On behalf of the respondent No.3 Shri Virender Singh, Assistant appeared as R3W1 and he proved the attested copy of the policy bearing No. 222002/31/08/02/00008507 issued in the name of Irshad Ali S/o Munshi r/o Village Dhabarshi, PO Khas, Ghaziabad, UP for the vehicle bearing No.UP 14K 6017 which is Ex. R3W1/A. Legal notice U/o 12 rule 8 is Ex.R3W1/B, original postal receipt of the same is Ex.R3W1/C and the investigation report is Ex.R3W1/D. He deposed that according to the terms and conditions of the policy the said vehicle was to be used only for agricultural purposes but it was used for carrying goods in contravention of the terms of the policy and as such the tractor was being used for commercial purposes which was in violation of the terms and conditions of the policy. He was not crossexamined on behalf of the petitioners and the respondents No.2 and 3 were ex parte. He was recalled and further examined and deposed that their counsel had issued notice u/o 12 rule 8 CPC dated 24.09.2011 to the insured/owner and driver of the offending vehicle to furnish copy of the licence of the driver, copy of notice is Ex.R3W1/E, postal receipts of the same are Ex.R3W1/F, Ex.R3W1/G and Ex.R3W1/H. A.D. Card received from the owner/insured is Ex.R3W1/I. He stated that the insured had not supplied or produced the licence of the driver and violated the terms and conditions of the policy. RE was closed on 17.11.2011.
Suit No. 119/14 Page No. 11 of 55 Bharat Singh Vyas v Jai Kishan
14. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents No.2 and 3 and perused the record. Written submissions were also filed on behalf of the respondent No.3 which I have perused. The petitioners were also examined on 5.4.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
15. At the outset an objection was taken on behalf of the respondent No.2 that the accident took place in Ghaziabad, the claimants are permanent residents of Ghaziabad and deliberately the address of Delhi had been given. PW1 was also extensively crossexamined regarding the same and during crossexamination by the learned counsel for the respondent No.2 PW1 stated that at the time of the accident his son Shri Deepak Vyas (deceased) was resident of Ghaziabad and his family was residing in Delhi. He denied the suggestion that at the time of the accident he and his family were all residents of Ghaziabad. He stated that at the time of the accident he had election identity card at the address of Ghaziabad. He could not say that he had ration card of which address at the time of the accident volunteered may be his son had got issued ration card of Ghaziabad address. He could not say if at the time of the accident he had ration card at the address of Ghaziabad in which he had been shown as the head of the family volunteered he had taken ration at the address of Ghaziabad about 810 years prior to the accident. He denied the suggestion that he was deliberately concealing the correct facts regarding Suit No. 119/14 Page No. 12 of 55 Bharat Singh Vyas v Jai Kishan his residence.
16. PW1 had thus stated that at the time of the accident his son Shri Deepak Vyas (deceased) was resident of Ghaziabad and even in the FIR the address of the deceased has been mentioned as of Ghaziabad. PW1 had stated that his family was residing in Delhi and denied the suggestion that at the time of the accident he and his family were all residents of Ghaziabad. PW1 stated that at the time of the accident he had election identity card at the address of Ghaziabad. He could not say that he had ration card of which address at the time of the accident and volunteered may be his son had got issued ration card of Ghaziabad address. He could not say if at the time of the accident he had ration card at the address of Ghaziabad in which he had been shown as the head of the family volunteered he had taken ration at the address of Ghaziabad about 810 years prior to the accident. Thus PW1 had himself stated that his election identity card had the address of Ghaziabad and even the ration card is from the address of Ghaziabad. Even in the FIR and the charge sheet the address of PW1 who was the complainant is of Ghaziabad. Further the election identity cards of the petitioners No.2 and 3 also show the address of Ghaziabad. The Insurance Policy had also been issued from Bulandshahr.
17. The petitioners had filed a rent receipt along with an affidavit of the landlord who had also stated his address to be simply Village Satbadhi, PS Suit No. 119/14 Page No. 13 of 55 Bharat Singh Vyas v Jai Kishan Mehrauli. He had stated in the affidavit dated 23.11.2009 that the petitioner and his family were residing in his house for the previous 5 years whereas the election identity cards of the petitioners No.2 and 3 showing the address of Ghaziabad were of 2007. Copy of the ration card of Ishwar Singh was also placed on record which mentioned his address as simply Satbadhi. Even the address of Delhi which has been stated is incomplete i.e. Village Satbadhi, PS Mehrauli. No official document issued from the said address in favour of the petitioners has been produced. However the rent receipt has been placed on record by the petitioners to show that they were residing at Delhi and even the matter is now at the final stage. As such nothing much turns on the contention that the petitioners had deliberately given the address of Delhi.
18. My findings on the specific issues are as under:
Issue No. 1
19. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
Suit No. 119/14 Page No. 14 of 55
Bharat Singh Vyas v Jai Kishan "The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or Suit No. 119/14 Page No. 15 of 55 Bharat Singh Vyas v Jai Kishan involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
20. The case of the petitioners is that on 25.09.2009, Deepak (since deceased) was coming from Noida to Panchvati in his car bearing No.UP 14AS0396. When he reached near Bhatia Flyover in the meantime a tractor trolley bearing No.UP14K6017 which was full of iron rods being driven by the respondent driver in a shooting speed, rash and negligent manner without caring for the rules of the traffic was going ahead and the said driver moved right incidentally due to the said incident the deceased died on spot. It is stated that FIR No.738/2009 under Sections 279/338/427/304A IPC was registered at PS Kotwali in respect of the said accident. The post mortem was conducted by the doctors of District Mortuary, Ghaziabad. In para 1 of his affidavit Ex.PW1/A the petitioner No.1 had reiterated the mode and manner of the accident as stated in the claim petition. Likewise PW2 in paras 2, 3 and 4 of his affidavit Ex.PW2/A stated about the manner in which the accident had taken place.
21. The petitioners have filed certified copies of the criminal record consisting of copy of charge sheet, copy of mechanical inspection report of the alleged offending vehicle No.UP14K6017, copy of post mortem report, copy of site plan and copy of FIR No.738/09 under sections 279/338/304A/427 IPC, Suit No. 119/14 Page No. 16 of 55 Bharat Singh Vyas v Jai Kishan PS Kotwali, District Ghaziabad, copy of application on behalf of the owner of the tractor Shri Babbi to the IO, authority letter in favour of Shri Babbi issued by the registered owner Shri Irshad Ali, copy of application for release of the alleged offending vehicle on superdari, copy of bail application and copy of order on application for release of the vehicle on superdari and photocopies of the case diary. As per the FIR No.738/09 under sections 279/338/304A/427 IPC, PS Kotwali, District Ghaziabad the case was registered on the basis of the complaint of Shri Bharat Singh Vyas who is the father of the deceased wherein he has stated the manner in which the accident took place. As per the charge sheet respondent No.1 has been charge sheeted for the offence under sections 279/304A/427 IPC.
22. Initially the respondents No.1 to 2 were proceeded exparte but thereafter an application was filed on behalf of the respondent No.2 for setting aside the exparte order which was allowed by order of my learned predecessor. The respondent No.1 did not appear either to file his written statement or to crossexamine PW1 and PW2. The respondent No.2 had filed the written statement taking the preliminary objection that as per the averments made in the FIR the alleged accident had been caused by the trolley connected with the offending tractor bearing registration No.UP 14 K 6014 whereas the respondent No.2 is the owner of the tractor bearing registration No.UP 14K 6017 and as such the claim petition is not maintainable against the respondent No.2. It was averred that as per the mechanical Suit No. 119/14 Page No. 17 of 55 Bharat Singh Vyas v Jai Kishan inspection report the tractor of the respondent No.2 bearing No.UP 14K 6017 was not in working condition as the same was in an abandoned condition and hence the accident had not been caused due to the tractor of the respondent No.2. PW1 was also crossexamined regarding the number of the offending vehicle and during crossexamination by the learned counsel for the respondent No.2 PW1 stated that he had lodged complaint with the police of the accident in the morning at about 11 a.m. - 12 noon. He stated that he had told the number of the tractor involved in the accident to the police, however he did not remember the number of the tractor then. He stated that he had himself seen the number of the tractor. He could not say if the number of the tractor was UP14K6014. He stated that the accident had taken place with the tractor number of which was furnished by him to the police.
23. It is seen that the FIR was registered on the complaint of PW1 wherein the number of the offending vehicle was stated as UP14K6014 while the number of the alleged offending vehicle was not mentioned in the charge sheet. During crossexamination PW1 had not denied that the number of the tractor was UP14K6014 but had stated that he could not say if the number of the tractor was UP14K6014. PW1 did not remember the number of the tractor at the time of his crossexamination though he stated that he had himself seen the number of the tractor. A perusal of the FIR shows that it was stated therein that the offending tractor was standing at the spot though the driver had fled away. Thus the offending vehicle was seized from the spot and even the Suit No. 119/14 Page No. 18 of 55 Bharat Singh Vyas v Jai Kishan mechanical inspection was carried out in respect of the tractor No.UP14K 6017. It may be mentioned that an opportunity was given to the learned counsel for the petitioners to lead evidence regarding the discrepancy in the number of the offending vehicle but thereafter he had stated that he did not want to lead any evidence regarding the same. The learned counsel for the petitioners has relied on the copy of the Case Diary which has been placed on record and though not proved one CD bearing No.0846944 is on record which shows that in the FIR the number of the offending tractor had been got wrongly written and the number was in fact UP14K6017. Even otherwise as observed the vehicle was seized from the spot.
24. It was argued on behalf of the respondent No.3 that the charge sheet shows that the name of the driver is not mentioned and that the driver was absconding and the claimant while giving application to the police incharge Kotwali had also mentioned that the accident had taken place and the driver had absconded and the name of the driver was not mentioned in the complaint. However a perusal of the charge sheet shows that the name of the driver is duly mentioned therein as the accused. Further the petitioners have placed on record copy of the application dated 25.9.2009 made by the owner Babbi to the SHO, PS Kotwali wherein it was stated that the tractor was being driven by the respondent No.1 and the copy of the bail application filed by the respondent No.1 has also been placed on record. Thus the name of the driver/ respondent No.1 was available on the date of the accident Suit No. 119/14 Page No. 19 of 55 Bharat Singh Vyas v Jai Kishan itself.
25. It was also argued on behalf of the respondent No.2 that as per the mechanical inspection report the tractor of the respondent No.2 bearing No.UP 14K 6017 was not in working condition as the same was in an abandoned condition and hence the accident had not been caused due to the tractor of the respondent No.2. It is true that as per the mechanical inspection report in respect of the offending vehicle road test could not be taken as the tractor did not start. However that does not show that the same was not in working condition at the time of the accident or was in an abandoned condition. During crossexamination by the learned counsel for the respondent No.2 PW2 denied the suggestion that the tractor was not moving and it was lying stationary on account of mechanical defect. Even otherwise the mechanical inspection report also shows that the engine etc were alright and only that the tractor had not selfstarted so the road test could not be done and it is significant that the mechanical inspection was done on 20.10.2009 i.e. nearly after one month of the accident.
26. It was also argued on behalf of the respondents No.2 and 3 that PW2 was not an eye witness to the accident. During crossexamination by the learned counsel for the respondent No.2 PW2 denied the suggestion that he was not a witness to the accident. He stated that he had informed the police that he had witnessed the accident and the police had recorded his statement. Suit No. 119/14 Page No. 20 of 55 Bharat Singh Vyas v Jai Kishan He stated that his statement was recorded by police after about 24 days of the accident. He denied the suggestion that he had not told the police that he was witness to the accident and the police had not recorded his statement. During crossexamination by learned counsel for the respondent No.3 PW2 stated that police had recorded his statement after three days of the accident. He was not a summoned witness. He stated that the deceased or Bharat Singh Vyas were not related to him. He denied the suggestion that he was not present at the time of the accident and was helping the claimants to get compensation. Thus PW2 had stated that he was not a summoned witness but he had also stated that he had informed the police that he had witnessed the accident and the police had recorded his statement and he denied the suggestion that he was not a witness to the accident. He had also stated that the police had recorded his statement after three days of the accident. It is seen that the FIR was got registered on the day of the accident itself but not on the complaint of PW2. However, PW2 has been cited as a witness in the charge sheet. Moreover PW2 had stated that the deceased or the petitioner No.1 were not related to him and there is also nothing on record to suggest the same.
27. Regarding the manner of the accident during crossexamination by the learned counsel for the respondent No.2 PW2 stated that at the time of the accident they were coming from Lal Kuan and were going towards their house in Ghaziabad. He stated that the accident took place while descending the Suit No. 119/14 Page No. 21 of 55 Bharat Singh Vyas v Jai Kishan flyover. He stated that the place of accident was about 100 yards from the top of the flyover. He stated that the tractor trolley i.e. the offending vehicle was at the speed of 8090 km/per hour. He stated that the car was behind the tractor trolley. The speed of the car was about 4050 km/ per hour. He stated that he was going on foot. During crossexamination by the learned counsel for the respondent No.3 PW2 admitted that the tractor trolley was full of iron rods which were half outside the trolley. He stated that the accident took place due to the negligence of the driver of the tractor bearing No.UP14K6017 which was driven by its driver rashly and negligently on 25.9.2009 at about 1.30 a.m. He denied the suggestion that the accident took place due to the negligence on the part of the deceased who was driving the car No.UP14AS0396 in a rash and negligent manner. Thus PW2 had stated that the accident had taken place while descending the flyover. It is pertinent that he had stated that the offending vehicle was at the speed of 8090 km/per hour and that the car was behind the tractortrolley and the speed of the car was about 4050 km/per hour but if that were so the question of the driver of the tractortrolley suddenly moving to the right (as was stated in the claim petition) and hitting the car does not arise as the car was behind the tractortrolley and at a much lesser speed than the tractor trolley. It is not in dispute that the tractor trolley was full of iron rods which were half outside the trolley but from the manner of the accident as described by PW2 it is clear that the car must have also been going at a high speed and the driver of the car failed to exercise due care and caution otherwise he would have maintained a safe distance from the tractor trolley. It Suit No. 119/14 Page No. 22 of 55 Bharat Singh Vyas v Jai Kishan was sought to be contended that the tractor trolley had hit the car but the car was behind the tractor trolley and it is not the case that at the speed of 8090 km/per hour the tractor trolley had suddenly moved back and if it is the case that the tractor trolley had moved to the right and hit the car then the car would not have been behind the tractor trolley but on the side. It was stated in the FIR that the car in which the deceased was travelling was destroyed which also lends credence to the fact that the driver of the car was also driving the car at high speed and with negligence otherwise he would have been able to control the car.
28. The respondent No.1 has not appeared to crossexamine the PWs or to rebut their testimony and the respondents No.1 and 2 who are the driver and owner of the offending vehicle have not led any evidence to prove any other version of the accident. Further the criminal record has been placed on record which shows that respondent No.1 has already been charge sheeted for the offence under Sections 279/304A/427 IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not adduced any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.UP14K6017. The fact that the charge Suit No. 119/14 Page No. 23 of 55 Bharat Singh Vyas v Jai Kishan sheet is filed against respondent No.1 and respondent No.1 is facing criminal trial is also not disputed. In view of the testimony of PWs and documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved. However in view of what has been observed above clearly there was contributory negligence on the part of the deceased and he had also contributed to the happening of the accident and as such the negligence of the deceased is apportioned as 25% and that of the respondent No.1 as 75%.
29. It was stated that due to the accident the deceased received grievous injuries and died on the spot. The Post Mortem report is on record which shows the cause of death as coma, haemorrhage and shock due to ante mortem injuries. Thus it also stands established that the deceased had sustained injuries in the alleged accident due to which he died at the spot. Issue No.1 is decided accordingly.
ISSUE No.2
30. In T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, it was held as under:
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite Suit No. 119/14 Page No. 24 of 55 Bharat Singh Vyas v Jai Kishan negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
In the present case as well though the deceased is found to have contributed to the negligence the claim for compensation by the claimants is not defeated merely by reason of the negligence on the part of the deceased but the compensation recoverable by the claimants would stand reduced in proportion to the contributory negligence of the deceased.
31. The petitioners are the father, two sisters and brother of the deceased. PW1 in his affidavit Ex.PW1/A had deposed that the petitioners No.2 and 3 are the unmarried sisters and petitioner No.4 is the unmarried brother of the deceased and all the family members were fully dependent upon the deceased and due to the untimely death of the deceased they had lost the bread earner of the family. He had also stated that all the petitioners Suit No. 119/14 Page No. 25 of 55 Bharat Singh Vyas v Jai Kishan were being maintained and supported by the deceased and the accident had ruined the petitioners physically, mentally and financially. During cross examination by the learned counsel for the respondent No.3 PW1 stated that his date of birth is 2.10.1948. He stated that he is not working at present. He admitted that his children namely Preeti, Priya and Sunny two daughters and son were 24 years, 23 years and 19 years respectively at the time of the accident of his son. He denied the suggestion that he and his children were not dependent on the income of the deceased. Thus PW1 had stated that he was not working at present and even during examination by the Tribunal he had stated that he is 64 years old at present. He stated that other than the deceased he has three children i.e. two daughters and one son and his wife had expired prior to the date of the accident. He stated that at the time of the accident he was not working and even at present he was not doing any work. However no specific reason has been stated by the petitioner No.1 for not working and he was not so old as to be not in a position to work. Further no evidence was produced to show that he was suffering from any ailment which prevented him from working and a bare statement was made that he was dependent on the deceased. As per the ratio of the judgment of the Hon'ble Supreme Court in Sarla Verma and Ors. v. Delhi Transport Corporation and Anr., (2009) 6 SCC 121, the father cannot be regarded as a dependent.
Suit No. 119/14 Page No. 26 of 55 Bharat Singh Vyas v Jai Kishan
32. PW1 himself had admitted that the petitioners No.2, 3 and 4 were major at the time of the accident of the deceased. A copy of election identity card of Priya Vyas is on record which shows her age to be 21 years on 1.1.2007 and as such she would have been more than 23 years old on the date of the accident. Similarly as per the election identity card of Priti Vyas her age was 22 years as on 1.1.2007 so she would have been more than 24 years on the date of the accident. The copy of the ration card shows the age of Sunny as 16 years as on 28.6.2006 so he would also have been more than 19 years on the date of the accident. No evidence was led to show what they were doing on the date of the accident. However during examination by the Tribunal Priti stated that she is 28 years old at present and married. At the time of the accident she was unmarried and was not doing anything. Priya stated that she is 27 years old at present and at the time of the accident she was doing a job and earning Rs.3000/ p.m. and at present as well she was working and earning Rs.6000/ per month and is unmarried. Sunny stated that he is 24 years old at present and at the time of the accident he used to sit on the shop and was earning Rs.5000/ to Rs.6000/ p.m. It is true that the sisters that is, the petitioners No.2 and 3 were unmarried at the time of the accident but when the father was alive they would be regarded as dependent on the father and not on the deceased brother. Even otherwise Priya had stated that at the time of the accident she was working and earning Rs.3000/ p.m. and even at present she was working and earning Rs.6000/ p.m. Similarly Sunny was also working at the time of the accident and earning Rs.5000/ to Rs.6000/ per Suit No. 119/14 Page No. 27 of 55 Bharat Singh Vyas v Jai Kishan month. Thus the petitioners No.2 to 4 could not be regarded as dependent on the deceased.
33. It is thus seen that neither of the petitioners could be regarded as dependent on the deceased and the petitioners would not be entitled to compensation for loss of dependency. The only question that arises is of loss to estate and as regards the loss to estate as per the well settled law the rules of succession apply. Admittedly the deceased was not survived by any Class I heir as per the Schedule to the Hindu Succession Act. The father and sisters and brother are all Class II heirs. In Class II the person falling in entry 1 takes to the exclusion of the others. The right to loss to estate is a personal right and the entitlement would be seen on the basis of the right of the petitioners to the loss to estate. In Class II the father is covered in the first entry whereas the sisters and brother are covered in the second entry As such the petitioner No.1 would take to the exclusion of the petitioners No.2, 3 and 4.
34. Regarding the principles to be followed while computing loss to estate in MAC.APP.No.601/2007 Keith Rowe v. Prashant Sagar and Ors., 2011 ACJ 1734 the Hon'ble High Court of Delhi referred to the judgment of the Hon'ble Karnataka High Court in the case of A. Manavalagan v. A. Krishnamurthy and Ors., I(2005) ACC 304/ 2005 ACJ 1992, wherein it was held as under: Suit No. 119/14 Page No. 28 of 55 Bharat Singh Vyas v Jai Kishan "8. On the contentions urged, the following questions arise for consideration:
(i) What are the principles for determining compensation, where the claimant is not a dependant?
12. In Gobald Motor Service v. R.M.K. Veluswami, MANU/SC/0016/1961: [1962]1SCR929 referring to Sections 1 and 2 of the Fatal Accidents Act (Sections 1A and 2 after 1951 amendment to the said Act), the Supreme Court pointed out the difference between damages recoverable under the said two Sections. It was held that while under Section 1 (new Section 1A) damages are recoverable for the benefit of the persons mentioned therein, under Section 2, compensation goes to the benefit of the estate; whereas under Section 1, damages are payable in respect of loss sustained by the persons mentioned therein, under Section 2 damages can be claimed inter alia for loss of expectation of life and loss to the estate. The Supreme Court held that persons who claim benefit under Section 1 and 2 need not be the same as the claims under the said two Sections are based upon different causes of action. The Supreme Court held:
The principle in its application to the Indian Act has been clearly and succinctly stated by a division bench of the Lahore High Court in Secretary Of State v. Gokal Chand (AIR 1925 Lah 636). In that case, Sir Shadilal CJ observed thus:
The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially Suit No. 119/14 Page No. 29 of 55 Bharat Singh Vyas v Jai Kishan entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered from part of the assets of the estate.
An illustration may clarify the position X is the income of the estate of the deceased, Y is the yearly expenditure incurred by him on his dependants (we will ignore the other expenditure incurred by him). XY, i.e., Z is the amount he saves every year. The capitalised value of the income spend on the dependants, subject to relevant deductions, is the pecuniary loss sustained by the members of his family though his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are the same, and if they get compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under Section 1, representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under Section 2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under Section 1 they got capitalised value of Y; under Section 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e., X, would be the capitalised value of his entire income.
The rights of action under Section 1 and 2 of the Act are quite distinct and independent. If a person Suit No. 119/14 Page No. 30 of 55 Bharat Singh Vyas v Jai Kishan taking benefit under both the Sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of personal loss under Section 1 of the Act, the portion shall be excluded in giving compensation under Section 2 and vice versa...
15. Where a breadwinner dies and his wife, children and parents, who are normally depending on the deceased, claim compensation, the method of computation is now standardized.
The Court first finds out the income of the deceased, then estimates how much he would have spent for himself (for his personal and living expenses). The balance is taken as the contribution to the dependents (family). The said estimate of the amount contributed to the family per year, which is the annual dependency, becomes the basis for arriving at the compensation, it is converted into a lump sum by multiplying it by the number of years during which he would have contributed to the family (duly scaled down to take several uncertainties into account). Thus, the annual dependency becomes the multiplicand and the number of years' purchase becomes the multiplier. As it is well settled that there cannot be a duplication of award under Sections 1A and 2 of the FA Act, where the main head for award of compensation is loss of dependency, the Courts will not duplicate the award under the head of loss of estate. Instead a conventional sum (Say Rs. 10,000/) is awarded under the head of loss of estate, where the income has already been taken note of under the head of loss of dependency.
16.But, what would be the position if the claimant, though a legal heir is not a dependant of the deceased? Obviously, the question of awarding any amount under the head of loss of dependency Suit No. 119/14 Page No. 31 of 55 Bharat Singh Vyas v Jai Kishan would not arise, as there was no financial dependency. In fact in this case, the deceased was not even managing the 'house hold' as is normally done by a housewife as the husband and wife were living in different places due to exigencies of service and the couple had no children. In such a case, the main head of compensation will be loss to estate under Section 2 of the Fatal Accidents Act. The claim petition becomes one on behalf of the estate of the deceased and the compensation received becomes part of the assets of the estate. Consequently what is to be awarded under the head of loss of dependency under Section 1A would be nil, as there is no real pecuniary loss to the members of the family.
17. In Gammell v. Wilson, 1981(1) ALL ER. 578 the House of Lords held that in addition to the conventional and moderate damages for loss of expectation of life, damages for loss to the estate should include damages for loss of earnings of the lost years. The annual loss to the estate was computed to be the amount that the deceased would have been able to save after meeting the cost of his living and damages for loss to the estate were computed after applying a suitable multiplier to the annual loss. Gammel was relied on in Susamma Thomas (Supra) and by the Madhya Pradesh High Court in Ramesh Chandra v.
M.P.State Road Transport Corporation, 1983 ACJ 221. Xxxxx Xxxxx
19. We may summarise the principles enunciated, thus:
(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependant members of his family as a result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the Suit No. 119/14 Page No. 32 of 55 Bharat Singh Vyas v Jai Kishan first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed (Note: for example, if the dependants of a deceased Hindu are a widow aged 35 years and mother aged 75 years, irrespective of the fact that they succeed equally under Hindu Succession Act, the Tribunal may award a larger share to the widow and a smaller share to the mother, as the widow is likely to live longer). But in the second category of cases, no such adjustments or alternation of shares is permissible and the entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with the personal law governing succession, as the amount awarded and recovered forms part of the estate of the deceased.
(ii)Where the claim is by the dependants, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate.
(iii)Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased.Suit No. 119/14 Page No. 33 of 55
Bharat Singh Vyas v Jai Kishan A conventional sum for loss of expectation of life, is added.
(iv)The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.
20.The following illustrations with reference to the case of a deceased who was aged 40 years with a monthly income of Rs. 9000/ will bring out the difference between cases where claimants are dependents and cases were claimants are not dependents.
Xxxxx Xxxxx
(iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. Each will be spending from his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living expenses by each spouse from his/her Suit No. 119/14 Page No. 34 of 55 Bharat Singh Vyas v Jai Kishan income will be comparatively higher, that is one fourth of his/her income. Each would be saving only the balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as onefourth (that is 25%), the loss to the estate would be Rs. 2250/ per month or Rs. 27000/ per annum, By adopting the multiplier of 14, the loss to estate will be Rs. 3,78,000/.
Note: The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in Burgess v. Florence Nightingale Hospital 1955(1) Q.B. 349, 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, one third of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs. 1,000/ per month or Rs. 12,000/ per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of one third of the income that is Rs. 3,000/ per month or Rs. 36000/ per annum). Therefore, the loss of dependency would be 12000x14=168,000/ and loss to estate would be 36000x14=504,000/. In all Rs.6,72,000/ will be the compensation.
(v) If the deceased was a bachelor and the claimants are two nondependent brothers/sisters aged 47 years and 45 years with independent income, the position would be different. As the deceased did not have a 'family', the tendency would be to spend more on oneself and the savings would be hardly 15%. If the saving is taken as 15% (Rs.1350/ per month), the annual Suit No. 119/14 Page No. 35 of 55 Bharat Singh Vyas v Jai Kishan savings would be Rs. 16,200/ which would be the multiplicand. The multiplier will be 13 with reference to the age of the claimants and the loss of estate would be Rs. 2,10,600/ per annum.
Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependants) in the absence of specific evidence to the contrary. The quantum of savings can be taken as onethird of the income of the deceased where the spouses are having a common establishment and onefourth where the spouses are having independent establishments. The above will apply where the family consists of nondependant spouse/children/parents. Where the claimants are nondependant brothers/sisters claiming on behalf of the estate, the savings can be taken as 15 % of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants." As such where the loss is only to the estate the quantum of savings can be taken as onethird of the income of the deceased where the parties are having a common establishment and onefourth where the parties are having independent establishments and the same applies where the family consists of nondependent spouse/children/parents. In the instant case the only person entitled to loss to estate is the father. During crossexamination by the learned counsel for the respondent No.2 PW1 stated that at the time of the accident his son Shri Deepak Vyas (deceased) was resident of Ghaziabad and his family was residing in Delhi. He denied the suggestion that at the time of the accident he and his family were all residents of Ghaziabad. Thus PW1 himself Suit No. 119/14 Page No. 36 of 55 Bharat Singh Vyas v Jai Kishan had stated about him and the deceased having independent establishments and thus the quantum of savings can be taken as only onefourth of the income.
35. It is the case of the petitioners that the deceased was doing the business of chappal (M/s Bharat Chappal Store) and earning an income of Rs.13,770/ per month as per the ITR of the assessment year 20082009 and his gross profit was Rs.2,70,870/ only and due to the untimely death of the deceased his business had been finished. PW1 had deposed in his affidavit Ex.PW1/A that the deceased was not suffering from any ailment and he would have lived a long life had his life not been shortened by the tragic accident because he was not suffering from any ailment like blood pressure, hypertension, diabetes etc. The petitioners have placed on record the copy of the PAN card of the deceased and copy of his ITR for the assessment year 20082009 which was filed on 10.10.2008 which showed the gross total income of the deceased to be Rs.1,65,230/ on which tax and interest of Rs.480/ was paid. During crossexamination by the learned counsel for the respondent No.3 PW1 admitted that income tax returns filed by him for the year 20082009 did not carry the signature of his deceased son and no date was found in the verification. He denied the suggestion that the income tax returns filed by him were forged and fabricated or that his deceased son was not doing the business of chappal (Bharat Chappal Store) and was not earning Rs.13,770/ per month. He stated that he had Suit No. 119/14 Page No. 37 of 55 Bharat Singh Vyas v Jai Kishan not filed any proof that his son was doing the business of M/s Bharat Chappal Store.
36. It was argued on behalf of the respondent No.3 that the income tax return filed by the petitioners for the assessment year 20082009 Ex.PW1/4 with respect to the deceased was not genuine and it did not carry the signatures of the deceased and the verification at page 9 of the income tax return also did not bear the signature of the applicant which was also admitted by the father of the deceased during crossexamination. It was argued that the petitioners neither proved the income tax return by examining the concerned authority nor filed any documentary evidence that the deceased was running the business of M/s Bharat Chappal Store. It was argued that the petitioners have failed to prove the income of the deceased and as such only the minimum wages would be applicable. It is seen that during crossexamination PW1 had admitted that income tax returns filed by him for the year 20082009 did not carry the signature of his deceased son and no date was found in the verification and the document also shows the same as also that there was no signature on the verification. Further no witness had been produced from the department to prove the income tax return. However on that basis the income tax returns cannot be disbelieved moreso as it seen that the copy of the receipt regarding the payment of the income tax has also been filed. Again no evidence other than the computation of income with the ITR has been produced to show that the Suit No. 119/14 Page No. 38 of 55 Bharat Singh Vyas v Jai Kishan deceased was running the business of Bharat Chappal Store and in fact even in the claim petition it was not specifically stated what the deceased was doing at the time of the accident and PW1 had stated that he had not filed any proof that his son was doing the business of M/s Bharat Chappal Store. However there is no reason to disbelieve the ITR which has been filed which was filed almost one year before the date of the accident.
37. The ITR for the assessment year 20082009 which was filed on 10.10.2008 shows the gross total income of the deceased to be Rs.1,65,230/ on which tax and interest of Rs.480/ was paid. It is settled law that the actual income is the income taken after deducting the income tax. Thus the actual annual income of the deceased would be Rs.1,64,750/. Taking onefourth of the same for computing the loss to the estate it comes to Rs.41187.5 rounded off to Rs.41,200/.
38. It is the case of the petitioners that the deceased was aged 30 years and the same was also mentioned in the claim petition. PW1 had also deposed to that effect. As per the copy of the PAN card of the deceased his date of birth was 6.10.1979 and as such on the day of accident i.e. 25.09.2009 he would have been less than 30 years old. There can be no deduction towards personal and living expenses once only one fourth of the income is considered as the saving. In M.S. Sherawat and Others v. Oriental Insurance Company Ltd. MAC. APP. 142 OF 2011 decided on 11.5.2012 by Suit No. 119/14 Page No. 39 of 55 Bharat Singh Vyas v Jai Kishan the Hon'ble High Court of Delhi it was held:
"...the learned counsel for the Appellants is right that there cannot be deduction of 1/4th towards the personal and living expenditure of the deceased because 2/3rd of the deceased's income has already been taken as her personal and living expenditure and 1/3rd is taken as the saving which ultimately comes in the hands of the legal representatives as loss to estate. No such deduction of 1/4th was made either in A. Manavalagan(supra) or in Keith Rowe(supra)."
39. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case the multiplier of 17 applies for calculating the loss of income where the age of the deceased is 26 to 30 years. The law is now well settled that the multiplier would be as per the age of the deceased and not as per the age of the claimants. The issue of multiplier was considered by the Hon'ble High Court in the case of Mohd. Hasnain & Ors. Vs. Jagram Meena & Ors. bearing MAC. APP. No. 152/2014, decided on 24.03.2014, wherein it held as under: "21. The maximum value of the multiplier is fixed at 18, which is fairly representing the purchasing capacity of a victim in a stable economy. In the ascertainment of purchasing capacity of the victim, the age of the claimant has no relevance because of the fact that it has no nexus with the assessment of the loss of dependency.
22. Moreover, subsequent to the introduction of Section 163A and the Second Schedule of the Act, the Apex Court in Trilok Chandra, introduced a structural change by increasing the numerical value of multiplier from 16 to 18, whereas it had been fixed at 16 as per Suit No. 119/14 Page No. 40 of 55 Bharat Singh Vyas v Jai Kishan Susamma Thomas. Specifically, there was no variation in respect of fundamental premise of "multiplier method ‟ as held in Susamma Thomas. In Trilok Chandra, the Apex Court has taken the second schedule as a guiding factor.
23. Significantly, the Apex Court in the case of Reshma Kumari and M. Nag Pal has followed the age of the victim as a factor for selecting the multiplier. Specifically, in the selection of multiplier for the age group up to ‟15‟ the Apex Court never considered the age of the claimants as a relevant factor. Therefore, this court finds no reason to adopt a different formula for the victim who is above "15 ‟ years of age, whereas the relevant factors have been adopted by the Apex Court such as (i) age of the deceased (ii) income of the deceased and (iii) number of dependents. The Apex Court, while formulating the relevant factors for the assessment of loss of dependency, the age of the claimants was never considered as a factor. Finally, in the assessment of dependency, the courts / tribunals are computing the purchasing capacity of the deceased; not the claimants. Therefore, I am of the considered opinion that the age of the victim is the proper factor for selecting the correct multiplier."
This ratio has further been applied by the Hon'ble High Court of Delhi in MAC.APP. 1227/2012 NEW INDIA ASSURANCE CO LTD. V. MS.SHAMIM FATIMA & ORS decided on 1.4.2014 and earlier in the decision of the Hon'ble High Court dated 11.9.2013 in Chander Kala and Anr. v. Satpal and Ors. MAC. APP.743/2012 to the same effect. Thus the multiplier applicable in the instant case would be of 17.
40. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under: Suit No. 119/14 Page No. 41 of 55
Bharat Singh Vyas v Jai Kishan "11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects.
Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter." The petitioners would thus be entitled to addition of 50% of the income towards future prospects as the deceased was below 40 years on the date of the accident.
Accordingly the loss to estate as per the annual income i.e. Rs.41,200/ is calculated as under :
Suit No. 119/14 Page No. 42 of 55
Bharat Singh Vyas v Jai Kishan Rs.41,200/ + Rs.20,600 (50% future prospects) = Rs.61,800/ X 17 (multiplier) = Rs.10,50,600/. However as the contributory negligence of the deceased has been found to be 25%, the loss to estate would be Rs.7,87,950/ (rounded off to Rs.7,88,000/).
41. The petitioners are also entitled to compensation for loss of love and affection, loss of estate and funeral expenses. During crossexamination by the learned counsel for the respondent No.3 PW1 stated that he had not filed any proof that he had spent Rs.50,000/on funeral expenses and last rites of his son. There is also nothing to suggest the same.
The total compensation is determined as under:
Loss to estate : Rs.7,88,000/
Love and affection : Rs.40,000/
Funeral expenses : Rs.10,000/
Total : Rs.8,38,000/
Thus, the total compensation would amount to Rs.8,38,000/. APPORTIONMENT OF LIABILITY
42. The respondent No.1 is the driver of the offending vehicle, respondent No.2 is the owner of the offending vehicle and respondent No.3 is the insurer Suit No. 119/14 Page No. 43 of 55 Bharat Singh Vyas v Jai Kishan of the offending vehicle. The respondent No.1 was exparte. It is the case of the respondent No.3 that the driver of the offending vehicle was not possessing a valid and effective driving license at the time of the accident and the tractor trolley was being used in contravention of the terms of the policy. In support of its case the respondent No.3 had produced R3W1 in the witness box who had proved the attested copy of the policy bearing No. 222002/31/08/02/00008507 issued in the name of Irshad Ali S/o Munshi r/o Village Dhabarshi, PO Khas, Ghaziabad, UP for the vehicle bearing No.UP 14K 6017 which is Ex.R3W1/A. Legal notice U/o 12 rule 8 is Ex.R3W1/B, original postal receipt of the same is Ex.R3W1/C and the investigation report is Ex.R3W1/D. He deposed that according to the terms and conditions of the policy the said vehicle was to be used only for agricultural purposes but it was used for carrying goods in contravention of the terms of the policy and as such the tractor was being used for commercial purposes which was in violation of the terms and conditions of the policy. He was not crossexamined on behalf of the petitioners and the respondents No.2 and 3 were ex parte. He was recalled and further examined and deposed that their counsel had issued notice u/o 12 rule 8 CPC dated 24.09.2011 to the insured/owner and driver of the offending vehicle to furnish copy of the licence of the driver, copy of notice is Ex.R3W1/E, postal receipts of the same are Ex.R3W1/F, Ex.R3W1/G and Ex.R3W1/H. A.D. Card received from the owner/insured is Ex.R3W1/I. He stated that the insured had not supplied or produced the licence of the driver and violated the terms and conditions of the policy. It was also argued on Suit No. 119/14 Page No. 44 of 55 Bharat Singh Vyas v Jai Kishan behalf of the respondent No.3 that the insured had failed to furnish the particulars of the license of the driver and in view of the evidence led by the insurance company the driver was not holding license at the time of the accident.
43. During crossexamination by the learned counsel for the petitioners R3W1 stated that the company had directed his counsel to give the notice under order 12 rule 8 CPC to the driver and the owner. He stated that no investigator was appointed by the company to verify the DL of the driver and permit of the offending vehicle. He denied the suggestion that the driver had a valid DL, therefore the insurance company did not get the DL verified. Thus R3W1 had stated that no investigator was appointed by the company to verify the DL of the driver and permit of the offending vehicle. A perusal of the record shows that the respondent No.2 had filed a copy of the DL of the respondent No.1 with its reply on 26.7.2012 which was valid at the time of the accident as per the endorsement on it and as such the respondent No.3 could have got the same verified. Further the investigation report Ex.R3W1/D was only in respect of the registration certificate of the offending vehicle and not in respect of the DL. Thus it cannot be contended by the respondent No.3 that the respondent No.1 did not possess a valid driving license at the time of the accident as the onus to prove the same was on the respondent No.3 as per the well settled law.
Suit No. 119/14 Page No. 45 of 55 Bharat Singh Vyas v Jai Kishan
44. Regarding the contention that according to the terms and conditions of the policy the said vehicle was to be used only for agricultural purposes but it was used for carrying goods in contravention of the terms of the policy and as such the tractor was being used for commercial purposes which was in violation of the terms and conditions of the policy which was also stated by R3W1 a perusal of the insurance policy Ex.R3W1/A shows that the insured vehicle was to be used 'only for agricultural and forestry purposes. The policy does not cover (1) use for hire or reward or for racing pace making reliability trial or speed testing, (2) Use for the carriage of passengers for hire or reward, (3) Use whilst drawing a greater number of trailers in all than is permitted by law.' Thus the insured vehicle was to be used 'only for agricultural and forestry purposes.' Further as per the RC of the offending vehicle and the verification report Ex.R3W1/D the vehicle class was tractor (agriculture). A perusal of the FIR shows that it was mentioned therein that long iron garters were loaded on the offending vehicle which were jutting out. Even during crossexamination by the learned counsel for the respondent No.3 PW2 had admitted that the tractor, trolley was full of iron rods which were half outside the trolley. The site plan and the mechanical inspection report of the offending vehicle also mention that in the trolley iron garters were loaded. No evidence has been led by the respondent No.2 to show that the said garters/ iron rods were in any way to be used for agricultural or forestry purposes. Suit No. 119/14 Page No. 46 of 55 Bharat Singh Vyas v Jai Kishan
45. In Oriental Insurance Company Ltd. v. Brij Mohan & Ors. IV (2007) ACC 254 (SC) a labourer was travelling on a trolley attached to a tractor, he was engaged to dig earth and the earth so dug was loaded on the trolley attached to the tractor and he and other workers were returning to the brick kiln and he was sitting on the earth loaded on the trolley. The tractor was allegedly being driven rashly and negligently by the driver and the labourer slipped down from the trolley, came under the wheels and suffered grievous injuries. In the said case as well the tractor was insured only for the purpose of carrying out agricultural works and it was held that digging of earth for the purpose of manufacture of brickkiln indisputably could not amount to carrying out of agricultural work. In the present case as well carrying of iron rods/garters could not amount to carrying out agricultural or forestry purposes. Reference was made to the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. V. Chinnamma & Ors. 2004 (8) SCC 697 where it was observed:
"16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise."
Reference was also made to the judgment in New India Assurance Co. Ltd. v. Asha Rani & Ors. III (2002) ACC 753 where it was held that the insurance Suit No. 119/14 Page No. 47 of 55 Bharat Singh Vyas v Jai Kishan company is not liable for payment of any compensation for death of a gratuitous passenger travelling in a goods vehicle and the judgment in National Insurance Co. Ltd. v. Baljit Kaur & Ors. I (2004) ACC 259 on the question of the law regarding a gratuitous passenger and it was observed that the claim petition of the labourer could not have been allowed though in exercise of powers under Article 142 of the Constitution it was directed that the insurance company may satisfy the award but it would be entitled to realise the same from the owner of the tractor and the trolley. In M.V. Jayadevappa & Anr. v. Oriental Fire & General Insurance Company Ltd. & Ors. 1 (2005) ACC 472 (SC) it was observed:
"2. We have perused the copy of the Insurance Policy (Exh.D2) available on record. It records the vehicle as commercial vehicle. In the schedule annexed with the policy the vehicle is described as 'Cheverolet Lorry with open body". The licensed carrying capacity of goods is specified as "2 tons". It is no where mentioned that the vehicle was authorised to carry passengers.
3. The submission of the learned Counsel for the appellant has been that the vehicle being a passenger vehicle, the liability should have been passed on to the Insurance Company without regard to the fact whether the passengers were gratuitous or not. Having perused the particulars of the vehicle, as given in the Insurance Policy, we are satisfied that the vehicle could not have carried passengers. The vehicle seems to have been a goods vehicle. The High Court has rightly exonerated the Insurance Company."Suit No. 119/14 Page No. 48 of 55
Bharat Singh Vyas v Jai Kishan In National Insurance Co. Ltd. v. Surat Singh & Ors. V(2008)ACC48, the Hon'ble High Court has held that:
"31. The issue involved in the present appeal is no more res integra as the Apex Court has taken a view that Section 147 of the Motor Vehicles Act does not envisage coverage of risk of gratuitous passenger and, therefore, to carry a gratuitous passenger is clearly in violation of terms and conditions of the policy on the part of the owner, and consequently no liability to pay the compensation can be fastened on the Insurance Company. In such like cases even the recovery rights cannot be given as the Insurance Company is completely absolved from any liability to pay the compensation amount."
Similarly in Bajaj Allianz Insurance Company Ltd. v. Shobha Devi & Ors. MAC. APP. No.580/2010, the Hon'ble High Court of Delhi has held:
"5. A perusal of the Insurance Policy Ex.R4W1/1 shows that the threewheeler No.DL1LH1762 had the sitting capacity for just one person i.e. the driver of the vehicle. In view of the judgment in United India Insurance Company Limited v. Suresh K.K. & Anr. (supra) it was not permissible for the driver to share the seat;
thus there was a violation of the condition of the contract of insurance. Since the deceased was not a third party, there is no statutory liability of the Insurance Company to pay the compensation in the first instance and then to recover the same from the owner of the vehicle."
Though all these cases were in respect of gratuitous passengers but it is clear that in all those cases where the vehicle is used for purposes other than for Suit No. 119/14 Page No. 49 of 55 Bharat Singh Vyas v Jai Kishan what it is insured it has been held that there is no statutory liability of the Insurance Company to pay the compensation in the first instance and then to recover the same from the owner of the vehicle. Same would be the position in the present case where clearly the offending vehicle was not being used for the purpose for which it was insured i.e. agricultural or forestry purposes. As such the insurance company cannot be held liable to pay the compensation to the petitioners and it is exonerated from the liability.
46. It may be mentioned that it was sought to be contended on behalf of the respondent No.2 that the offending vehicle had been sold to one Babbi and even the vehicle was got released on superdari by Babbi. However the petitioners had placed on record a copy of the letter by Babbi to the IO wherein he had stated that the documents had still not been transferred in his name. There is nothing to show that the respondent No.2 is not the registered owner of the offending vehicle. Respondents No.1 and 2 being the driver and owner are held jointly and severally liable. Respondent No.2 being the owner the liability would be of the respondent No.2 to pay the compensation to the petitioners and the respondent No.2 is directed to deposit the award amount within 30 days with interest at the rate of 7.5% from the date of filing the petition till its realization failing which he shall be liable to pay interest @ 12% per annum for the period of delay.
Suit No. 119/14 Page No. 50 of 55 Bharat Singh Vyas v Jai Kishan RELIEF
47. The petitioners are awarded a sum of Rs.8,38,000/ (Rs. Eight lacs thirty eight thousand only) with interest at the rate of 7.5% per annum in terms of the decision in Rajesh and others v. Rajbir Singh and others 2013 ACJ 1403 from the date of filing the claim petition till its realization, including, interim award, if any already passed in favour of the petitioners and against the respondents. However as observed above the petitioners No.2, 3 and 4 cannot be held entitled to any share in the amount towards loss to estate as the petitioner No.1 falls in a higher category amongst Class II heirs compared to the petitioners No.2, 3 and 4. The petitioners No.2, 3 and 4 are the sisters and brother of the deceased and they would be entitled to Rs.10,000/ each out of the awarded amount. The remaining amount of Rs.8,08,000/ would fall to the share of the petitioner No.1. The entire share of the petitioners No.2, 3 and 4 be released to them. The respondent No.2 is directed to deposit the amount in favour of the petitioners No.2, 3 and 4 by way of crossed cheque/demand draft in court within 30 days of the passing of the award failing which the respondent No.2 would be liable to pay further interest of 12% p.a. for the period of delay.
48. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In Suit No. 119/14 Page No. 51 of 55 Bharat Singh Vyas v Jai Kishan view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) 10% of the share of the petitioner No.1 be released to him by transferring it into his savings account and the remaining amount out of his share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
b) The respondent No.2 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Bharat Singh Vyas within 30 days of the passing of the award. Suit No. 119/14 Page No. 52 of 55 Bharat Singh Vyas v Jai Kishan
c) Cheque be deposited within thirty days herefrom under intimation to the petitioner No.1. In case of default, the respondent No.2 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released to the petitioner No.1.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving account of the petitioner No.1.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioner No.1 to facilitate his identity.
g) No cheque book shall be issued to the petitioner No.1 without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.1 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
Suit No. 119/14 Page No. 53 of 55 Bharat Singh Vyas v Jai Kishan
i) The original fixed deposit receipts shall be handed over to the petitioner No.1 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioner No.1, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioner No.1.
l) The petitioner No.1 shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
49. The petitioner No.1 shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner No.1 shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. Suit No. 119/14 Page No. 54 of 55 Bharat Singh Vyas v Jai Kishan
50. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.2 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 09.09.2014.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to record room.
Announced in open court
on this 5th day of June, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 119/14 Page No. 55 of 55
Bharat Singh Vyas v Jai Kishan