Delhi District Court
Amar Singh Verma And Rupashi Verma & Ors vs . Praveen Kumar & Ors. on 16 November, 2013
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors.
1
IN THE COURT OF SH. SANJIV JAIN : PRESIDING OFFICER : MACT
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Petition No. 169/13
Unique case ID : 02403C0345982008
1. Amar Singh Verma ( son)
2. Mrs. Kamala ( widow)
3. Miss Seema ( unmarried daughter)
4. Miss Rita ( unmarried daughter)
All R/o 1332, Sector12
R. K. Puram New Delhi22.
Petition No. 170/13
1. Rupashi Verma
Through her father
Sh. Amar Singh Verma
R/o 1332, Sector12
R. K. Puram, New Delhi22.
...... Petitioners
Versus
1. Praveen Kumar
S/o Sh. Sultan Singh
R/o Darigpur Kalam, Delhi39.
........Owner
Suit No. : 169/13 and 170/13 1/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors.
2
2. Naresh Kumar
S/o Sh. Ram Prasad Das
Permanent Add: R/o Lal Sahpur
P.O Darbhanga
P.S Bhawani District Darbhanga
at present C/o Rajni Das S/o Laxman Das
R/o H. No. 482, Ambedkar Colony
Saira, Delhi.
.........Driver
3. The Oriental Insurance Company Ltd.
Issuing Office Code No. 271600
Divisional Office13
23/23B EMCA House, Darya Ganj
Ansari Road, New Delhi.
...... Respondents
Date of Institution : 22.05.2008
Date of reserving of judgment/order : 25.10.2013
Date of pronouncement : 16.11.2013
J U D G M E N T :
1. Amar Singh and others being the Legal Heirs of the deceased Roop Singh Verma (Petition No. 169/13) and Rupashi Verma through her father Amar Singh (Petition No. 170/13) filed the petitions u/s 166 & 140 of the Motor Vehicle Act, 1988 for claiming compensation for untimely death of 'Roop Singh Verma' and for the injuries sustained by Rupashi Verma in an accident Suit No. : 169/13 and 170/13 2/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 3 which took place on 09.01.08 at about 7.55 PM near Ring Road, Sector12, R. K. Puram, New Delhi of which a case was registered vide FIR 7/08 at the police station R K Puram.
2. Adumbrated in brief, the facts leading to the above stated petitions are that on the aforesaid date and time, Roop Singh Verma and her grand daughter Rupashi Verma were coming back to their residence from the market at R. K. Puram on a Scooter bearing no. DC 9S E 1432. When they were near the Ring Road towards the market of Sector12, CNG petrol pump, R. K. Puram, a Tata Sumo bearing no. HR38 LT1854 being driven by respondent no. 2 in a rash and negligent manner came and collided with their scooter. As a result of the impact, they fell down and sustained injuries. They were taken to Safdarjung Hospital where the doctor declared Roop Singh Verma dead. His postmortem was conducted. Rupashi Verma was shifted to Max Super Specialty Hospital for her further treatment. A case vide FIR no. 07/08 was registered at the police station R. K. Puram. She remained in Max Super Speciality Hospital from 09.01.08 to 24.01.08. She suffered Neuro Paraplegia and became paralysed after the accident. She became 100% disabled in relation to her lower limbs. She was 8 years of age. She was school going child. She is still under treatment. The deceased was 57 years of age. He was senior Audit Officer with Auditor General Delhi. He was survived by his Suit No. : 169/13 and 170/13 3/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 4 wife, son and two daughters who were financially and emotionally dependent on him. Respondent no.1 was the owner of the offending vehicle and it was insured with respondent no.3.
3. Notice of the petitions was given to the respondents.
4. All the respondents contested the petitions and filed their written statements.
Respondent no. 1 alleged that he is not liable to pay any compensation to the petitioners as on the date of accident he was neither the driver nor the owner of the vehicle bearing no. HR38LT1854. He had sold the vehicle to Dinesh Kumar Mishra on 07.11.2007 much prior to the date of accident.
5. Respondent no. 2 alleged that no accident had ever taken place due to his rash and negligent driving. He stated that the offending vehicle was insured with respondent no. 3 at the time of accident. He was holding a valid and effective driving licence at the time of accident.
6. Respondent no.3 admitted that the offending vehicle was insured in the name of respondent no.1 vide policy no. 271600/31/2007/2557 for the period from 02.02.07 to 01.02.08. It denied the factum of accident and its liability to compensate the petitioners.
Suit No. : 169/13 and 170/13 4/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 5
7. From the pleadings of the parties, following issues were framed vide order dated 12.01.2011 in both the petitions :
(Petition No. : 169/13)
1. Whether deceased suffered fatal injuries in an accident which took place on 09.01.08 at about 7.55 PM involving vehicle i.e Tata Sumo bearing no.. HR38 LT1854 by respondent no. 2, owned by respondent no. 1 and insured with respondent no.
3?
2. Whether petitioners are entitled to compensation?
If so, to what amount and against which of the respondents?
3. Relief.
(Petition No. : 170/13)
1) Whether injured Rupashi Verma suffered injuries in an accident which took place on 09.01.08 at about 7.55 PM involving vehicle i.e Tata Sumo bearing no.. HR38 LT1854 by respondent no. 2, owned by respondent no.
1 and insured with respondent no. 3?
2) Whether petitioner is entitled to compensation? If so, to what amount and against which of the respondents?
3) Relief.
Suit No. : 169/13 and 170/13 5/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 6
8. The parties were thereafter, called upon to substantiate their case by leading their evidence. In petition no. 169/13 Amar Singh Verma examined himself as PW1 and Sh. Kapil Gupta as PW2. In petition no. 170/13 Amar Singh Verma examined himself as PW1, Dr. Salamat Masih Physiotherapist as PW2 and Dr. Dinesh Suman Department of Urology, Indian Spinal Injury Centre as PW3.
9. The respondent no. 3 examined Sh. Rajpal, Assistant Manager, as R3W1 and Sh. Sunil Kumar, Licence Clerk, ARTO Office Mathura as R3W1.
10. I have heard the arguments advanced by Ld. counsel Sh. R. K. Kohli for the petitioners, Sh. S. D. S Rathore for the respondent no. 2 and Sh. Vinay Goel for respondent no. 3.
11. It was contended by Ld. Counsel for petitioners that the deceased Roop Singh Verma was 58 years of age. He was senior Audit Officer with AGCR and drawing a salary of Rs. 32,505/ per month at the time of accident. He was survived by his wife, one son and two unmarried daughters who were financially and emotionally dependent on him. He stated that the accident had taken place due to rash and negligent driving of Tata Sumo by the respondent no.2.
Suit No. : 169/13 and 170/13 6/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 7 For the injured Rupashi Verma, he stated that it is case of neuro paraplegia. She has 100 % permanent disability in relation to her both lower limbs. Her lower part of the body has become totally lifeless. She has become dependent on others. She is not able to do her daily routine activities in home as well as school. She needs full time attendant for her daily pursuits. Till date Rs. 12,20,814/ have been spent on her treatment which is still continuing. As per medical professionals, she cannot recover in future. She has also been taking physiotherapy sessions. She has been on wheel chair since the day of accident. She has been studying in 8 th Standard in Sandhu Vasvani School. She requires special wheel chair. She has lost earning capacity and does not have any marriage prospects.
Ld. counsel for the respondent no. 3 contended that the deceased was 58 years of age. No family member was dependent on him. The wife of the deceased has been getting family pension of Rs. 14,000/ per month after his death. The daughter of the deceased also got job in his place on compassionate ground in the same department. He further submitted that PW1 Amar Singh Verma was not dependent on the deceased. He had been working at the time of his father's death.
For the injured Rupashi Verma, he contended that she had been studying in 2nd class at the time of accident. There is no loss of studies due to the accident. Rs. 50,000/ have been reimbursed through mediclaim Suit No. : 169/13 and 170/13 7/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 8 policy towards the medical expenses.
Ld. counsel contended that the driver of the offending vehicle was driving the vehicle using a fake licence. It was issued in the name of Virender and not in the name of Naresh, driver of offending vehicle. In support of his contention, he placed reliance on the testimony of R3W1 and R3W2.
On the contrary, Ld. counsel for the respondent no. 2 contended that the liability if any, is of the insurance company to pay the compensation to the petitioners. He placed reliance on the case Oriental Insurance Co. Ltd. Vs. Sudhama Prasad & Ors. 2012 (3) CLJ 250 Delhi.
12. I have considered the submissions and perused the record. My findings on the issues are as follows :
I S S U E N O. 1 (In Petition No. 169/13 and 170/13)
13. It is well settled law that where a petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is Suit No. : 169/13 and 170/13 8/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 9 just rational and reasonable on the basis of enquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs New India Assurance Co. Ltd. 2001 ACJ 421 SC.
14. PW1 has stated that on 09.01.08 at about 7.55 PM, his father Roop Singh Verma and his daughter were coming back from the local market of R. K. Puram to their residence on a scooter bearing no. DL9SE1432. The scooter was being driven by his father. When they reached near CNG pump, R. K. Puram, they were hit from behind by a Tata Sumo bearing no. HR38LT1854 being driven by respondent no. 2 on the wrong side of the road at a very high speed and in a rash and negligent manner. As a result of forceful impact, they fell down and sustained injuries. They were taken to Safdarjung Hospital where his father was declared dead. His daughter Rupashi Verma was shifted to Max Super Speciality Hospital. A case was registered vide FIR No. 07/08 at the police station R. K. Puram against the respondent no.
2. He filed the certified copy of charge sheet, copy of MLCs, Postmortem Report, Death Certificate of deceased, FIR, site plan, photographs of the spot etc. Perusal of the documents reveals that during the investigation Suit No. : 169/13 and 170/13 9/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 10 statement of Rupashi Verma was recorded by the police wherein she had stated that her grandfather was driving the scooter slowly. The offending vehicle came from front and hit their scooter resulting injuries on their persons. The accident took place on the service road.
At the service road, it was incumbent upon the respondent no.2 to drive the Tata Sumo slowly in order to avert the possibility of accident. The mechanical inspection report shows that the impact was severe. The investigation agency after the investigation, filed the charge sheet against the respondent no.2 the person responsible for the accident. Hon'ble High Court of Delhi in case titled ''National Insurance Company Limited V/s Pushpa Rana'' reported as 2009 ACJ 287 has held that whenever criminal proceedings are placed on record on completion of investigation by the police, then that in itself is sufficient proof of the negligent driving of driver of the offending vehicle involved in the accident.
As per the postmortem report cause of death was injuries to chest produced by blunt force. The MLC of Rupashi Verma shows that she sustained multiple injuries.
15. In the instant case, the petitioners also placed on record the proceedings of the criminal Court whereby the respondent no.2 had pleaded guilty vide on 01.09.2013 and on his plea of guilt he was convicted u/s 279/337/304A IPC Suit No. : 169/13 and 170/13 10/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 11 vide same order. Further, nothing can be inferred from the documents placed on record that the accident had occurred owing to the negligence of the deceased.
Thus, from the testimony of PW1 and the documents placed on record, it is established that the accident had occurred due to rash and negligent driving of TATA Sumo bearing no. HR38LT1854 by the respondent no.2. The accident resulted into the injuries on the person of Rupashi Verma and death of Roop Singh Verma. It has also come on record that respondent no. 1 was the registered owner of the offending vehicle and it was insured with respondent no.3.
13. Issue no.1 in both the petitions is accordingly, decided in favour of the petitioners and against the respondents.
I S S U E No. 2 Petition No. 169/13
14. It has been held in a catena of judgments that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. General principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have Suit No. : 169/13 and 170/13 11/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 12 been, if accident had not taken place. The amount of compensation no doubt cannot bring back the dead but it certainly helps the LR's and dependents to live life with dignity and comfort as they were living during the lifetime of the deceased. The amount of compensation is awarded on the basis of age, the earning capacity and other liabilities of the deceased. The appropriate method of calculating compensation in fatal cases is multiplier method. The Hon'ble Supreme Court in plethora of judgments has laid down that in India, the multiplier method is proper for calculation of compensation.
15. In order to calculate the amount of compensation, the sum is required to be considered under the various heads :
(a) LOSS OF DEPENDENCY :
16. Petitioner during the course of his deposition as PW1 has stated that the petitioners being son, wife and daughters are the only legal heirs of the deceased Roop Singh Verma. This fact has not been controverted by the respondents and no contrary evidence to that effect has been brought on record. No one else has challenged the claim petition filed by the petitioners, therefore, deposition of PW1 is to be believed on this aspect.
17. PW1 has stated that the deceased was 57 years of age. He was graduate. Suit No. : 169/13 and 170/13 12/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 13 He had been working as Senior Audit Officer with the Directorate General of Audit, Central Revenue, Govt. of India and getting Rs. 45,000/ per month after the revision of 6th pay commission. He also placed on record his matriculation certificate Ex.PW1/3 and the driving licence of the deceased Ex.PW1/4. On being crossexamined he admitted that he had been doing service in a private sector and getting a salary of Rs. 20,000/ p.m. He also admitted that at the time of death of his father he had been working. He also admitted that the family of the deceased has been getting family pension @ Rs. 14,000/ p.m. and after the death of his father his sister got the employment on compassionate ground in the same department on a salary of Rs. 17,000/ p.m. He stated that his both sisters were unmarried at the time of death of his father. He denied that they were not financially dependent on the deceased. He filed the salary slip Ex. PW1/6 of the deceased for the month of December 2007.
PW2 brought the certificate of Pay & Allowances Ex. PW2/1 of Roop Singh Verma, Ex. PW2/2 Statement of fixation of pay under Central Civil Service (Revised pay) Rules 2008, copy of computer generated arrears of pay commission disbursed to the legal heirs of deceased Ex. PW2/3 and pay & bills register showing salary record of Roop Singh Verma Ex. PW2/4. As per document Ex. PW2/1, deceased after 6th pay commission was getting gross salary of Rs. 32,505/ per month which included DA, TA and CCA. Suit No. : 169/13 and 170/13 13/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 14 After deducting the Travelling Allowance, net salary comes to Rs. 31,705/ p.m.
18. The accident took place on 09.01.08. As per educational certificate, the date of birth of deceased was 04.01.1950. So, the age of the deceased on the date of accident was 58 years. Considering the law laid down by Hon'ble Supreme Court in " Smt. Sarla Verma Vs. DTC 2009 ( 6) SCALE 129", a multiplier of '9' in this case is required to be applied. The deceased was survived by his wife, son and two daughters. It is true that the daughter of the deceased got employment on compassionate ground in the office of the deceased after his death but on this count it cannot be said that she was not financially dependent.
19. It has been held in catena of judgments i.e. Mrs. Helen C Rebello & Ors.
Vs. Maharashtra State Road Transport Corporation & Ors. (1999)1 SCC 90 that the Motor Vehicles Act is a beneficial legislation and the compensation payable under the Motor Vehicles Act is statutory while the amount received under the life insurance policy is contractual. In Maya Devi and Ors. Vs. Oriental Insurance Co. Ltd. & Ors. MANU/DE/2625/2011 and National Insurance Co. Ltd. Vs. Charanjeet Kaur MANU/DE/3451/2012, National Insurance Co. Ltd. Vs. Neelam & Ors. Suit No. : 169/13 and 170/13 14/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 15 2009 ACJ 992, National Insurance Co. Ltd. Vs. Smt. Manju Bala 2009 ACJ 1665 it has been held that just because the wife has got employment on compassionate ground, compensation is not liable to be reduced. Compassionate employment is given by the employer and the quantum of compensation has nothing to do with the same and it is altogether on a different ground. Even if the father dies a natural death, his son/daughter would be entitled to employment under the compassionate scheme, if the scheme so provides or at the wish of the employer.
20. I am of the view that the salary earned by the daughter could not compensate for the loss of salary which was being earned by the deceased which was in lieu of the services rendered by him and because of his death loss was caused to the Estate resulting in loss of dependency to the petitioners. The salary earned by the petitioner could not be equated with compensation she was entitled to on account of death of her father, thus, compensation awarded to the petitioner deserves to be computed without taking any deduction from the salary of the deceased from her employment.
21. In the case of Smt. Neelam (Supra), one of the grounds taken by the insurance company was that the family of the deceased was getting family pension and the widow had been getting employment on compassionate Suit No. : 169/13 and 170/13 15/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 16 ground by the employer of the deceased. The Hon'ble High Court of Delhi rejected the contentions of the insurance company taking the support of the case of Helen C Rebello (Supra) and Smt. Lalitha & Ors. Vs. Dashanbhat Haribansh Bhatt & Ors. MANU/KA/0336/1998 and held that the tribunal had gravely erred in denying the compensation under the head loss of dependency because of employment on compassionate grounds in place of the deceased. It was held that whatever salary she got after employment was in lieu of services rendered by her. The same does not mean that there was no loss of dependency. While the husband was earning, she must have employed herself gainfully in the household work. Salary earned by the deceased was in lieu of the services rendered by him. Salary earned by the appellant was due to the work put in by her and could not be adjusted or treated as compensation for loss of earning of the deceased. Simply, because one of the family members was given employment in place of the deceased on compassionate grounds, the loss of dependency would not be offset against the income earned by the dependents from the employment given to him/her on compassionate ground. The income earned by the dependent rendered by him/her is independent of the loss to the Estate caused due to the death of the deceased. In the case of Manju Bala (Supra), the contention of the insurance company was rejected again. Suit No. : 169/13 and 170/13 16/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 17
22. Following the ratio of the case (supra), I am of the view that the salary being drawn by the petitioner would not be deducted in determination of compensation on account of loss of dependency.
23. In the instant case, out of his gross income and considering the fact that only petitioner no. 2, 3 and 4 were financially dependent on the deceased at the time of his deceased and petitioner no.1 had been married and independently earning, he by no stretch of imagination could have spent more than onethird of his earning on himself.
24. As regards family pension, in the case of Sri Mariamma Aprampa & Ors.
Vs. A V Abraham & Ors. MACA no. 304 of 2007A dated 24.08.2009 Hon'ble High Court of Kearla referred the case of Bhakra Beas Management Board and Helen C Robella (Supra) and Laldai & Ors. Vs. Himachal Road Transport 2007(8) SCC 319 held that family pension is not something which one gets only in the case of death by accident. Pension is not bounty. It is essentially earned by the employee. Whether the person died as a result of accident or otherwise, the widow would be entitled to family pension. It was held that when family pension becomes payable in a case where death follows injuries suffered in a motor accident, it is not liable to be rejected in the determination of payment to the claimants. Suit No. : 169/13 and 170/13 17/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 18
25. In the instant case also, the daughter of the deceased was given employment on compassionate ground besides widow has been receiving family pension. Following the ratio of the case (supra), I am of the view that the salary being drawn by the daughter of the deceased and the family pension which the wife of the deceased has been receiving would not be deducted in determination of compensation on account of loss of dependency. In view thereof, loss of dependency would come to Rs. (31,705
- 1/3rdx 31,705) x 12 x 9 = Rs. 22,82,760/ which is rounded off to Rs. 22,82,800/.
26. I therefore, award a sum of Rs. 22,82,800/ to the petitioners towards "Loss of Dependency".
(b) LOSS OF LOVE AND AFFECTION
27. Petitioner no.2 at this stage of her life lost her husband. The loss of love and affection which she would have got from her husband can not be quantified in terms of money. Love and affection lost by the sons/daughters of deceased is not capable of any assessment, much less on any pecuniary scale. I therefore, award of Rs. 25,000/ to the petitioners towards "Loss of Love and Affection".
Suit No. : 169/13 and 170/13 18/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 19
(c) LOSS OF CONSORTIUM:
28. It was held in the case "Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (6) Scale 563" (Supra) that in legal parlance, consortium is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. The loss of companionship, love, care and protection etc, the spouse is entitled to get, has to be compensated appropriately. It was held that it would only be just and reasonable that the Courts award at least Rs. 1,00,000/ for the loss of consortium. Following the case law (Supra), I award a sum of Rs. 1,00,000/ to the petitioner no.2 i.e. wife of the deceased towards "Loss of Consortium".
(d) FUNERAL EXPENSES :
29. It was held in the case of "Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (6) Scale 563" that the funeral expenses does not mean the fee paid in the Crematorium or fee paid for the use of space in the Cemetery. There are many other expenses in connection with the funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expense. It will be just, fair and equitable under the head of funeral expenses in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/. Following the case law (Supra), I award a sum of Rs. Suit No. : 169/13 and 170/13 19/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 20 25,000/ to the petitioners towards "Funeral Expenses".
(e) LOSS OF ESTATE
30. I award a sum of Rs. 10,000/ to the petitioners on account of Loss of Estate.
31. Thus, the total compensation awarded in favour of the petitioners is assessed as under :
1) LOSS OF DEPENDENCY = Rs. 22,82,800/
2) LOSS OF LOVE & AFFECTION = Rs. 25,000/
3) LOSS OF CONSORTIUM = Rs. 1,00,000/
4) FUNERAL EXPENSES = Rs. 25,000/
5) LOSS OF ESTATE = Rs. 10,000/ ============ TOTAL = Rs. 24,42,800/ ============ In Petition No. 170/13
32. The petitioner has claimed compensation in respect of the injuries sustained by her. It is true that when a person is injured in a road accident, she is entitled to the compensation for the pecuniary and nonpecuniary damages.
33. It has been held by Hon'ble Apex Court in R. D. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "Broadly speaking, while fixing the amount of Suit No. : 169/13 and 170/13 20/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 21 compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance;
(ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of expectation of life, ie. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
34. PW1 has stated that in the accident his daughter received serious injuries in spinal region. She was rendered irrecoverably handicapped due to the accident. She has been diagnosed as a case of traumatic paraplegia with neurogenic bowel and bladder having 100% disability of both lower limbs with no possibility of recovery. PW3 has stated that it was a case of spinal cord injury. Initially she was operated at Max Hospital, Saket. She was on a indwelling catheter. She has also undergone repair of bladder rupture Suit No. : 169/13 and 170/13 21/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 22 sustained at the time of accident. She was diagnosed to have neurogenic bladder and dowel dysfunction. She had frequent leaks and cannot pass urine on her own. She gets frequent urinary infection episodes. She is in regular evaluation and under treatment since her visit in 2008. Urodynamic evaluation showed complicating detrusor over activity requiring continuous anti cholinergic treatment. Because of failure to void, she is doing regular intermittent catheterisation. He proved the complete medical record Ex.PW3/1. He stated that since neurogenic bladder involvement persists after five years of injury, it is likely to be permanent in nature and she requires continuous life long surveillance and treatment. There is a potential need for future surgery to maintain urinary genital and reproductive functions in a young girl as she grows up. She requires daily medication catherisation material and ancillary disposals such as diapers, plugs for her day to day bowel and bladder management. She also needs to be on regular 36 urology evaluation requiring various tests.
35. PW1 proved the MLC of the petitioner mark 'A' and stated that she was taken to Safdarjung Hospital from where she was shifted to Max Hospital, Saket. She remained in the hospital from 09.01.08 to 24.01.08. She was again admitted in Ashlok Nursing Home for the period from 08.05.08 to 11.05.08. She got treatments in number of hospitals i.e. Santhigiri Ayurveda Suit No. : 169/13 and 170/13 22/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 23 and Sidha Vaidya Shala, Kerala, Pitanjali Yogpeeth, Haridwar, Skin Care Clinic etc. as per details mark D and Ex.PW1/3 (Colly.). He also proved the disability certificate Ex.PW1/5 issued from Safdarjung Hospital under the directions of this Tribunal. Her age as on the date of accident was about 08 years. As per the school certificate Ex.PW1/2 she was born on 23.03.02.
36. Hon'ble High Court of Delhi in MAC App. No. 672/2012 decided on 07.12.12 in the case of Ritu (Minor) through her father and Ors. Vs. Regional Manager Uttranchal State Road Transport Corporation referred the case of R D Hattangadi (Supra), Common Cause, a Registered Society Vs. Union of India (1999) 6 SCC 667, Nagappa Vs. Gurdayal Singh (2003) 2 SCC 274, Divisional Controller, KSRTC Vs. Mahadeva Shetty (2003) 7 SCC 197, Nizam Institute of Medical Sciences Vs. Prasanth S Dhananka (2009) 6 SCC 1, Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. (2010) 10 SCC 254, Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343, Sri Kumaresh Vs. Divisional Manager, National Insurance Co. Ltd., 2011 ACJ 1975, Ramachandrappa Vs. Royal Sundaram Alliance Insurance Co. Ltd. (2011) 13 SCC 236, Sri Laxman Vs. Divisional Manager, Oriental Insurance Co. Ltd. (2012) ACJ 191, Kavita Vs. Deepak (2012) 8 SCC 604, K Suresh Vs. New India Assurance Co. Ltd. 2012 (10) Scale 16, New India Assurance Co. Ltd. Vs. Shweta Dilip Mehta 1 (2010) ACC 318 DB Bombay High Court, Oriental Insurance Co. Ltd. Vs. Suit No. : 169/13 and 170/13 23/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 24 Naynaben Harshadkumar Kotech, 2012 Indlaw Gujarat 559, Arun Sondhi Vs. DTC I (2001) ACC 615, New India Assurance Co. Ltd. Vs. Senthil Kumar (2009) 2 LW 767, Union of India Vs. Shyam Lal III (2010) ACC 174, Dr. Dattatraya Laxman Shinde Vs. Nana Raghunath Hire (2011) 5, Mah LJ 854 and passed the award in favour of the appellant which had almost the similar facts as that in the present case.
37. In the case Ritu (Supra) the appellant was 06 years old at the time of accident. Due to the accident, her right leg and part of left leg were completely crushed under the wheel of the bus. She also suffered multiple injuries to spinal cord at the level 6th thoracic vertebra. She had 80% permanent disability due to post traumatic mylopathy (level T6) with complete paraplegia (power grade 0) with R. dense sensory loss and bladder and bowel involvement with B/L ankle and right knee contracture, where appellant requires life long nursing care. The Hon'ble High Court after taking additional evidence awarded the compensation under the following heads :
i) Pain and Sufferings
ii) Loss of Amenities of Life
iii) Loss of Matrimonial prospects
iv) Loss of earning capacity Suit No. : 169/13 and 170/13 24/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors.25
v) Loss of education
vi) Disfiguration
vii) Future treatment
viii) Cost of wheel chair
ix) Future attendant charges
x) Conveyance and future conveyance charges.
xi) Cost of special garments
xii) Physiotherapy and
xiii) Medical expenses.
38. It was held that the law with respect to the grant of compensation in injury cases is wellsettled. The injured is entitled to pecuniary as well as non pecuniary damages. The pecuniary or special damages, generally include the expenses incurred by the claimants on his treatment, special diet, conveyance, cost of nursing/attending, loss of income, loss of earning capacity and other material loss, which may require any special treatment or aid to the insured for the rest of his life. The general damages or the non pecuniary loss include the compensation for mental or physical shock, pain, suffering, loss of amenities of life, disfiguration, loss of marriage prospects, loss of expected or earning of life, inconvenience, hardship, disappointment, frustration, mental stress, dejectment and unhappiness in future life, etc. Suit No. : 169/13 and 170/13 25/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 26
39. In the case of R D Hattangadi (Supra) it was held that the object is to compensate such injuries so far as money can compensate because it is impossible to equate the money with the human sufferings or personal depreviations. Money cannot renew a broken and shattered physical frame. In Nizam (Supra) it was held that adequate compensation must strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. In the case of K Suresh (Supra) it was held that the adjudicating authority while determining quantum of compensation, has to keep in view the suffering of the injured person which will include has inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. In New India Assurance Co. Ltd. (Supra) it was held that a person not only suffers injuries on account of the accident but also suffers in mind and body on account of the accident throughout his life and a feeling is developed that he is no more a normal man and cannot enjoy the amenities of life as a normal person can. In that case, the appellant was only 11 years old at the time of accident. She has lost out on several pleasures of her childhood and adolescences, including the ability to Suit No. : 169/13 and 170/13 26/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 27 move, run and play freely as other children do. She was a bright and promising student yet her condition may now be an impediment to not only her success but also every ordinary living. Added to this are the physical and mental suffering caused by her medical condition itself, its treatment and knowledge and she will never be able to lead a normal life. Even looking after personal hygiene has become difficult for her. There is also loss of expectation of life. In that case the appellant became paraplegic in respect of her entire body from waist down resulting in permanent disablement from 80% 90%. According to Webster dictionary paraplegic means complete paralysis of the lower half of the body usually resulting from damage to the spinal cord.
40. Following the judgment in the case of Ritu (Minor) (supra) let me assess the compensation under different heads which the petitioner is entitled to :
MEDICAL EXPENSES :
41. The petitioner has filed the treatment record and the bills mark 'D' (Colly.) and Ex.PW1/4 (Colly.) and additional bills Ex.PW2/1 to Ex.PW2/7. In the instant case the petitioner got Rs. 50,000/ against the Mediclaim policy which amount is to be deducted from the bills filed by the petitioner. As per the disability certificate placed on record dated 12.08.2011 petitioner has Suit No. : 169/13 and 170/13 27/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 28 100% disability in relation to both lower limbs being a case of traumatic paraplegia with neurogenic bowel and bladder. Looking into her injuries and all the documents, I award Rs. 12,42,500/ petitioner towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
42. The petitioner has suffered 100% disability in relation to both lower limbs being a case of traumatic paraplegia with neurogenic bowel and bladder. She has no control over natural calls.
PW3 has stated that it was a case of spinal cord injury. Initially she was operated at Max Hospital, Saket. She was on a indwelling catheter. She has also undergone repair of bladder rupture sustained at the time of accident. She was diagnosed to have neurogenic bladder and dowel dysfunction. She had frequent leaks and cannot pass urine on her own. She gets frequent urinary infection episodes. She is in regular evaluation and under treatment since her visit in 2008. Urodynamic evaluation showed complicating detrusor over activity requiring continuous anti cholinergic treatment. Because of failure to void, she is doing regular intermittent catheterisation. He proved the complete medical record Ex.PW3/1. He stated that since neurogenic bladder involvement persists after five years of injury, it is likely to be permanent in nature and she requires continuous life Suit No. : 169/13 and 170/13 28/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 29 long surveillance and treatment. There is a potential need for future surgery to maintain urinary genital and reproductive functions in a young girl as she grows up. She requires daily medication catherisation material and ancillary disposals such as diapers, plugs for her day to day bowel and bladder management. She also needs to be on regular 36 urology evaluation requiring various tests.
The girl was also brought before this Tribunal. As on now, she has been studying in 8th standard in Sadhu Vasvani school. She was on wheel chair. According to her, she requires four attendants for taking her to her classroom at first floor. She uses diaper. She requires the help of attendants even to stand from the wheel chair with shivering in her legs. She cannot participate in practicals in the laboratory. She also requires the help of attendant to sit on the wheel chair. Her video clips were also played. I found her in total discomfort. The injuries are likely to affect the longevity of her life as evident from the testimony of PW3 that she may develop other complications because of involvement of bladder and bowel. Nonetheless, she appears to be very anxious to continue her education.
Following the judgment in the case of Ritu minor (Supra), I award Rs. 3,00,000/ to the petitioner as compensation for pain and sufferings and enjoyment of life.
Suit No. : 169/13 and 170/13 29/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 30 LOSS OF AMENITIES OF LIFE, DISCOMFORT AND INCONVENIENCE :
43. The petitioner has permanent disability due to which she has lost several pagers of her childhood and adolences including ability to move, run and play freely as other children do. She is bright and promising student but her condition as on now is an impediment to her success and everyday ordinary living. She will not be able to lead normal life. Even looking after personal hygiene has also become difficult for her. Her life expendency has shortened which could cause disappointment and stress. Her dream to have successful career is shattered. Following the judgment in the case of Ritu (Supra), I award Rs. 3,50,000/ to the petitioner under this head which would take into account all aspects of normal life that have been lost due to the injury caused.
LOSS OF MATRIMONIAL PROSPECTS :
44.Taking into consideration that there is the virtual impossibility of marriage as well as a complete loss of ability of sex and to have and nurture children, I award Rs. 1,00,000/ for loss of matrimonial prospects. LOSS OF EARNING CAPACITY :
45. The petitioner has 100% permanent disability in relation to both lower limbs being a case of traumatic paraplegia with neurogenic bowel and bladder. Suit No. : 169/13 and 170/13 30/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 31 Looking into her condition, I am of the view that it is a case of 100% functional disability. The petitioner was in 2nd standard at the time of accident. She has somehow pursued her education despite paraplegia and disability. She attends her school on wheel chair. It shows that she is ambitious and a bright student and would have pursued good career in life. Following the judgment in the case of Ritu (Supra), I am of the view that the petitioner would have earned at least Rs. 8,333/ p.m. Applying the multiplier of '18' the loss of earning capacity of the petitioner is computed to be Rs. 8,333 x 12 x 18 = Rs. 17,79,928/. I therefore, award Rs. 17,80,000/ to the petitioner towards loss of earning capacity. LOSS OF EDUCATION :
46. The petitioner was 08 years at the time of accident and was studying in 2nd standard. After the accident she goes to school on wheel chair and as on now, she is in 8th standard. She is hard working. She has a zeal to study. The disability has affected her education. She would not be able to concentrate because of paraplegia. Keeping in view all these facts, I award Rs. 2,00,000/ to the petitioner towards Loss of Education. DISFIGUREMENT :
47. The petitioner has totally disfigured due to the accident. Under this head, I Suit No. : 169/13 and 170/13 31/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 32 award Rs. 50,000/ to the petitioner as compensation. FUTURE TREATMENT :
48. It has come in the testimony of PW1 and PW3 that the petitioner has been taking treatment since the date of accident. She is on regular evaluation. PW3 has stated that Urodynamic evaluation shows complicating detrusor over activity requiring continuous anti cholinergic treatment. She require continuous life long surveillance and treatment. There is a potential need for future surgery to maintain urinary genital and reproductive functions. She requires daily medication, catherisation, material and ancillary disposals such as diapers, plugs and needs to be on regular Urology evaluation requiring various tests etc. Keeping in view these facts, I award Rs. 3,00,000/ to the petitioner towards future treatment. COST OF WHEEL CHAIRS :
49. The petitioner since the day of accident is on wheel chair. She goes to the school on wheel chair. She does all the activities on wheel chair. Even when she appeared in the Tribunal, she has come on wheel chair. The normal cost of such wheel chair is about Rs. 20,000/. Its life is about 02 years. She also requires special wheel chair for bathing as she cannot walk. She requires special commode chair as she is unable to use normal toilet. Suit No. : 169/13 and 170/13 32/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 33 Keeping in view these facts, I award Rs. 1,00,000/ cost of wheel chairs, Rs. 2,000/ towards the cost of special wheel chair for bathing and Rs. 5,000/ towards special commode chair.
FUTURE ATTENDANT CHARGES :
50. The petitioner cannot stand or walk. She moves on the wheel chair which requires continuous attendant. Attendants are also required for shifting her from the wheel chair on the car for going to school and for taking her to the classroom. She needs full time attendant for her day to day activities. Taking the attendant charges as Rs. 7,000/ p.m. and using the multiplier of '18', the compensation towards future attendant charges comes to Rs. 15,12,000/. Since she is being attended by her parents also, I am of the view Rs. 7,50,000/ would be fair and reasonable amount towards attendant charges. I therefore, award Rs. 7,50,000/ to the petitioner towards future attendant charges.
CONVEYANCE AND FUTURE CONEYANCE CHARGES :
51. The petitioner shall have to move on the wheel chair for rest of her life. She will have to incur huge expenditure on private transport for carrying the wheel chair and even for commution from house to school and other places. Keeping in view all these facts, I award Rs. 1,50,000/ towards conveyance Suit No. : 169/13 and 170/13 33/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 34 and future conveyance.
COST OF SPECIAL GARMENTS :
52. The petitioner has 100% disability in relation to both lower limbs being a case of traumatic paraplegia with neurogenic bowel and bladder. She requires special garments to be worn on a wheel chair to balance her body. Keeping in view these facts, I award Rs. 50,000/ to the petitioner towards the cost of special garments.
PHYSIOTHERAPY :
53. PW2 has stated that he visits the house of the petitioner on daily basis. If physiotherapy which she has been getting is discontinued, her slight movement can be restricted and her legs can go deformed. She requires physiotherapy for the life time. He states that he charges Rs. 500/ per visit which he has been making for about two years. PW3 has stated that neurogenic bladder involvement persisted is likely to be permanent in nature and she requires life long surveillance and treatment. PW2 has placed on record the bills etc. Ex.PW2/1 to Ex.PW2/17 in this regard which are of Rs. 76,500/. Keeping in view the facts that the petitioner requires continuous physiotherapy for the whole life, I award Rs. 2,00,000/ to the petitioner under this head.
Suit No. : 169/13 and 170/13 34/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 35 SPECIAL DIET :
54. The condition of the petitioner is that she does not have mobility. She requires special diet. She does not have any control over the urine. Keeping in view these facts, I award Rs. 50,000/ to the petitioner towards special diet.
55. Thus, the total compensation in favour of the petitioner is assessed as under: Medical Expenses : Rs. 12,42,500/ Pain & Sufferings & Enjoyment of Life : Rs. 3,00,000/ Loss of Amenities, discomfort and inconvenience : Rs. 3,50,000/ Loss of matrimonial prospects : Rs. 1,00,000/ Loss of earning capacity : Rs. 17,80,000/ Loss of Education : Rs. 2,00,000/ Disfigurement : Rs. 50,000/ Future treatment : Rs. 3,00,000/ Cost of wheel chairs : Rs. 1,07,000/ Future attendant charges : Rs. 7,50,000/ Conveyance & future conveyance : Rs. 1,50,000/ Cost of special garments : Rs. 50,000/ Physiotherapy : Rs. 2,00,000/ Special Diet : Rs. 50,000/ ============== TOTAL : Rs. 56,29,500/ ============== L I A B I L I T Y
56. As the offending vehicle was being driven by respondent no.2, therefore Suit No. : 169/13 and 170/13 35/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 36 primary liability to compensate the petitioners is that of respondent no.2. The offending vehicle was owned by respondent no.1, therefore, he becomes vicariously liable to compensate the petitioners. The offending vehicle was insured with respondent no.3, therefore, respondent no.3 becomes contractually liable to indemnify the insured to the extent of liability of the insured.
57. Ld. Counsel for the Insurance Company, in his quest to have the Insurance Company exonerated of its contractual obligation contended that offending vehicle was being driven by respondent no. 2 using the fake licence so, it is a case of violation of terms and conditions of the policy. Ld. counsel placed reliance on the testimony of R3W1 and R3W2.
58. Ld. counsel for the respondent no.2 contended that in view of the case of Oriental Insurance Co. Ltd. Vs. Sudhama Prasad & Ors. (Supra) respondent no.2 is not liable to pay any compensation and liability if any, is of the respondent no.3.
59. I have given my thoughtful consideration to the submissions made, perused the documents and gone through the testimony of R3W1 and R3W2. Suit No. : 169/13 and 170/13 36/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 37
60. It has been held by Hon'ble Apex Court in the case titled as Lal Chand Vs. Oriental Insurance Company Ltd. reported as 2006 (3) TAC321 SC that Insurance Company has to show and prove on record that due and adequate care was not taken by the owner or owner had the knowledge that driver was not holding a valid driving license. Only in that eventuality the Insurance Company can be absolved of its contractual obligation, not otherwise.
61. R3W1 proved the policy Ex. R3W1/1 and stated that the offending vehicle was being driven by the respondent no. 2 without a valid and effective licence. So, it is a case of violation of terms and conditions of the policy by the respondent no. 1. He stated that notice U/o 12 Rule 8 CPC Ex. R3W1/2 was sent to the driver/owner but despite that they did not produce the genuine licence. R3W1 has stated that the company had got verified the driving licence of Naresh Kumar bearing DL no. 12275/MTR/2003 from Licencing Authority, Mathura through its investigator. On verification, the said licence was reported to be issued in the name of Virender Singh S/o Sh. Raghubir Singh not to Naresh Kumar S/o Sh. Ram Prasad.
R3W2 who was the Licence Clerk, ARTO Office Mathura has stated that the driving licence no. 12275/MTR/2003 was issued in the name of Vir Singh S/o Sh. Raghubir Singh which was valid for motorcycle and LMV (private). Driving licence no. 12275/MTR/2003 was not issued in the name Suit No. : 169/13 and 170/13 37/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 38 of Naresh Kumar S/o Sh. Ram Prakash. He proved the report Ex. R3W1/1.
62. In the present case, Naresh Kumar respondent no.2 was the driver of the offending vehicle at the time of accident. Respondent no.1 has alleged in the written statement that he had sold the vehicle prior to the accident to Dinesh Kumar Mishra but as per the record of the authority, the vehicle is registered in the name of respondent no.1. As per Section 147 of Motor Vehicle Act, the liability of the registered owner continues till the vehicle is registered in his name even if the vehicle is sold / transferred. It was held in the case of "Dr. T.V. Jose Vs. Chako 2002 (1) RCR (Civil) 120 (SC)" that there can be transfer of title by payment of consideration and the delivery of the vehicle but the owner still continues to remain liable to the third party as long as his name continues in the record of the R.T.O.
63. In the case of Oriental Insurance Co. Ltd. Vs. Sudhama Parsad (Supra), the insurance company had examined the officer from Licensing Officer, Meerut as RW1/3 who from the record deposed that no licence was issued to the respondent no.2 and the alleged driving licence was fake. The officer of the insurance company had also appeared in the witness box as RW2/3 and proved the policy Ex.RW2/A. The Claim Tribunal relying on the judgments of the case National Insurance Co. Ltd. Vs. Swarn Singh 109 Suit No. : 169/13 and 170/13 38/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 39 (2004) DLT 304 (SC) and United India Insurance Co. Ltd. Vs. Lehru and Ors. 2003 ACJ 611 rejected the contention of the appellant for recovery rights on the ground that the appellant has not proved that the breach on the part of the insured was willful. The Hon'ble High Court upheld the order of the Tribunal holding that this case is squarely covered by the judgments of the Supreme Court in the case (supra) followed by the Claim Tribunals and further held that the appellant is not entitled to the recovery rights as the appellant has failed to prove that the insured has committed the willful breach of the terms and conditions of the policy. In the case of Swarn Singh (Supra) it was observed that it is trite that where the insurers, relying upon the provisions of violation of law by the assured, take an exception to pay the assured or a third party, they must prove a willful violation of the law by the assured. In some cases violation of criminal law, particularly, violation of the provisions of the Motor Vehicles Act may result in absolving the insurers but, the same may not necessarily hold good in the case of a third party. In any case, the exception applies only to acts done intentionally or "so recklessly as to donate that the assured did not care what the consequences of his act might be". In para 110 (iii) it was observed that breach of policy conditions for example disqualification of driver or invalid driving licence of the driver, as contained in subsection (2) (a) (ii) of Section 149, has to be proved to have been committed by the insured for avoiding Suit No. : 169/13 and 170/13 39/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 40 liability by the insurer. Mere absence, fake or invalid driving licence or dis qualification of driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not qualified to drive at the relevant time. It must not only establish the available defence(s) raised in the said proceedings but also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefor would be on them. The said burden would depend upon the facts and circumstances of the cases as no criteria can be laid down as to how the burden would be discharged.
64. In the instant case also, the respondent no.3 has examined the Clerk from the Authority at Mathura who has stated that no licence was issued in the name of respondent no.2 and it was a fake licence. It has also examined the officer of the company who proved the notices sent to the respondent no.1 u/o 12 R 8 CPC Ex.R3W1/2 and its postal receipts Ex.R3W1/3, however, there is no acknowledgement of receipt of notice by the respondent no.1 nor by user of the vehicle. There is nothing on record to indicate that the respondent no.1 or the user of the offending vehicle was in knowledge of the Suit No. : 169/13 and 170/13 40/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 41 fact that the respondent no.2 did not have the licence or he had a fake licence as no such evidence in this regard has been brought on record. The burden of proof of breach was always on the respondent no.3. There is nothing to indicate that the owner/insured/user despite knowing that respondent no.2 did not possess a valid licence permitted him to drive. Further, respondent no.1 in the written statement has alleged that he had sold the vehicle to Dinesh Kumar Mishra much prior to the accident. The respondent no.3 did not send any notice to Dinesh Kumar Mishra asking him to produce the licence. That being the position it cannot be said that it was willful breach of terms and conditions of the policy by the respondent no.1 or its user. It was held in the case of Kamala Mangalal Vayani & Ors. Vs. United India Insurance Co. Ltd. and others (2010) 12 SCC 488 that once a comprehensive insurance policy is admitted on or so proving any breach of insurance conditions, is on the insurer and not claimants.
65. Following the judgment in the case of Oriental Insurance Co. Ltd. Vs. Sudhama (supra) in the facts and circumstances of the case, I am of the view that liability is of the respondent no.3 to compensate the petitioners.
66. Issue no.2 is accordingly decided in favour of the petitioners and against the respondent no.3.
Suit No. : 169/13 and 170/13 41/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 42 R E L I E F
67. In view of my findings on the issues, I award Rs. 24,42,800/ (In Petition no.
169/13) to the petitioners as compensation with interest @ 9% per annum from the date of filing the petition till its realisation. I also award Rs. 56,29,500/ (In Petition No. 170/13) in the name of Amar Singh Verma i.e. natural guardian/father of the minor petitioner Rupashi Verma as compensation with interest @ 9% per annum from the date of filing the petition till its realisation. It is directed that Sh. Amar Singh Verma shall utilise the said amount for the use of minor girl Rupashi Verma. In Petition No. : 169/13 : RELEASE OF THE AWARDED AMOUNT : In the share of Petitioner no.2 : (Wife of the deceased )
68. A sum of Rs. 18,42,800/ alongwith the proportionate interest thereon, is awarded to petitioner no.2 being wife of the deceased.
Out of this amount, Rs. 15,00,000/ is directed to be deposited in the form of FDR in the name of petitioner no.2 in the following phased manner :
1. Rs. 3,00,000/ for a period of 2 years.
2. Rs. 3,00,000/ for a period of 4 years.
3. Rs. 3,00,000/ for a period of 6 years.
4. Rs. 3,00,000/ for a period of 8 years.
5. Rs. 3,00,000/ for a period of 10 years.Suit No. : 169/13 and 170/13 42/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 43 In the share of Petitioner no.1 : (Son of the deceased)
69. A sum of Rs. 2,00,000/ alongwith proportionate interest thereon is awarded to the petitioner no.1, son of the deceased.
In the share of Petitioner no.3 and 4 : (Daughters of the deceased)
70. A sum of Rs. 2,00,000/ each alongwith proportionate interest thereon is awarded to the petitioner no.3 and 4, daughters of the deceased. In Petition No. 170/13
71. Out of the amount of Rs. 56,29,500/ released in favour of Amar Singh Verma, Rs. 25,00,000/ is directed to be deposited in the form of FDR in the name of Rupashi Verma minor girl in the following phased manner :
1. Rs. 2,50,000/ for a period of 2 years.
2. Rs. 2,50,000/ for a period of 5 years.
3. Rs. 2,50,000/ for a period of 8 years.
4. Rs. 2,50,000/ for a period of 11 years.
5. Rs. 2,50,000/ for a period of 14 years.
6. Rs. 2,50,000/ for a period of 17 years.
7. Rs. 2,50,000/ for a period of 20 years.
8. Rs. 2,50,000/ for a period of 23 years.
9. Rs. 2,50,000/ for a period of 27 years.
10. Rs. 2,50,000/ for a period of 30 years.Suit No. : 169/13 and 170/13 43/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 44 Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
72. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
73. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
74. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble High Court, Insurance Company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners.
within a period of 45 days from today, failing which respondent no. 3 Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
Suit No. : 169/13 and 170/13 44/46
Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 45
75. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner:
(i) The interest on the fixed deposit be paid to the petitioners /claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to petitioners /claimants after due verification and the Bank shall issue photo identity Card to claimants / claimants to facilitate identity.
(iii) No cheque book be issued to petitioners /claimants without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioners /claimants alongwith the photocopy of the FDR's .
(v) The original fixed deposit receipts shall be handed over to petitioners /claimants at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court.
(viii)On the request of petitioners /claimants, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Petitioners/Claimants shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
DIRECTIONS FOR THE RESPONDENT NO. 3
76. Respondent no. 3 is directed to file the compliance report of its having Suit No. : 169/13 and 170/13 45/46 Amar Singh Verma and Rupashi Verma & Ors Vs. Praveen Kumar & Ors. 46 deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 45 days from today.
77. The Respondent no.3 shall intimate to the petitioners about its having deposited the cheques in favor of the claimants in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
78. Copy of this award / judgment be given to the petitioners who are directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after their having received the notice of the deposit of awarded amount from the Insurance company.
79. The case is now fixed for compliance by the insurance company for 03.01.2014.
Announced in the open court
on 16th Day of November, 2013 (SANJIV JAIN )
Presiding Officer : MACT
South Distt. : Saket Courts
New Delhi : 16.11.2013
Suit No. : 169/13 and 170/13 46/46