Delhi District Court
Khushnuma vs Arvind Kumar on 26 August, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.506/14
Date of Institution: 20.08.2014
IN THE MATTER OF:
1. Khushnuma
W/o Babooshah
2. Babooshah
S/o Shri Hamid Ali
Both R/o H.No.437
Nagar Palika Bilsi
TehBilsi, Distt. Badaun
U. P. 243633. ...Petitioners
Versus
1. Arvind Kumar
S/o Shri Gainda Lal
R/o Village Kothipur
PS Phapund, Distt. Auriya
UP 206247.
2. M/s Shanti Ispat Ltd.
Village Khandsa
Khandsa Road Gurgaon
Distt. Gurgaon
Haryana 122001.
Suit No. 506/14 Page No. 1 of 28
Khushnuma Vs. Arvind Kumar & Ors.
3. M/s IFFCO TOKIO General Insurance Co. Ltd.
6th Floor, Ansals Imperial Tower
CBlock, Community Center
Naraina Vihar
New Delhi 110028. ...Respondents
Final Arguments heard : 06.08.2015 Award reserved for : 26.08.2015 Date of Award : 26.08.2015 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 in the evening of 20.11.2011 (actually it was 20.11.2013) minor deceased Rehan along with his parents was going to Anjana Colony from Village Khandsa on foot. At about 7 p.m. when he reached near Balaji Mandir, Village Khandsa then all of a sudden the offending vehicle No.HR55M2708 (Canter) being driven by its driver/ respondent No.1 at a very high speed rashly, negligently, without blowing horn, neglecting the traffic rules came and hit the deceased with very great force. It is averred that due to the violent impact the deceased sustained fatal injuries. The deceased sustained head injuries and expired on the spot. It is submitted that the dead body of the deceased was taken by the petitioners after postmortem was conducted at Sunrise Hospital Gurgaon. It is stated that in respect of the Suit No. 506/14 Page No. 2 of 28 Khushnuma Vs. Arvind Kumar & Ors.
accident FIR No.469/13 under sections 279/304A IPC was registered at PS Khaidki Daula, Gurgaon. It is submitted that at the time of the accident, the deceased was 2 years old young boy, with very good health and physique and he was not suffering from any disease or ailment. It is stated that the petitioners who are the parents are the only legal heirs and there is no other legal heir of the deceased except the petitioners. It is contended that the petitioners also incurred about Rs.50,000/ on the last rites of the deceased. It is alleged that the principle of res ipsa loquitur is attracted in the case because the accident took place due to the rash and negligent driving on the part of the respondent No.1/ driver of the offending vehicle. It is averred that the respondents being the driver, owner and insurer of the offending vehicle are jointly and severally liable to pay compensation to the petitioners. It is prayed that an amount of Rs.20,00,000/ be awarded as compensation on account of unnatural, untimely and sudden death of the deceased in the accident, mental pain and agony, loss of love and affection, loss of company, loss of income, loss of future income, expenses on medical treatment, loss on funeral expenses and other general specific damages as admissible under the various provisions of the Motor Vehicle Act in favour of the petitioners and against the respondents.
3. Written statement on behalf of the respondents No.1 and 2 was filed taking the preliminary objections that the respondent No.1 had not caused any accident as alleged by the petitioners. In fact, some other vehicle might have Suit No. 506/14 Page No. 3 of 28 Khushnuma Vs. Arvind Kumar & Ors.
caused the accident and might have run away from the spot after causing the accident, but the number of the vehicle of the respondent No.2 was wrongly noted down instead of the actual offending vehicle and the respondent No.1 had been falsely implicated by the police in the alleged accident case. It is contended that no cause of action had ever arisen for filing the petition against the respondents No.1 and 2. It is submitted that the petitioners have not come to the court with clean hands and have suppressed the material facts from the court. It is stated that the alleged vehicle was duly insured with the respondent No.3 at the time of the alleged accident, hence if any liability was imposed upon the respondents No.1 and 2 that would be covered by the respondent No.3 being the insurer of the vehicle. It is submitted that the respondent No.1 was/is having a valid driving license and permit to drive the vehicle. The averments made in the claim petition were denied. It is submitted that the respondent No.1 had not caused any accident as alleged and was not in any manner responsible for the alleged accident and the respondent No.1 had been falsely implicated in the alleged accident. No accident was caused by the vehicle of the respondent No.2, so the question of impleading the respondents No.1 and 2 did not arise at all. It is submitted that since no accident was ever caused by the respondent No.1 at any point of time, so the petitioners were not entitled to get any compensation from the respondents No.1 and 2.
4. Written statement was filed on behalf of the respondent No.3 taking the preliminary objections that this court has no territorial jurisdiction to entertain Suit No. 506/14 Page No. 4 of 28 Khushnuma Vs. Arvind Kumar & Ors.
the claim petition as none of the parties resided or did any business within the territory of the court. It is contended that the claimants are not entitled for any compensation as the claimants were themselves negligent at the time of the accident as they did not hold the child properly and were walking on the main road carelessly. It is averred that the petitioners have not supplied any proof with respect to the relationship with the deceased/child nor supplied any medical records showing that the accident occurred due to the rash and negligent driving of the alleged vehicle. It is alleged that the driver of the offending vehicle did not possess any driving license at the time of the accident and as such the owner of the offending vehicle was liable to pay compensation arising out of the accident. Further the liability upon the respondent No.3 could not be fastened as the alleged offending vehicle was without permit and fitness at the time of the accident. It is contended that the respondent No.3 had no knowledge about the alleged accident and denied the facts and circumstance of the case and the manner in which the alleged accident took place. The averments made in the claim petition were denied. It is admitted that the alleged vehicle bearing No.HR55M2708 was insured with the respondent No.3 vide policy No.82586782 in the name of M/s Shanti Ishpat Ltd. for the period from 13.01.2013 to 12.01.2014, subject to terms and conditions of the policy. It is alleged that the amount claimed is highly exorbitant.
Suit No. 506/14 Page No. 5 of 28 Khushnuma Vs. Arvind Kumar & Ors.
5. From the pleadings of the parties, the following issues were framed vide order dated 17.10.2014:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 20.11.2013 at about 7.00 p.m. near Balaji Mandir, Khandsa Gurgaon, caused by rash and negligent driving of a Canter bearing no.HR55M2708, being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3. Relief.
Vide order dated 26.2.2015 the matter was adjourned sine die with liberty to revive the same. Vide order dated 6.8.2015, the application filed on behalf of the petitioners for restoration of the petition was allowed. However it was directed that the petitioners shall not be entitled to interest from the date of filing the petition till date i.e. 6.8.2015.
6. On behalf of the petitioners, the petitioner No.2 Shri Babooshah 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 stated that he was the eye witness/ petitioner No.2/ father of the deceased. He stated that the deceased was living a peaceful and comfortable life with his family. Copies of documents i.e. ration card and election ID cards of the Suit No. 506/14 Page No. 6 of 28 Khushnuma Vs. Arvind Kumar & Ors.
petitioners are Ex.PW1/1 to Ex.PW1/5. Certified copy of criminal record is Ex.PW1/6 (colly). He stated that in para 2 of his affidavit, Ex.PW1/A inadvertently the date of accident had been written as 20.11.2011 whereas it should be read as 20.11.2013. PE was closed on 2.12.2014.
7. On behalf of the respondent No.3 Shri Pallav Kumar, Sr. Marketing Executive was produced in the witness box as R3W1 and his authority letter dated 29.01.2015 is Ex.R3W1/1. Certified copy of policy bearing No.82586782 for the period from 13.01.2013 to 12.01.2014 for vehicle bearing No.HR55M2708 in the name of M/s Shanti Spark Ltd. is Ex.R3W1/2, copy of notice under Order 12 Rule 8 dated 27.12.2014 is Ex.R3W1/3 and the original postal receipt of the notice is Ex.R3W1/4. He was not crossexamined.
8. Shri Adarsh Kumar, Daftri, RTO, Auriya was produced in the witness box as R3W2 and he had brought the original record of the DL bearing No.24181/2006 of the driver of the offending vehicle which pertained to Shri Arvind Kumar S/o Shri Gainda Lal and was issued on 22.06.2006. He stated that the license was valid w.e.f. 22.06.2006 to 20.02.2021 for driving LMV (Private). The copy of the same is Ex.R3W2/1. He was not cross examined.
9. I have heard the Learned Counsel for the petitioners as well as the Learned Counsel for the respondent No.3 and the respondent No.1 in person Suit No. 506/14 Page No. 7 of 28 Khushnuma Vs. Arvind Kumar & Ors.
and perused the record. The petitioners were also examined on 6.8.2015
10. My findings on the specific issues are as under:
Issue No. 1
11. 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 the 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:
"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 Suit No. 506/14 Page No. 8 of 28 Khushnuma Vs. Arvind Kumar & Ors.
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 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.
12. The case of the petitioners is that in the evening of 20.11.2011 (actually it was 20.11.2013) minor deceased Rehan along with his parents was going to Anjana Colony from Village Khandsa on foot. At about 7 p.m. when he reached near Balaji Mandir, Village Khandsa then all of a sudden the offending vehicle No.HR55M2708 (Canter) being driven by its driver/ respondent No.1 at a very high speed rashly, negligently, without blowing horn, neglecting the traffic rules came and hit the deceased with very great force. It was averred Suit No. 506/14 Page No. 9 of 28 Khushnuma Vs. Arvind Kumar & Ors.
that due to the violent impact the deceased sustained fatal injuries. The deceased sustained head injuries and expired on the spot. It was submitted that the dead body of the deceased was taken by the petitioners after postmortem was conducted at Sunrise Hospital Gurgaon. It was stated that in respect of the accident FIR No.469/13 under sections 279/304A IPC was registered at PS Khaidki Daula, Gurgaon. It was alleged that the principle of res ipsa loquitur is attracted in the case because the accident took place due to the rash and negligent driving on the part of the respondent No.1/ driver of the offending vehicle. In paras 2, 3 and 6 of his affidavit Ex.PW1/A the petitioner No.2 had reiterated the mode and manner of the accident as stated in the claim petition. He deposed that he was an eye witness to the accident.
13. The petitioners had placed on record the certified copy of the criminal record consisting of copy of charge sheet, copy of order on charge, copy of FIR; copy of site plan; copy of mechanical inspection report of the offending vehicle, copy of post mortem report and uncertified copy of RC of the offending vehicle, copy of DL of the respondent No.1 and copy of the insurance policy of the offending vehicle. As per the FIR No.469/13 under sections 279/304A IPC, PS Khaidki Daula, Gurgaon the case was registered on the basis of complaint of the petitioner No.2 Mohd. Babu wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/304A IPC and in fact charge was also framed against him for the offence Suit No. 506/14 Page No. 10 of 28 Khushnuma Vs. Arvind Kumar & Ors.
under Sections 279/304A IPC vide Order dated 29.01.2014 of the Ld. JMIC, Gurgaon.
14. The respondents No.1 and 2 had filed the written statement averring that the respondent No.1 had not caused any accident as alleged by the petitioners. In fact, some other vehicle might have caused the accident and might have run away from the spot after causing the accident, but the number of the vehicle of the respondent No.2 was wrongly noted down instead of the actual offending vehicle and the respondent No.1 had been falsely implicated by the police in the alleged accident case. It was submitted that the respondent No.1 had not caused any accident as alleged and was not in any manner responsible for the alleged accident and the respondent No.1 had been falsely implicated in the alleged accident. No accident was caused by the vehicle of the respondent No.2, so the question of impleading the respondents No.1 and 2 did not arise at all. It was submitted that since no accident was ever caused by the respondent No.1 at any point of time, so the petitioners were not entitled to get any compensation from the respondents No.1 and 2. During crossexamination by the learned counsel for the insurance company PW1 denied the suggestion that the deceased was not walking with him at the time of the accident and no accident happened on 20.11.2011. He admitted that no accident had occurred on 20.11.2013. He denied the suggestion that due to his negligence his son had met with an accident. During cross examination by the learned counsel for the respondents No.1 and 2 PW1 Suit No. 506/14 Page No. 11 of 28 Khushnuma Vs. Arvind Kumar & Ors.
denied the suggestion that the accident had occurred due to his negligence. He denied the suggestion that the accident had not occurred due to the negligence of the driver of the offending vehicle. He denied the suggestion that the accident had not occurred on 20.11.2013. Thus PW1 admitted that no accident had occurred on 20.11.2013. There was some discrepancy in the date of accident stated in the claim petition and the evidence by way of affidavit but PW1 had deposed that the date had been inadvertently written as 20.11.2011 instead of 20.11.2013. Even the documents on record show that the accident had taken place on 20.11.2013. As such nothing much turns on the same. Apart from that only suggestions were put to PW1 which he denied.
15. It was contended on behalf of the respondents No.1 and 2 that the accident might have taken place with some other vehicle. However, it is seen that the FIR was registered soon after the accident and in the FIR not only the number of the offending vehicle was stated but even the name of the respondent No.1 was duly mentioned. The respondent No.1 who is the driver and the respondent No.2 who is the owner of the offending vehicle have not produced any evidence to dispute the version put forth by the petitioners or in the criminal record. The criminal record has been placed on record which shows that the case has been registered against the respondent No.1 under Sections 279/304A IPC and he has also been chargesheeted for the said offences. 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 Suit No. 506/14 Page No. 12 of 28 Khushnuma Vs. Arvind Kumar & Ors.
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 not adduced any evidence to prove any other version of the accident. There is nothing to disprove the particulars of the accident or the involvement of vehicle No.HR55M2708. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
16. It was stated that due to the violent impact the deceased sustained fatal injuries. The deceased sustained head injuries and expired on the spot. It was submitted that the dead body of the deceased was taken by the petitioners after postmortem was conducted at Sunrise Hospital Gurgaon. Copy of the post mortem report is on record as per which the cause of death was head injury following ante mortem blunt force impact, consistent with the manner as alleged. Thus it stands established that the deceased had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioners and against the respondents.
Issue No.2
17. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation as per the provisions of the Act. The petitioners are the legal representatives of the deceased being the parents of Suit No. 506/14 Page No. 13 of 28 Khushnuma Vs. Arvind Kumar & Ors.
the deceased. It is the case of the petitioners that at the time of the accident, the deceased was 2 years old young boy, with very good health and physique and he was not suffering from any disease or ailment. It was stated that the petitioners who were the parents were the only legal heirs and there was no other legal heir of the deceased except the petitioners. PW1 had also deposed to that effect. He stated that the deceased was leading a peaceful and comfortable life with his family. PW1 was crossexamined on being able to show relationship with the deceased and during crossexamination by the learned counsel for the insurance company PW1 stated that he did not have any document to show the relationship between the deceased and him except the post mortem report filed on record. He denied the suggestion that the deceased was not his son. Thus PW1 stated that he did not have any document to show the relationship between the deceased and him except the post mortem report filed on record. It is seen that even the ration card does not contain the name of the deceased. However the FIR was registered on the basis of complaint of the petitioner No.2 and the post mortem report also shows the deceased as the son of the petitioner No.2. As such the relationship cannot be disputed. During examination by the Tribunal the petitioner No.1 Smt. Khushnuma stated that she was 25 years old. She stated that apart from the deceased she had one daughter. She stated that she was not working. The petitioner No.2 Babooshah stated that he was around 28 years old. He stated that he worked as barber and earned Rs.200/ to Rs.300/ per day. Suit No. 506/14 Page No. 14 of 28 Khushnuma Vs. Arvind Kumar & Ors.
18. The post mortem report shows the age of the deceased as 2 years. No other document has been placed on record to show the age of the deceased. Thus the deceased was 2 years old on the date of the accident i.e. 20.11.2013. Since the deceased was a child of 2 years it is very difficult to ascertain his potential at that early stage. One cannot measure on golden scales the value of opportunities one would have availed and at the same time could not have availed. The subject matter has to be guided by surrounding circumstances. In R.K. Malik and Anr. V. Kiran Pal and Ors. AIR 2009 SC 2506, the Hon'ble Supreme Court has observed as under:
"15. The real problem that arises in the cases of death of children is that they are not earning at the time of accident. In most of the cases they were still studying and not working. However, under no stretch of imagination it can be said that the parents, who are appellants herein, have not suffered any pecuniary loss. In fact, loss of dependency by its very nature is awarded for prospective or future loss. In this context Lord Atkinson aptly observed in Taff Vale Rly. Col. v. Jenkins (191113) All England Reporter 160 as follows:
"In the case of death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parent's claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived."
16.Then, how does one calculate the pecuniary compensation for loss of future earnings and loss of dependency of the parents, Suit No. 506/14 Page No. 15 of 28 Khushnuma Vs. Arvind Kumar & Ors.
grandparents etc. in the case of nonworking student? Under the Second Schedule of the Act in the case of a nonearning person, his income is notionally estimated at Rs.15,000/ per annum. The Second Schedule is applicable to claim petitions filed under Section 163A of the Act. The Second Schedule provides for the multiplier to be applied in cases where the age of the victim was less than 15 years and between 15 years but not exceeding 20 years. Even when compensation is payable under Section 166 read with 168 of the Act, deviation from the structured formula as provided in the Second Schedule is not ordinarily permissible, except in exceptional cases." (See Abati Bezbaruah v. Dy. Director General Geological Survey of India (2003) 3 SCC 148; United India Insurance Company Ltd. v. Patricia Jean Mahajan (2002) 6 SCC 281 and UP State Road Transport Corp. v. Trilok Chandra (1996) 4 SCC 362).
It was thus held that though the child may not be earning at the time of the accident but under no stretch of imagination it can be said that the parents have not suffered any pecuniary loss and loss of dependency by its very nature is awarded for prospective or future loss. In this case the notional income of the deceased who was a student and nonearning person was taken as Rs.15,000/ per annum and as per the Second Schedule of the Motor Vehicle Act, 1988 the multiplier of 15 was to be applied in case the victim was upto 15 years. In the present case the deceased was a child of 2 years and the same principles would apply. Thus the loss of dependency came to Rs. 15,000/ X 15 = Rs.2,25,000/.
Suit No. 506/14 Page No. 16 of 28 Khushnuma Vs. Arvind Kumar & Ors.
19. As regards the payment of nonpecuniary compensation to the petitioners who are the parents of the deceased on account of loss of human life, loss of company, happiness, loss of expectation of life, loss of love and affection, it has been held in R.K. Malik's case (supra) as under:
"24. It is extremely difficult to quantify the nonpecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for nonpayment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount payable with mathematical accuracy. Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which can be easily visualized and understood. Perhaps, the only mechanism known to law in this kind of situation is to compensate a person who has suffered nonpecuniary loss or damage as a consequence of the wrong done to him by way of damages/ monetary compensation. Undoubtedly, when a victim of a wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness etc., which is sometimes described as compensation paid for "loss of expectation of life." This head of compensation need not be restricted to a case where the injured person himself initiates action but is equally admissible if his dependent brings about the action.
25.That being the position, the crucial problem arises with regard to the quantification of such compensation. The injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an appropriate figure, an adequate solatium is difficult to specify. The Courts have therefore used the expression "standard compensation" and "conventional amount/ sum" to get Suit No. 506/14 Page No. 17 of 28 Khushnuma Vs. Arvind Kumar & Ors.
over the difficulty that arises in quantifying a figure as the same ensures consistency and uniformity in awarding compensations."
Thus the Hon'ble Supreme Court was pleased to uphold the increase of amount of Rs.75,000/ compensation on account of nonpecuniary damages due to the death of a child and in the instant case as well the petitioners would be entitled to Rs.75,000/ towards nonpecuniary damages.
20. As regards the future prospects it was held in R.K. Malik's case (supra) as under:
"31. A forceful submission has been made by the learned counsel appearing for the claimantsappellants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below. On perusal of the evidence on record, we find merit in such submission that the Courts below have overlooked that aspect of the matter while granting compensation. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation. Reliance in this regard may be placed on the decisions rendered by this Court in General Manager, Kerala S.R.T.C. v. Susamma Thomas (1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav (1996) 3 SCC 179; and Lata Wadhwa case (supra)."Suit No. 506/14 Page No. 18 of 28
Khushnuma Vs. Arvind Kumar & Ors.
Thus the Hon'ble Supreme Court held that denying compensation towards future prospects seems to be unjustified and Rs.75,000/ were granted as compensation for future prospects of the child. Accordingly the petitioners would be entitled to an amount of Rs.75,000/ on account of future prospects. The petitioners are thus entitled to compensation of Rs.2,25,000/ + 75,000/ + 75,000/ = Rs.3,75,000/. The Hon'ble High Court in Chiranji Lal and another v. Mangat Ram and Others 2011 ACJ 614 held that in case of minors' death in the accident, petitioners are entitled to a compensation of Rs.2,25,000/ under the head of loss of income and Rs.75,000/ towards love and affection and Rs. 75,000/ towards future prospects, in total Rs.3,75,000/ as compensation. Similar view was taken by the Hon'ble High Court in National Insurance Company v. Farzana and others 2009 ACJ 2763 and in Sunil Kumar v. Gopal Shah and Anr. III (2012) ACC 180. Thus the petitioners are entitled to the compensation of Rs.3,75,000/ in total.
21. It was stated that the petitioners had incurred about Rs.50,000/ on the transportation and last rites of the deceased. During crossexamination by the learned counsel for the insurance company PW1 denied the suggestion that he had incurred Rs.50,000/ on transportation and last rites of the deceased. He denied the suggestion that he had filed false and exaggerated claim to get compensation. There is nothing to show that the petitioners had incurred Rs.50,000/ on the transportation and last rites of the deceased. Accordingly the petitioners are held entitled to an amount of Rs.10,000/ on Suit No. 506/14 Page No. 19 of 28 Khushnuma Vs. Arvind Kumar & Ors.
this account. Thus the total compensation is assessed as Rs.3,85,000/. RELIEF
22. The petitioners are awarded a sum of Rs.3,85,000/ (Rs.Three Lacs Eighty Five Thousand only) along with interest @ 9% per annum from 7.8.2015 (vide order dated 6.8.2015 it was directed that the petitioners shall not be entitled to interest from the date of filing of the petition till that date) till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. The petitioner No.1 Smt. Khushnuma would be entitled to 80% share in the awarded amount and the petitioner No.2 Shri Babooshah would be entitled to 20% share in the awarded amount. The respondent No.3 is directed to deposit the award amount directly in the bank account of the claimants in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. The entire share of the petitioner No.2 be released to him. 30% of the share of the petitioner No.1 be released to her and 70% of the amount be kept in FDR for a period of 2 years.
Suit No. 506/14 Page No. 20 of 28 Khushnuma Vs. Arvind Kumar & Ors.
APPORTIONMENT OF LIABILITY
23. The respondent No.1 is the driver, the respondent No.2 is the owner of the offending vehicle and the respondent No.3 is the insurer in respect of the offending vehicle. It is the case of the respondent No.3 that the driver of the offending vehicle i.e. the respondent No.1 was not holding a valid driving license to drive a canter on the date of the accident which amounted to fundamental breach of condition of policy and as such the insurance company was not liable to pay the compensation. In support of its case the respondent No.3 had produced R3W1 in the witness box who had proved the copy of notice under Order 12 Rule 8 dated 27.12.2014 which is Ex.R3W1/3 and the original postal receipt of the notice which is Ex.R3W1/4. He was not cross examined. Further Shri Adarsh Kumar, Daftri, RTO, Auriya was produced in the witness box as R3W2 and he had brought the original record of the DL bearing No.24181/2006 of the driver of the offending vehicle which pertained to Shri Arvind Kumar S/o Shri Gainda Lal and was issued on 22.06.2006. He stated that the license was valid w.e.f. 22.06.2006 to 20.02.2021 for driving LMV (Private). The copy of the same is Ex.R3W2/1. He was also not cross examined.
24. It is seen that a copy of the DL of the respondent No.1 has been placed on record which according to R3W2 was valid for driving LMV (Private) whereas at the time of the accident the respondent No.1 was driving a canter. Suit No. 506/14 Page No. 21 of 28 Khushnuma Vs. Arvind Kumar & Ors.
Even a perusal of the DL which is on record shows that it was valid for driving LMV Private only. Further the respondent No.3 had issued notice to the respondents No.1 and 2 to produce the DL of the respondent No.1 but the respondent No.1 did not produce any other DL nor appeared to crossexamine R3W1 and R3W2. In New India Assurance Co. Ltd. v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733 the Hon'ble High Court observed as under:
"23. Where the assured chooses to run away from the battle i.e. fails to defend the allegation of having breached the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at the trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."
In the instant case the respondent No.3 had sent the notice under Order XII Rule 8 CPC to the driver and owner and there is nothing more that the insurance company could have done. Thus the DL which the respondent No.1 was holding was valid only to drive an LMV (Private). The effect of a person Suit No. 506/14 Page No. 22 of 28 Khushnuma Vs. Arvind Kumar & Ors.
possessing a DL to drive an LMV driving a vehicle of another category was gone into at length by the Hon'ble High Court of Delhi and it was observed by the Hon'ble High Court of Delhi in IFFCO Tokio General Insurance Co. Ltd. v. Parsan & Ors. MAC. APP. 532/2012 decided on 20.5.2015 as under:
"As far as driving licence is concerned, although no driving licence was produced by the Respondents, but a copy of the driving licence No.3119/F/97 which was valid for motorcycle and LMV only was available on record. The same was got verified from the Transport Authority. The validity of this driving licence is not disputed by the learned counsel for the Appellant. At the same time, it is urged that on the strength of this driving licence, Respondent Paramjit Singh was not competent to drive TSR which is a transport vehicle. It is also urged that the Claims Tribunal erred in relying on the report of the Transport Authority to say that since gross weight of the vehicle was less than 7,500/ kg., the driver was competent to drive a transport vehicle. This question was gone into at great length by this Court in Shashi Bhushan & Ors. v. National Insurance Co. Ltd. & Ors., MAC APP.517/2007, decided on 31.05.2012. Para 9 to 11 of the report are extracted hereunder: "9. In National Insurance Co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464, His Lordship Mr. Justice S.B. Sinha (as he then was) drew a distinction between the validity of a licence for LMV, to drive a light goods carriage or a light passenger vehicle before amendment in form 4 prescribed under Rule 2
(e) in the Central Motor Vehicles Rules, 1989 (the Rules).
Before the amendment in 2001 the entries Medium Goods Vehicle and Heavy Goods Vehicle existed which have been substituted by a "transport vehicle". It was held that a person holding a licence for Light Motor Vehicle after 28.03.2001 would not be competent to drive a "transport vehicle". In the Suit No. 506/14 Page No. 23 of 28 Khushnuma Vs. Arvind Kumar & Ors.
aforesaid case, the accident occurred on 09.12.1999. It was in that context that it was held that the driver by holding a valid licence for LMV was authorized to drive a Light Goods Vehicle as well. In this case, the accident took place on 21.04.2005 and thus the driver who was holding a driving licence to drive a Light Motor Vehicle was not competent to drive a transport vehicle. Paras 12 to 17 of the report are extracted hereunder: "12. The Central Government has framed Rules known as The Central Motor Vehicles Rules, 1989.
13. The word "Form" has been defined in Rule 2(e) to mean a Form appended to the rules.
"I Apply for a licence to enable me to drive vehicles of the following description:
(d) Light motor vehicle
(e) Medium goods vehicle
(g) Heavy goods vehicle
(j) Motor vehicles of the following description:...."
After amendment the relevant portion of Form 4 reads as under:
"I Apply for a licence to enable me to drive vehicles of the following description:
(d) Light motor vehicle
(e) Transport vehicle
(j) Motor vehicles of the following description:...."
14. Rule 14 prescribes for filing of an application in Form 4, for a licence to drive a motor vehicle, categorizing the same in nine types of vehicles.
Clause (e) provides for "Transport vehicle" which has been substituted by G.S.R. 221(E) with effect from 28.3.2001. Before the amendment in 2001, the entries "medium good vehicle" and "heavy goods vehicle" existed which have been substituted by "transport vehicle". As noticed hereinbefore, "Light Motor Vehicles" also found place Suit No. 506/14 Page No. 24 of 28 Khushnuma Vs. Arvind Kumar & Ors.
therein.
15. "Light Motor Vehicle" is defined in Section 2(21) and, therefore, in view of the provision, as then existed, it included a light transport vehicle. Form 6 provides for the manner in which the licence is to be granted, the relevant portion whereof read as under:
"Authorisation to drive transport vehicle Number.... Date....
Authorised to drive transport vehicle with effect from.... Badge number....
Signature.... ...
Designation of the licensing authority Name and designation of their authority who conducted the driving test."
16. From what has been noticed hereinbefore, it is evident that "transport vehicle" has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, "light passenger carriage vehicle" and "light goods carriage vehicle". A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well.
17. The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law."
10. In National Insurance Co. v. Kusum Rai, (2006) 4 SCC 250 a driver holding a driving licence to drive a Light Motor Vehicle was held to be not entitled to drive a taxi.
11.Subsequently, in New India Assurance Company Limited v. Roshanben Rahemansha Fakir & Anr., (2008) 8 SCC 253;
the Supreme Court differentiated between a transport vehicle and non transport vehicle and held that a driver who had a valid licence to drive a Light Motor Vehicle was Suit No. 506/14 Page No. 25 of 28 Khushnuma Vs. Arvind Kumar & Ors.
not authorized to drive a light goods vehicle. It was further held that the person must possess the licence for the class of vehicle involved in the accident."
8.Since the driving licence which was available on the record was valid for driving LMV only and not LMV (Transport) and no other licence was produced by the insured, it has to be held that the driver possessed valid driving licence to drive Light Motor Vehicle (LMV) only and not a transport vehicle. Thus, in view of the judgment in Shashi Bhushan & Ors. v. National Insurance Co. Ltd. & Ors., MAC APP.517/2007, decided on 31.05.2012; National Insurance Co. v. Kusum Rai, (2006) 4 SCC 250; and New India Assurance Company Limited v. Roshanben Rahemansha Fakir & Anr., (2008) 8 SCC 253, the driver was not competent to drive the vehicle involved in the accident.
9.The owner has not come forward with any explanation as to under which circumstances the vehicle was entrusted to the driver. The Appellant discharged the initial onus of proving conscious and willful breach on the part of the insured and is, therefore, entitled to recover the amount of compensation paid from the insured in view of the judgment of this Court in Oriental Insurance Company Limited v. Rakesh Kumar & Ors., MAC APP.329/2010, decided on 29.02.2012.
Thus where the driver was not competent to drive the vehicle involved in the accident recovery rights were given. In the instant case as well the DL of the respondent No.1 was valid only for an LMV Private whereas at the time of the accident he was driving a canter.
25. It was also contended on behalf of the respondent No.3 that even no permit was produced in respect of the offending vehicle. It is seen that despite Suit No. 506/14 Page No. 26 of 28 Khushnuma Vs. Arvind Kumar & Ors.
the notice under order 12 rule 8 CPC being sent by the respondent No.3 to the respondents No.1 and 2, no permit was produced by the respondent No.2 on record. In view of the settled law the insurance company is liable qua third party though it shall be vested with the right to recover the amount of liability from the insured after depositing the compensation awarded to the third party. Since the respondents No.1 and 2 did not produce a valid license to drive a canter on the date of the accident nor a valid permit the respondent No.3 shall have the right to recover the amount of compensation from the respondent No. 2 who is the owner of the offending vehicle. Accordingly the respondent No.3 shall deposit the amount of compensation for which the respondent No.2 would be liable and after depositing the same shall have the right to recover the same from the respondent No.2. The respondent No.3 being the insurer is directed to deposit the award amount in the bank account of the claimants in UCO Bank, Patiala House Court within 30 days of the passing of the award with interest as directed in para 22 of the judgment cum award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
26. 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 petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to Suit No. 506/14 Page No. 27 of 28 Khushnuma Vs. Arvind Kumar & Ors.
the court for further reference. The photographs be stamped and sent to the bank. The petitioners 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. The respondent No.3 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 26.11.2015.
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 Court, New Delhi. File be consigned to record room.
Announced in open court
on this 26th day of August, 2015 (GEETANJLI GOEL)
PO: MACT2
NEW DELHI
Suit No. 506/14 Page No. 28 of 28
Khushnuma Vs. Arvind Kumar & Ors.