Delhi District Court
Anita vs Satish Kumar on 1 April, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No. 397/14
Date of Institution: 03.05.2012
IN THE MATTER OF:
Anita
W/o Late Shri Joginder Gaur
R/o H.No.GC35A
Pul Prahlad Pur
New Delhi 110044. ...Petitioner
Versus
1. Satish Kumar
S/o Shri Mukut Singh
R/o Shiv Nagar Colony
PS Highway
District Mathura
UP.
2. Dal Chand
S/o Shri Padam Singh
R/o 120, Gautman Khair
Aligarh
UP.
3. HDFC ERGO General Insurance Co. Ltd.
2nd Floor, Ambadeep Building
Kasturba Gandhi Marg
New Delhi - 110001.
Suit No. 397/14 Page No. 1 of 34
Anita Vs. Satish Kumar & Ors.
4. Pala Ram
S/o Shri Bharta
R/o GA53, Pul Prahlad Pur
New Delhi.
5. Bajaj Allianz General Insurance Co. Ltd.
E31/32, Opposite Plaza Cinema
Connaught Circus
New Delhi. ...Respondents
Final Arguments heard : 18.03.2015 Award reserved for : 01.04.2015 Date of Award : 01.04.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition u/s 163A (the petition was originally filed under Sections 166 and 140 but thereafter converted to one under Section 163A) 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 petitioner that on 19.02.2012 at about 3.30 a.m. the deceased Dalip Gaur along with other persons was going in Alto Car bearing No.DL3CAZ8320. It is averred that the car was being driven by Amit at a very high speed driven most rashly and negligently and when the car reached near Anand Engineering College, Agra (U.P.) it hit against a bus bearing Suit No. 397/14 Page No. 2 of 34 Anita Vs. Satish Kumar & Ors.
No.UP81AF2376 which was parked in the middle of the road without any parking light or indicators, as a result of which all the occupants of the car were grievously injured whereas the deceased received fatal injuries in the accident. It is averred that the accident took place due to the negligence on the part of drivers of both the vehicles. It is stated that in respect of the accident FIR No.23/2012 under Sections 279/338/304A/427 IPC was registered at PS Sikandra, Agra. It is stated that the post mortem was conducted at District Hospital, Agra, UP. It is averred that the respondent No.1 is driver of the bus bearing No.UP81AF2376 and the driver of the car bearing No.DL3CAZ8320 died in the accident. It is averred that the respondent No.2 is the owner of the bus bearing No.UP81AF2376 and the respondent No.4 is the owner of the car bearing No.DL3CAZ8320. It is stated that the respondent No.3 is the insurer of bus bearing No.UP81AF2376 and the respondent No.5 is the insurer of car bearing No.DL3CAZ8320.
3. It is stated that the petitioner is the mother of the deceased and the deceased was unmarried. It is averred that the deceased was aged about 20 years at the time of the accident and he was earning Rs.10,000/ per month. He used to contribute his entire income to the petitioner. It is averred that the deceased was expected to live up till the age of 80 years if he had not died in the unfortunate accident. It is averred that the petitioner has suffered great pain, agony, mental torture and shock due to the death of the deceased and she had lost the love, affection and company of the deceased. The loss Suit No. 397/14 Page No. 3 of 34 Anita Vs. Satish Kumar & Ors.
could not be compensated in terms of money, however the petitioner was claiming compensation on account of loss of love affection and company of the deceased, loss of enjoyment of life, loss of future prospects, loss of future pecuniary benefits and other special and general damages as admissible under the law. It is prayed that an amount of Rs.50,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
4. Written statement on behalf of the respondent No.3/HDFC EGRO General Insurance Co. Ltd. was filed taking the preliminary objections that the driver respondent No.1 shall have to prove that he was holding a valid and effective driving license on the date of the alleged accident authorizing him to drive the vehicle in question. It is averred that the contract of insurance is a contract of indemnity and if the insured wants to take the benefit of the contract of the insurance, then he shall have to prove that the alleged offending vehicle was not being driven in contravention of insurance policy, that the driver on wheel of the alleged offending vehicle was holding a valid and effective DL at the time of the accident, that the alleged offending vehicle was being driven with valid permit covering the alleged place of the accident and that the alleged offending vehicle was being driven with valid fitness covering the alleged date of the accident and in case the insured/owner failed to prove the same then no liability could be fastened upon the respondent No.
3. It is averred that if it is proved that the vehicle was being plied under contract with any one and under control of someone else then the respondent Suit No. 397/14 Page No. 4 of 34 Anita Vs. Satish Kumar & Ors.
No.3 would not at all be liable to pay any amount of compensation as policy issued to the insured does not cover contractual liability. It is averred that the respondent No.3 has no knowledge about the alleged accident and the facts and circumstances of the case and the manner in which the alleged accident took place were denied. It is averred that the accident occurred solely due to the negligence of the deceased driver of the car who violated traffic rules and regulations, as he was driving the car without driving license and hit the vehicle bearing No.UP81AF2376 (Bus) from behind and as such the respondent No.3 is not liable to pay any compensation to the claimant. The averments made in the claim petition were denied. It is admitted that the bus bearing No.UP81AF2376 (Bus) was insured with the respondent No.3 in the name of Shri Dal Chand, vide policy No.2314200214760700000 w.e.f. 18.02.2012 to 17.02.2013. It is averred that the amount claimed by the petitioner is not only excessive and exorbitant but it bears no relevance with the actual loss suffered. It is averred that if the driver of the bus is also held negligent along with the deceased who was driving the car and they are held liable for composite negligence then in that event the amount of compensation if any is to be apportioned in proportion to their respective negligence.
5. Written statement was filed on behalf of the respondent No.4 taking the preliminary objections that the driver of Car No.DL3CAZ8320 who was the son of the respondent No.4 had died in road accident dated 19.02.2012, which occurred solely due to the rash and negligent act/ omission of the respondents Suit No. 397/14 Page No. 5 of 34 Anita Vs. Satish Kumar & Ors.
No.1 and 2. It is averred that absolutely abandoning/ parking of the bus bearing No.UP81AF2376 without any indicators or signal or stone line etc. in the middle of the road, in the wee hours of winter, on a dark road, resulted in the road accident. It is stated that FIR No.23/2012 Case No.133/12 at PS Sikandra, Agra, U. P. was registered only against the respondent No.1 under Sections 279/338/304A/427 IPC being solely negligent. It is averred that the driver of the car was not negligent and was driving the car properly. It is stated that the circumstances were such that no person of ordinary prudence/driving skill could have concluded/ anticipated that ahead heavy vehicle/ bus was in motion or not. It is averred that as the driver of the car who was the best person to explain the circumstances was not available to answer the allegations, it would be against the principles of natural justice to thrust the burden of negligence against a person who is dead/not available to rebut or answer. It is averred that the claim petition is without any cause of action against the respondent No.4. It is averred that even if the respondent No.4 is fastened with any liability to pay compensation, it shall be paid by the respondent No.5 i.e. Bajaj Allianz Gen. Insurance Co. Ltd./insurance company. It is averred that the deceased driver of car No.DL3CAZ8320 was holding a valid and effective driving license at the time of the accident, respondent No.4 being the owner of Car No.DL3CAZ8320 had insurance policy (Private Car Package Policy) No.OG121103180100016694: Cover note No.MC1002404926 covering the period 30.01.2012 to 29.01.2013. The averments made in the claim petition were denied. It is averred that the Suit No. 397/14 Page No. 6 of 34 Anita Vs. Satish Kumar & Ors.
deceased was a nonworking member, hence he is entitled for notional income only. It is averred that the allegations of rash and negligent driving leveled on the driver of car No.DL3CAZ8320 are hearsay and devoid of truth. It is averred that no negligence is attributable to the driver of the car, hence the respondent No.4 is not vicariously liable to pay any kind of compensation. It is averred that the FIR is against the respondent No.1 and noneelse. It is denied that the car was being driven by Amit at a very high speed most rashly and negligently or that the accident occurred due to negligence on the part of the drivers of both the vehicles. It is averred that the allegation of high speed driving by the driver of Alto car are false and concocted. It is averred that the deceased was not in stable employment or earning, hence no future prospects could be granted without cogent evidence. It is averred that car bearing No.DL3CAZ8320 has been wrongly impleaded without any cause of action for ulterior motives and the claim of the petitioner is frivolous.
6. Written statement on behalf of the respondent No.5 Bajaj Allianz General Insurance Co. Ltd. was filed taking the preliminary objections that the petition is not maintainable against the respondent No.5 who has been impleaded as insurer of car No.DL3CAZ8320 in which the deceased was traveling as a passenger. It is averred that as per the documents pertaining to the criminal case prepared by the police after the alleged accident, it had been stated that the accident had taken place only due to the rashness and negligence on the part of bus No.UP81AF2376 and the driver of the car Suit No. 397/14 Page No. 7 of 34 Anita Vs. Satish Kumar & Ors.
No.DL3CAZ8320 was not at all responsible for the accident. It is averred that the charge sheet had been prepared by the police against the driver of the bus, hence, the respondent No.5 was not a necessary party to the petition and was liable to be deleted from the array of parties. It is averred that all the material allegations made in the petition are false and the petition is not maintainable either on facts or in law against the respondent No.5. It is averred that the petition is bad for misjoinder of necessary parties and the respondents No.4 and 5 are not necessary parties to the petition. The averments made in the claim petition were denied. It is denied that on the date and time as mentioned, the deceased was traveling in car No.DL3CAZ8320, being driven by Amit in a rash, negligent manner or that the accident took place due to the negligence on the part of driver of both the vehicles. It is stated that the vehicle No.DL3CAZ8320 was insured in the name of respondent No.4 Shri Pala Ram vide Policy No.0G121103180100016694 issued for the period 30.01.2012 to 29.01.2013.
7. It was stated that settlement was not possible in the instant case. The respondents No.1 and 2 were directed to be served by way of publication in 'Rashtriya Sahara' vide order dated 10.5.2014. The respondents No.1 and 2 were served by way of publication in 'Rashtriya Sahara' dated 11.8.2014. The respondents No.1 and 2 were proceeded exparte vide order dated 15.9.2014. From the pleadings of the parties, the following issues were framed vide order dated 15.09.2014:
Suit No. 397/14 Page No. 8 of 34
Anita Vs. Satish Kumar & Ors.
1. Whether the deceased sustained fatal injuries in the accident which occurred on 19.02.2012 at about 3.30 am near Anand Engineering College, Agra (U.P.) caused by rash and negligent driving of a vehicle bearing no.DL3CAZ8320, being owned by respondent no.4 and insured with respondent no.5 and vehicle bearing no.UP81AF2376 parked in the middle of the road by its driver/ respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP
2. Whether the LR of the deceased is entitled for compensation? If so, to what amount and from whom?
3.Relief.
An application under Section 170 MV Act was filed on behalf of the respondent No.5 which was allowed vide order dated 13.10.2014. An application was filed on behalf of the petitioner for converting the petition from one under Sections 166 and 140 of MV Act to one under Section 163 A of the MV Act which was allowed vide order dated 9.2.2015.
8. The petitioner, Ms. Anita, appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. She deposed that the deceased was her son and was aged about 23 years. She stated that her son met with an accident on 19.02.2012 and died. She stated that her husband had since died and she was the only legal heir of the deceased. She stated that her son was working in Anu Garments Jatpur Delhi as a salesman and was getting Rs.10,000/ per Suit No. 397/14 Page No. 9 of 34 Anita Vs. Satish Kumar & Ors.
month as salary. She stated that she was completely dependent on her son. She stated that she had suffered great pain, agony, mental torture and shock due to the death of her son and she had lost the love affection and company of her son. Copy of Aadhar card of the petitioner is Ex.PW1/1 and copy of PAN card of the petitioner is Ex.PW1/2. PE was closed on 19.1.2015.
9. On behalf of the respondent No.3, Shri Shyama Charan Vats, Assistant Manager, Legal appeared in the witness box as R3W1. Power of Attorney in his favour is Mark A. Attested copy of the insurance policy in respect of vehicle No.UP81AF2376 is Ex.R3W1/1 along with the terms and conditions of the policy. He stated that on instruction from the insurance company their counsel had issued notice u/s 12 Rule 8 to the owner Dal Chand to produce the original insurance policy, driving license of the Driver, RC of the vehicle along with permit and fitness certificate and the office copy of the notice is Ex.R3W1/2. The postal receipt is Ex.R3W1/3. He stated that despite the said notice no documents had been produced by the owner respondent No.2. In these circumstances the insurance company was not liable to indemnify the insurer or to pay any amount of compensation to the petitioner. He was not crossexamined on behalf of the petitioner and the respondents No.1 and 2. It was stated by the learned counsel for the respondent No.5 that no RE was to be led. RE was closed on 19.1.2015. Suit No. 397/14 Page No. 10 of 34 Anita Vs. Satish Kumar & Ors.
10. I have heard the Learned Counsel for the petitioner as well as the Learned Counsel for the respondent No.3 and perused the record. Written arguments were filed on behalf of the respondents No.3 and 5 which I have perused.
11. It is settled law that a petition under Section 163A MV Act is maintainable only in respect of victims having annual income upto Rs.40,000/ and all other claims are to be dealt with as per provisions of section 166 MV Act. The petitioner in the Claim Petition had claimed that the deceased was having income of Rs.10,000/ p.m. and PW1 in her affidavit Ex.PW1/A had deposed that her son was working in Anu Garments, Jatpur, Delhi and was getting Rs.10,000/ per month as salary. However it may be mentioned that the petition had been filed under Section 166 MV Act. The petitioner had not produced any document to show how much amount her deceased son was earning. During crossexamination by the learned counsel for the insurance company/respondent No.5 PW1 stated that she did not have any document to show that her deceased son was working in a garment company and was earning Rs.10,000/ p.m. She stated that her deceased son had studied upto 5th standard. Thus PW1 stated that she did not have any document to show that her deceased son was working in a garment company and was earning Rs.10,000/ p.m. She stated that her deceased son had studied upto 5th standard. As such no document has been produced to show what the deceased was doing or that he was indeed working with Anu Garments and no Suit No. 397/14 Page No. 11 of 34 Anita Vs. Satish Kumar & Ors.
witness from the said company has been produced in the witness box. There is also nothing to show how much amount the deceased was earning or if he was indeed earning Rs.10,000/ p.m. Even no document has been placed on record to show the educational qualifications of the deceased. What is material for the purposes of section 163A MV Act 1988 is the annual income of the victim/deceased and not the monthly income. There is also nothing to prove that the victim/ deceased was earning more than Rs.40,000/ per annum. Thus it cannot be said as a matter of fact that the annual income of the victim/deceased was more than Rs.40,000/. Moreover as per the well settled law where the income is stated to be more, the same can be taken upto a maximum of Rs.40,000/ p.a. In the totality of facts and circumstances of this case, the annual income of the deceased/victim Dalip Gaur is taken to be Rs. 40,000/ p.a. Thus the Claim Petition under section 163A Act would be maintainable.
12. My findings on the specific issues are as under:
Issue No. 1
13. The case of the petitioner is that on 19.02.2012 at about 3.30 a.m. the deceased Dalip Gaur along with other persons was going in Alto Car bearing No.DL3CAZ8320. It was averred that the car was being driven by Amit at a very high speed driven most rashly and negligently and when the car reached Suit No. 397/14 Page No. 12 of 34 Anita Vs. Satish Kumar & Ors.
near Anand Engineering College, Agra (U.P.) it hit against a bus bearing No.UP81AF2376 which was parked in the middle of the road without any parking light or indicators, as a result of which all the occupants of the car were grievously injured whereas the deceased received fatal injuries in the accident. It was averred that the accident took place due to the negligence on the part of drivers of both the vehicles. It was stated that in respect of the accident FIR No.23/2012 under Sections 279/338/304A/427 IPC was registered at PS Sikandra, Agra. It was stated that the post mortem was conducted at District Hospital, Agra, UP. It was averred that the respondent No.1 is driver of the bus bearing No.UP81AF2376 and the driver of the car bearing No.DL3CAZ8320 died in the accident. It was averred that the respondent No.2 is the owner of the bus bearing No.UP81AF2376 and the respondent No.4 is the owner of the car bearing No.DL3CAZ8320. The petitioner in para 1 of her affidavit Ex.PW1/A had deposed that her son met with an accident on 19.2.2012 and died.
14. The respondents No.1 and 2 had not appeared to file their written statement or to crossexamine PW1 and were proceeded exparte. Written statement was filed on behalf of the respondent No.4 taking the preliminary objections that the driver of Car No.DL3CAZ8320 who was the son of the respondent No.4 had died in road accident dated 19.02.2012, which occurred solely due to the rash and negligent act/ omission of the respondents No.1 and
2. It was averred that absolutely abandoning/ parking of the bus bearing Suit No. 397/14 Page No. 13 of 34 Anita Vs. Satish Kumar & Ors.
No.UP81AF2376 without any indicators or signal or stone line etc. in the middle of the road, in the wee hours of winter, on a dark road, resulted in the road accident. It was stated that FIR No.23/2012 Case No.133/12 at PS Sikandra, Agra, U. P. was registered only against the respondent No.1 under Sections 279/338/304A/427 IPC being solely negligent. It was averred that the driver of the car was not negligent and was driving the car properly. It was stated that the circumstances were such that no person of ordinary prudence/driving skill could have concluded/ anticipated that ahead heavy vehicle/ bus was in motion or not. It was averred that as the driver of the car who was the best person to explain the circumstances was not available to answer the allegations, it would be against the principles of natural justice to thrust the burden of negligence against a person who was dead/not available to rebut or answer. It was averred that the allegations of rash and negligent driving leveled on the driver of car No.DL3CAZ8320 were hearsay and devoid of truth. It was averred that no negligence was attributable to the driver of the car. It was averred that the allegation of high speed driving by the driver of Alto car was false and concocted. It is thus seen that in the instant case two vehicles were stated to be involved in the accident and it was also stated that the accident had taken place due to the negligence of the drivers of both the vehicles. Even issue No.1 was to the effect whether the accident had been caused due to the rash and negligent driving of both the vehicles. Suit No. 397/14 Page No. 14 of 34 Anita Vs. Satish Kumar & Ors.
15. During crossexamination by the learned counsel for the insurance company/respondent No.5 PW1 stated that she was not an eye witness to the accident. She stated that she came to know about the accident from a neighbour. She denied the suggestion that the accident had taken place due to the negligence of the bus driver. She did not have any knowledge whether any criminal case was pending at Sikandarabad in U.P. During crossexamination by the learned counsel for the insurance company/respondent No.3 PW1 stated that she was not aware about the owner of the car in which her son was going. She admitted that the car driver died in the accident. She denied the suggestion that the driver of the offending car was driving the vehicle rashly and negligently and due to the said reason he died in the accident. Thus PW1 stated that she was not an eye witness to the accident and she came to know about the accident from a neighbour. She also did not have any knowledge whether any criminal case was pending at Sikandarabad in U.P. She admitted that the car driver died in the accident.
16. The petitioner had placed on record the certified copy of the criminal record consisting of copy of charge sheet; copy of FIR; copy of site plan and copy of complaint and also a copy of the post mortem report. As per the FIR No.23/12 under sections 279/338/304A/427 IPC, PS Sikandra, Agra the case was registered on the basis of complaint of Palaram who is the father of the driver of the car in which the deceased was travelling at the time of the accident wherein he had stated about the manner of the accident. As per the Suit No. 397/14 Page No. 15 of 34 Anita Vs. Satish Kumar & Ors.
charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/338/304A/427 IPC. The respondents No.1, 2 and 4 have also not adduced any evidence to prove any other version of the accident. This being a petition u/s. 163A MV Act no rashness/negligence is to be proved on the part of the offending vehicle and it is sufficient for grant of compensation u/s. 163A MV Act that there is an accident involving a motor vehicle and as a result of such accident death or permanent disability results to the victim. The post mortem report shows that the cause of death was septicaemic shock which was ante mortem in nature and sufficient to cause death in the ordinary course of nature.
17. A perusal of S.163A of the Act shows that it provides for payment of compensation for the death or injury suffered in a motor vehicle accident on a structured formula. It says that notwithstanding anything contained in the Act or in any other law for the time being in force or instrument having force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. It also provides that in any claim for compensation under this section, the claimant shall not be required to plead or establish that death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or the vehicle concerned or of any other Suit No. 397/14 Page No. 16 of 34 Anita Vs. Satish Kumar & Ors.
person. It has been held in the case of Smt. Rita Devi & Ors. v. New India Assurance Co. Ltd. JT 2000 (SC) 355 that a conjoint reading of subclauses of Section 163A shows that a victim or his legal heirs are entitled to claim from the owner or insurance company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle without having to prove wrongful act or neglect or default of anyone. It was held that it was in the nature of beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no fault liability. In the matter of interpretation of a beneficial legislation, the approach of the Courts is to adopt a construction which advances the beneficient purpose underlying the enactment in preference to a construction which tends to defeat that purpose. It was held that the word arising out of would imply that accident should be connected with the use of motor vehicle but the said connection need not be direct and immediate.
18. In the instant case as well the only fact required to be established on record is that the accident had taken place due to the involvement of a vehicle or vehicles and Explanation 2 to Section 163A of the Act specifically lays down:
"In any claim for compensation under subsection (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been Suit No. 397/14 Page No. 17 of 34 Anita Vs. Satish Kumar & Ors.
made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person."
Thus Section 163A contemplates the involvement of more than one vehicle as well. In the instant case it is not in dispute that when the car in which the deceased was travelling, reached near Anand Engineering College, Agra (U.P.) it hit against a bus bearing No.UP81AF2376 which was parked in the middle of the road and the charge sheet has been filed against the driver of the bus i.e. the respondent No.1. It is not in dispute that the deceased was a passenger in the car and the same was also stated in the FIR by the respondent No.4 and the respondents have not been able to controvert the same. The learned counsel for the respondent No.3 had argued that the present was a case of composite negligence and that the driver of the car was also responsible for the accident and reliance has been placed on Raj Rani v. OIC 2009 ACJ 2003 (SC) where it was held that in a case of hitting from behind, both the vehicles were equally negligent in the ratio of 50:50; on the judgment of the Hon'ble High Court of Delhi in Sunil Kumar v. Gopal Shah III (2012) ACC 180 where it was held that in case of a stationary truck parked on the left side of the road, the liability of the truck was 25% out of the awarded amount and 75% of the vehicle which hit from behind (though in the present case the allegation is that the bus was standing in the middle of the road); on the judgment of the Hon'ble High Court of Delhi in Ms. Updesh Kaur v. Jagram III (2004) ACC; and the judgment of the Hon'ble Supreme Court in Suit No. 397/14 Page No. 18 of 34 Anita Vs. Satish Kumar & Ors.
Renuka Devi v. Bangalore Metropolitan Transport Corporation 2008 ACJ 1188 where in a case of hitting from behind it was held that both the vehicles were equally liable. On the other hand it was argued on behalf of the respondent No.5 that the accident had occurred due to the negligence of the driver of the bus as the bus had been parked in the middle of the road and even the charge sheet had been filed against the driver of the bus. However as observed above, for the purposes of Section 163A MV Act, negligence is not to be proved. It stands established that there were two vehicles involved in the accident i.e. car bearing No.DL3CAZ8320 and bus bearing No.UP81AF2376. Thus the liability to pay the compensation would be in respect of both the vehicles.
19. It stands established that the deceased sustained injuries in the accident due to which he died. Accordingly issue No.1 is decided in favour of the petitioner and against the respondents.
ISSUE No.2
20. Since the issue No.1 has been decided in favour of the petitioner she would be entitled to compensation as per the provisions of the Act. The petitioner is the legal representative of the deceased being the mother of the deceased. PW1 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the insurance company/ Suit No. 397/14 Page No. 19 of 34 Anita Vs. Satish Kumar & Ors.
respondent No.5 PW1 stated that she is the resident of Delhi since 15 years. She stated that she did not have ration card and voter ID card. She stated that she is a housewife. She did not have any documents to show that the deceased was her son as all the documents were with him and she did not carry with her. She stated that apart from the deceased she had 2 children i.e. one son and one daughter younger to the deceased son. She stated that her son was not doing anything and her daughter was studying in school. She stated that her husband died about 16 years prior. She stated that she had documents to show that she had two more children but she had not brought the same. She denied the suggestion that she lived in Bihar and she never lived in Delhi. She denied the suggestion that her deceased son was not a resident in Delhi and was not working in Delhi. During crossexamination by the learned counsel for the insurance company/respondent No.3 PW1 stated that earlier she was working in Okhla but presently she was not doing anything. She denied the suggestion that she was not dependent on her deceased son. Thus PW1 stated that she is the resident of Delhi since 15 years and even the copy of the Aadhar card of the petitioner has been placed on record and the former shows the address of Delhi though one ESIC card shows the address of Bihar. She stated that she is a housewife. She stated that she did not have any documents to show that the deceased was her son as all the documents were with him and she did not carry with her. However nothing specific has been brought on record to dispute that the deceased was the son of the petitioner. She stated that apart from the deceased she had 2 Suit No. 397/14 Page No. 20 of 34 Anita Vs. Satish Kumar & Ors.
children i.e. one son and one daughter younger to the deceased son and that her husband died about 16 years prior. A suggestion was put to her that the deceased was not a resident of Delhi and was not working in Delhi but even in the post mortem report the address of the deceased has been stated to be of Delhi. PW1 stated that earlier she was working in Okhla but presently she was not doing anything. Thus being the mother the petitioner would be regarded as dependent on the deceased.
21. The petitioner has claimed loss of dependency on the basis that she was the mother of the deceased and the deceased was unmarried. It was averred that the deceased was aged about 20 years at the time of the accident and he was earning Rs.10,000/ per month. He used to contribute his entire income to the petitioner. It was averred that the deceased was expected to live up till the age of 80 years if he had not died in the unfortunate accident. It was averred that the petitioner had suffered great pain, agony, mental torture and shock due to the death of the deceased and she had lost the love affection and company of the deceased. PW1 in paras 1 and 2 of her affidavit Ex.PW1/A had deposed to that effect. She stated that her husband had since died and she was the only legal heir of the deceased. She stated that her son was working in Anu Garments Jatpur Delhi as a salesman and was getting Rs. 10,000/ per month as salary. She stated that she was completely dependent on her son. She stated that she had suffered great pain, agony, mental torture and shock due to the death of her son and she had lost the love affection and Suit No. 397/14 Page No. 21 of 34 Anita Vs. Satish Kumar & Ors.
company of her son. However it has already been held above that the income of the deceased would be taken as Rs.40,000/ p.m.
22. As regards the age of the deceased it is the case of the petitioner that the deceased was 20 years of age and it was so stated in the claim petition though in the evidence by way of affidavit she had stated that the deceased was 23 years old. The petitioner has not placed on record any document in respect of the age of the deceased. However as per the post mortem report the age of the deceased was 18 years approximately. As such the age of the deceased is taken as 18 years on the date of the accident. It was argued on behalf of the learned counsel for the respondent No.3 that the multiplier as per the age of the mother i.e. the petitioner is to be taken and reliance has been placed on the judgment in Vijay Laxmi v. Binod Kr. Yadav 1 (2012) ACC 445 where it was held that the multiplier is determined by the age of the deceased or that of the claimants whichever is higher. However the present is a case under Section 163A of the MV Act and the Second Schedule speaks of the age of the victim in case of fatal accidents. As such the multiplier applicable in the instant case would be 16 as the age of the deceased was above 15 years but less than 20 years.
23. As per Second Schedule to the Act, 1/3rd amount is to be deducted in consideration of the expenses which the deceased would have incurred towards maintaining himself which comes to Rs.13,333/ (rounded to Rs. Suit No. 397/14 Page No. 22 of 34 Anita Vs. Satish Kumar & Ors.
13,300/). After deducting 1/3rd on personal expenses of deceased, remaining amount comes to Rs.26,700/ per annum (i.e Rs.40,000 - 13,300). The multiplier of 16 is applicable as per Second Schedule to compute the amount towards loss of dependency which would come to Rs.4,27,200/ (i.e Rs.26,700 X 16). The learned counsel for the respondent No.3 had argued that no future prospects are admissible in the present case. However the law is well settled in this regard and the Hon'ble High Court of Delhi in MAC APP No.228/2010 Oriental Insurance Co. Ltd. v. Usha & Ors. decided on 24.2.2012 held that no future prospects can be awarded under Section 163A. Under Section 163A the compensation is to be computed as per the structured formula in Schedule II and the same does not contemplate any payment towards future prospects.
24. Besides this, the petitioner is also entitled for compensation under the following heads:
1. Funeral expenses Rs.2000/
2. Loss of estate Rs.2500/ Thus, the total compensation would come to Rs.4,31,700/. RELIEF
25. The petitioner is awarded a sum of Rs.4,31,700/ (Rs.Four Lacs Thirty One Thousand and Seven Hundred only) with interest at the rate of 9% per annum from the date of filing the claim petition till its realization. For Suit No. 397/14 Page No. 23 of 34 Anita Vs. Satish Kumar & Ors.
safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) 20% of the awarded amount be released to the petitioner by transferring it into her savings account and remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 20% for a period of one year.
2. Fixed deposit in respect of 20% for a period of two years.
3. Fixed deposit in respect of 20% for a period of three years.
4. Fixed deposit in respect of 20% for a period of four years.
b) The respondents No.3 and 5 are directed to deposit the amount in equal proportion directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Anita within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioner. In case of default, the respondents No.3 and 5 shall be liable to pay Suit No. 397/14 Page No. 24 of 34 Anita Vs. Satish Kumar & Ors.
further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released to the petitioner.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving account of the petitioner.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card to the petitioner to facilitate her identity.
g) No cheque book shall be issued to the petitioner without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
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i) The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioner, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioner.
l) The petitioner shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
26. The petitioner shall file two sets of photographs along with her specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file her complete address as well as address of her counsel for sending the notice of deposit of the award amount. Suit No. 397/14 Page No. 26 of 34 Anita Vs. Satish Kumar & Ors.
APPORTIONMENT OF LIABILITY
27. The respondent No.1 is the driver and the respondent No.2 is the owner of the bus bearing No.UP81AF2376 and the respondent No.4 is the owner of the car bearing No.DL3CAZ8320. The respondent No.3 is the insurer of bus bearing No.UP81AF2376 and the respondent No.5 is the insurer car bearing No.DL3CAZ8320. As observed above the liability to pay the compensation in respect of both the vehicles would be equal. It is the case of the respondent No.3 that the respondents No.1 and 2 had not supplied any permit and fitness in respect of the offending bus and as such the respondent No.2 was not holding a valid and effective permit 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. The respondent No.3 in support of its case had examined R3W1 who stated that on instruction from the insurance company their counsel had issued notice u/s 12 Rule 8 to the owner Dal Chand to produce the original insurance policy, driving license of the Driver, RC of the vehicle along with permit and fitness certificate and the office copy of the notice is Ex.R3W1/2. The postal receipt is Ex.R3W1/3. He stated that despite the said notice no documents had been produced by the owner respondent No.2. In these circumstances the insurance company was not liable to indemnify the insurer or to pay any amount of compensation to the petitioner. He was not crossexamined on behalf of the petitioner and the respondents No.1 and 2. It may be mentioned that a copy of the DL of the Suit No. 397/14 Page No. 27 of 34 Anita Vs. Satish Kumar & Ors.
respondent No.1 and the copy of the RC of the offending bus and insurance policy had been placed on record by the petitioner.
28. Nonproduction of permit to run a commercial vehicle is a defence legally available to the insurance company under Section 149 of the Act. In New India Assurance Co. Ltd. v. Asha Rani and Ors. (2003) 2 SCC 223 and National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. (2002) 7 SCC 456 the scope of Sections 149(2) and 149(7) of the Act was explained and it was observed that an insurer could avoid its liability only in accordance with what had been provided for in subsection (2) of Section 149 of the Act. The Hon'ble Supreme Court in National Insurance Co. Ltd. v. Chella Bharathamma & Ors. (2004) 8 SCC 517 considered the aforesaid two judgments and it was held:
"High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal visàvis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable.
The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be Suit No. 397/14 Page No. 28 of 34 Anita Vs. Satish Kumar & Ors.
proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."
In the present case, since the driver and owner of the bus have failed to produce the permit and further they did not step into the witness box to assert that they were having a valid permit, in such circumstances, an adverse inference is liable to be drawn against them. Further the Hon'ble High Court of Delhi in MAC.APP.1008/2011 Reliance General Insurance Co. Ltd. v. Nawab Jan & Ors. decided on 27.3.2014 where the witness of the insurance company had proved that the notice under Order 12 rule 8 CPC was served upon the owner by which he was asked to produce the permit of the offending vehicle in the court but he failed to do so and also did not file the written statement and was proceeded exparte observed:
"6. The factum of the notice has been proved by the appellant. Therefore, there is nothing on record whether the offending vehicle was having valid permit at the time of accident or not. In such eventuality, adverse inference had to be drawn against the owner of the offending vehicle. However, Ld. Tribunal failed to do so.Suit No. 397/14 Page No. 29 of 34
Anita Vs. Satish Kumar & Ors.
7. In view of the aforementioned facts, I am of the considered opinion that Ld. Tribunal has wrongly held that the breach of terms of the policy has not been established. Therefore, appellant is at liberty to recover the amount from respondent no. 7, i.e. the owner of the offending vehicle."
In the instant case as well there is nothing to show that the respondents No.1 and 2 had a valid permit at the time of the accident or not and as such adverse inference is liable to be drawn against them.
29. It is settled law that the insurance company has to establish that there was a conscious breach of the terms and conditions of the policy. In the instant case the respondents No.1 and 2 have not appeared in the witness box to depose that they had a valid permit. 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 Suit No. 397/14 Page No. 30 of 34 Anita Vs. Satish Kumar & Ors.
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."
Though this case related to a driving license but the same principles would apply in the instant case.
30. It is now well settled that in such cases the insurance company would first have to satisfy the liability towards third party though it may subsequently recover the amount from the insured. The issue was considered at length by the Hon'ble High Court of Delhi in Sanjay v. Suresh Chand & Ors. F.A.O. No. 445/2000 decided on 3.8.2012 and it was observed:
"The issue of satisfying the third party liability even in case of breach of the terms of insurance policy is settled by three Judge Bench report in Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21. As per Section 149(2) of the Motor Vehicles Act (the Act), an insurer is entitled to defend the action on the grounds as mentioned under Section 149(2)(a)
(i)(ii) of the Act. Thus, the onus is on the insurer to prove that there is breach of the condition of the policy. It is well settled that the breach must be conscious and willful. Even if a conscious breach on the part of the insured is established, still the insurer has a statutory liability to pay the compensation to the third party and will simply have the right to recover the same from the insured/tortfeasor either in the same proceedings or by independent proceedings as the case may be, as ordered by the Claims Tribunal or the Court. The question of statutory liability to pay the compensation was discussed in detail by a two Judge Bench of the Supreme Court in Skandia Insurance Company Limited Suit No. 397/14 Page No. 31 of 34 Anita Vs. Satish Kumar & Ors.
v. Kokilaben Chandravadan, (1987) 2 SCC 654 where it was held that exclusion clause in the contract of Insurance must be read down being in conflict with the main statutory provision enacted for protection of victim of accidents. It was laid down that the victim would be entitled to recover the compensation from the insurer irrespective of the breach of the condition of policy. The three Judge Bench of the Supreme Court in Sohan Lal Passi analyzed the corresponding provisions under the Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988 and approved the decision in Skandia. In New India Assurance Co., Shimla v. Kamla and Ors., (2001) 4 SCC 342, the Supreme Court referred to the decision of the two Judge Bench in Skandia, the three Judge Bench decision in Sohan Lal Passi and held that the insurer who has been made liable to pay the compensation to third parties on account of issuance of certificate of insurance, shall be entitled to recover the same if there was any breach of the policy condition on account of the vehicle being driven without a valid driving licence.
20. This Court in MAC APP. No.329/2010 Oriental Insurance Company Limited v. Rakesh Kumar and Others and other Appeals decided by a common judgment dated 29.02.2012, noticed some divergence of opinion in National Insurance Company Limited v. Kusum Rai & Ors., (2006) 4 SCC 250, National Insurance Company Limited v. Vidhyadhar Mahariwala & Ors., (2008) 12 SCC 701; Ishwar Chandra & Ors. v. The Oriental Insurance Company Limited & Ors.,(2007) 10 SCC 650 and Premkumari & Ors. v. Prahalad Dev & Ors., (2008) 3 SCC 193 and held that in view of the three Judge Bench decision in Sohan Lal Passi (supra) and Swaran Singh, the liability of the Insurance Company visàvis the third party is statutory. If the Insurance Company successfully proves the conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner or driver, as the case may be."
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Thus if the insurance company proves conscious breach of the terms of the policy, it would be entitled to recovery rights. In the instant case the insurance company has succeeded in discharging the onus in this regard and it stands established that the respondents No.1 and 2 were not holding a valid permit and thereafter the respondents No.1 and 2 have not appeared to rebut the same.
31. 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 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 bus and the insured. 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.
32. As regards the liability of the respondents No.4 and 5, since the respondent No.4 is the owner of the vehicle and the respondent No.5 is the insurer of the car, the respondent No.5 would be liable to pay the amount of compensation on behalf of the respondent No.4, in absence of any evidence to show any violation of the terms and condition of the policy by the Suit No. 397/14 Page No. 33 of 34 Anita Vs. Satish Kumar & Ors.
respondent No.4. Accordingly the respondents No.3 and 5 being the insurer in respect of the bus and the car respectively are directed to deposit the award amount in the bank account of the claimant in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award with interest at the rate of 9% from the date of filing of the claim petition till its realization failing which they are liable to pay interest at the rate of 12% per annum for the period of delay.
33. Nazir to report in case the cheques are 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 insurers shall deposit the award amount along with interest upto the date of notice of deposit to the claimant with a copy to her 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 3.7.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to record room.
Announced in open court
on this 1st day of April, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 397/14 Page No. 34 of 34
Anita Vs. Satish Kumar & Ors.