Delhi District Court
Smt. Rajni vs Shri Vijender Singh Rawat on 3 May, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.189/14
Date of Institution: 09.07.2010
IN THE MATTER OF:
1. Smt. Rajni
Wd/o Late Shri Parveen Kumar Nethani
2. Shri Jagdish Pd. Nethani
F/o Late Shri Parveen Kumar Nethani.
3. Smt. Sidhhi Devi
M/o Late Shri Parveen Kumar Nethani.
All residents of H. No. B456
Dakshin Puri, Near Sector5
Dr. Ambedkar Nagar
New Delhi.
Permanent Address:
Village Karakot, Gagwadasu
Teh. Pauri Distt. Pauri Garhwal
Uttrakhand. ...Petitioners
Versus
1. Shri Vijender Singh Rawat
S/o Shri M. S. Rawat
R/o H. No. 782, BlockG
Near Police Chowki
(Near Amita Public School)
Sangam Vihar, New Delhi.
Suit No. 189/14
Rajini Vs. Vijender Singh Rawat & Ors. Page No. 1 of 35
2. Shri Mohan Singh Rawat
H. No. 782, BlockG
Near Police Chowki
(Near Amita Public School)
Sangam Vihar
New Delhi.
3. Bajaj Allianz Gen. Ins. Co. Ltd.
Through its Manager
2nd Floor, DLF Building, Near Metro Station
Moti Nagar, New Delhi. ...Respondents
Final Arguments heard : 22.04.2014 Award reserved for : 03.05.2014 Date of Award : 03.05.2014 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 163A of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) by the petitioners for grant of compensation in a road accident.
2. It is the case of the petitioners that on 03.01.2010, the deceased was travelling on motorcycle bearing No.DL3SBG5765 as pillion rider and the same was being driven by one of his friends Vijender and they were proceeding from Haridwar to Sangam Vihar, Delhi. At about 6.00 p.m. when they reached Partapur bypass near Shobha Village, PS Kanker Khera, District Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 2 of 35 Meerut, at the same time an unknown truck being driven by its driver came at a fast speed and hit the motorcycle of the deceased and fled away. Due to this the deceased fell down and sustained multiple dangerous injuries and was removed to Ritu Nursing Home where the doctors declared him as dead. It is averred that the deceased had died in an accident arising out of the use of motorcycle bearing No.DL3SBG5765. It was stated that FIR No.8/2010 under Sections 279/338/427/304A IPC was registered at PS Kanker Khera in respect of the accident. It is averred that the respondent No.1 is the driver, respondent No.2 is the owner/ insured and the respondent No.3 is the insurer of the motorcycle, hence all the respondents are severally and jointly liable to pay the compensation to the petitioners. It is averred that the deceased was a young man of about 27 years of age and was the only bread earner in the family. He was in a private job and earning Rs.3,300/ p.m. It is prayed that an amount of Rs.10,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
3. Written statement was filed on behalf of the respondent No.3 averring that the petitioners with malafide and malicious intention concealed, suppressed and manipulated true facts just to grab compensation under the provisions of the Act as the deceased was not the pillion rider of the vehicle No.DL3SBG5765. The factum of the accident was not admitted and it is averred that the claim petition is not maintainable and liable to be dismissed as the complainant made the complaint to the police authority stating the vehicle No.DL37BG6557 as involved in respect of the alleged accident but for Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 3 of 35 malafide intention and ulterior motive and just to grab the compensation under the MV Act, 1988 the vehicle No.DL3SBG5765 was falsely implicated. The involvement of the vehicle No.DL3SBG5765 is specifically denied and it is averred that the respondent No.3 is not liable to pay any compensation or to indemnify the insured under the policy. It is averred that the petitioner is not a third party within the meaning of MV Act, 1988 and is not covered under the insurance policy and the respondent No.3 is not liable to pay any compensation to the petitioner. It is averred that the case is pertaining to "hit and run" category and the claimants are entitled to get compensation from the government only. It is averred that the motorcycle bearing No.DL3SBG5765 at the time of the alleged accident was being driven by the driver/respondent No.1 without holding a valid and effective driving license as the alleged driving license was not issued from the concerned licensing authority and was found fake as per verification report of the concerned licensing authority and which was within the knowledge of the respondent No.2/insured under the policy and therefore, there had been a deliberate breach of the terms and conditions of the insurance policy. It is averred that on account of violation of the terms and conditions of the policy the liability would be solely that of the owner of the vehicle in question and not of the respondent No.3. It is averred that the owner/insured of the vehicle i.e. the respondent No.2 had violated the provisions of Sections 134 (C) and 158 (6) of the MV Act, 1988 as he had failed to inform the respondent No.3 about the occurrence of the accident and had not supplied any information as required under MV Act. The averments Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 4 of 35 made in the claim petition were denied. It is admitted that the vehicle in question was insured with the respondent No.3 subject to the terms, conditions, exclusions and exceptions of Two wheeler policy bearing No.OG 101101180200006962 issued for the period from 22.10.2009 to 21.10.2010. It is averred that the compensation claimed is excessive and without any basis.
4. Vide order dated 04.05.2011 of my learned predecessor, the respondents No.1 and 2 were directed to be served by publication in the daily newspaper 'Veer Arjun'. Respondents No.1 and 2 were served by publication in daily 'Veer Arjun' dated 21.7.2011. Vide order dated 11.08.2011 of my learned predecessor, the respondents No.1 and 2 were proceeded exparte.
5. From the pleadings of the parties, the following issues were framed by my Learned Predecessor vide order dated 11.08.2011:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 03.01.2010 at Parta Pur by pass near Village Shobhapur, Distt.
Meerut, UP due to rash and negligent driving of vehicle No.DL3SBG5765 by respondent no. 1 owned by respondent no. 2 and insured with respondent no. 3? OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 5 of 35 An application under Section 170 MV Act was filed on behalf of the respondent No.3 which was allowed vide order dated 9.12.2011 of my learned predecessor.
6. On behalf of the petitioners, the petitioner No.2 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 on 3.1.2010 his son Shri Praveen Kumar Naithani died in road accident with vehicle No.DL 3SBG5765 arising out of the use of motor vehicle. He stated that at the time of the accident his son was aged 27 years as per the school leaving certificate and he was doing private job and was earning Rs.40,000/ p.a. i.e. Rs.3300/ p.m. He stated that his son left behind PW1, petitioner No.2 his wife and petitioner No.3 his mother and there was no other legal heir of the deceased. He stated that they have no source of income and they were fully dependent upon the income of his son. He stated that the future of his son was bright and due to the accident all family members were affected. He stated that he had suffered great mental pain and mental agony, loss of future prospects, loss of dependency, pecuniary and nonpecuniary loss, loss of income, loss of love and affection. Copy of school leaving certificate, copy of ration card are Mark X1 to X2 and copy of Family Register is Ex.PW1/1. He stated that the accident occurred within the jurisdiction of PS Kankar Khera (Meerut) vide FIR No.6/10 under Sections 279/304A IPC.
Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 6 of 35
7. The petitioner No.1 appeared in the witness box as PW2 and led her evidence by way of affidavit which is Ex.PW2/A. She deposed to the same effect as PW1. Copy of her election I card is Ex.PW2/1. PE was closed on 10.4.2012.
8. On behalf of the respondent No.3 Shri Ramnique Sachar, Senior Executive (Legal) appeared in the witness box as R3W1 and has led his evidence by way of affidavit which is Ex.R3W1/A. He deposed that the respondent No.3 had been impleaded in the claim petition as insurer of vehicle bearing No.DL3SBG5765. He proved the copy of the Insurance policy Ex.R3W1/1 (colly). He stated that the respondent No.3 sent a notice under Order XII Rule 8 CPC through their counsel to the respondent No.2, owner of the vehicle for production of the original insurance policy and a valid and effective DL of the respondent No.1/driver at the time of the alleged accident which is Ex.R3W1/2 and postal receipts are Ex.R3W1/3. He stated that the respondent No.3 got verified the DL dated 16.9.2008 of the respondent No.1 from the concerned Licensing Authority which was found fake and the same had not been issued from the concerned Licensing Authority, Faridabad. As such the respondent No.1 was not holding a valid and effective driving license and the said fact was within the knowledge of the insured under the policy in question. He stated that there was violation of driver clause of terms and conditions of the insurance policy. Copy of the DL is Ex.R3W1/4 and verification report of the DL issued from the concerned Licensing Authority is Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 7 of 35 Ex.R3W1/5. He stated that the DL of the respondent No.1 was fake, forged and fabricated. He stated that there was violation of various provisions of the Act which was in the knowledge of the respondent No.2 as the respondent No.1 is the real son of the respondent No.2/ insured that the respondent No.1 was not holding a valid and effective driving license at the time of the alleged accident in spite of that he had voluntarily, willingly, illegally and in violation of the Act allowed him to drive the vehicle thereby violating the terms and conditions of the insurance policy.
9. R3W1 further deposed that the respondent No.2/ insured had intentionally committed the breach of terms and conditions of the insurance policy and as such the respondent No.3 was not liable to pay any amount of compensation to the petitioners or to indemnify the insured under the policy. He stated that the claim petition was not maintainable and liable to be dismissed as the petitioners made the complaint to the police authority stating the vehicle No.DL37BG6557 in respect of the alleged accident but for malafide intention and ulterior motive and just to grab the compensation under the MV Act, 1988 the vehicle No.DL3SBG5765 was falsely implicated. The involvement of the vehicle No.DL3SBG5765 was specifically denied and he stated that neither the driver and owner nor the respondent No.3 could be asked to pay compensation to the petitioners. He stated that the case is pertaining to "hit and run" category and the petitioners are entitled to get compensation from the government only.
Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 8 of 35
10. Shri Uday Singh, Assistant Driving License Clerk, Office of SDO Civil Faridabad cum Licensing Authority, Faridabad appeared in the witness box as R3W2 and had brought the record in respect of driving licenses issued from 16.9.2008 to 22.9.2008. He deposed that as per the record brought by him, DL bearing No.169845 dated 16.9.2008 in the name of Shri Bijender Singh Rawat s/o Shri Mohan Singh Rawat had not been issued by their authority. He stated that the DL numbers which had been issued by their authority from 16.9.2008 to 22.9.2008 were from HR51/10901/2008 to HR51/11099/2008. The copy of the first page and last page of the register are Ex.R3W2/A and B. RE was closed on 2.4.2013.
11. I have heard the Learned Counsel for the petitioners as well as the Learned Counsel for the respondent No.3 and perused the record. The petitioners were also examined on 25.2.2014 and 22.4.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
12. 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 petitioners in the Claim Petition have claimed that the deceased was having income of Rs.3300/ p.m. and PW1 in his affidavit Ex.PW1/A had deposed that his son was earning Rs.40,000/ p.a. i.e. Rs.3300/ p.m. from private job. PW2 had also deposed to that effect. During Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 9 of 35 crossexamination PW1 denied the suggestion that the deceased was not earning Rs.40,000/p.a. and Rs.3300/ p.m. PW2 also denied the suggestion that her husband was not earning Rs.40,000/ per annum. She admitted that she had not filed any documentary proof of income of the deceased. Thus PW2 had admitted that she had not filed any documentary proof of income of the deceased. It was also not stated what kind of work the deceased was doing or where he was working. However both the witnesses had stated that the deceased was earning Rs.40,000/ p.a. or Rs.3300/ p.m. which would also make the income Rs.39,600/ p.m. Even otherwise 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. No evidence has been led by the respondents to controvert the testimony of PW1 and PW2 in this regard or 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 Praveen Kumar was more than Rs.40,000/. In the totality of facts and circumstances of this case, annual income of the deceased/victim Praveen Kumar can be taken to be Rs.40,000/ p.a. as deposed by PW1 and PW2. Thus the Claim Petition under section 163A Act would be maintainable.
Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 10 of 35
13. My findings on the specific issues are as under:
ISSUE NO. 1
14. It is the case of the petitioners that on 03.01.2010, the deceased was travelling on motorcycle bearing No.DL3SBG5765 as pillion rider and the same was being driven by one of his friends Vijender and they were proceeding from Haridwar to Sangam Vihar, Delhi. At about 6.00 p.m. when they reached Partapur bypass near Shobha Village, PS Kanker Khera, District Meerut, at the same time an unknown truck being driven by its driver came at a fast speed and hit the motorcycle of the deceased and fled away. Due to this the deceased fell down and sustained multiple dangerous injuries and was removed to Ritu Nursing Home where the doctors declared him as dead. It was stated that the deceased had died in an accident arising out of the use of motorcycle bearing No.DL3SBG5765. It was stated that FIR No.8/2010 under Sections 279/338/427/304A IPC was registered at PS Kanker Khera in respect of the accident. PW1 in his affidavit Ex.PW1/A had deposed that on 3.1.2010 his son died in road accident with motorcycle bearing No.DL 3SBG 5765 arising out of the use of motor vehicle. PW2 in her affidavit Ex.PW2/A had also deposed to that effect.
15. The respondents No.1 and 2 were proceeded exparte and did not appear to file their written statement or to crossexamine PW1 and PW2. Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 11 of 35 During crossexamination by learned counsel for respondent No.3 PW1 stated that he was not an eyewitness to the accident. He did not know whether the accident was caused by the truck. He denied the suggestion that the motorcycle bearing No.DL3SBG5765 was not involved in the accident. During crossexamination by learned counsel for the respondent No.3 PW2 stated that she was not an eye witness to the accident. She admitted that the alleged accident was caused due to the negligence of the truck driver. Thus both PW1 and PW2 had stated that they were not eye witnesses to the accident. PW2 had admitted that the alleged accident was caused due to the negligence of the truck driver but she was not an eye witness to the accident. Moreover PW1 and PW2 were not crossexamined on behalf of the respondents No.1 and 2 who were exparte.
16. The petitioners had placed on record the copy of FIR No.6/10 under Sections 279/338/427/304A IPC PS Kanker Khera, the photocopy of the mechanical inspection report of the motorcycle and the photocopy of the post mortem report. As per the FIR No.6/10 PS Kanker Khera the same had been registered on the basis of complaint of the respondent No.1 Vijender wherein he had stated the manner in which the accident had taken place. It was argued on behalf of the respondent No.3 that in the FIR the number of the offending vehicle was stated to be DL 37BG 6557 whereas later motorcycle No.DL3SBG5765 had been implicated in the present case. It is pertinent that the complaint was made by the respondent No.1 himself and he would have Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 12 of 35 been aware of his motorcycle number. However the copy of the mechanical inspection report shows the number of the vehicle to be DL3SBG5765. Further it is not the case of the respondent No.3 that the motorcycle DL 3SBG5765 is not insured in the name of the respondent No.2 or that the motorcycle the number of which was mentioned in the FIR was insured in the name of the respondent No.2 and in fact it was also stated that the respondent No.1 is the son of the respondent No.2. Thus there can be no dispute over the number of the motorcycle involved. The respondents 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 deceased Praveen Kumar died on account of shock and haemorrhage as a result of ante mortem injuries.
17. It was then argued on behalf of the respondent No.3 that the claim petition was not maintainable and it being a 'hit and run' case the petitioners were entitled to compensation from the government only. The learned counsel for the respondent No.3 has relied upon the judgment of the Hon'ble High Court of Patna (Ranchi Bench) in Oriental Insurance Co. Ltd. v. Ruplal Singh and Anr. 2000 ACJ 502 where the deceased was the driver of a tempo Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 13 of 35 van and while standing by the side of the same he was hit by an unknown truck which resulted in his death, it was held that the deceased died no doubt in an accident involving a vehicle but unfortunately that vehicle remained unidentified and admittedly, it was not insured with the appellant insurance company. It was held that "the proper remedy in such event is to take recourse to Section 109A of the Motor Vehicles Act, 1939 and the appellant can agitate this matter before the Collector, if so advised. But in any view of the matter the insurance company is not at all liable to compensate the claimant for the death of his son in this road accident.' However that was a case under the Act of 1939 which did not contain a provision similar to Section 163 A of the present Act. Reliance has then been placed by the learned counsel for the respondent No.3 on the judgment of the Hon'ble High Court of Gujarat in National Insurance Co. v. Rasilaben Shantilal Yadav and Ors. First Appeal No.3354 of 2000 decided on 13.7.2005 where it was observed as under:
"1. That the Claims Tribunal did not consider the question whether Insurance Company of the scooter or Insurance Company of the unknown offending tanker was liable. Precisely, the submission is that the owner, driver and the Insurance Company, with which the offending tanker was insured, ought to have been proceeded against by the claimants for realization of compensation and not the Insurance Company with which the scooter was insured, which was being driven by the deceased at the relevant time. Therefore, claim against National Insurance Company Limited is not maintainable. Of course, as a 'hit Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 14 of 35 and run' case Rs.50,000/ are awardable to the claimants under Section 163 of the Motor Vehicles Act, 1988 (for short 'the Act') on making application to the Collector of the District. We find substance in the submission advanced by the appellant in the absence of any decision to the contrary.
2. Shortly stated, facts are that the deceased was going on the scooter. It was hit by a tanker, which was not traceable. Witnesses say that the scooter of the deceased was hit by the tanker. Consequently, the offending vehicle is tanker and not the scooter, therefore, claim should have been made against the owner of the tanker, driver of the tanker and the Insurance Company with which it was insured. Simply because, claimants are not in a position to find the particulars of the offending tanker, claim does not lie against the Insurance Company with which the scooter was insured."
It was held that the claimants may claim compensation from the Collector of the District under Section 163 of the Act as a hit and run case. However the said case pertained to the driver of the scooter who died and not to a pillion rider. Even the contention that the driver of the motorcycle in the instant case was at fault would be of no avail to the insurance company as the present case pertains to a pillion rider and the plea of being at fault could at the most be raised against the driver of the motorcycle and not the pillion rider. Moreover no evidence has been led on behalf of the insurance company to show any fault on the part of the driver of the motorcycle. Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 15 of 35
18. The learned counsel for the respondent No.3 has then relied upon the judgment of the Hon'ble Supreme Court in The Oriental Insurance Co. Ltd. etc. v. Hansrajbhai V. Kodala and Ors. Etc. AIR 2001SC1832 and specifically on the fact that therein the contention of the claimants that right to get compensation under Section 163A was additional to claim compensation on no fault liability was rejected and it was also observed that the procedure for giving compensation under Section 163A was inconsistent with procedure prescribed for awarding compensation on fault liability. It was held that 'under section 163A compensation is awarded without proof of any fault while for getting compensation on the basis of fault liability claimant is required to prove wrongful act, neglect or default of the owner of the vehicle or vehicle, concerned.' 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 authorised 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 Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 16 of 35 concerned or of any other person.
19. 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. Thus 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 vehicle bearing registration No.DL3SBG5765 and it was stated that the deceased was a pillion rider on the said motorcycle. It is the specific case of the petitioners that the deceased was a pillion rider on the motorcycle and the same was also stated in the FIR by the respondent No.1 Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 17 of 35 and the respondents have not been able to controvert the same. The same was driven by the respondent No.1 and was owned by the respondent No.2 and insured with the respondent No.3. Thus the status of the deceased would be that of a third party. As such the case of the petitioners would be covered.
20. 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 petitioners and against the respondents.
ISSUE No.2
21. Since the issue No.1 has been decided in favour of the petitioners they would be entitled to compensation. The petitioner No.1 in her affidavit Ex.PW2/A had stated that at the time of the accident the age of her husband was 27 years as per the school leaving certificate. He was survived by the petitioner No.1 i.e. his wife, petitioner No.2 i.e. her father in law and petitioner No.3 i.e. her mother in law. She had also stated that her husband was doing private job and was earning Rs.40,000/ per annum. PW1 in his affidavit Ex.PW1/A had also deposed to that effect.
22. The petitioners have placed on record the copy of school leaving certificate of the deceased which is Mark X1 in which the date of birth of the Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 18 of 35 deceased is shown to be 10.7.1982. Copy of the parivar register has also been placed on record as Ex.PW1/1 which shows the date of birth of the deceased to be 10.7.1982. During crossexamination PW1 denied the suggestion that the document Mark X1 is forged and fabricated. He denied the suggestion that Ex.PW1/1 was also forged and fabricated. He denied the suggestion that the deceased was not aged about 27 years at the time of the accident. During crossexamination PW2 denied the suggestion that her husband was not about 27 years at the time of the accident. The documents Mark X1 and Ex.PW1/1 were not got duly proved. The same show that the deceased was more than 27 years old at the time of the accident. However it is seen that the post mortem report of the deceased also mentions his age as 30 years. There is no reason to disbelieve the testimony of the petitioners No.1 and 2 and the documents which show that the age of the deceased was more than 27 years at the time of the accident.
23. PW1 and PW2 had deposed that the deceased Praveen Kumar was earning Rs.40,000/ per annum i.e. Rs.3300/ p.m. It has already been held above that there is nothing to show that the deceased was earning more than Rs.40,000/ p.m. Even otherwise there is nothing to disbelieve the testimony of the PWs in this regard. Accordingly it stands proved that the deceased was earning Rs.40,000/ per annum at the time of the accident. Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 19 of 35
24. Being the wife of the deceased the petitioner No.1 would be dependent on the deceased moreso as there is nothing to show that she was working at the time of the accident. During crossexamination by learned counsel for the respondent No.3 PW1 stated that the petitioner No.1 Smt. Rajni is residing with her parents in Delhi from the beginning of her marriage with his son. He did not know whether Rajni had remarried or not. During crossexamination PW2 stated that she is educated till 12 th standard. She stated that she is residing with her parents. She had produced her ration card which is Ex.PW2/R3. She could not tell the date of issuance of the ration card. She denied the suggestion that the ration card was prepared after the accident. She stated that she is not working. PW2 was not crossexamined on getting remarried. During examination by the Tribunal the petitioner No.1 had stated that she was 33 years at present and she was not working. She stated that she did not have any child. She stated that she takes tuitions at home at present. During crossexamination PW2 had stated that she was residing with her parents but there is nothing to show that she was not dependent on the deceased.
25. Further the petitioner No.3 being the mother of the deceased would be regarded as dependent on the deceased and even during her examination by the Tribunal she had stated that she was 60 years old and residing in the village at Pauri Garhwal. She stated that she was a housewife and was dependent on her deceased son. Thus she would be regarded as dependent Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 20 of 35 on the deceased. The petitioner No.2 is the father of the deceased. During crossexamination PW1 had stated that the document Mark X2 was 4 or 5 years old. He stated that he is residing at his native village in Uttarakhand. He is illiterate. He denied the suggestion that they were not dependent upon the income of the deceased. Mark X2 is the ration card which is also Ex.PW2/R3. PW1 had stated that he was residing at his native village. He had denied the suggestion that he was not dependent upon the income of the deceased. During examination by the Tribunal the petitioner No.2 had stated that he is 72 years old and that he resides in the village at Pauri Garhwal. He stated that at present he was not working. He stated that he was doing agricultural work at the time of the accident. He also stated that the accident had taken place after 8 months of the marriage of his son and other than him and his wife only his daughterinlaw survived the deceased. Thus the petitioner No.2 was doing agricultural work at the time of the accident. Even otherwise the father cannot be regarded as dependent on the deceased. It has already been observed that this Claim Petition is very much maintainable u/s. 163A MV Act as deceased was having annual income of Rs.40,000/. Being dependents on the deceased Praveen Kumar, petitioners No.1 and 3 are entitled to compensation on account of death of the deceased Praveen Kumar.
26. 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 Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 21 of 35 towards maintaining himself which comes to Rs.13,333/ (rounded to Rs.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 18 is applicable as per Second Schedule to compute the amount towards loss of dependency which would come to Rs.4,80,600/ (i.e Rs.26,700 X 18). The learned counsel for the respondent No.3 has relied upon the judgment of 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 on the point that no future prospects can be awarded. However the law in this regard is settled and 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.
27. Besides this, the petitioners are also entitled for compensation under the following heads:
1. Funeral expenses Rs.2000/
2. Loss of estate Rs.2500/
3. Loss of consortium Rs.5000/ Thus, the total compensation would come to Rs.4,90,100/. Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 22 of 35 APPORTIONMENT OF LIABILITY
28. The respondent No.1 is the driver of the offending vehicle, respondent No.2 is the owner of the offending vehicle and respondent No.3 is the insurer. Respondents No.1 and 2 were proceeded exparte. 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 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 respondent No.3 had produced R3W1 in the witness box who had proved the notice under Order XII Rule 8 sent to the owner. He stated that they had got the DL verified from the concerned Licensing Authority which was found fake and the same had not been issued from the concerned licensing authority Faridabad. The verification report of the DL of the respondent No.1 is Ex.R3W1/5. He had also stated that it was within the knowledge of the respondent No.2/ insured that the respondent No.1 was not holding a valid and effective driving license at the time of the alleged accident as respondent No.1 is the real son of the respondent No.2 and inspite of that he had voluntarily, willingly, illegally and in violation of the Act allowed him to drive the vehicle and thereby violated the terms and conditions of the insurance policy and as such the insurance company was not liable to pay any compensation. Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 23 of 35
29. R3W2 had stated that as per the record brought by him, the DL in the name of Shri Bijender Singh Rawat had not been issued by their authority. Once the respondent No.1 and the respondent No.2 who is the owner have not appeared in the witness box to rebut the same or to show otherwise it stands established that the respondent No.1 did not possess a valid driving license on the date of the accident and as such the respondent No.2 had committed a breach of the terms of the policy. It is however 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 Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 24 of 35 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 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. The relevant portion of the report is extracted hereunder:
"21. A reading of the proviso to subsection (4) as well as the language employed in subsection (5) would indicate that they are intended to safeguard the interest of an insurer who otherwise has no liability to pay any amount to the insured but for the Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 25 of 35 provisions contained in Chapter XI of the Act. This means, the insurer has to pay to the third parties only on account of the fact that a policy of insurance has been issued in respect of the vehicle, but the insurer is entitled to recover any such sum from the insured if the insurer were not otherwise liable to pay such sum to the insured by virtue of the conditions of the contract of insurance indicated by the policy.
22. To repeat, the effect of the above provisions is this: when a valid insurance policy has been issued in respect of a vehicle as evidenced by a certificate of insurance the burden is on the insurer to pay to the third parties, whether or not there has been any breach or violation of the policy conditions. But the amount so paid by the insurer to third parties can be allowed to be recovered from the insured if as per the policy conditions the insurer had no liability to pay such sum to the insured.
23. It is advantageous to refer to a twoJudge Bench decision of this Court in Skandia Insurance Company Limited v. Kokilaben Chandravadan, (1987) 2 SCC 654. Though the said decision related to the corresponding provisions of the predecessor Act (Motor Vehicles Act, 1939) the observations made in the judgment are quite germane now as the corresponding provisions are materially the same as in the Act. Learned Judge pointed out that the insistence of the legislature that a motor vehicle can be used in a public place only if that vehicle is covered by a policy of insurance is not for the purpose of promoting the business of the insurance company but to protect the members of the community who become sufferers on account of Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 26 of 35 accidents arising from the use of motor vehicles. It is pointed out in the decision that such protection would have remained only a paper protection if the compensation awarded by the courts were not recoverable by the victims (or dependants of the victims) of the accident. This is the raison d'etre for the legislature making it prohibitory for motor vehicles being used in public places without covering third party risks by a policy of insurance.
24. The principle laid down in the said decision has been followed by a threeJudge Bench of this Court with approval in Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21.
25. The position can be summed up thus: The insurer and the insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid driving licence........."
18. Again in United India Insurance Company Ltd.
v. Lehru & Ors., (2003) 3 SCC 338, in para 18 of the report the Supreme Court referred to the decision in Skandia, Sohan Lal Passi and Kamla and held that even where it is proved that there was a conscious or willful breach as provided under Section 149(2)(a) (ii) of the Motor Vehicle Act, the Insurance Company Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 27 of 35 would still remain liable to the innocent third party but may recover the compensation paid from the insured.
The relevant portion of the report is extracted hereunder:
"18. Now let us consider Section 149(2). Reliance has been placed on Section 149(2)(a)(ii). As seen, in order to avoid liability under this provision it must be shown that there is a "breach". As held in Skandia and Sohan Lal Passi cases the breach must be on the part of the insured. We are in full agreement with that. To hold otherwise would lead to absurd results. Just to take an example, suppose a vehicle is stolen. Whilst it is being driven by the thief there is an accident. The thief is caught and it is ascertained that he had no licence. Can the insurance company disown liability? The answer has to be an emphatic "No". To hold otherwise would be to negate the very purpose of compulsory insurance.........."
xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx
20. ..........If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the insurance company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia, Sohan Lal Passi and Kamla cases. We are in full agreement with the views expressed therein and see no reason to take a different view."
Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 28 of 35
19. The three Judge Bench of the Supreme Court in National Insurance Company Limited v. Swaran Singh & Ors., (2004) 3 SCC 297 again emphasized that the liability of the insurer to satisfy the decree passed in favour of the third party was statutory. It approved the decision in Sohan Lal Passi, Kamla and Lehru. Paras 73 and 105 of the report are extracted hereunder:
"73. The liability of the insurer is a statutory one. The liability of the insurer to satisfy the decree passed in favour of a third party is also statutory. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx
105. Apart from the reasons stated hereinbefore, the doctrine of stare decisis persuades us not to deviate from the said principle."
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 Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 29 of 35 policy, then it would be entitled to recovery rights against the owner or driver, as the case may be."
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 respondent No.1 was not holding a valid driving license and the respondent No.2 who is the father of the respondent No.1 had allowed the respondent No.1 to drive the vehicle despite being aware of that. Thereafter the respondents No1. and 2 have not appeared to prove otherwise.
30. 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 respondent No.1 did not have a valid driving license 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 and the insured and the respondent No.1. Accordingly the respondent No.3 shall deposit the amount of compensation and after depositing the same shall have the right to recover the same from the respondents No.1 and 2.
Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 30 of 35 RELIEF
31. The petitioners are awarded a sum of Rs.4,90,100/ (Rs.Four Lacs Ninety Thousand and One Hundred only) with interest at the rate of 7.5% per annum in terms of the decision in Rajesh and others v. Rajbir Singh and others 2013 ACJ 1403 from the date of filing the claim petition till its realization. The petitioner No.1 would have 60% share and petitioner No.3 would have 30% share in the awarded amount. The petitioner No.2 would have 10% share in the awarded amount.
32. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) The entire share of the petitioner no. 2 be released to him by transferring it into his savings account. 50% of the share of petitioner no. 3 be released to her by transferring it into her savings acccount and remaining amount be keptin FDR for 3 years. 20% of the share of the petitioner No.1 be released to her 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 Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 31 of 35 following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
b) The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Rajni and Sidhhi Devi within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released to the petitioners. Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 32 of 35
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving accounts of the petitioners No.1 and 3.
f) The withdrawal from the aforesaid account shall be permitted to the petitioners No.1 and 3 after due verification and the bank shall issue photo identity cards to the petitioners No.1 and 3 to facilitate their identity.
g) No cheque book shall be issued to the petitioners No.1 and 3 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 petitioners No.1 and 3 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.
i) The original fixed deposit receipts shall be handed over to the petitioners No.1 and 3 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.
Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 33 of 35
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners 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.
33. 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, 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 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.
34. 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 insurer 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 4.8.2014.
Suit No. 189/14 Rajini Vs. Vijender Singh Rawat & Ors. Page No. 34 of 35 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 3rd day of May, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 189/14
Rajini Vs. Vijender Singh Rawat & Ors. Page No. 35 of 35