Delhi District Court
Prahlad Singh & Ors. vs . Shyam Lal & Ors. on 13 April, 2007
Suit No. 352/06
1 Suit No. 353/06
(Old Suit No. 473/01)
(Old Suit No. 675/02)
Prahlad Singh & Ors. Vs. Shyam Lal & Ors.
Master Babu Lal & Ors. Vs. Shyam Lal & Ors.
IN THE COURT OF SH. MAHESH CHANDER GUPTA : JUDGE :
MOTOR ACCIDENT CLAIMS TRIBUNAL: DELHI
Suit (Petition) No. 352/06.
1. SH. PRAHLAD SINGH
S/o Sh. Shaym Lal
2. SURINDER SINGH
S/o Sh. Prahlad Singh
3. SATYAWATI
D/o Sh. Prahlad Singh (Minor)
4. MANJU
D/o Sh. Prahlad Singh (Minor)
5. RAM NIWAS
S/o Sh. Prahalad Singh (Minor)
All R/o H.No. B-163, Prem Vihar
Karawal Nagar, Delhi.
(Petitioner No. 3 to 5 through petitioner
no.1, as their father)
...........Petitioners
VERSUS
1. SH. SHYAM LAL
S/o Sh. Madan Lal
R/o 443/1 Gali No. 4,
Bhola Nath Nagar, Shahdara, Delhi
(Owner)
2. LALJI SINGH
S/o Sh. Babu Singh
R/o Mainpuri (UP)
(Driver).
3. THE NEW INDIA ASSURANCE CO. LTD.,
1/704, G.T. Road, Shahdara, Delhi-32.
(Insurer).
..................Respondents
Date of Institution: 10.07.2001 Date of Award: 13.04.2007 Contd........
Suit No. 352/062 Suit No. 353/06 Suit (Petition) No. 353/06.
1. MASTER BABU LAL S/o Sh. Munshi Lal (Minor) Through his natural guardian:-
Sh. Munshi Lal S/o Sh. Durga Singh R/o A-2/1, Prem Vihar, Karawal Nagar, Delhi.
...........Petitioner VERSUS
1. SH. SHYAM LAL S/o Sh. Madan Lal R/o 443/1 Gali No. 4, Bhola Nath Nagar, Shahdara, Delhi (Owner)
2. LALJI SINGH S/o Sh. Babu Singh R/o Mainpuri (UP) (Driver).
3. THE NEW INDIA ASSURANCE CO. LTD., 1/704/ G.T. Road, Shahdara, Delhi-32.
(Insurer) ..................Respondents Date of Institution: 19.08.2002 Date of Award: 13.04.2007 Contd........
Suit No. 352/063 Suit No. 353/06 A W A R D:-
1. By this common award, I shall dispose of the said two petitions for award of compensation under section 166 of the Motor Vehicles Act, 1988 filed by the above named petitioners as the same were arisen out of the same accident and were consolidated by my Ld. Predecessor vide order dated 01.12.05 and the petition no. 352/06 (Old Suit No. 473/01) was treated as the main petition (leading case) wherein the evidence was ordered to be recorded. 2 Petition No. 352/06 pertains to the death of deceased Smt. Omwati and petition No. 353/06 pertains to the injuries received by petitioner Master Babu Lal.
3. Briefly stated the relevant facts of the case are that deceased Smt. Omwati suffered fatal injuries and petitioner Master Babu Lal suffered injuries on 26.03.2001 at about 11.00 A.M. At Ring Road Near Chandgi Ram Akhara, under Shahdara Flyover, Delhi when they alongwith other followers and other neighbourers of the same locality were going to receive their Guruji Maharaj Satnam Singh Ji and were travelling in a Tempo no. DL-1LB-1175 Tata 407 and the said tempo was being driven in a rash and negligent manner due to which its driver lost its control and hit against the footpath. As a result of the forceful impact the said petitioner suffered serious injuries and deceased Smt. Omwati Contd........Suit No. 352/06
4 Suit No. 353/06
suffered fatal injuries and the other occupants of the said tempo also suffered serious injuries. They were taken to the LNJP Hospital where deceased Smt. Omwati was declared dead at about 11.25 A.M. It is further pleaded that the offending Tempo was being driven in a rash and negligent manner of which Respondent No. 1 Shyam Lal (R-1) was the owner and it was driven by Respondent No. 2 Lalji Singh (R-2) and it was insured with Respondent No. 3 The New India Assurance Co. Ltd., (R-3). A criminal case vide FIR No. 88/2001, Under section 279/337/304A IPC & under section 66/192A M.V.Act was registered at PS Civil Line on the statement of Sh. Omvir Singh an eye witness.
It is further pleaded in petition no. 352/06 that the deceased Smt. Omwati was 44 years of age and was self employed in the business of ready made garments and was earning Rs.4,000/- p.m. at the time of accident. Petitioners have claimed a compensation of Rs. 5,00,000/- on the grounds stated in the petition.
It is further pleaded in petition no. 353/06 that the petitioner Master Babu Lal was 12 years of age and was a student at the time of the accident. Petitioner Babu Lal has claimed a compensation of Rs. 1,80,000/- on the grounds stated in the petition.
Contd........
Suit No. 352/065 Suit No. 353/06
4. Notices of the petitions were issued to all the respondents. R-1 and R-2 did not appear despite service nor filed any Written Statement (W/S) and were accordingly proceeded ex-parte.
5. R-3 contested the petitions by filing a detailed Written Statement (W/S) and admitted that vehicle Tata 407 bearing no. DL-1LB-1175 was insured with it in the name of Shyam Lal (R-1) for the period 08.09.2000 to 07.09.2001 vide insurance policy no. 320301/31/00/04720 but denied its liability to pay any compensation until it was proved that the driver of the offending vehicle was holding a valid and effective Driving Licence (D/L) at the time of the alleged accident and further denied its liability to pay any compensation as the vehicle was used for carrying passengers at the time of the alleged accident R-3 also controverted the other allegations of the petitioners.
6. On the pleadings of the parties the following issues were framed in petition no. 352/06.
ISSUES:
1. Whether Omwati died of the fatal injuries caused in a road accident which took place on 26th March, 2001 at about 11.00 a.m. at Ring Road near Chandagi Ram Akhara, under Shahdara Flyover, Delhi by TATA 407 bearing registration no. DL-1L-B-1175 by resp.no.1 Shyam Lal?
Contd........
Suit No. 352/066 Suit No. 353/06
2. To what amount of compensation petitioners are entitled to, if so, from whom?
3. Relief.
7. No separate issues were framed in petition no. 353/06 by the Ld. Predecessor. It may be due to the fact that vide order dt. 01.12.2005 both the cases were consolidated for the purpose of trial by the Ld. Predecessor as they had arisen out of the same accident, the facts, issues and witnesses were same. In the circumstances and in the interest of justice I treat the issues framed in petition no. 352/06 as the issues of the petition no. 353/06.
8. In support of their case petitioners have produced and examined three witnesses in petition no. 353/06. Petitioners have produced and examined PW 1 Prahlad Singh and PW-2 Dr. Sameek Bhattacharya, Specialist Burns and Plastic Surgery, LNJP Hospital, New Delhi.
PW 1 Sh. Prahlad Singh, who is one of the petitioners in petition no. 352/06, who deposed on the lines of the averments made in the petition filed by him. He also tendered the certified copies of the criminal case record collectively Ex. A/1 to Ex.A/16.
PW 2 Dr. Sameek Bhattacharya, who proved the original OPD papers of insured Babu Lal collectively Ex.PW-2/1.
Contd........
Suit No. 352/067 Suit No. 353/06 PW-1 Babu Lal, who is the petitioner himself in petition no. 353/06, who deposed on the lines of the averments made in the petition filed by him and also proved his marksheet of the school Ex.PW-1/A and the certificate showing his date of birth issued by Alok Punj Secondary School Ex.PW-1/B. He also tendered the certified copies of the criminal case record collectively Ex.B/1 to Ex.B/16.
9. In support of its case R-3/New India Assurance Co. Ltd., has produced and examined two witnesses: R3W1 Hari Om Tyagi, Assistant of M/s. New India Assurance Co. Ltd., 1/704 G.T. Road, Shahdara, Delhi-32 and R3W2 Bijender Singh, S/o Sh. Siya Ram Singh, Assistant ARTO Office, Mainpuri, U.P. R3W1 Hari Om Tyagi, who proved the insurance policy issued in the name of Sh. Shyam Lal (R-1) in respect of vehicle no. DL-1LB-1175 Tata 407 Ex.R3W1/1 and also marked the photocopies pertaining to the driving licence no. 1063/MP-I/96 and form 54 Mark - Annexure A (running in five pages).
R3W2 Bijender Singh, who proved the record of driving licence no. 1063/MP-1/96 issued in the name of Sh. Lalji Singh Ex.R3W2/1 & Ex.R3W2/2 and marked the photocopy of the licence Mark-A. Contd........
Suit No. 352/068 Suit No. 353/06
10. I have heard the Ld. Counsel for the parties and have also carefully perused the entire record and relevant provisions of the law.
Issue No. 1 shall be answered in common in both the petitions, whereas Issue no. 2 and 3 shall be dealt with separately in the said two petitions.
My findings issue wise are as under:-
ISSUE NO. 1 (IN BOTH THE PETITIONS) On careful perusal and analysis of the entire evidence on record I find that the petitioners have proved that due to rash and negligent driving of vehicle Tata 407 no. DL-1LB-1175, petitioner Babu Lal sustained injuries on his person and Smt. Omwati suffered fatal injuries.
The testimony of PW 1 Babu Lal clearly shows that the accident was caused by the rash and negligent driving of the offending vehicle TATA 407 bearing no. DL-1LB-1175 due to which he suffered injuries and Smt. Omwati suffered fatal injuries and other suffered injuries/fatal injuries.
Contd........
Suit No. 352/069 Suit No. 353/06 PW 1 Babu Lal in his examination-in-chief has deposed :
" That on 26.03.2001 I alongwith other followers and neighborers of the same locality had been going to received their Guruji Maharaj Satnam Singh from Karawal Nagar to Nizamudin Railway Station by the vehicle Tata 407 no. DL- 1LB-1175 driving by the respondent no.1 in a rash and negligent manner. The said driver has lost the control over the said vehicle near ring road, Chandgi Ram Akhada under Shahdara Fly Over and the said vehicle hit with the footpath and I fell down from the said vehicle. As a result of which the followers and other turned over. I got head injuries as well as on the other parts of my body.
There is nothing in his cross-examination so as to impeach his creditworthiness. Inspite of incisive cross-examination nothing material has been brought out on the record to discredit the testimony of the said witness. His testimony is unblemished, convincing and trustworthy. There is nothing in his statement to suggest that he had any animus against the offending vehicle or its driver to falsely implicate them in the case. His testimony is based on actual observations than otherwise.
His testimony further finds corroboration from the criminal case record collectively Ex.B/1 to Ex.B/16 (also Ex.A/1 to A/16 in petition no. 352/06), charge sheet Ex. B/1, rukka Ex.B/2, FIR Ex.B/3, site plan Ex.B/4, certified copies Contd........Suit No. 352/06
10 Suit No. 353/06 of the witnesses recorded in the criminal case PW-1 Omvir Singh Ex.B/5, PW-2 Umesh Ex.B/6, PW-3 Dr. B.K. Sharma Ex.B/7, PW-4 Dr. Jitender Kumar Ex.B/8, PW-5 Dr. G.C. Verma Ex.B/9, PW-6 HC Rajinder Singh Ex.B/10, PW/7 Ct. Ravinder Kumar Ex.B/11, PW-8 Mrs. Kanta Yadav Ex.B/12, PW-9 Smt. Mithlesh Ex.B/13, PW-10 Smt. Kranti Ex.B/14, PW-11 Sunita Ex.B/14, PW-12 Sanjay Kumar Ex.B/15, PW-13 Vijay Pal Ex.B/16.
The perusal of the FIR Ex.B/3 shows that it has been recorded on the statement of an eye witness Sh. Omvir Singh in which inter-alia the number of the offending vehicle has been specifically mentioned. The perusal of the chargesheet Ex.B/1 shows that accused Lalji (R-2) and Shyam Lal (R-1) have been challaned by the police U/s 279/337/338/304A/287 IPC & U/s 66/192A Motor Vehicles Act, besides detailing the investigation carried out by the police.
The careful perusal and analysis of the cross examination of PW 1 Babu Lal indicates that the factum of the accident has not been disputed by R-3.
The documents of the police prepared during investigation are admissible in evidence without formal proof and these documents are evidence of rash and negligent driving. It was held to be so in a judgment reported in 2004 ACJ 1498.
Contd........Suit No. 352/06
11 Suit No. 353/06 In "Girdhari Lal Vs. Radhey Shyam & Ors". Vol. II PLR Page 109 it was held that when a driver is being tried on account of rash and negligent driving and there is no denial that the driver was being tried on account of rash and negligent driving, it is prima facie safe to conclude that the accident occurred on account of rash and negligent driving of the driver.
In "Basent Kaur and others V. Chatarpal Singh & Ors." 2003 ACJ 369 it was held that when a criminal case U/s 304-A IPC has been registered against the driver of the offending vehicle by the police, this fact was relevant U/s 158 (6) of the Motor Vehicles Act and these facts were enough to record the findings that the offending vehicle was responsible for committing the accident.
In "Paramjit Kumar & Ors. Vs. Murari Lal Shankhya" 1 (2005) ACC 184 (DB) it was held that under section 166 of New Motor Vehicles Act, 1988, it is sufficient to prove that there was an accident. Even if the accident has arisen out of use of Motor Vehicle, the claimants are entitled for compensation. It is not necessary to prove rash and negligent driving.
The fact that Petitioner Babu Lal suffered grievous injuries has been proved by PW-2 Dr. Sameek Bhattacharya, who proved the original OPD papers of injured Babu Lal collectively Ex.PW-2/1 and during his cross-examination he has deposed that injured Babu Lal was treated for scalp wound and as per the Contd........Suit No. 352/06
12 Suit No. 353/06 record he had exposed skull in the left temporo occipital region.
The fact that deceased Omwati suffered fatal injuries finds mentioned in the chargesheet Ex.B/1 (also Ex.A/1) wherein it has inter-alia been mentioned that deadbody of Smt. Omwati, MLC no. 18472 was preserved in Mortuary Truma Center for postmortem.
The factum of the sufferance of fatal injuries by deceased Smt. Omwati has not been disputed anywhere by R-3.
In view of above and in the circumstances, it stands established that deceased Smt. Omwati suffered fatal injuries and petitioner Babu Lal suffered grievous injuries in the said accident due to the rash and negligent driving of the Tata Tempo 407 no. DL-1LB-1175 by R-2 Lalji Singh.
Accordingly, issue no. 1 is decided in favour of the petitioner and against the respondents.
ISSUE NO.2 (IN PETITION NO. 353/06).
PW 1 Babu Lal in his examination-in-chief has deposed that he was a student of 7th Class in Alok Punj Secondary School at the time of accident and Contd........Suit No. 352/06
13 Suit No. 353/06 proved his marksheet Ex.PW-1/A and the certificate of his date of birth issued by the Alok Punj Secondary School Ex.PW-1/B. The perusal of the certificate Ex.PW-1/B inter-alia shows that the petitioner Babu Lal was the student of Alok Punj Secondary School having the date of birth as 27.03.1991.
In the absence of any evidence contrary to the said certificate Ex.PW-1/B and as the date of the accident is 26.03.2001, I take that the petitioner Babu Lal was about 10 years of age at the time of accident on 26.03.2001. Thus the petitioner was a student at the time of the accident and was a non-earning persons. As such I am left with no other option, but to apply the criteria of income of non-earning persons as set out in the Second Schedule of the Motor Vehicles Act, 1988. As per Clause -VI of the Motor Vehicles Act 1988 the notional income of non-earning persons as Rs. 15,000/- p.a has been provided. Accordingly, I take the income of the petitioner as Rs. 15,000/- p.a. at the time of the accident.
PW-2 Dr. Sameek Bhattacharya during his cross-examination by Ld. Counsel for R-3 has deposed that "It is correct that all the Exhibits as PW2/1 collectively are the OPD papers and the patient was not admitted in the hospital. It is correct that we have treated him for scalp wound. As per the record he had exposed scull in the left Contd........Suit No. 352/06
14 Suit No. 353/06 temporo-occipatal region. The exposed outer cortex of scull had dislodged and the wound was completely healed on 28.09.2001."
PW-1 Babu Lal in his examination-in-chief has deposed that "I was taken to LNJP Hospital, New Delhi where I was treated by the doctor. I admitted in the said hospital about one month and total period of treatment from the said hospital is about eight months. I was a student of class Vith in Alok Punj Secondary School at the time of accident. Mark sheet of the same is Ex.PW 1/A. I left my study due to the said accident. My eye sight is also week."
In view of the medical record collectively Ex.PW-2/1 coupled with the testimony of PW-2 Dr. Sameek Bhattacharya, I take that the petitioner has suffered grievous injuries and has remained under treatment for a period of eight months. Due to the injuries received in the said accident petitioner has left his studies. In the circumstances, I award a sum of Rs. 6,000/- to the petitioner on account of the loss of studies due to the pro-longed treatment.
PW-1 Babu Lal during his cross-examination by Ld. Counsel for R-3 has deposed that "It is correct that I was (had) received medicines from hospital as well as from outside. It is correct that no bill/invoice is placed before the court record file in respect of purchase of medicines."
In the absence of any medical bills not been proved on the record with regard to the medical expenses, hence the claim of the petitioner under the said head is hereby rejected.
Contd........
Suit No. 352/0615 Suit No. 353/06 Although there is no documentary evidence proved on record with regard to the expenses over special diet and conveyance charges, but considering the said nature of injuries suffered by the petitioner and the prolonged treatment, I assume that some amount must have been incurred over the said two heads. Hence I award a lump-sum of Rs.6,000/- to the petitioner on account of the expenses incurred over the said two heads.
Further a sum of Rs. 20,000/- is awarded to the petitioner on account of pain and agony suffered by him due to the injuries received in the said accident. Thus the petitioner is entitled to a total compensation of Rs. 32,000/- on account of the injuries suffered by him in the said accident.
Next question arises as to from whom the petitioner is entitled to receive the said awarded compensation. R-1 being the owner, R-2 being the driver and R-3 being the insurer of the said offending vehicle are held jointly and vicariously liable to pay the said awarded amount of compensation to the petitioner.
Here one contention of R-3 needs to be discussed. Ld. Counsel for R-3 submitted that R-2 had no valid and effective driving licence and the driving licence which he was holding, was not covering the vehicle, at the time of the accident, to the knowledge of R-1 and further submitted that the petitioner Babu Contd........
Suit No. 352/0616 Suit No. 353/06 Lal and deceased Smt. Omwati were travelling in a goods carrying vehicle which was prohibited under the terms & conditions of the policy and they were gratuitous passengers and the insured (R-1) committed breach of the terms & conditions of the policy, therefore, R-3 is not liable to pay any amount of compensation. I have carefully considered the submission of Ld. Counsel for R-
3. R-3 has examined R3W2 Bijender Singh, who proved the record pertaining to licence no. 1063MP1/96 issued in the name of Sh. Lalji singh (R-2) Ex.R3W1/1 & Ex.R3W2/2 and also marked the photocopy of the licence as Mark-A. During his cross-examination by Ld. Counsel for the petitioner R3W2 has deposed that "It is correct that the particulars at point-A on the Ex.R3W2/2 'LMV Private"
does not indicate that the licence is for commercial purposes. It is incorrect to suggest that the D.L. Ex.R3W2/1 was issued for commercial purposes."
Admittedly insured (R-1) of the offending vehicle has neither been produced nor examined by R-3. R-3 has failed to prove that R-1 did not exercise due care in ensuring that R-2 was authorised to drive a vehicle and was in possession of an effective driving licence for driving the offending vehicle and had violated the conditions of the insurance policy. Non-examination of R- 1/insured has knocked out the defence of R-3. In the circumstances it remained to be established that R-1 did not exercise due care in ensuring that R-2 was authorised to drive a vehicle and was in possession of an effective driving licence at the time of the accident.
Contd........
Suit No. 352/0617 Suit No. 353/06 In National Insurance Co. Ltd., Vs. Swarn Singh's case (Supra) the Hon'ble Supreme Court has inter-alia held that "Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time."
In case United India Insurance Co. Ltd., Vs. Lehru 2003 ACJ 611 (SC), the Hon'ble Supreme Court has clearly observed that where the owner has satisfied himself that driver has a licence and is driving competently there would be no breach of Section 149 (2)(a)(ii) of the Motor Vehicles Act. Further it was indicated that the Insurance Co. would not then be absolved of liability. 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 notice that the licence was fake and still permitted that person to drive.
In case National Insurance Co. Ltd., Vs. H.D. Nagarathamma 2002 ACJ 1267 (Karnataka). The Hon'ble Division Bench after having considered number of authorities has held that Contd........
Suit No. 352/0618 Suit No. 353/06
"Merely because in a given case the vehicle was driven by a person holding no licence or holding a licence which may be said to be not covering the vehicle, cannot be said to amount to breach of conditions, unless an entrustment is established that the vehicle has been entrusted by the owner of the vehicle and breach has been a conscious act and a willful breach."
In view of above I do not find any merit in the said submissions of Ld. Counsel for R-3.
Further as discussed here-in-above, Ld. Counsel for R-3 has submitted that the petitioner Babu Lal and deceased were travelling in the tempo (as a gratuitous passengers) therefore, the company is not liable to indemnify the insured as it is a violation of the policy. I have carefully considered the submissions of the Ld. Counsel for R-3. R-3 has examined R3W1 Hari Om Tyagi, who in his examination-in-chief has deposed that "The policy bearing no. 320301/31/00/04720 issued in the name of Sh. Shyam Laql R/o 443/1, Gali No. 4, Bhola Nath Nagar, Shahdara, Delhi-32 for vehicle no. DL-1LB-1175 Tata 407 covering the period from 08.09.2000 to 07.09.2001. The policy was issued for goods carrying commercial vehicle with terms & conditions at point-A. The policy is exhibited as Ex.R3W1/1. This is the true, attested copy of the computerized policy."
PW-1 Babu Lal in his examination-in-chief has admitted that he was one of the traveller of the offending tempo bearing no. DL-1LB-1175.
Contd........
Suit No. 352/0619 Suit No. 353/06 During his cross-examination by the Ld. Counsel for R-3 PW-1 Babu Lal has deposed that "It is correct that we have hired that Tata 407 offending vehicle for a sum of Rs.500/-. I do not remember as to how much money is being given by me to the owner and driver. We have gone on Tata 407 as the other followers were going in the same vehicle."
PW-1 Prahlad Singh in his cross-examination by the Ld. Counsel for R-3 has deposed that "It is in my knowledge that my wife alongwith others on the date of the incident were going to take Maharaj Ji by the vehicle Tata 407 which was hired."
No evidence in rebuttal to the evidence of R-3 was adduced by the petitioner despite grant of opportunity.
The perusal of the computerized attested true copy of the insurance policy Ex. R3W1/1 inter alia reads as : Limitations as to use:
"Use only for carriage of goods within the meaning of the Motor Vehicle Act, 1988. The policy does not cover (i) use for organised racing pacemaking reliability trial or speed testing
(ii) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicles (iii) Use for carrying passengers in the vehicle except employees (other than the driver) Not exceeding six (6) in number coming under the purview of the Workmen's Compensation Act, 1923."
Contd........
Suit No. 352/0620 Suit No. 353/06 From above it is clearly indicated that offending vehicle bearing no. DL- 1LB-1175 was insured for use only for carriage of goods and not any passengers. In other words it was carriage of goods and was not carriage of passengers.
Section 147 (1)(b) of the Motor Vehicles Act, 1988 reads as :
Requirements of policies and limits of liability.
(1)In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which
(a). XXX XXX XXX XXX XXX
(b). Insures the person or classes of persons specified in the policy to the extent specified in sub section (2)-
(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place:
against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place :
Provided that a policy shall not be required-
(i) to cover liability in respect of death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of an in the course of his employment other than a liability arising under the Workmen's Compensation Contd........Suit No. 352/06 21 Suit No. 353/06
Act, 1923 (8 of 1923) in respect of the death of, bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if its is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation - For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place".
Section 147(2) of the Motor Vehicles Act, 1988 reads as:
" Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, upto the following limits, namely:-
(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier."
Contd........Suit No. 352/06
22 Suit No. 353/06 From above it is clear that the policy of insurance must be a policy which insures the person or classes of persons against any liability which may be incurred by it in respect of the death of or bodily injury to any person including owner of the goods or his authorised representative carried in the vehicle caused by or arising out of the use of the vehicle in a public place.
The gratuitous passenger for hire or reward or otherwise carried in a Goods Vehicle are not covered under the policy of the insurance, issued in respect of the offending vehicle Tempo No. DL-1LB-1175 Ex. R3W1/1 and insurance company cannot be held liable to pay the awarded amount of compensation.
In my this view, I am fortified as to what has been held by the Hon'ble Supreme Court in case titled as " National Insurance Co. Ltd. V. Bommithi Subbhayamma and others, 2005 ACJ 721 (SC)" .
In the said case the insurance company was exempted from its liability to pay compensation for the death of gratuitous passenger in a Goods Vehicle when it met with accident and was held that claimants are entitled to recover awarded amount of compensation from the owner of the vehicle.
Contd........Suit No. 352/06
23 Suit No. 353/06 It is pertinent to reproduce the relevant para of the said case, National Insurance Company Ltd.'s case (Supra).
In Asha Rani, 2003 ACJ 1 (SC), this court while overruling Satpal Singh, 2000 ACJ 1 (SC), has clearly held that the insurance company is not liable for payment of any compensation for death of a gratuitous passenger travelling in a goods vehicle.
Asha Rani, 2003 ACJ 1 (SC), was followed in Oriental Insurance Co.Ltd. V. Devireddy Konda Reddy,2003 ACJ 468 (SC). Yet again, the said view was upheld in National Insurance Co. Ltd. V. Ajit Kumar, 2003 ACJ 1931 (SC).
The question again came up for consideration before a 3- Judge Bench of this court, of which we are members, in National Insurance Co. Ltd. V. Baljit Kaur, 2004, ACJ 428 (SC), wherein upon considering the effect of amendment carried out in section 147 of the Motor Vehicles Act, 1988 by Motor Vehicles (Amendment) Act, 1994,it was opined:
"By reason of the 1994 amendment what was added is, 'including owner of the goods or his authorised representative carried in the vehicle'. The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of Parliament, therefore, could not have been that the words 'any person' occurring in section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of Parliament to carry out an amendment inasmuch as the expression 'any person' contained in sub-clause (i) of clause
(b) of sub-section (1) of section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise.
The observations made in this connection by the court in Asha Rani, 2003 ACJ 1 (SC), to which one of us, Sinha. J. was Contd........
Suit No. 352/0624 Suit No. 353/06 a party, however, bear repetition:
In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words 'any person' must also be attributed having regard to the context in which they have been used, i.e. a 'third party'. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor'.
In Asha Rani, 2003 ACJ 1(SC), it has been noticed that sub-clause (i) of clause (b) of sub-section (1) of section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods for his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.
It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in section 147 with respect to persons other than the owner of the goods or his authorised representative remains the same. Although the owner of the goods or his authorised representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time of contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people".
The same view was reiterated in National Insurance Co.. Ltd. V. Challa Bharathamma, 2004 ACJ, 2094 (SC); Pramod Kumar Agrawal V. Mushtari Begum, 2004 ACJ 1903 (SC) and also in National Insurance Co. Ltd. v. V. Chinnamma, Contd........Suit No. 352/06
25 Suit No. 353/06 2004, 2004 ACJ 1909 (SC).
In view of the aforementioned authoritative pronouncements of this court, the impugned judgment of the High Court cannot be sustained which is set aside accordingly. This appeal is allowed. We, however, make it clear that the claimants- respondents will be entitled to recover the amount of compensation granted in their favour by the Motor Accidents Claims Tribunal from the owner of the vehicle. No cost. In view of above, I find substance in the submissions as made by the Ld. counsel for R-3. The insurance company is held to be exempted from its liability for the payment of awarded amount of compensation for the injuries suffered by petitioner Babu Lal as a gratuitous passenger in the offending vehicle Tempo No. DL-1LB-1175 Tata 407. As such R-1 being the owner and R-2 being the driver of the offending vehicle are held jointly, severally and vicariously liable to pay the said awarded amount of compensation to the petitioner.
Accordingly, issue no.2 is decided in favour of the petitioner and against the respondents.
ISSUE NO.2 (IN SUIT NO. 352/06) PW 1 Sh. Prahlad Singh, who is the husband of the deceased Omwati, in his examination-in-chief has deposed that deceased Omwati was aged about 44 years, was my wife, who died in a road accident on 26.03.2001.
Contd........Suit No. 352/06
26 Suit No. 353/06 In the claim petition it has been avvered that the deceased was self employed in the business of readymade garments at her residence.
Admittedly no documentary evidence has been proved on record with regard to the occupation, earning or educational qualifications of the deceased Smt. Omwati. As such I am left with no other option, but to apply the criteria of the minimum wages to the present case. The minimum wages for an unskilled labour as on 01.01.2001 was Rs. 2,579.00 Pcs p.m. and as on 01.08.2001 was Rs. 2,592.00 Pcs p.m. and as the date of the accident is 26.03.2001, I take the minimum wages on the date of the accident as Rs. 2,584/- p.m. and accordingly, I take the income of the deceased as Rs. 2,584/- p.m. or Rs. 31,008/- p.a (Rs.2,584 X 12) at the time of the accident.
The Hon'ble Supreme Court in case titled as Bijoy Kumar Dugar v/s Bidyadhar Dutta & others, 2006 (1) TAC 969 (S.C.) has held the necessity of evidence on record to show the future prospects of deceased for the purpose of quantum of compensation.
Following the said judgment of the Hon'ble Supreme Court, though there is no evidence regarding any prospects of future career or increase in income but keeping in view the inflationary trends and rise in prices and the trends of increase of minimum wages I assume that the income of the deceased would Contd........Suit No. 352/06
27 Suit No. 353/06 have become Rs. 35,000/- per annum with the passage of time had she survived the accident. Thus the average income of the deceased after taking the mean of her two incomes comes to Rs. 33,004/- per annum. {(Rs. 31,008/- + Rs. 35,000)/2 = Rs. 33,004/-}.
One third (i.e. Rs. 11,001.33 by making it a round figure as Rs. 11,002/-) of the said income is to be deducted for the personal expenses of the deceased. Thus the total yearly loss of dependency to the petitioners comes to Rs. 22,002/- per annum (Rs.33,002 - Rs.11,002 = Rs. 22,002/-).
Next question arises as to what should be the multiplier applicable to the present case. PW-1 Prahlad Singh in his examination-in-chief has deposed that deceased Omwati was about 44 years of age and was his wife, who died in a road accident on 26.03.2001.
Admittedly no documentary evidence has been proved on record, with regard to the age of the deceased. In the absence of any evidence to the contrary to the said deposition of PW-1 Prahlad Singh regarding the age of his deceased wife Smt. Omwati, I take that deceased Omwati was about 44 years of age at the time of the accident. Taking guidance from the second schedule of the Motor Vehicles Act, 1988 the proper multiplier applicable to the present case is "15". Thus the total loss of the dependency to the petitioners comes to Contd........Suit No. 352/06
28 Suit No. 353/06 Rs. 3,30,030/- (Rs. 22,003 X 15).
A sum of Rs. 10,000/- is awarded to the petitioner No.1 Prahlad Singh toward loss of consortium.
A sum of Rs. 10,000/- is awarded to the petitioners on account of the loss of love and affection.
A sum of Rs. 10,000/- is awarded to the petitioners on account of loss of expectancy of the life of the deceased.
A sum of Rs. 10,000/- is awarded to the petitioners towards funeral expenses. Thus the petitioners are entitled to a total compensation of Rs. 3,70,030/- on account of the death of the deceased Smt. Omwati resulting from the said accident.
Next question arises as to from whom the petitioners are entitled to receive the said awarded compensation. R-1 being the owner, R-2 being the driver and R-3 being the insurer of the said offending vehicle are jointly an vicariously liable to pay the said awarded amount of compensation to the petitioner.
Contd........Suit No. 352/06
29 Suit No. 353/06 Here one contention of R-3 needs to be discussed. Ld. Counsel for R-3 submitted that R-2 had no valid and effective driving licence and the driving licence which he was holding was not covering the vehicle, at the time of the accident, to the knowledge of R-1 and further submitted that the petitioner Babu Lal and deceased Smt. Omwati were travelling in a goods carrying vehicle which was prohibited under the terms & conditions of the policy and they were gratuitous passengers and the insured (R-1) committed breach of the terms & conditions of the policy, therefore, R-3 is not liable to pay any amount of compensation. I have carefully considered the submission of Ld. Counsel for R-
3. R-3 has examined R3W2 Bijender Singh, who proved the record pertaining to licence no. 1063MP1/96 issued in the name of Sh. Lalji singh (R-2) Ex.R3W1/1 & Ex.R3W2/2 and also marked the photocopy of the licence as Mark-A. During his cross-examination by Ld. Counsel for the petitioner R3W2 has deposed that "It is correct that the particulars at point-A on the Ex.R3W2/2 'LMV Private"
does not indicate that the licence is for commercial purposes. It is incorrect to suggest that the D.L. Ex.R3W2/1 was issued for commercial purposes."
Admittedly insured (R-1) of the offending vehicle has neither been produced nor examined by R-3. R-3 has failed to prove that R-1 did not exercise due care in ensuring that R-2 was authorised to drive a vehicle and was in possession of an effective driving licence for driving the offending vehicle and had violated the conditions of the insurance policy. Non-examination of R-
Contd........
Suit No. 352/0630 Suit No. 353/06 1/insured has knocked out the defence of R-3. In the circumstances it remained to be established that R-1 did not exercise due care in ensuring that R-2 was authorised to drive a vehicle and was in possession of an effective driving licence at the time of the accident.
In National Insurance Co. Ltd., Vs. Swarn Singh's case (Supra) the Hon'ble Supreme Court has inter-alia held that "Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time."
In case United India Insurance Co. Ltd., Vs. Lehru 2003 ACJ 611 (SC), the Hon'ble Supreme Court has clearly observed that where the owner has satisfied himself that driver has a licence and is driving competently there would be no breach of Section 149 (2)(a)(ii) of the Motor Vehicles Act. Further it was indicated that the Insurance Co. would not then be absolved of liability. 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 notice that the licence was fake and still permitted that person to drive.
Contd........
Suit No. 352/0631 Suit No. 353/06 In case National Insurance Co. Ltd., Vs. H.D. Nagarathamma 2002 ACJ 1267 (Karnataka). The Hon'ble Division Bench after having considered number of authorities has held that "Merely because in a given case the vehicle was driven by a person holding no licence or holding a licence which may be said to be not covering the vehicle, cannot be said to amount to breach of conditions, unless an entrustment is established that the vehicle has been entrusted by the owner of the vehicle and breach has been a conscious act and a willful breach."
In view of above I do not find any merit in the said submissions of Ld. Counsel for R-3.
Further as discussed here-in-above, Ld. Counsel for R-3 has submitted that the petitioner Babu Lal and deceased were travelling in the tempo (as a gratuitous passengers) therefore, the company is not liable to indemnify the insured as it is a violation of the policy. I have carefully considered the submissions of the Ld. Counsel for R-3. R-3 has examined R3W1 Hari Om Tyagi, who in his examination-in-chief has deposed that "The policy bearing no. 320301/31/00/04720 issued in the name of Sh. Shyam Laql R/o 443/1, Gali No. 4, Bhola Nath Nagar, Shahdara, Delhi-32 for vehicle no. DL-1LB-1175 Tata 407 covering the period from 08.09.2000 to 07.09.2001. The policy was issued for goods carrying commercial vehicle with terms & conditions at point-A. The policy is exhibited as Ex.R3W1/1. This is the true, attested copy of the computerized policy."
Contd........
Suit No. 352/0632 Suit No. 353/06 PW-1 Babu Lal in his examination-in-chief has admitted that he was one of the traveller of the offending tempo bearing no. DL-1LB-1175.
During his cross-examination by the Ld. Counsel for R-3 PW-1 Babu Lal has deposed that "It is correct that we have hired that Tata 407 offending vehicle for a sum of Rs.500/-. I do not remember as to how much money is being given by me to the owner and driver. We have gone on Tata 407 as the other followers were going in the same vehicle."
PW-1 Prahlad Singh in his cross-examination by the Ld. Counsel for R-3 has deposed that "It is in my knowledge that my wife alongwith others on the date of the incident were going to take Maharaj Ji by the vehicle Tata 407 which was hired."
No evidence in rebuttal to the evidence of R-3 was adduced by the petitioners despite grant of opportunity.
The perusal of the computerized attested true copy of the insurance policy Ex. R3W1/1 inter alia reads as : Limitations as to use:
"Use only for carriage of goods within the meaning of the Motor Vehicle Act, 1988. The policy does not cover (i) use for organised racing pacemaking reliability trial or speed testing
(ii) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled Contd........Suit No. 352/06
33 Suit No. 353/06
vehicles (iii) Use for carrying passengers in the vehicle except employees (other than the driver) Not exceeding six (6) in number coming under the purview of the Workmen's Compensation Act, 1923."
From above it is clearly indicated that offending vehicle bearing no. DL- 1LB-1175 was insured for use only for carriage of goods and not any passengers. In other words it was carriage of goods and was not carriage of passengers.
Section 147 (1)(b) of the Motor Vehicles Act, 1988 reads as :
Requirements of policies and limits of liability.
(1). In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which
(a). XXX XXX XXX XXX XXX
(b). Insures the person or classes of persons specified in the policy to the extent specified in sub section (2)-
(i). against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place:
against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place :
Provided that a policy shall not be required-
Contd........Suit No. 352/06 34 Suit No. 353/06
(i). to cover liability in respect of death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of an in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if its is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation - For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place".
Section 147(2) of the Motor Vehicles Act, 1988 reads as:
" Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, upto the following limits, namely:-
(a) save as provided in clause (b), the amount of liability incurred;
Contd........
Suit No. 352/0635 Suit No. 353/06
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier."
From above it is clear that the policy of insurance must be a policy which insures the person or classes of persons against any liability which may be incurred by it in respect of the death of or bodily injury to any person including owner of the goods or his authorised representative carried in the vehicle caused by or arising out of the use of the vehicle in a public place.
The gratuitous passenger for hire or reward or otherwise carried in a Goods Vehicle are not covered under the policy of the insurance, issued in respect of the offending vehicle Tempo No. DL-1LB-1175 Ex. R3W1/1 and insurance company cannot be held liable to pay the awarded amount of compensation.
In my this view, I am fortified as to what has been held by the Hon'ble Supreme Court in case titled as " National Insurance Co. Ltd. V. Bommithi Subbhayamma and others, 2005 ACJ 721 (SC)" .
Contd........Suit No. 352/06
36 Suit No. 353/06 In the said case the insurance company was exempted from its liability to pay compensation for the death of gratuitous passenger in a Goods Vehicle when it met with accident and was held that claimants are entitled to recover awarded amount of compensation from the owner of the vehicle.
It is pertinent to reproduce the relevant para of the said case, National Insurance Company Ltd.'s case (Supra).
In Asha Rani, 2003 ACJ 1 (SC), this court while overruling Satpal Singh, 2000 ACJ 1 (SC), has clearly held that the insurance company is not liable for payment of any compensation for death of a gratuitous passenger travelling in a goods vehicle.
Asha Rani, 2003 ACJ 1 (SC), was followed in Oriental Insurance Co.Ltd. V. Devireddy Konda Reddy,2003 ACJ 468 (SC). Yet again, the said view was upheld in National Insurance Co. Ltd. V. Ajit Kumar, 2003 ACJ 1931 (SC).
The question again came up for consideration before a 3- Judge Bench of this court, of which we are members, in National Insurance Co. Ltd. V. Baljit Kaur, 2004, ACJ 428 (SC), wherein upon considering the effect of amendment carried out in section 147 of the Motor Vehicles Act, 1988 by Motor Vehicles (Amendment) Act, 1994,it was opined:
"By reason of the 1994 amendment what was added is, 'including owner of the goods or his authorised representative carried in the vehicle'. The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of Parliament, therefore, could not have been that the words 'any person' occurring in section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of Parliament to carry out an amendment inasmuch as Contd........Suit No. 352/06
37 Suit No. 353/06 the expression 'any person' contained in sub-clause (i) of clause
(b) of sub-section (1) of section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise.
The observations made in this connection by the court in Asha Rani, 2003 ACJ 1 (SC), to which one of us, Sinha. J. was a party, however, bear repetition:
In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words 'any person' must also be attributed having regard to the context in which they have been used, i.e. a 'third party'. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor'.
In Asha Rani, 2003 ACJ 1(SC), it has been noticed that sub-clause (i) of clause (b) of sub-section (1) of section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods for his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.
It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in section 147 with respect to persons other than the owner of the goods or his authorised representative remains the same. Although the owner of the goods or his authorised representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability Contd........Suit No. 352/06
38 Suit No. 353/06 of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time of contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people".
The same view was reiterated in National Insurance Co.. Ltd. V. Challa Bharathamma, 2004 ACJ, 2094 (SC); Pramod Kumar Agrawal V. Mushtari Begum, 2004 ACJ 1903 (SC) and also in National Insurance Co. Ltd. v. V. Chinnamma, 2004, 2004 ACJ 1909 (SC).
In view of the aforementioned authoritative pronouncements of this court, the impugned judgment of the High Court cannot be sustained which is set aside accordingly. This appeal is allowed. We, however, make it clear that the claimants- respondents will be entitled to recover the amount of compensation granted in their favour by the Motor Accidents Claims Tribunal from the owner of the vehicle. No cost. In view of above, I find substance in the submissions as made by the Ld. counsel for R-3. The insurance company is held to be exempted from its liability for the payment of awarded amount of compensation for the death of the deceased Smt. Omwati as a gratuitous passenger in the offending vehicle Tempo No. DL-1LB-1175 Tata 407. As such R-1 being the owner and R-2 being the driver of the offending vehicle are held jointly severally and vicariously liable to pay the said awarded amount of compensation to the petitioner.
Accordingly, issue no. 2 is decided in favour of the petitioners and against the respondents.
Contd........Suit No. 352/06
39 Suit No. 353/06 Relief (In Suit No. 352/06) In view of the findings on the above issues, the petitioners are entitled to a total compensation of Rs. 3,70,030/- on account of the death of the deceased Smt. Omwati resulting from the said accident which R-1 being the owner and R-2 being the driver offending vehicle are liable to pay jointly, severally and vicariously. As the offending vehicle was owned by R-1, this respondent is statutorily liable to indemnify the petitioners. The petitioners are also entitled to be compensated for the delay in getting the compensation. Accordingly I allow an interest @ 7.5% p.a. as per the rate of interest allowed by Hon'ble Supreme Court in a case reported as "Tamil Nadu State Transport Corporation Ltd. Vs. S Rajapriya & Others: 2005 (2) T.A.C., 205 (SC)". As such R-1 is directed to pay awarded compensation of Rs. 3,70,030/- with interest @ 7.5% p.a. from the date of filing of the petition i.e. 10.07.2001 within 30 days from today failing which petitioners would be entitled to the further interest at this rate till the date of payment.
Out of the awarded compensation a sum of Rs. 2,70,030/- with proportionate interest shall be paid to Petitioner No.1 Sh. Prahlad Singh. A sum of Rs. 25,000/- each with proportionate interest shall be paid to Petitioner No. 2 Surinder Singh, petitioner no. 3 Ms. Satyawati, Petitioner No. 4 Ms. Manju & Petitioner No. 5 Ram Niwas.
Contd........Suit No. 352/06
40 Suit No. 353/06 Out of the share of petitioner no.1 Sh. Prahalad Singh a sum of Rs. 1,50,000/- with proportionate interest shall remain invested in an FDR for the period of six years in his name in any nationalised bank. The share of petitioners No. 2 Surinder Singh shall remain invested in any nationalised bank for the period of three years. The entire share of petitioner no. 3 Ms. Satyawati, petitioner no. 4 Ms. Manju & petitioner no. 5 Ram Niwas with proportionate interest shall remain invested in FDRs in their names in any nationalised bank till they attain the age of majority. The balance with proportionate interest shall be paid to petitioner no. 1 Prahalad Singh.
The FDRs shall carry no facility of loan or advance but with liberty to withdraw the interest monthly or quarterly. However, the petitioners may approach this Court for premature withdrawal of any amount in case of an emergent need.
Relief (In Suit No. 353/06) In view of the findings on the above issues, the petitioner is entitled to a total compensation of Rs. 32,000/- on account of the injuries received in the said accident, which R-1 being the owner and R-2 being the driver offending vehicle are liable to pay jointly, severally and vicariously. As the offending vehicle was Contd........Suit No. 352/06
41 Suit No. 353/06 owned by R-1, this respondent is statutorily liable to indemnify the petitioners. The petitioners are also entitled to be compensated for the delay in getting the compensation. Accordingly I allow an interest @ 7.5% p.a. as per the rate of interest allowed by Hon'ble Supreme Court in a case reported as "Tamil Nadu State Transport Corporation Ltd. Vs. S Rajapriya & Others: 2005 (2) T.A.C., 205 (SC)". As such R-1 is directed to pay awarded compensation of Rs.
32,000/- with interest @ 7.5% p.a. from the date of filing of the petition i.e. 19.08.2002 within 30 days from today failing which petitioners would be entitled to the further interest at this rate till the date of payment.
Out of the awarded compensation a sum of Rs. 20,000/- with proportionate interest shall remain in an FDR in the name of the petitioner in any nationalised bank for the period of three years. The balance with proportionate interest shall be paid to petitioner Babu Lal.
The FDR shall carry no facility of loan or advance but with liberty to withdraw the interest monthly or quarterly. However, the petitioners may approach this Court for premature withdrawal of any amount in case of an emergent need.
Announced in the open Court This on the 13th Day of April, 2007 (Two spare copies attached).
(MAHESH CHANDER GUPTA) ADJ, M.A.C.T. TIS HAZARI COURTS DELHI.
Contd........