Delhi District Court
Timal S/O Sh. Surat vs Subhash Chand S/O Sh. Rameshwar Dutt on 14 January, 2013
1
IN THE COURT OF MS. REKHA RANI : JUDGE : MACT : DELHI
MACT No. : 255/08
UNIQUE ID NO. : 02404C0249902008
1. Timal S/o Sh. Surat
2. Smt. Afti Devi W/o Sh. Timal
Both R/o Village Jangal Pipra,
P.O. Laxmipur, PS Rudrapur,
District Deoria, U.P.
Second Address
House No.24, Village Shihipur,
Shalimar Bagh, Delhi. ........ Petitioners
Versus
1. Subhash Chand S/o Sh. Rameshwar Dutt,
R/o C7, Laxmi Park, Nangloi,
Delhi (Driver).
2. Devinder Singh Dahiya S/o Sh. Girdhari Lal,
R/o B36, Nilamber Apartment,
Pitampura, Delhi. (Owner)
3. Oriental Insurance Company Limited,
A25/27, Asaf Ali Road,
New Delhi110002. ....... Respondents
MACT No. 255/08 Timal Vs. Subhash Chand 1 of 25 2 DATE OF INSTITUTION : 12.03.2008 DATE OF RESERVING ORDER : 15.12.2012 DATE OF PRONOUNCEMENT : 14.01.2013 AWARD:
1. Sanjay died in a road accident. His parents filed the present petition Under Section 166 & 140 of the Motor Vehicles Act (in short the Act), praying for compensation of an amount of Rs. 25,00,000/ with interest @ 18% per annum on following facts.
2. On 16.01.2008, at about 8:00 a.m, Sanjay was waiting for the bus alongwith his nephew Arjun at Sarai Pipal Thala Bus Stand, Adrash Nagar, Delhi. Bus, bearing registration No. DL1PA4319 (in short the offending vehicle), plying at route number 982, being driven by Subhash Chand (in short R1), rashly and negligently at very fast speed. Sanjay and Arjun raised their hands thereby indicating R1 to stop the bus, but the he did not stop the bus and hit both of them from the front side. After hitting both of them, he absconded from the spot in the offending vehicle. PCR was informed by somebody, who was also awaiting for the bus at the spot. Both the injured were taken to the hospital. Sanjay was declared brought dead. FIR was MACT No. 255/08 Timal Vs. Subhash Chand 2 of 25 3 registered on the basis of statement of Arjun, the injured.
Sanjay was a young boy of 19 years and was a skilled Marble Mistry/Fixer and was earning about Rs. 6500/ per month. He was the sole bread earner of his old parents.
3. R1 and Devinder Singh Dahiya, owner of the bus (in short R2) filed common written statement. It is stated that the offending vehicle was insured with Oriental Insurance Company Limited (in short R3) vide insurance policy No. 271901/31/2008/1392 valid for the period from 18.07.2007 to 17.07.2008. It is also stated that R1 was having valid and effective driving licence No. C0411999162410, dated 23.01.2009, which was valid upto 22.01.2009 with category of Licence as HTV. It is denied that accident in question was caused by R1 with the offending vehicle. It is stated that he has been falsely implicated.
4. R3 filed written statement, in which it is admitted that offending vehicle was insured vide policy No. 271901/31/2008/1392 valid w.e.f 18.07.2007 to 17.07.2008. It is further stated that R3 cannot be held liable to pay any compensation to the petitioners until it is proved that R1 was having a valid and effective MACT No. 255/08 Timal Vs. Subhash Chand 3 of 25 4 driving licence at the time of alleged accident.
5. Following issues were framed by my Ld. Predecessor vide his order, dated 09.01.2009.
(i) Whether on 16.01.2008 at 8:00 a.m at Sarai Peela Thala bus stand, bus no. DL1PA4319 which was being driven rashly and negligently hit deceased Sanjay and caused his death? OPP
(ii) Whether petitioners are entitled to compensation, if so, to what amount of from which of the respondents? OPP
(iii) Relief.
Issue No.1 Qua Negligence
6. It has to be borne in mind that Motor Vehicles Act does not stipulate holding a trial for petition preferred under section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal holds an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. In State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943. Hon'ble Apex Court held " that tribunal exercising quasijudicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for MACT No. 255/08 Timal Vs. Subhash Chand 4 of 25 5 trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts"
7. In Bimla Devi and ors. Vs. Himachal Road Transport Corporation and Ors (2009) 13 SC 530, Supreme Court held that " In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof MACT No. 255/08 Timal Vs. Subhash Chand 5 of 25 6 beyond reasonable doubt could not have been applied."
8. In National Insurance Company Pvt. Ltd. Vs. Smt. Pushpa Rana & Ors. Decided on 20th December, 2007. Hon'ble Delhi High Court observed that "The last contention of the appellant insurance company is that the respondents claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. V. Meena Variyal. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (1) certified copy of the criminal record of criminal case in FIR No. 955/2001, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304A, IPC against the driver, (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence MACT No. 255/08 Timal Vs. Subhash Chand 6 of 25 7 strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down." Now in the light of the aforesaid judgments, let me analyse the evidence adduced by petitioners to prove that accident occurred due to negligence of R1 in driving the offending vehicle.
9. Arjun appeared in the witness box as PW2. He deposed that on 16.01.2008 at about 8:00 a.m, he alongwith his uncle Sanjay were waiting for bus at Sarai Pipal Thala Bus Stand. At the relevant time offending vehicle plying at the route number 982, came at a very fast speed. It was being driver by R1 rashly and negligently. It was further deposed that Sanjay and Arjun, raised their hands thereby indicating R1 to stop the bus, but he did not stop the bus and hit both of them from the front side and thereafter absconded from the spot.
10. PW2 was not crossexamined on the allegations that R1 was driving the offending vehicle at a very fast speed, rashly and negligently. His testimony to the effect that he alongwith Sanjay were waiting for the bus on 16.01.2008 at about 8:00 a.m MACT No. 255/08 Timal Vs. Subhash Chand 7 of 25 8 at Sarai Pipal Thala Bus Stand is not impugned. It is not challenged that both of them raised their hands thereby indicating R1 to stop the bus. There is no crossexamination that R1 instead of stopping the bus at their request hit them and absconded from the spot alongwith the bus. The only suggestion given to the witness is that accident occurred due to negligence of this witness PW2 as well as Sanjay (the deceased).
11. R1 himself did not appear in the witness box to explain as to how the accident took place and how negligence could be attributed to Sanjay and Arjun for causing the said accident.
In their written statement R1 and R2 have simply stated that no accident was caused by them with the offending vehicle and that R1 has been falsely implicated in this case.
12. Certified copies of record of criminal case shows that R1 was prosecuted for causing the said accident. R1 has not explained as to why he was prosecuted in the criminal matter for causing the said accident.
13. In view of the testimony of the eye witness Arjun and record MACT No. 255/08 Timal Vs. Subhash Chand 8 of 25 9 of criminal case, preponderance of probability is that Sanjay died in road accident on 16.01.2008, caused by the offending vehicle on account of rash and negligent driving of the same by R1.
This issue is accordingly decided in favour of the petitioners and against the respondents.
Issue No.2 Qua Quantum of Compensation
14. Timal, father of the deceased, who is petitioner No.1, stepped into the witness box as PW1. He deposed that his son was working as skilled Marble Mistry/Fixer and was earning about Rs. 6500/ per month. Vijay Kumar appeared in the witness box as PW3. He deposed that he is the owner and proprietor of M/s Vijay Kumar and deals in tiles, stones and polishing work. He further deposed that Sanjay was working with him as Marble Fixer on daily wages and was earning Rs. 220/ per day apart from over time allowance.
15. During his crossexamination, PW3 stated that he did not have any document to prove that he is proprietor of M/s Vijay Kumar or that he deals in tiles, stones and polishing work. He MACT No. 255/08 Timal Vs. Subhash Chand 9 of 25 10 also stated that he did not maintain any books of account regarding income and expenditure of his business. He also stated that he did not have any document to prove that he was paying Rs. 220/ per day to Sanjay. He also stated that he paid daily wages to Sanjay in cash. However, he stated that he did not obtain signatures of Sanjay on any receipt or voucher, showing acknowledgment of payment of wages to him. He also stated that he did not maintain any attendance record of Sanjay to prove that Sanjay was working with him.
16. In ICICI Lombard General Insurance Company Ltd. Vs. Hari Singh & Ors. MAC APP No. 122/2011 ( in short ICICI Lombard) it was urged by LRs of the deceased that she used to sell milk and milk products at her house and was earning Rs. 15,000/ per month. It was contended by Ld. Counsel for LRs of the deceased that Claims Tribunal ought to have accepted the deceased's income at Rs.15,000/ per month. Since no documentary evidence with regard to deceased's profession was produced, Claims Tribunal was held right in awarding loss of dependency on minimum wages.
MACT No. 255/08 Timal Vs. Subhash Chand 10 of 25 11
17. In New India Assurance Company Ltd. v. Maya Devi & Ors. MAC.APP.627/2011 there was no documentary evidence with regard to the employment of the deceased as a cook at M/s Aman Deep Dhaba or his salary at Rs.8,000/ per month. Dhaba was not registered with the Sales Tax/Vat Department. No register for payment of wages was maintained. No receipt regarding payment of any salary to the deceased was produced. In absence of any evidence regarding employment of the deceased with the said Dhaba or his salary at Rs.8,000/ per month, Hon'ble High Court vide its order dated 27.08.2012 held that the only option left is to award loss of dependency on minimum wages.
18. Accordingly, in absence of any documentary evidence regarding the occupation of the petitioner or his income, loss of dependency has to be calculated on the basis of minimum wages. Although, I find photo copy of high school examination certificate of the deceased, but the same was not proved. Hence, the minimum wages of unskilled worker have to be given, which were Rs. 3516/ at the time of accident. MACT No. 255/08 Timal Vs. Subhash Chand 11 of 25 12
19. In Santosh Devi V. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559, it was held by Apex Court that even in the absence of any evidence as to future prospects an increase of 30% in the income has to be provided where the victim had fixed income or was a self employed person. Relevant portion of Santosh Devi is extracted hereunder :
"14........In our view, it will be naive to say that the wages or total emoluments/income of a person who is self employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of the rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are selfemployed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their MACT No. 255/08 Timal Vs. Subhash Chand 12 of 25 13 agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are selfemployed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who MACT No. 255/08 Timal Vs. Subhash Chand 13 of 25 14 earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
Accordingly, petitioner is entitled to an addition of 30% towards inflation.
20. Ld. Counsel for the petitioners stated that Sanjay (the deceased) was bachelor at the time of incident. As per Sarla Verma v. DTC (2009) 6 SCC 121, where the deceased was MACT No. 255/08 Timal Vs. Subhash Chand 14 of 25 15 bachelor and claimant are his parents 50% is deducted as personal and living expenses.
21. In Amrit Bhanu Shali & Ors Vs. NIC & Ors. Civil Appeal No. 3397 of 2012 before the Apex Court the deceased was unmarried and 26 years old at the time of accident and his salary was Rs.99,000/ per annum. Claims Tribunal deducted 50% of the income and applying the multiplier of 17 as per decision in Sarla Verma Vs. DTC (2009) 6 SCC 121 held that the parents of the deceased were entitled to compensation of 8,66,000/. Hon'ble High Court in appeal reduced the compensation to 6,68,000/ by applying the multiplier of 13 Vide its order dated April 04, 2012 Hon'ble Apex Court observed that "the selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation."
" As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the MACT No. 255/08 Timal Vs. Subhash Chand 15 of 25 16 deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and bringing it down to the multiplier of 13."
22. In view of Amrit Bhanu multiplier as per age of deceased should be adopted. PW1 filed his affidavit in which he stated that Sanjay was about 19 years at the time of accident. His age is shown as 20 years in the postmortem report. Therefore multiplier 18 is applicable.
23. Calculation of compensation Minimum Wages Rs.3516/ Addition of 30% Rs.3516 +1054= 4570 50% deduction i.e 45702285=2285 The loss of dependency comes to Rs.4,93,560/ (Rs. 2285x12x18)
24. Regarding compensation payable on account of loss of love and affection para 9 of the judgment in ICICI Lombard is reproduced below: "Loss of love and affection can never be measured in terms of money. Thus, uniformity has to be adopted by the Courts while granting non pecuniary damages. The Supreme Court in Sunil MACT No. 255/08 Timal Vs. Subhash Chand 16 of 25 17 Sharma v. Bachitar Singh (2011) II SCC 425 and in Baby Radhika Gupta v. Oriental Insurance Company Limited (2009) 17 SCC 627 granted Rs. 25,000/ (in total to all the claimants) only under the head of loss of love and affection. This, I would reduce the compensation under this head to Rs. 25,000/ only."
Accordingly, compensation of Rs. 25,000/ is granted under the head of loss of love and affection.
25. Compensation of Rs. 10,000/ is granted under the head funeral expenses as no document is available with regard to the expenses incurred on last rites.
26. A sum of Rs. 10,000/ is awarded under the head loss to estate.
27. The over all compensation thus comes to Rs. 5,38,560/ and after deduction of interim award amount i.e Rs. 50,000/, it comes to Rs. 4,88, 560/.
28. R3 in its written statement pleaded that it will not liable to pay compensation until its proved that R1 was having valid and effective driving licence at the time of alleged accident. R1 and MACT No. 255/08 Timal Vs. Subhash Chand 17 of 25 18 R2 in their joint written statement in para 1 stated that R1 was having valid and effective driving licence No. C0411999162410, dt. 23.01.2009, which was valid upto 22.01.2009 with category of licence as HTV. R3 did not bother to verify whether averment made by R1 and R2 that R1 had driving licence with aforesaid particulars is correct or not.
29. This reply was therefore "play it safe" reply. Attitude of insurers to "deny everything await the award syndrome" was deprecated by Karnataka High Court in Ramakrishana Reddy Vs. Manager, HMT Ltd., 2003 ACJ 105, as under :
"We may also at this stage refer to the pernicious habit of some branches of insurance companies in filling stereotyped written statements denying all and everything. They routinely deny the insurance, then alternatively plead that even if there was an insurance, there was a breach of terms of the policy, that driver did not have a valid driving licence, and lastly there was no negligence on the part of driver of the insured vehicle. They do not bother to verify whether the insurance policy covered the risk or not and whether MACT No. 255/08 Timal Vs. Subhash Chand 18 of 25 19 driver had a licence or not. We recognize that insurers are sometime handicapped for want of full information, while giving instructions to their counsel and, therefore, the objections may be general in nature. We are also conscious that we cannot frown upon a party taking all permissible defences. But, applications for motor accident claims are not to be treated by insurers as normal private adversary litigation, their technical contentions can abound in pleadings and the sole intention is winning the lis. Under the policies of insurance, the insurers discharge statutory obligations towards third parties. They should do so keeping in view the objection and spirit of the Act, and the position of hapless victims of motor accidents. Insurers should balance their concerned to safeguard its financial interest with their obligations as instruments of social justice, under the Motor Vehicles Act".
"The claimants are not litigants by choice, but are constrained to approach the Tribunal, because of death of the bread winner or injury to self, and because the owner and insurer of the vehicle involved, fail to pay the compensation. The insurer should bear in mind that the claimants are MACT No. 255/08 Timal Vs. Subhash Chand 19 of 25 20 also handicapped in obtaining particulars of the insurance policy held by owner or driving licence held by the driver of the vehicle, and they solely depend upon the police for these particulars. The insurer should, therefore, verify whether there was any insurance policy or not, whether the insured was covered by insurance policy in regard to the claim or not, and whether the driver had a licence or not before filing its statement of objections and narrow down the area of controversy. If the insurers were to file " play it safe' written statements, without verifying these aspects and mechanically denying all petition averments, the trial gets delayed and the claimants are put to misery and injustly kept away from the direly needed compensation. It is time that insurers get rid of "deny everything await the award syndrome" and become responsible and responsive opponents in motor accident claims. We make it clear that the above observations are intended only for those officers of insurance companies who refuse to recognise their statutory obligations to third parties, under the insurance policies issued to the insured".
30. In new India Assurance Co. Ltd. v. Sanjay Kumar & Ors. MACT No. 255/08 Timal Vs. Subhash Chand 20 of 25 21 ILR 2007 (II) Delhi 733 it was held that " onus is on the insurer to prove that there was breach of conditions of policy"
R1 has not adduced any evidence to that effect.
31. In New India Assurance Co. Ltd. v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733. It was held that initial onus to prove breach of conditions of insurance policy is on the insurance. RI & R2 are exparte. R3 could have discharged initial onus of proving absence of valid driving licence by serving a notice under Order 12 Rule 8 of the Code of Civil Procedure on R1 & R2 calling upon them to produce driving licence of R1, which was valid and effective on the date of accident and failure of R1 & R2 to respond to the notice would have fortified the case of insurance that R1 did not have a valid and effective driving licence on the date of accident and therefore it is not liable to indemnify the insured.
32. R3 examined S.D. Sharma, Head Clerk, STA, Transport Department, as R3W1. It is stated that as per computerized record permit of the offending vehicle was valid upto MACT No. 255/08 Timal Vs. Subhash Chand 21 of 25 22 19.11.2007 and thereafter their office prepared manual record as per which permit was renewed w.e.f 20.11.2007 and valid upto 19.03.2008 for route No. 982 from New Seema Puri to Sultan Puri. Computerized record was proved as Ex.R3W1/A and manual record as Ex.R3W1/B. It was further deposed that as per record of their office said permit of the offending vehicle was valid on the date of accident i.e 16.01.2008. As per Ex.R3W1/B, permit of the offending vehicle was valid from 20.11.2007 to 19.03.2008, so it was valid on the date of accident.
33. In The New India Assurance Co. Ltd. v. Kumud Devi & Ors. MAC A PP. 520/2010, the offending vehicle did not possess fitness certificate on the date of accident. Hon'ble Delhi High Court held that absence of fitness certificate does not empower insurance company to avoid its liability under section 149(2) of the Act.
34. In absence of any evidence to the effect that there was any breach of terms of the insurance policy, R3 is accordingly directed to deposit the awarded amount of Rs. 4,88,560/with MACT No. 255/08 Timal Vs. Subhash Chand 22 of 25 23 interest at the rate of 7.5 % per annum from the date of filing of the petition till its deposit with Union Bank of India, Sector9, Rohini Delhi through its Branch Manager in the accounts to be opened by the petitioners, within 30 days from today.
35. In view of the judgment in General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631 for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered:
36. An amount of Rs. 88,560/ be given to petitioner no.1 i.e father of deceased. Rs. 4 lac be given to mother of deceased, i.e petitioner No.2.
37. Rs. 88,560/ be released to petitioner no. 1 out of his share. Rs. 1 lac be released to petitioner No.2 out of her share. Remaining amount of Rs. 3 lac be kept in six FDRs of Rs. 50,000/ each (FDR of Rs. 50,000/ for one year, FDR of Rs. 50,000/ for two years, FDR of Rs. 50,000/ for three year, FDR of Rs. 50,000/ for four year, FDR of Rs. 50,000/ for five year, MACT No. 255/08 Timal Vs. Subhash Chand 23 of 25 24 FDR of Rs. 50,000/ for six year in the name of petitioner No.2).
38. The fixed deposit on its maturity may be renewed at the discretion of the petitioners or deposited in his/her saving bank accounts.
39. The interest on the aforesaid fixed deposits shall be paid quarterly by automatic credit of interest in the Saving Account.
40. The LRs of deceased shall not be having any facility of loan or advance on these FDRs. However, in case of emergent need, they may approach this court for premature withdrawal of amount.
41. No cheque book be issued to the petitioners without the permission of this court.
42. The Bank shall issue Fixed Deposit Pass Book instead of the FDRs to the LRs of deceased and the maturity amount of the FDRs be automatically credited to the Saving Bank Account of the beneficiaries at the end of the FDRs.
43. On the request of the petitioners, Bank shall transfer the Saving Account to any other branch according to their convenience.
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44. The LRs of deceased shall furnish all the relevant documents for opening of the Saving Bank Account to the Branch Manager of the said bank. No joint account be opened in their names.
45. Copy of this order be given to parties for compliance. Copy of this order be also sent to Branch Manager of the said bank.
46. The petition is accordingly disposed of. File be consigned to record room.
Announced in the open Court
today i.e.14.01. 2013 Judge MACT
Rohini Courts, Delhi
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