Delhi District Court
Yogesh Kumar vs Nagender Tiwari on 16 May, 2015
IN THE COURT OF SHRI NIKHIL CHOPRA,
PO: MACT (SE01), SAKET COURTS, NEW DELHI
Suit No. 143/14/13
FIR No.360/13
Police Station S. L. Colony
INJURY
1. Yogesh Kumar
S/o. Sh. Joginder Singh
2. Nitin Kumar (minor)
S/o. Sh. Yogesh Kumar
3. Jatin Kumar (minor)
S/o. Sh. Yogesh Kumar
All resident of Village Banupura,
PS Pali Mukimpur, Distt. Aligarh, U. P.
........Petitioner
Versus
1 Nagender Tiwari
S/o. Sh. Kashi Tiwari
R/o. H.No. 763, BlockE,
Ali Vihar, Delhi110076 ...........Driver cum owner
2. Shriram General Insurance Co. Ltd.
110003E8, RIICO, Industrial Area,
Sitapur, Jaitpur, Rajasthan
Also at 1001, LGF,Naiwala,
Arya Samaj Road,
Nawala Karol Bagh,
New Delhi110005 .......Insurance Company
..........Respondents
Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.1/15 Date of filing of detailed accident report : 05.12.2013 Date on which Award/Judgment was reserved: : 15.05.2015 Date on which Award/Judgment was pronounced: : 16.05.2015 Present: Sh. Lalit Kumar, Ld. Counsel for petitioner.
Sh. Sanjay Kumar, Ld. Counsel for respondents no.1&2. Sh. Sanjay Rawat, Ld. Counsel for insurance company.
1. Order disposes off detailed accident report arising out of FIR No. 360/13 U/s 279/337/304 A IPC, PS Sunlight Colony, wherein it was reported that Smt. Prem Lata W/o Sh Yogesh Kumar, suffered fatal injuries in accident dated 06.09.2013, in a vehicular accident involving TSR No. DL 1 RH 1123 and unknown vehicle/car. Petitioner has separately filed petition U/s 163 A M.V. Act stating that on 06.09.2013 at about 2.30 pm Smt. Premlata alongwith her husband, her children and her brother Umesh, was heading towards Noida in a TSR No. DL 1 RH 1123 being driven by R1 and as and when the TSR reached DND Flyover, Ashram, before Ring Road, a unknown vehicle/ car hit the TSR resulting into overturning of the TSR. Smt. Premlata is stated to have sustained grievous injuries all over her body. It is claimed that she was removed to JPN trauma center, AIIMS, where she expired during treatment. It is stated that her postmortem was conducted on 07.09.2013. An FIR No. 360/13, U/s 279/337/304A IPC is stated to have been registered with PS Sunlight Colony. Petitioners being the husband and minor children of the Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.2/15 deceased have claimed compensation to the tune of Rs. 10 lacs together with interest on the ground that the deceased was only 22 years of age and that the petitioners have incurred Rs. 30,000/ on transportation and last rites etc. It has been claimed that she was a housewife and was earning Rs. 3300/ per month. It is stated that she has left behind two minor sons namely Nitin Kumar (aged 5 years) and Jatin Kumar (aged 2 years), apart from her husband. It is stated that respondent no.1 was driving his own TSR No. DL 1 RH 1123 at the time of accident and the R2 is the insurer of the said TSR and as such vicariously liable to pay compensation to the petitioners. Compensation has been claimed on account of unnatural and untimely death, mental pain and agony, loss of love and affection, loss of income, loss of consortium, loss of future income and future expenses.
2. R2 M/s Sri Ram General insurance company Ltd., in their initial reasoned reply stated that as per the very statement of Sh Yogesh Kumar, the TSR No. DL 1 RH 1123 was hit by the red coloured vehicle, whose registration Number could not be recorded and that since there is no fault or negligence attributable to the driver of TSR No. DL 1RH 1123, the respondent no.2 is not liable to pay any compensation. Rights to other statutory defence was also reserved by the insurance.
3. In their response to the petition U/s 163A M.V. Act, the insurance company has objected on same lines. In addition, the insurance Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.3/15 company has denied the averments made in the petition and denied the liability.
4. It transpires that R1 had appeared on 27.01.2014 but did not file any written statement and failed to participate in proceedings.
5. Following issues were framed on 20.03.2014:
1. Whether Smt. Prem Lata suffered fatal injuries in an accident dated 06.09.2013 on account of rash and negligent driving of respondent no.1, of TSR No. DL1RH1123? OPP
2. Whether the petitioners are entitled to compensation, if so, to what extent and from whom?
3. Relief.
6. Petitioner No.1 examined himself as PW1 and deposed through affidavit. He has stated that on 06.09.2013 at about 2.30 pm Smt. Prem Lata was traveling in TSR No. DL 1RH 1123 alongwith himself and petitioner no.2 & 3 heading for Delhi from Noida and while the TSR reached DND Flyover, an unknown vehicle /car hit the TSR resulting into overturning of the TSR and grievous injuries to victim Prem Lata. He has further deposed that she was removed to trauma center, AIIMS where she expired during treatment. He has deposed that the postmortem was conducted on 07.09.2013 and proved the postmortem report as Ex. PW1/1.
7. He further deposed that the deceased was aged 22 years and possessed sound mind and robust physique and was not suffering from any Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.4/15 kind of ailment or addicted to any vice and that she was earning Rs.3300/ per month. He has stated that he was solely dependent upon the deceased and that the deceased has left behind himself as well as two minor sons. He has also proved the copy of FIR as Ex. PW1/2, copy of RC/DL and insurance policy as Ex. PW1/3 to Ex. PW1/5 respectively, domicile certificate as Ex. PW1/6 and his DL as Ex. PW1/7.
8. No witness has been examined in Respondent Evidence. 9 I have heard learned counsels for the parties and have gone through the relevant records.
ISSUE NO. 1
10. Time now to deal with issue relating to the rash and negligent driving on behalf of the respondent no.1. It has been contended by the ld. Counsel for petitioner that the instant petition is under section 163A of M. V. Act and there is no necessity for proving the negligence on the part of the respondents. Ld. Counsel for the insurance, however, has vehemently objected while contending that the witness PW1, in categorical terms, has admitted that there was no fault on the part of the auto driver. The question, thus, arises that whether rashness and negligence is necessary to be proved in the present proceedings, and what would be the effect in case there is no negligence on the part of the respondent no.1.
11. Ld. Counsel for petitioner has relied upon Deepal Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.5/15 Girishbhai Soni & Ors. Vs. United India Insurance Co. Ltd./2004 ACJ934 while contending that section 163A is entirely different provision and that it has been no bearing with section 166 of M. V. Act or the ingredients thereof. He further contended that it is the necessity for the petitioner to prove any rash and negligent act in proceeding under Section 163A.
12. 163A of M. V. Act reads as under: "163A. Special provisions as to payment of compensation on structured formula basis. (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the 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 motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation. For the purposes of this subsection, 'permanent disability' shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under subsection (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
13. In Deepal Girishbhai Soni and Ors. Vs. United India Insurance Co. Ltd. it was held that section 163A, is a social security provision, providing for a distinct scheme only to those, whose annual income is upto to Rs.40,000/ and that section 163A of M. V. Act covers cases where negligence on the part of the victim. Para 66 of the judgment Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.6/15 as follows: "Section 163A was introduced in the Act by way of a social security scheme. It is a code by itself. Section 140 of the Act dealt with interim compensation but by inserting section 163A, Parliament intended to provide for the making of an award consisting of a predetermined sum without insisting on a long drawnout trial or without proof of negligence in causing the accident. Section 163A of the Act covers cases where even negligence is on the part of the victim. The amendment was, thus, a deviation from the common law liability under the law of Torts and was also in derogation of the provisions of the Fatal Accidents Act. The Act and Rules framed by the State in no uncertain terms suggest that a new device was sought to be evolved so as to grant a quick and efficacious relief to the victims falling within the specified category. The heirs of the deceased or the victim in terms of the said provisions were assured of a speedy and effective remedy which was not available to the claimants under section 166 of the Act. It is by way of an exception to section 166 and the concept of social justice has been duly taken care of."
14. Before proceedings further the law relating to section 163A needs to be referred to, considering the vehement objection of the ld. Counsel for the insurance to the effect that having admitted that there was no fault on the part of the respondent no.1, the petitioner is not entitled to claim any compensation from the insurance of the vehicle being driven by respondent no.1.
In Hemlata & Ors. Vs. Vipin Kumar & Ors.2014ACJ1248, it was observed as under: For the purpose of awarding compensation under section 163A of the Act, Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.7/15 the court is required to see only the involvement of the vehicle, which is duly proved. In a petition under section 163A of the Act, the claimants can claim compensation from the owner or insurer of any or all the vehicles involved in the accident. I am fortified in this view by a Division Bench judgment of Kerala High Court in United India Insurance Co. Ltd. v. Ratheesh, 2012 ACJ 2206 (Kerala), wherein while relying on United India Insurance Co. Ltd. v. Madhavan, 2012 ACJ 1986 (Kerala) and after analysing the provisions of sections 140 and 163A of the Motor Vehicles Act, the Division Bench held as under:
"(13) The legislature in 1994 introduced section 163A into the statute book.
While under section 140 even without proving any fault only specific amount alone could be claimed, under section 163A a comprehensive claim can be staked for compensation by the victims who have suffered permanent disablement or legal heirs of a deceased victim.
(14) Provisions of section 140 of the Motor Vehicles Act make it clear that payment under section 140 is only adhoc and interim. The claimants are entitled, even after claiming the amount under section 140 of the Motor Vehicles Act, to claim the entire amount of compensation which would otherwise be payable by resort to section 166 of the Motor Vehicles Act. The only stipulation is that amount paid under section 140 must be adjusted towards the amount that would be payable under section 166 of the Motor Vehicles Act.
(15) The legislature, with long experience of working section 140, and its predecessor provisions had introduced section 163A in the Motor Vehicles Act in 1994 and in section 163A of the Motor Vehicles Act significantly there is no reference at all to the nature of liability of owners/insurers if there is plurality of vehicles involved in the accident. The difference is significant. It could not be an inadvertent omission. Section 140 speaks of the arrangement when plurality of vehicles are involved. The liability is declared Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.8/15 to be joint and several. But when it came to section 163A of the Motor Vehicles Act the legislature did not incorporate such a stipulation. (16) Why? The query is pored over. We have already noted that it could not be an inadvertent omission and this is eminently clear from section 163A (2) of the Motor Vehicles Act which eloquently convey to the court that the legislature was cognizant and seized of the possibility of plurality of vehicles being involved in the accident. Wrongful act, neglect or default of the owner of the vehicle or vehicles concerned or of any other person need not be proved in a claim under section 163A of the Motor Vehicles Act, it is declared in section 163A(2). This definitely reveals to the court that it was a conscious deviation from the scheme that was stipulated under section 140 of the Motor Vehicles Act.
(17) So far as section 140 of the Motor Vehicles Act is concerned, it is now trite that claim can be raised against either or both owners/insurers of the vehicles. The decision in Oriental Insurance Co. Ltd. v. Lakshmikutty Amma, 1999 ACJ 597(Kerala), makes the position clear that the Claims Tribunal need not identify at the stage of award of compensation under section 140 of the Motor Vehicles Act all the vehicles (persons) liable to pay compensation. It is, therefore, evident that a claim under section 140 can be staked against the owner of either vehicle. The insurer consequently will be liable to indemnify the owner of the vehicle liable. (18) We requested the learned counsel to advance arguments at the Bar as to why totally different semantics and dynamics have been employed by the legislature while enacting section 163A that the liability is joint and several. Even under section 140 of the Motor Vehicles Act claim can be staked against either or both the owner/owners of the vehicle. It therefore appears to us to be evident that in a claim under section 163A also the choice/option must be for the claimant to stake claim against either or both owner/insurer of the vehicles involved in the accident.
Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.9/15 (22) We are unable to find any other reason as to why a different language is used under sections 140 and 163A of the Motor Vehicles Act by the legislature so far as the nature of the liability of the owner/insurer is concerned, when plurality of vehicles are involved. Consequently, therefore, it appears to us that the option is entirely on the claimant to stake his claim against either or both owners/insurers of the vehicles involved in a claim under section 163A of the Motor Vehicles Act. That right/option of his has got to be protected."
In Sanjeev Kumar Vs. Ram Pal & Ors. 2014ACJ2411 it was observed as under:
4. It is true that the accident as required under section 163A of the Act need not be proved to have occurred on account of rash and negligent driving of the vehicle. A case of an accident is covered by section 163A of the Act if the same has occurred on account of use of a vehicle. However, this is not the only difference between the abovementioned two provisions.
5. Section 163A of the Act covers cases where the accident had occurred due to use of the vehicle. Compensation in a petition brought under section 163A of the Act has to be assessed as per the structured formula. However, it is clear from the language employed in section 163A of the Act that it covers only the cases of death and permanent disablement. No third category of cases is covered by this provision. It is not in dispute in the case in hand that the claimantappellant did not suffer any permanent disablement on account of the injuries suffered in the accident. So in the absence of any permanent disablement the claimant cannot seek compensation under section 163A of the Act for the injuries suffered by him in the accident. In United India Insurance Co. Ltd V. Katikala Indira & Ors. 2014 ACJ1720 it was observed as under: Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.10/15
17. In substance, this provision is a special provision and is applicable in complete exclusion of any other provision contained in the Act or any other law for the time being in force and enables dependants of the deceased to claim compensation from the owner of the motor vehicle or the authorised insurer, if the death occurs due to the accident arising out of the use of motor vehicle. This section imposed a mandate on the owner or the authorised insurer to pay compensation on such claim. If a claim is made under section 163A, it is not necessary to prove that the death is caused due to any negligence or any other means; it is sufficient if death is caused out of the use of a motor vehicle.
15 Considering the above, it is clear that the petitioner is not required to prove any negligence on the part of the respondent no.1 for maintaining the present proceedings. The issue is disposed off accordingly.
ISSUE NO.2
16. In view of the above the entitlement of the petitioner is to be worked out. Ld. Counsel for petitioner has contended that the deceased was earning Rs.3300/ per month and was 22 years old at the time of accident. He also contended that the petitioners are also entitled to compensation on account of loss of consortium, love and affection besides other things.
17. Ld. Counsel for the insurance company on the other hand has contended that there is no proof of income and as such the claim is not maintainable. Even if the the deceased is considered to be a housewife, Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.11/15 her service can not be undermine and the compensation can not be deducted on the ground. The claim of the petitioner is well within the limits of section 163A and, accordingly, petitioner is entitled for compensation on this ground.
18. Since the petitioner has claimed that the income of the deceased was Rs.3300/ per month, the same comes to Rs.39,600/ per annum. The age of the deceased was 24 years as per the MLC as such the multiplier of 17 is to be applied. In terms of section 163A and the II scheduled, 1/3 is to be deducted towards personal living expenses and as such the amount of compensation payable to the petitioner comes to Rs. 4,48,800/ {(39,600 X2/3)X17}.
19. Adverting to the other claims of petitioners i.e. in respect of the loss of consortium, love and affection and loss of estate, the same can not be entertained, to the extent claimed by the petitioner. Considering the II schedule and the M. V. Act 1988, the petitioners, however, are entitled to certain compensation on these counts. A sum of Rs.25000/ is awarded to petitioner no.1 towards loss of consortium and petitioner no.2 and 3 for loss of love and affection. Rs.5000/ are awarded towards funeral expenses and Rs.5000/ are awarded towards loss of estate.
20. The petitioners are thus entitled to following compensation Head of compensation Amount (in Rs.) Loss of dependency 4,48,800/ Loss of consortium/Love & affection 25,000/ Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.12/15 Funeral expenses 5,000/ Loss of estate 5,000/ Total 4,83,800/ Relief
21. Accordingly, a compensation of Rs.4,83,800/ is awarded to petitioner with interest @9% per annum from the date of filing of petition i.e. 05.12.2013.
22. A sum of Rs.2,83,800/ is awarded to the petitioner no.1 and Rs.1,00,000/ each, is awarded to petitioner No.2 & 3. out of the above amounts, part be released to petitioner no.1, the rest is directed to be maintained in the form of FDRs for the term as detailed in following tabulated form : Sr Name of the Amount Amount to Amount to be Interest Whether no Petitioner / Awarded be released deposited /maintained in the payable or liable to be Claimant to the FDR with break up and credited in the A/c of Petitioner/ duration the Claimant Petitioner/Claimant on monthly basis 1 Yogesh Rs. Rs.1,33,800/ Rs.1,50,000/ + interest Yes Kumar 2,83,800/ amount accrued to Petitioner no.1 Amount of the Term fixed Deposit 50% 3 years 50% 5 years 2 Nitin Rs. Rs. Nil Rs.1,00,000 + interest amount No Kumar 1,00,000/ accrued on Rs. 1,00,000/ i.e. (Minor) the amount awarded to Petitioner no.2 (to be maintained in FDR till majority).
Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.13/15
3 Jatin Rs. Rs. Nil Rs.1,00,000 + interest amount No
Kumar 1,00,000/ accrued on Rs. 1,00,000/ i.e.
(minor) the amount awarded to
Petitioner no.3 (to be
maintained in FDR till
majority).
23. The respondent no.3 is directed to deposit the said
compensation in the name of the petitioners, together with interest @ 9% per annum from the date of filing of the petition i.e. 05.12.2013, till the actual date of payment, with SBI, Saket Court Complex Branch, New Delhi, within 45 days, failing which the respondent no. 3/insurance company would be liable to pay interest @ 12% per annum for the period of delay. The Bank shall be obliged to open a savings account in the name of Petitioner, upon completion of necessary formalities by the Petitioner.
24. The Bank Account/Fixed Deposits are subject to and to be regulated by the following conditions :
a)Interest on the fixed deposit be paid to the Petitioner no.1 by automatic credit of interest in their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
b)Half yearly statements of account to be filed by the bank, with this court.
c)Bank to issue Photo Identity card to Petitioner for facilitating his identity and the withdrawal from the said account be permitted Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.14/15 subject to due verification and submission of age proof of the minors.
d)No cheque book be issued to Petitioner(s) / Claimant(s) without permission of the Court. Original Pass book shall be given to the Petitioner(s) / Claimant(s) together with the copies of the FDRs.
e)Original Fixed Deposit Receipts to be retained by the bank in safe custody and be handed over to Petitioner(s) / Claimant(s) on expiry of the term/maturity of the Fixed Deposit.
f)No loan, advance or withdrawal to be permitted/allowed in respect of the Fixed Deposits, without the permission of the Court.
g) The Bank Shall transfer the savings account to any other branch of the State Bank of India, as per the request and convenience of the Petitioner(s) / Claimant(s).
h) Petitioner(s) / Claimant(s) to furnish all relevant documents for opening of the saving Bank Account and Fixed Deposit Receipts, with the Branch Manager, State Bank of India, Saket Courts Complex Branch.
25. Copy of this award be given to the respondents as well as to the petitioner free of cost. Copy of this award be also sent to SBI, Saket Court Complex Branch for Record and compliance.
26. List on 16.07.2015 for compliance.
Announced in open court
Dated: 16.05.2015 (NIKHIL CHOPRA)
PO: MACT01 (SE)/SAKET CURTS,
NEW DELHI
Suit No.143/14/13 Yogesh Kumar Vs. Nagender Tiwari & Ors. page No.15/15