Delhi District Court
Smt. Shivani vs Shri Tejveer Singh on 9 October, 2012
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
DAR No. 83/DAR/11
IN THE MATTER OF :
Smt. Shivani
W/o Shri Ram Jatan,
R/o Village Bagdola,
New Delhi.
... Petitioner
Versus
1. Shri Tejveer Singh, (Driver)
S/o Shri Than Singh,
R/o H.No. RZG215, Raj Nagar II,
Palam Colony, New Delhi.
2. Ms. Carzonrent India Pvt. Ltd., (Owner)
Rani Jhansi Road, Jhandewalan,
Paharganj, New Delhi.
3. ICICI Lombard General Insurance Company, (Insurer)
Regd. Office ICICI Bank Towers,
Bandra - Kurla Complex,
Mumbai - 400 051.
4. Shri Rajesh Kumar, (Lease Holder)
S/o Shri Bharam Parkash,
R/o 221, Rawta Village,
New Delhi - 110 073.
... Respondents
DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 1 of 27
Filed on : 28.03.2011
Reserved on : 03.10.2012
Decided on : 09.10.2012
J U D G M E N T:
1. This report of Investigating Police Officer (DAR) was registered as a regular claim petition under Section 166(4) of the Motor Vehicles Act, 1988.
2. Respondent No. 1 is the driver, Respondent No. 2 is the owner, Respondent No. 3 is the insurer and Respondent No. 4 is signatory of Radio Taxi Operation Agreement executed between Respondent No. 2 and Respondent No. 4 at the time of accident.
3. A perusal of this report reveals that FIR No. 33/11 under Section 279/337/338 of IPC was registered against Respondent No. 1 for having caused road traffic accident which resulted in grievous injuries to the petitioner, Smt. Shivani.
4. Police after completion of investigation has filed chargesheet stating that one Shri Ram Jatan Sahu, a Rickshaw Puller, on 04.02.2011 was taking his wife Smt. Shivani from Sector9, Dwarka, Krishna Apartments to Sidharth Apartments near Friday Bazar to purchase clothes.
5. Around 7:00 P.M., near Sidharth Apartments, a Car Taxi No. DL1RX6861 which was being driven by Respondent No. 1 in a rash and negligent manner hit the rickshaw from behind as a result of which this rickshaw puller Shri Ram Jatan DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 2 of 27 Sahu and his wife Smt. Shivani suffered injuries.
6. Notice of this report was issued to the respondents. Respondent No. 1 filed his reply and stated that the alleged accident was not caused due to any fault on the part of answering respondent and petitioner has approached this Court making all sorts of unfounded and concocted allegations.
7. He stated that he is falsely implicated in the FIR in question. He denied the contents of FIR and stated that he was driving the vehicle according to traffic rules. Therefore, he prayed that claim petition qua him be dismissed.
8. Owner, Carzonrent (India) Pvt. Ltd., stated in its reply that compensation claimed by the petitioner is excessive, exorbitant and answering respondent is not liable to pay the claim.
9. It was stated that vehicle bearing Registration No. DL 1RX6861 Hyundai Accent Car was insured with ICICI Lombard General Insurance Company Limited vide passengers carrying vehicles Insurance Policy Cover Note No. PCVL 9027429 valid from 18.09.2010 to 17.09.2011. Therefore, liability, if any, to pay compensation is of insurance company.
10. It was further stated that this vehicle was allotted to Shri Rajesh Kumar, Respondent No. 4 and the accident took place during the tenure of said allotment. At the time of accident, vehicle was in actual physical user, operation and control of Respondent No. 4.
11. Therefore, it was stated that liability to pay DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 3 of 27 compensation would be of Respondent No. 4.
12. Respondent No. 2 also denied that any accident took place as alleged.
13. Rest of the allegations made in the claim petition were denied and it was prayed that claim petition be dismissed.
14. Reply was also filed by insurance company stating that policy bearing No. 3004/61184068/00/000 valid from 18.09.2010 to 17.09.2011 in the name of Car Zone Rent (India) Pvt. Ltd. was issued for vehicle bearing No. DL1RX6861 (Taxi).
15. It was stated that the liability of insurance company is subject to terms and conditions of the policy.
16. It was stated that the vehicle in question was a commercial vehicle but the driver was having a driving license to drive a private vehicle only.
17. Therefore, it was stated that the insurance company has no liability to pay the compensation.
18. It was stated that in case there is a breach of Section 137(C), 147 and 149 of Motor Vehicles Act, or Section 64 VB of Insurance Act, in that event, claim petition be dismissed.
19. Rest of the contents of report were also denied and it was reiterated that claim petition be dismissed.
20. Respondent no. 4 did not file any written statement.
21. From the pleadings of the parties, following issues DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 4 of 27 were framed: (1) Whether petitioner/injured Ms. Shivani sustained injuries in a motor vehicle accident dtd 04.02.2001 due to rash or negligent driving of vehicle no. DL 1RX 6861 by R1?. OPP (2) Whether the petitioner is entitled to claim compensation, if so, what amount and from whom? .. OPP (3) Relief.
22. Petitioner entered in the witness box as PW1. She relied upon D.A. Report in support of her claim petition.
23. She deposed that she is not a house wife but was working as a maid servant in houses and was earning Rs. 7000/ per month. She stated that she remained out of job for six months due to this accident and lost three teeth.
24. She stated that due to jaw injuries, she can not eat properly.
25. Suggestions contrary to her case were denied.
26. Respondent No. 1 also entered in the witness box and stated in his examinationinchief, that he used to drive the vehicle in question occasionally. On the date of accident, he had taken the vehicle from CNG Pump to his house. He had requested Respondent No. 4 to get him employed as a driver and on the date of accident, there was some problem at the house of Respondent No. 4 and Respondent No. 4 had requested Respondent No. 1 to take the offending vehicle and park the same at his residence i.e. residence of Respondent No. 1.
DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 5 of 2727. In crossexamination, he admitted that he has not stated these facts in his written statement and he was not having a driving license to drive a transport vehicle and even today he was not having any driving license to drive a commercial vehicle.
28. On behalf of insurance company, its Manager (Legal) entered in the witness box as R3W1 and proved notice given to the driver and owner under Order 12 Rule 8 of CPC as Ex. R3W1/1, postal receipts as per which this notice was sent were exhibited as Ex. R3W1/13 and attested copy of CertificatecumPolicy Schedule was exhibited as Ex. R3W1/4.
29. R3W1 stated that in spite of receiving legal notice, driver and owner have failed to produce driving license in the name of respondent no. 1 to drive a commercial vehicle. Therefore, it was stated that the insurance company has no liability to pay any compensation. He stated that as per D.A. Report, the DL of the driver was valid only for Motorcycle and LMV (Non Transport).
30. He further deposed that as per insured, the vehicle was alloted to Respondent No. 4 on contract which is also a reason for insurance company to avoid its liability.
31. Statement of Respondent No. 4 was also recorded in the Court where he stated that he was having a valid and effective driving license authorizing him to drive the LMV GV i.e Goods Vehicle. This license was effective w.e.f. 2006 and was valid on the date of accident. Copy of license and driver's badge authorising him to drive a taxi were proved as Ex.
DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 6 of 27R4W1/12 respectively.
32. He stated that on the date of accident, he had given his vehicle to Shri Tejveer Singh as his grandfather's condition had deteriorated and his house at village Rawta was at a distant place from Dwarka. He had given the vehicle to Respondent No. 1, to park the same at his house at Palam.
33. He stated that Respondent No. 1 was not authorized to take any passenger in the vehicle.
34. In crossexamination, he stated that Respondent No. 1 is not his driver but his friend. At the time of accident, Respondent No. 1 was driving the vehicle Respondent No. 4 knew that Shri Tejveer Singh is not having driving license to drive transport vehicle/goods vehicle.
35. No evidence was got recorded on behalf of respondent no. 2/ the insured owner.
36. Arguments were addressed by Sh. Ajit Kumar, learned Counsel for petitioner and Sh. Mehtab Singh, learned Counsel for the insurance company. None came to address arguments for Respondent No. 1, 2 and 4.
37. Counsel for the petitioner has argued that although the injuries are described as simple but petitioner has suffered loss of three teeth in the accident and Rs. 2000/ were spent by her on her treatment and the bills of purchase of medicines etc. are on record.
38. On the other hand, counsel for insurance company has argued that the driving license of the driver of the vehicle was for LMV (Private) whereas the vehicle in question was a DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 7 of 27 commercial taxi. Notice was served upon owner and driver to produce any other driving license of respondent no. 1 to drive commercial vehicle but inspite of notice no such driving license was placed on record. Therefore, counsel for insurance company prayed for exoneration.
39. Exoneration was also prayed for the reason that insured was Carzonrent (India) Private Limited but the vehicle was leased to respondent no. 1 which is a breach of policy.
40. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1
41. Burden of proving this issue is on the petitioner.
42. For succeeding in a claim petition under Motor Vehicles Act, it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
43. This is sine qua non for getting the relief.
44. Petitioner has stated in her evidence by way of affidavit that on 04.02.11, in the evening, she alongwith her husband was coming from Krishna Apartments in a rickshaw driven by her husband and near Friday Market, in front of Sidharth Apartments, the offending vehicle i.e. taxi bearing no. DL1RX6861 being driven by respondent no. 1 in a rash and negligent manner hit their rickshaw due to which this petitioner and her husband sustained grievous injuries.
45. The testimony of this petitioner that respondent DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 8 of 27 no. 1 was driving the vehicle rashly and negligently has remained totally uncontested inasmuch as she was not cross examined on the point of rash and negligent driving on behalf of respondent no. 1.
46. Besides this, respondent no. 1 did not utter a single word when he entered in the witness box to prove his innocence.
47. A perusal of site plan shows the extent of rash and negligent driving of respondent no. 1.
48. In the site plan, it is shown that Point A is the place where offending vehicle had hit the rickshaw of the petitioner.
49. Point A is on the extreme left side of the road meaning thereby that the petitioner was on correct side of the road.
50. It is further stated in the site plan that Point B is the place where offending vehicle after jumping over the divider hit RTV bearing no. DLIVA555 standing on other side of the road.
51. A perusal of site plan leaves no doubt that the accident was caused due to rash and negligent driving of respondent no. 1.
52. Moreover police after investigation has filed a charge sheet against respondent no. 1 which is also prima facie suggestive of rash and negligent driving by respondent no.1.
53. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 9 of 27 observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society"
54. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
55. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 10 of 27 "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was 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 beyond reasonable doubt could not have been applied."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
56. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants 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 Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (Supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in F.I.R No. 955 of 2004, pertaining to involvement of the DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 11 of 27 offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., 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 the Motor Vehicles Act are not akin to proceedings in a civil suit and hence 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. There is ample evidence on record to prove negligence on the part of the driver."
57. Therefore, this issue is decided in favour of petitioner and against the respondents. ISSUE NO. 2:
58. In the case of Raj Kumar v. Ajay Kumar & Anr. ACJ 2011 (Vol. I), following principles were laid down by the Hon'ble Supreme Court for determining compensation payable to road traffic accident victims:
(i) The compensation payable to the claimant who is a victim of road accident should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equatable manner.
(ii) Compensation payable in injury
cases is payable under two heads. They are
pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 12 of 27 three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) (a) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future medical expenses. Nonpecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities (and /or loss of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).
(iii) In routine personal injury cases compensation is awarded only under heads (i),
(ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation is granted under any of the heads (ii) (b), (iii) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.
59. As per MLC, petitioner had suffered seven injuries on different parts of her body.
60. She was feeling pain in opening and closing of jaws.
61. She had suffered intra oral avulsion. She was referred for Dentist's opinion as well as Ortho Emergency. The evidence of petitioner that she lost three teeth in the accident has remained totally uncontested.
DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 13 of 2762. Therefore, for Pain and Suffering, she is given a compensation of Rs. 30,000/.
63. Besides this, petitioner is given a compensation of Rs. 5000/ for Conveyance Charges and Rs. 5000/ for Special Diet.
64. For Loss of Wages, treating her as an unskilled workman, she is given a compensation of Rs. 6084/ which were the minimum wages payable to an unskilled workman per month at the time of accident.
65. Few receipts for treatment and purchase of medicines worth Rs. 1015/ are on record.
66. Petitioner is entitled to recover this amount of Rs. 1015/ as compensation for Cost of Treatment and Cost of Medicines.
67. Therefore, total compensation payable to petitioner would be Rs. 47,099/ which will be paid with interest @ 9% p.a. from the date of filing of this claim petition which is 28.03.11 till its deposit in the Tribunal.
68. For granting interest @ 9% p.a. reliance can be placed on the judgment of Hon'ble High Court of Delhi in Dhaneshwari & Anr. v. Tejeshwar Singh & Ors. MAC APP. 997/11 dated 19.03.12 where in para 72 and 73 the Hon'ble High Court has held as under:
72. In Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. (2011) 11 SCC 269, the interest granted by the National Commission @ 9% was upheld by the Supreme Court. In Sant Singh v. Sukhdev Singh (2011) 11 SCC 632, interest @ 9% per annum was awarded by the DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 14 of 27 Hon'ble Supreme Court. In Raj Kumar v. Ajay Kumar and Anr. 2011 (1) SCC 343, the interest @ 9% p.a. awarded by the Claims Tribunal was approved. In Arvind Kr. Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254, interest @ 9% p.a. was awarded on the enhanced amount of compensation.
73. In these circumstances, I would also follow the Bank rate of interest and would award interest @ 9% p.a. on the enhanced amount.
69. In the case of Sheela Devi & Anr. Vs. Naib Singh & Ors. : MAC Appeal No. 91/05 dated 11.05.2012 the Hon'ble High Court has held as under: "7. The Claims Tribunal has awarded interest @ 6% per annum which is on a lower side. The Apex Court has awarded interest @ 9% per annum, in the recent case of MCD V. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100. Following the judgment of the Apex Court, the rate of interest is enhanced from 6% per annum to 9% per annum."
70. Next question is which of the respondents is liable to pay this compensation to the petitioner.
71. The vehicle in question is insured by respondents no. 3. Owner, respondent no. 2, had given this vehicle for driving to respondent no. 4. Respondent no. 4 was having license to drive commercial vehicles as well as a badge for this purpose. The two are exhibited as Ex. R4W1/1 and 2 respectively.
72. On the date of accident, the vehicle was found to be driven by respondent no. 1.
DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 15 of 2773. If a driver who is given the vehicle by its owner to drive it as a taxi further hands it over to another driver not having valid and effective driving license to drive the vehicle, in such a situation, it cannot be said that the owner had committed any willful and deliberate breach of the terms and conditions of the policy.
74. Respondent no. 2 has done all that was within its means to ensure that the vehicle was being driven by a driver having valid and effective driving license.
75. Evidence of respondent no. 4 and respondent no. 1 reveals that on the date of accident the condition of grand father of respondent no. 4 had deteriorated. Therefore, Respondent No. 4 had given the vehicle to respondent no. 1 to park it at his house i.e. house of Respondent No. 1, in Palam because the house of respondent no. 4 was at a considerable distance at Village Rawta.
76. Owner could not have anticipated this contingency and therefore owner is not guilty of willful and deliberate breach of terms and conditions of the policy.
77. In the case of National Insurance Company Limited v. Swaran Singh & Ors., 109 (2004) Delhi Law Times 304 (SC) it was held that: "Mere breach of condition of policy shall not absolved the Insurance Company from its liability unless and until it is proved that the breach was willful on the part of the insured. "
DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 16 of 2778. In United India Insurance Co. Ltd. V. Lehru and Others, 2003 ACJ 611 it was held that: "20. When an owner is hiring a driver he will therefore have to check whether the driver was a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner should then take the test of the driver. If he find that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that Insurance Companies expect owners to make inquiries with RTO's, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149 (2) (a) (ii). The Insurance Company would not then be above 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. More importantly even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skiandia's Sohan Lal Passi's and Kamla's case We are in full agreement with the views expressed therein and see no reason to take a different view. "
It was further held that :
"The injured or relatives of person killed in the accident may find that the decree obtained by them is only a paper decree as the owner is a man of straw. The owner himself would be an innocent DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 17 of 27 sufferer. It is for this reason that the Legislature, in its wisdom, has made insurance, at least third party insurance, compulsory. The aim and purpose being that an Insurance Company would be available to pay. The business of the Company is to insurance. In all businesses there is an element of risk. All persons carrying on business must take risks associated with that business. Thus it is equitable that the business which is run for making profits also bears the risk associated with it. At the same time innocent parties must not be made to suffer or loss. These provisions meet these requirements. We are thus in agreement with what is laid down in aforementioned cases viz that in order to avoid liability it is not sufficient to show that the person driving at the time of accident was not duly licensed. The Insurance Company must establish that the breach was on the part of the insured."
79. Following the judgments of Hon'ble Supreme Court in the case of Swaran Singh (supra) and Lehru (supra) it cannot be said that insurance company has proved that insured had committed breach of terms of policy willingly and deliberately.
80. So far as lease of vehicle to respondent no. 4 by respondent no. 2 is concerned, this defence is not taken in the written statement.
81. On 23.08.11, it had come on record that respondent no. 4 was allotted offending vehicle under Radio Taxi Operation Agreement. Even then no steps were taken to amend the written statement by insurance company. Therefore, this argument can not be raised by the insurance company at this stage.
82. Reliance can be placed on a judgment of the DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 18 of 27 Hon'ble High Court of Delhi in case titled as Oriental Insurance Co. Ltd. v. B.S. Bhargav & Ors. MAC APP. No. 127/10 dated 14.08.12.
83. In that case, a general defence was taken in the written statement that if the driver was not holding any valid and effective driving license and/or there was no valid and effective permit in respect of the vehicle at the time of the accident, insurance company would not be liable to pay compensation.
84. The written statement was never amended on any subsequent date to take any specific plea that the driving license held by driver was fake.
85. For this reason, recovery rights were denied to the insurance company.
86. In present case also, insurance company never took a specific plea that as vehicle was handed over to Respondent No. 4 under Radio Taxi Operation Agreement and therefore insurance company has no liability.
87. Moreover, a perusal of photocopy of Radio Taxi Operation Agreement placed on record by Respondent No. 2 shows that respondent no. 4 had to provide his licensed driving expertise for driving as well as maintaining the radio taxi owned by the Respondent No. 2 and Respondent No. 4 had to act as a taxi chauffeur in respect of the specified radio taxi, on a revenue sharing basis.
88. Respondent no. 4 had to provide actual driving on the city roads falling within the territory of the registration/license, using his knowledge of local rules and had to ensure proper DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 19 of 27 handling of the customer as well as the radio taxi for the generation of the revenue.
89. Respondent no. 4 had to ensure adherence to the prescribed uniform and had to wear proper uniform as prescribed by respondent no. 2 while operating the radio taxi or at all such times when respondent no. 4 was discharging his obligations under the agreement.
90. Respondent no. 4 also had to comply with speed limit while driving the radio taxi.
91. Respondent no. 4 had to accept all the calls and instructions given by Call Centre and had to be available for defined minimum hours for hiring on the road.
92. No title or right in the radio taxi passed in favour of Respondent No. 4 and ownership rights vested in Respondent No. 2 only.
93. The above would show that in sum and substance the respondent no. 4 was a driver of respondent no. 2 under Radio Taxi Operation Agreement.
94. Therefore, it cannot be said that respondent no. 2 had let out/rented the vehicle in question to respondent no. 4. Respondent no. 4 had remained a driver for respondent no. 2.
95. In the event of any liability arising on account of third party claims, the same was payable by respondent no. 2, inspite of contrary conditions laid down in Radio Taxi Operation Agreement between respondent no. 2 and respondent no. 4.
96. Rather such a condition that Respondent No. 4 would pay for the third party claims is rather against public policy.
97. Therefore, the defence of insurance company that the vehicle was rented out/hired to respondent no. 4 also fails on DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 20 of 27 merits as well.
98. Reliance is placed on Rajasthan State Road Transport Corporation v. Kailash Nath Kothari & Ors. Civil APP. No. 4350/93 decided on 03.09.1997 by counsel for insurance company to argue that liability to pay compensation is of Respondent No. 4 and not of Respondent No. 2 or its insurer Respondent No. 3.
99. In the case of R.S.R.T.C. (Supra), R.S.R.T.C had hired a bus from its owner. The bus was running on the route for which a permit had been granted in favour of the R.S.R.T.C. by competent authority. Permit was in the name of R.S.R.T.C for the specified route and the bus could not have plied on that route except by R.S.R.T.C which had the permit. Conductor of the bus was also an employee of R.S.R.T.C and passengers were being carried in that bus on paying the prescribed fare to the bus conductor who was an employee of R.S.R.T.C. The fares paid by the passengers were received by the conductor for and on behalf of R.S.R.T.C. The bus was given on hire to R.S.R.T.C alongwith the driver, who, however, was to ply the bus under the instructions of R.S.R.T.C.
100. In these circumstances, the Hon'ble Supreme Court had held that the vehicle in question was in possession and under the actual control of R.S.R.T.C for the purpose of running on the specified route and was being used for carrying, on hire, passengers by the R.S.R.T.C. The driver was to carry out instructions, orders and directions of the conductor and other officers of the R.S.R.T.C for operation of DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 21 of 27 the bus on the route specified by the R.S.R.T.C.
101. In these circumstances, the Hon'ble Supreme Court had held that the definition of owner under Section 2 (19) of the Act is not exhausted and expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus.
102. It was further held that passengers of the ill fated bus had privity of contract with only the R.S.R.T.C to whom they had paid the fare for traveling in that bus and their safety therefore became the responsibility of the R.S.R.T.C while traveling in the bus. They had no privity of contract with the owner of the bus at all.
103. Since the driver was plying the bus under the contract of the R.S.R.T.C therefore R.S.R.T.C was held vicariously liable for the tort committed by the driver.
104. It is already noted that Respondent No. 2 had a license to operate as a Radio Taxi Operator. The vehicle in question was being plied on the road on the basis of such license. This license was in the name of Respondent No. 2. But for this license, Respondent No. 4 could not have plied the vehicle on the road.
105. Respondent No. 2 had got its Radio Taxis registered under the Radio Taxi Scheme of the State Transport Authority and had installed necessary equipments in their taxis as well as in their control rooms and has fulfilled all the requirements DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 22 of 27 under the scheme.
106. Respondent No. 4 had entered into Radio Taxi Operation Agreement with only quality of having a valid driving license for last more than five years and with requisite know how required for driving as well as maintenance of radio taxis/commercial vehicles.
107. Though, the agreement mentions revenue sharing between Respondent No. 2 and Respondent No. 4 but in real sense Respondent No. 4 was the driver only.
108. Respondent No. 2 is providing its financial, technological and marketing/business generating strengths as well as license to operate as a radio taxi operator and Respondent No. 4 had to act as a taxi chauffeur.
109. Respondent No. 2 provided license as well as properly equipped radio taxi duly fitted with all the technological infrastructure.
110. Respondent No. 4 had to drive a radio taxi on the city roads falling within the territory of the registration/license. It shows that the vehicle had to run under control of Respondent No. 2 all the times.
111. Respondent No. 2 had invested into the technological infrastructure which included mobile data terminal, GPS, installation of GPRS connectivity, central control room, unique phone numbers etc. required to run radio taxi effectively and for maintaining a constant contact between parties.
112. Respondent No. 2 had to invest in marketing and DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 23 of 27 advertising for the promotion of radio taxi services from broad spectrum of travelers which included tie ups of Respondent No. 2 with airports, railway stations, metro stations, hotels, shopping malls etc. where significant demands gets generated for taxi services.
113. Respondent No. 4 was also responsible for targeting corporate customers, airlines including negotiations of rates to generate demands for radio taxi.
114. The vehicle in question had to be repaired at select/nominated authorised workshops of the choice of Respondent No. 2.
115. The executives of the Respondent No. 2 checked the upkeep of the car on a daily basis and if any discrepancy was to be found, the vehicle was to be referred to designated workshop for proper maintenance.
116. Respondent No. 4 had to make the car available for inspection to Respondent No. 2 at their Branch office as required at any time.
117. Respondent No. 4 had to follow general guidelines specified by Respondent No. 2 for driving/operating the car. Respondent No. 2 at its own option could add or delete any of the guidelines and Respondent No. 4 was obliged to follow such changed guidelines.
118. Respondent No. 2 had to ensure that all the radio taxis are fitted with Vehicle Tracking Devices, Electronic Fare Meter and printers which were to be controlled by Respondent No. 2 through its call centre via GPS i.e. DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 24 of 27 Positioning System which also monitored speed of the car.
119. Respondent No. 4 had to adhere to the prescribed uniform while operating radio taxi and had also to comply with speed limit while driving radio taxi.
120. Respondent No. 4 had to accept all the calls and instructions given by the call centre and had to be available for the defined minimum number of hours for hiring on the road and could log of only after completing minimum number of hours under the agreement.
121. Respondent No. 4 had to carry out operation at least 12 hours in a month.
122. In case of any emergency, if alternative person had to operate radio taxi, in that event that alternate person was required to have all the qualifications required from Respondent No. 4 and prior consent of Respondent No. 2 was necessary before alternate person could ply the vehicle. Respondent No. 2 had an option to accept or reject the alternative driver.
123. In case radio taxi was to be engaged by any third party, Respondent No. 4 could provide radio taxi only after taking approval of Respondent No. 2.
124. Respondent No. 4 had to hand over a fixed amount to the second party per day on account of user of company's radio taxi.
125. It was also a condition that after successful completion of five years and on payment of nominal cost the radio taxi may be transferred in the name of Respondent No. DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 25 of 27
4. This was subject to sole discretion of Respondent No. 2.
126. Respondent No. 2 had exclusive rights over advertisements to be displayed to the taxi entrusted to Respondent No. 4 and the revenue earned from this source had to be the exclusive income of Respondent No. 2 over which Respondent No. 4 had no right.
127. The fee payable by Respondent No. 4 to Respondent No. 2 could be waved under emergent conditions only on the discretion of Respondent No. 2.
128. On termination of agreement Respondent No. 2 had to be returned the vehicle by Respondent No. 4.
129. Complaints of the customers had to be attended by the Manager appointed by Respondent No. 2.
130. There is a condition that all claims against Respondent no. 2 as a consequence of third party claims shall be indemnified by Respondent No. 4. However, such a condition is against public policy.
131. Different terms and conditions of agreement between Respondent No. 2 and 4 shows that the control over the vehicle was of Respondent No. 2 who is therefore liable to pay compensation to the petitioner and as Respondent No. 3 has given insurance policy agreeing to indemnify the insured, ultimately the compensation would be payable by Respondent No. 3.
132. Resultantly, compensation is to be paid by insurance company which be paid within 30 days from today under intimation to the petitioner by registered post.
DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 26 of 27133. Copy of award be given dasti to all the parties.
134. File be consigned to record room.
Announced in the Open Court.
On the 09th day of October, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
DAR No. 83/DAR/11 Smt. Shivani v. Sh. Tejveer Singh & Ors. Page 27 of 27