Delhi District Court
Smt. Bala vs . Rahis & Ors. on 25 April, 2014
1
Smt. Bala Vs. Rahis & Ors.
IN THE COURT OF SH. DEEPAK JAGOTRA PRESIDING
OFFICER : MOTOR ACCIDENT CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI
In the matter of :
MACP No. 874/11
1 Smt. Bala W/o Sh. Prakash @ Om Prakash
2 Prakash @ Om Prakash S/o Sh. Roshan Lal
Both are residence of H. No. 228,
Village Dhariya Pur, Teh. Bahadurgarh,
Distt. Rohtak, Haryana. ................. (Petitioner)
Through Advocate Sh. K. K. Dubey
Ch. No. 164165, Western Wing
Tis Hazari Courts, Delhi110054
Versus
1 Sh. Rahis S/o Majid
R/o Vill. Sukhpuri, Teh. F. P. Jhirka,
Distt. Mewat Nuh Haryana
2 Pritam Kumar Singla S/o Raghubir Singh
R/o H. No. 108, Todarmal Colony,
Najafgarh, New Delhi110043.
3 Future Generali India Insurance Co. Ltd.
E85, Himalaya House, 23, K.G. Marg,
New Delhi110001. ...........(respondents)
1 Date of institution: 09/12/2011
2 Date of framing of issues : 04/12/2012
3 Date of hearing of arguments : 25/03/2014
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2
Smt. Bala Vs. Rahis & Ors.
4 Date of decision : 25/04/2014
FATAL CASE
AWARD/ JUDGMENT:
1 The present claim petition has been filed by Smt. Bala,
mother and Sh. Prakash @ Om Prakash, father of the deceased Parvesh, thereby claiming compensation from the respondents under the provisions of Motor Vehicle Act, 1988. 2 Brief facts relevant for the disposal of the present petition may now be indicated.
3 On 13/10/2011, deceased Parvesh met with an accident with a truck bearing no. HR55M3618 being driven by respondent no. 1 in rash and negligent manner. The truck hit the motorcycle of deceased and dragged the deceased about 1015 feet and wheel of the truck ran over the deceased. As a result of which he died at the spot. 4 I have heard both the sides and carefully perused the record of the case.
5 It is submitted on behalf of the petitioner that they have proved their case and they are entitled for compensation to the tune of Rs. 50,00,000/ along with interest. On the other hand Ld. Counsel for the respondents prays for the dismissal of the petition.
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Recapitulation of the sequence of events are as follows: 6 The present petition has been filed on 09/12/2011 Written statement on behalf of insurance company has been filed on 07/03/2012. Respondents no. 1 & 2 are ex parte vide order dated 04/12/2012. Issues were framed on 04/12/2012. In order to prove their case the petitioners have examined PW1 Ms. Bala, PW2 Sh. Gopal and closed their evidence on 22/10/2013. The respondent no. 3 has examined R3W1 Smt. Prerna Jain, R3W2 Sh. Ghanshyam, R3W3 Sh. Raj Kumar and closed their evidence on 25/02/2014. 7 On the pleadings of the parties, following issues were framed:
Issue No. 1
Whether Sh. Parvesh sustained fatal injuries in a motor vehicle accident dtd 13.10.2011 due to rash and negligent driving of vehicle no.
HR55M3618 by R1? .....OPP Issue No. 2 Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? ... OPP Issue No. 3 Relief.
Page no. 1 of 3 4 Smt. Bala Vs. Rahis & Ors. FINDINGS ON ISSUE NO.1
8 PW1 Smt. Bala has stated that her son was 21 years of age who met with an accident on 13/10/2011 with a truck bearing no. HR55M3618 and died.
9 PW2 Sh. Gopal who is an eye witness to the incident has stated that on 13/10/2011 at about 9.30 PM he along with one Udaibeer were standing near Nirmal Petrol Pump Jhajjar Najafgarh Road, Haryana. He further stated that he saw Parvesh coming from Dhansa Border to their village when he reached near them a truck bearing no. HR55M3618 come from the side of Jhajjar at a very high speed driven most rashly and negligently come on the wrong side of the road and hit the motorcycle of Parvesh. Thereby causing his death.
10 In the cross examination, he has denied the suggestion that offending vehicle was being driven on the correct side of the road. He has also denied the suggestion that motorcyclist was negligent in driving the same. In the cross it is further elicited that offending vehicle had struck the motorcyclist from the driver side front wheel and dragged him at some distance. 11 Both PW1 and PW2 had given same account of events that accident had happened on 13/10/11. The testimony of eye witness Gopal is free from all contradictions. The witness is reliable, Page no. 1 of 4 5 Smt. Bala Vs. Rahis & Ors.
trustworthy and believable. It cannot be said that Gopal had given the testimony out of any interests with the petitioner. His presence on the spot is also not refuted, therefore, the respondent by way of cross examination of the witnesses failed to demolish their case and they withstood the cross examination and is liable to be believed. 12 During the course of arguments, Ld. Counsel for the insurance company has stressed that since it was a head on collision, therefore, the deceased who was driving the motorcycle is also guilty of contributory negligence.
13 There is no force in the submission made by Ld. Counsel for the insurance company for the simple reason that in the cross examination of eye witness it has clearly come that offending vehicle was being driven in middle of the road and it was a single road.
14 Moreover, in the chief it has come that the offending vehicle was being driven most rashly and negligently and plying on the wrong side of the road and hit the motorcycle of Parvesh. Therefore, it cannot be inferred that since it was a head on collision, therefore, there is contributory negligence on the part of Parvesh. 15 Firstly, truck come on the wrong side of the road. Secondly, it hit the motorcycle from the driver side. Therefore, the driver of the truck could have very well seen that there are other users Page no. 1 of 5 6 Smt. Bala Vs. Rahis & Ors.
road as well. Thus, the accident had happened because of the sole negligence of the driver of the offending vehicle. 16 It is a settled law that claimant need not to prove its present case beyond reasonable doubt. The matter has to be seen on the premise of preponderance of probabilities. Therefore, keeping in view the totality of facts & circumstances of the matter, this issue is decided in favour of the petitioners and against the respondents. FINDING ON ISSUE NO.2 17 This brings us to fixation of quantum of compensation which may be awarded in favour of the petitioner and against the respondents who are jointly or severely liable to make good the payment. Since the vehicle was insured with respondent no.3, therefore, primarily they are responsible to make the payment which may be awarded in the later part of the judgment.
INCOME & PROFESSION 18 PW1 has stated that her son was a bachelor who was doing private service and was earning Rs. 9000/ per month and they were dependent upon them. No supporting document or corroborating evidence has come on record which could prove that either the deceased was doing any private job or he was earning Rs.
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9000/ per month. In such an event it is difficult to believe that the deceased was earning Rs. 9000/.
19 During the course of arguments Ld. Counsel for the insurance company has urged that minimum wages of Haryana State would be applicable. There is no force in the submission made by the Ld. Counsel for the insurance company for the simple reason that firstly, accident had happened in Delhi. Secondly, in all probabilities the deceased had been coming to Delhi for work though he was a resident of Haryana. Merely, by saying that he was resident of Haryana, therefore, the minimum wages of Haryana would apply is not tenable in law. Moreover, nothing on record has come that the deceased was doing service in Haryana, especially when it cannot be ruled out that the deceased may have been working in Delhi. 20 In such a scenario we are left with no option but to invoke the provisions of Minimum Wages Act applicable for unskilled person which is Rs. 6,656/, thereby making his annual income at Rs. 79,872/ (Rs. Seventy Nine Thousand, Eight Hundred and Seventy Two Only) (Rs. 6,656/ X 12).
AGE 21 In view of the latest decision of our own Hon'ble High Court in case titled as Mohd. Hasnain & Ors. Vs. Jagram Meena & Ors. MAC. APP. 152/2014 decided on 24/03/2014 in which interalia Page no. 1 of 7 8 Smt. Bala Vs. Rahis & Ors.
it has been observed that the age of the victim shall be taken into consideration while applying the multiplier even in bachellor's case. In order to prove the age of the deceased, the petitioners have not placed on record any document to show the correct age of the deceased. We have to fall back on Postmortem report which is placed on record wherein the age of the deceased has been mentioned as 2021 years. I find support in this regard from the judgment titled as Kamla Bai Tiwari Vs. Hukum Chand 1(1997) ACC 298.
FUTURE PROSPECTS 22 Having regard to the age of the deceased which is 2021 years at the time of accident, regard shall be had towards his future prospects as his income could have been increased due to change in the economic scenario in its entirety. Therefore, keeping in view his future prospects, there may be a 50% increase in his annual income towards the future prospects as the deceased was below 40 years at the time of accident.
NUMBER OF DEPENDENTS 23 As per the statement of PW1, the deceased has left behind Smt. Bala, mother and Sh. Prakash @ Om Prakash, father of the deceased. Nothing on record has come which could disprove this fact. Therefore, 1/2 deduction has to be made on account of personal and living expenses.
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MULTIPLIER 24 Keeping in view the age of the deceased which was 2021 years of age at the time of accident, therefore, multiplier of '18' is taken. Now the annual contribution to the family when multiplied by a multiplier shall give us the loss of dependency to the entire family.
a) Annual income of the deceased Rs. ,79,872/
b) 50% addition towards future prospects Rs. ,39,936/ Rs.1,19,808/
c) 1/2 deductions on personal & living expenses Rs. 59,904/ Rs. 59,904/
25 The break up of compensation that has been awarded in favour of the petitioners have been tabulated as below: S.No. HEAD AMOUNT
1. Loss of dependency (Rs. 59,904/ X18) Rs.10,78,272/
2. Loss of love and affection* Rs. 1,00,000/
3. For funeral expenses ** Rs. 25,000/
4. Loss of estate *** Rs. 10,000/ TOTAL Rs.12,13,272/ Under the head of loss of love and affection only 1,00,000/ (in total to the claimant) is granted. MAC appeal no. 743/2012 Chandra Kala & anr. Vs. Satpal & ors. decided on 11.09.2013 is relied upon. **'Funeral expenses' in the absence to contrary for hire expenses, to award at least an amount of Rs. 25,000/ ***'loss of consortium' amounting to Rs. 1,00,000/ after applying the ratio of Page no. 1 of 9 10 Smt. Bala Vs. Rahis & Ors.
the judgment of Rajesh & ors. Vs. Rajbir INTEREST 26 There is no material on record to withhold the interest and as such, the petitioners are awarded interest @ Rs. 7.5% per annum from the date of filing of petition i.e. 09/12/2011 till realization.
APPORTIONMENT 27 As far as parents of deceased are concerned mother of the deceased shall have more amount than the father.
LIABILITY 28 In order to prove that insurance company is liable to recovery rights. They have come out with the defence that the driving licence possessed by the driver was renewed on the basis of fake driving licence.
29 R2W1 Ms. Prerna Jain has proved the notice under order 12 rule 8 CPC and u/s 134 M. V. Act issued to driver by their counsel Sh. M. P. Shahi. The witness has also proved the postal receipt and verification report Ex. R3W1/7.
30 The insurance company has also brought in the witness box R3W2 Sh. Ghanshyam Dass, Clerk, Office of Secretary RTA, Page no. 1 of 10 11 Smt. Bala Vs. Rahis & Ors.
Nuh, Haryana who has stated that as per record driving licence no. N451/10 dated 11/4/2011 valid upto 10/4/2014 has been renewed from their office on the basis of driving licence bearing no. 19642/AG/05 issued by RTA Agra.
31 The insurance company has also brought in the witness box. R3W2 Sh. Raj Kumar, Junior Assistant, Regional Transport Office, Agra, UP who had stated that DL bearing no. 19642/AG/05 dated 17/12/2005 which was valid upto 16/12/2025. The witness further stated as per their record the driving licence was issued in the name of Sh. Lokendra Singh Chahar S/o Sh. S. S. Chahar R/o H. NO. 154, Balaji Puram, Shahganj, Agra. The witness has proved the relevant entry in the register which is Ex. R3W3/A. Therefore, as per insurance company the authorities at Nuh, Haryana had renewed the licence on the basis of fake licence of Agra. In this respect the Ld. Counsel for the insurance company has relied upon National Insurance company Vs. Santro Devi reported in 2001 (4) SSC 342. There is absolutely no diverse opinion as far as the proposition of law laid down by the Apex Court. However, the matter does not stop here and the insurance company still has to prove that the insured had committed willful, deliberate and conscious breach of the policy. 32 In the case of United India Insurance Company Ltd. V. Lehru & Ors. 2003 (3) SCC 338, it was held by the Supreme Court Page no. 1 of 11 12 Smt. Bala Vs. Rahis & Ors.
that owner of a vehicle while hiring a driver is not expected to check the records of the licensing officer to satisfy himself that the driving licence is genuine. If the driver produces a driving licence which on the face of it looks genuine, the owner cannot said to be negligent. I would extract Para 20 of the report hereunder: "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 drivng 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 shoudl 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 stange that Insurance Companies expect owners to make enquiries with RTO's, which are spread all over th 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 awar 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 innocent third party, but it may be able to recover from the insured. This is the law which has been laid Page no. 1 of 12 13 Smt. Bala Vs. Rahis & Ors.
down in Skiandia's Sohan Lal Passi's and Kamla's cases. We are in full agreement with the views expressed therein and see no reason to take different view".
33 In the present case on the date of accident the driver was having a valid licence and this driving licence may have been seen by the owner of the offending vehicle and finding it all right, he may have allowed the driver to drive the vehicle. As per law the owner was not supposed to verify or check the records of the licensing authority to satisfy himself that driving licence was obtained on the basis of fake driving licence, therefore by any stretch of imagination it cannot be said that there was any deliberate or conscious and willful breach on the part of the owner. He also have no notice if the new licence has been obtained on the basis of a fake licence. 34 The simple question arises whether the owner was aware or had noticed that the licence was obtained on the basis of fake licence and the owner had still permitted him to drive? The answer to this in all probability is in the negative because nothing on record has come if the owner had any such notice. As regards notice under order 12 rule 8 CPC the same has been issued by advocate and the best evidence to prove the notice was to examine the advocate. If the same is proved by simply the Senior Executive (legal) of insurance company. The same is not tenable in law as to the mode of proof.
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Therefore, no reliance can be placed on the notice under order 12 rule 8 CPC. The best evidence is of the subscriber of the notice. 35 Since, the notice has not been proved as per law no adverse inference can be drawn against the driver and owner. The insurance company has relied upon the authority which are as follows:
1 Vidhyadar Vs. Mannik Rao (1999)3 SCC 273 2 United India Ins. Co. Vs. Gyan Chand 1997 AC71065 (SC) at para no. 10 page no. 1068.
3 NIC Vs. Swarn Singh, 2004 ACJ Supreme Court vide page no. 24 para no. 63.
4 United India Insurance Co. Ltd. Vs. Chintamani & Ors.
High Court 5 New India Assurance Co. Ltd. Vs. Sanjay Kumar & Ors., ILR 2007 (II) Delhi.
6 Subhash Vs. Asha FAO 589/2002 decided on 21/10/2005 by Hon'ble High Court of Delhi.
7 National Ins. Co. Ltd. Vs. Santosh Devi 2008 (4) TAC 808 (DEL)1 (2009) ACC 567 FAO No. 662/2003 decided on 25/08/2008 8 OIC Vs. Usha MAC APP 228/2010 decided on 24.02.2012 by Hon'ble High Court of Delhi.
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9 NIC Vs. Paru Devi MAC APP 457/2008 decided on 17/08/2012 by Hon'ble High Court of Delhi.
10 National Ins. Co. Ltd. Vs. Brijpal Singh 2003 ACJ 1274 Allahabad High Court decided on 13.12.2002 DB.
11 2013 ACJ 2318 = 2012 (3) TAC 926 36 I am in complete agreement with the proposition of law laid down by the High Court and Apex Court, however, the same are of no help to the case of insurance company for the reason cited above. In view for going reasons and discussions no recovery rights are granted. Since the offending vehicle was insured at the time of accident with R3, therefore, it shall pay the awarded amount. 37 In view of the above discussions, issue no. 2 is decided in favour of the petitioners and against the respondents.
RELIEF 38 In view of the foregoing reasons and discussions, the petitioners are awarded the total amount of Rs. 12,13,272/ (Rupees Twelve Lacs, Thirteen Thousand, Two Hundred and Seventy Two Only) with interests.
39 The awarded amount be deposited by R3 with State Bank of India, Dwarka Court Complex Branch, Sector 10, Dwarka, Page no. 1 of 15 16 Smt. Bala Vs. Rahis & Ors.
New Delhi within 30 days from today in the respective names of the petitioners either directly or through RTGS or by NEFT mode (IFSC Code SBIN0011566) under intimation with proof of notice to the claimants & their counsel to the Nazir of this Court. Bank Manager of State Bank of India, Dwarka Court Complex, Sector10, New Delhi is directed to release and keep some amount of the petitioners in their respective accounts as shown in the following manner: S. Names Status Total Release FDR Amount Period of No Entitlement Amount in in Rs. FDR . amount in Rs. Rs.
1 Bala Mother 7,12,272/ 1,12,272/ 2,00,000/ 1 year 2 do do 2,00,000/ 2 years 3 do do 2,00,000/ 3 years 4 Prakash Father 5,00,000/ 1,00,000/ 2,00,000/ 1 year @ Om Prakash 5 do do 2,00,000/ 2 years 40 The beneficiaries shall furnish all the relevant documents for opening of the respective saving bank accounts. 41 The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Accounts of the beneficiaries.
42 Withdrawal from the aforesaid account shall be permitted to the beneficiaries after due verification and the Bank shall issue photo Identity Cards to the beneficiaries to facilitate Page no. 1 of 16 17 Smt. Bala Vs. Rahis & Ors.
identities.
43 No cheque books shall be issued to the beneficiaries without their permission of this Court.
44 The original fixed deposit receipts shall be retained by the Bank in the safe custody. However, the original Pass Book shall be given to the beneficiaries along with the photocopy of the FDRs. Upon the expiry of the period of each FDR, the Bank shall automatically credit the maturity amount in the Savings Accounts of the beneficiaries.
45 No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court. 46 On the request of the beneficiaries, Bank shall transfer the saving accounts to any other branch according to their convenience.
47 R3 shall inform the petitioners as well as their counsel through registered post that the cheques of the awarded amount are being deposited so as to facilitate the petitioners to know about their deposits in their accounts.
48 Copy of the award be supplied to both the parties at free of cost. Copy of this award be sent to the Nodal Officer of the Bank alongwith the Court stamped, copy of the photographs and signatures of the claimants.
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49 Thus, the petition has been disposed of accordingly. 50 File be consigned to Record Room.
ANNOUNCED IN OPEN COURT
DATED: 25/04/2014
(1+1) (DEEPAK JAGOTRA)
PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
ALL PAGES SIGNED
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