Delhi District Court
Smt. Kanta Sharma W/O Late Sh Anil Kumar vs Sh. Silesh S/O Sh. Mohan Singh on 12 April, 2012
IN THE COURT OF SHRI SANJAY KUMAR AGGARWAL
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL
(WEST) DELHI
Case No. : 896/11
Detailed Accident Report (DAR)
1. Smt. Kanta Sharma w/o Late Sh Anil Kumar
2. Sh. Manoj Sharma s/o Late Sh Anil Kumar
3. Sh. Saksham Sharma s/o Late Sh. Anil Kumar
(Petitioner No.3 minor through mother /natural guardian
Petitioner No.1)
4. Smt. Satya Devi w/o Late sh. B. D. Sharma
All R/o House No.161, Karampura, Delhi-15
.........Petitioners
Versus
1. Sh. Silesh s/o Sh. Mohan Singh
R/o H.No. 69, Gali no.19, Block-D,
Tomar Colony, Burari, Delhi-84 (Driver)
2. Smt. Vimal w/o Sh. Mukesh Kumar
R/o C-31, Baldev Park, Shahdra, Delhi(owner)
3. IFFCO TOKIO General Insurance Company Ltd.
Regd. Office-IFFCO Sadan C-1, Distt. Centre, Saket,
New Delhi-17 (insurer)
......... Respondents
Date of Institution: : 13/12/2011(DAR) Date of reserving order/judgment : 02/04/2012 Date of pronouncement: : 12/04/2012 AWARD
1. This judgment cum award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred as Act) filed by petitioners for grant of compensation for the death of Sh. Anil Kumar Sharma @ Anil Kumar in the vehicular accident.
Suit No.896/11 Page No.1/102. The case of the petitioners is that on 12/09/11 at about 9.30 a.m. While the deceased going to his office on motor cycle bearing No. DL-7S-AH-3437, and while he reached at Police Booth, Road No.34, F-Block, Moti Nagar, Dellhi , in the meantime the offending vehicle, a TSR bearing No. DL-1RJ--2481 which was being driven by its driver/ respondent No.1 in a rash and negligent manner hit the the deceased. Resultantly, the deceased succumbed to the injuries on 14/09/11. In total the petitioners have claimed a total sum of Rs. 25,00,000/- on account of compensation.
3. The written statement was not filed by respondents No. 1 & 2 despite opportunities and their defence was struck off vide order dated 14/02/2012.
4. The written statement was filed by respondent no.3, insurance company wherein it was admitted that the offending vehicle was insured with it as on the date and time of accident but denied the other contents of the petition.
5. On the pleadings of the parties following issues arose for consideration on 14/02/2012.
1.Whether the deceased Sh. Anil Kumar Sharma suffered fatal injury in an accident that took place on 12/09/11 at about 9.30 a.m involving vehicle bearing No. DL-1RJ-2481(TSR) driven by respondent No.1, owned by respondent No.2 and insured with respondent No.3?OPP.
2.Whether the petitioners are entitled to compensation? If so, to what amount and from whom?
3. Relief.
6. In order to establish its claim, the petitioner No. 1 examined herself as PW-1; Sh. K. D Sharma, Record Clerk, Maharja Agarsen Hospital as PW-2 who proved the medical bills which were incurred on the treatment of deceased before his death and Sh. Pooran Mashi Yadav, the eye witness to the accident as PW-3.
7. The respondent No.3/ insurer examined Sh. Ashok Kumar, MLO, Transport Authority as R3W1 and its own official Sh. Kapil Banati as R3W2 in its defence.
8. I have thoroughly gone through the testimony of the witness and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the petitioners and the learned counsel for the insurance company. My findings on various issues are as under :-
ISSUE NO. 19. Since the present petition is under Section 166 of M V Act, it was the bounden Suit No.896/11 Page No.2/10 duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
10. In order to substantiate its claim that the offending vehicle was being driven by its driver/ respondent No.1 in rash and negligent manner,the petitioner examined the eye witness,PW-3 Mr. Pooran Mashi Yadav. The eye witness has elaborated the facts regarding the mode and manner of the accident and stated that on the date of accident the offending vehicle was coming from wrong side and struck the rider of the motor cyclist/deceased. The eye witness / PW-3 removed the injured to the hospital and left the hospital thereafter and reached at the spot. In the meantime, the driver of the offending vehicle absconded from the hospital. He further stated that on 01/11/11 again when he had gone to market, he saw the driver alongwith the offending vehicle. The eye witness called the police and informed that the accident was caused by the respondent No1 and with his TSR No. DL 1RJ-2481.
11. The said eye witness was cross-examined at length by Ld. Counsel for insurance company. In the entire cross-examination , PW-3 stated that he did not furnish/ identify the number of the offending vehicle but he cogently explained as to why he could not note down as he was more inclined to save the life of deceased and had to rush to hospital with driver of the offending vehicle. The driver fled away from hospital.
12. Though the registration number of the offending vehicle was not noted down by the eye witness at the time of accident as he was more conscious about the life of the deceased and rushed to the hospital alongwith the driver of the offending vehicle , but he has well explained as to how the driver of the offending vehicle was arrested in this case. Since the driver might have remained for a considerable period while removing the injured/ deceased to the hospital, it cannot be disbelieved that the driver might not have been arrested by the police at a later stage upon the identification by the eye witness/PW-3.
13. Moreover in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC it was held that the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition Suit No.896/11 Page No.3/10 maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
14. The Police has filed the Detailed Accident Report(DAR) on record pertaining to case FIR etc. bearing No. 216/11, P.S. Moti Nagar u/s 279/304-A IPC.
15. To determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard.
16. Therefore, reading all the documents filed by the petitioners as a whole it is clear that respondent No.1 was driving the vehicle in a rash and negligent manner.
17. The issue No:1 therefore, stands in favour of the petitioners and against the respondents.
COMPENSATION: ISSUE NO. 218. The PW-2 Sh. K. D. Sharma has proved the original bills for a sum of Rs. 55,816/-which were incurred on the treatment of deceased in the hospital before his death. I hereby grant sum of Rs. 55,816/- towards expenditure on medical bills incurred of deceased before his death. I also grant sum of Rs. 10,000/- towards special diet and conveyance during treatment.
19. As per the copy of Higher Secondary School Examination Certificate, Ex. PW1/4 the date of birth of deceased was 01/03/1960. The date of accident was 12/09/11. Accordingly, the deceased was 51 years of age as on the date of accident.
Suit No.896/11 Page No.4/1020. The deceased was stated to be doing private job and stated to be earning Rs. 6877/- per month, but no income proof filed or proved on record. In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 12/09/11 on which the minimum wages for a matriculate person were Rs. 7826/-.
21. No appreciation towards future prospects can be given on the annual income for balancing the inflation is required in this case as deceased was more than 50 years of age.
22. It can very well be presumed in terms of the judgment of the Hon'ble Supreme Court of India in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 that the deceased might have been spending one- fourth of Rs. 7826/- on his personal expenses as he had left behind four dependents . Therefore, after deducting one- fourth towards personal expenses, the loss of dependency per annual comes out to be Rs. 7826/- less Rs. 1956.5 p.= Rs. 5869.5 p. p.. The appropriate multiplier applicable is 11, as mentioned in Sarla Verma's judgment (Supra). The total loss of dependency comes out to (Rs. 5869.5 p. x 12x 11)= Rs. 7,74,774/-. I also award Rs. 50,000/- towards funeral charges, Rs. 1,00,000/- towards love and affection, Rs. 10,000/- for loss of consortium and Rs. 5,000/- towards loss of estate. Therefore, in total, I hereby award a sum of Rs. 10,05,590/- (Rs. 7,74,774/- + Rs. 50,000/- + 1,00,000/- + Rs.10,000/- + Rs. 5000/- + Rs. 55,816/- + 10,000/-)in favour of the petitioners and against the respondents. RELIEF:
23. I award Rs. 10,05,590/- ( Rupees Ten Lakhs Five Thousand Five Hundred Ninety Only), as compensation with interest at the rate of 7.5% per annum including award, if any from the date of filing the petition i.e. 13/12/11(DAR) till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioners and against the respondents on account of their liability being joint and several. The petitioners no.1 shall have a share of 50% in award amount ; the petitioners No.2 & 3 shall have the share of 15 % each in the award amount & petitioner No.4 shall have the share of 20% the petitioners
24. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC Suit No.896/11 Page No.5/10 176 in order to avoid the money being frittered away, fifty percent(50%) each of the amount awarded to petitioners No.1, 2 & 4 shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. In case any petitioner/petitioners is/ are minor/minors, the entire amount awarded to petitioner/ petitioners shall be kept in FDRs in a nationalized bank till he/she attains the age of majority or for a period of five years whichever is later. No loan or advance shall be allowed against the said fixed deposit. Petitioners No. 1,2 & 4 can withdraw the interest quarterly from the said FDRs. The minor petitioners, if any can withdraw the interest quarterly through his/ her /their mother/ petitioner No.1.
APPORTIONMENT OF LIABILITY:
25. Ld. Counsel for insurance company stated that in the present matter the insurance company is not liable because of the reason that the offending vehicle was being driven by a person who was not authorised to drive the same. As per him, this is because only, an owner of the TSR is permitted to drive the same and none else in terms of the notification of the Government of Delhi. He stated that in the present matter the permit of the offending vehicle was not in the name of respondent No.1 who was not the owner of the same.
26. In order to substantiate its claim the insurer examined MLO Transport Authority, Burari, Delhi as R3W1 wherein he deposed about the notification issued by the Joint Secretary ( Auto Rickshaw) to the effect that TSR shall be driven by the permit holder himself. The insurer also examined its own officer as R3W2 to prove the breach of the terms and conditions of the policy.
27. I have taken note of the submissions of Ld. Counsel for insurer and have perused the record.
28. Though the insurer has relied upon a notification issued by transport authority, this Tribunal is cognizant of the law laid down by Hon'ble High Court of Delhi in case titled as 'National Insurance Co. Ltd. Vs. Ram Rati and Others', reported in 2008 ACJ 2758 wherein it has been held that mere use of vehicle by a person not authorised by permit being not the registered owner, can exempt the insurance company from liability. It was held as under:-Suit No.896/11 Page No.6/10
"Merely because of the fact that the deceased at the relevant time of the accident was not holding a permit in his name cannot absolve the insurance company from its liability to pay the compensation amount as far as third party risks are concerned. It is a settled legal position that insurer of the offending vehicle can raise defence as circumscribed under section 149(2) of the Motor Vehicles Act and beyond that the insurer cannot raise any wider defence unless in the given facts and circumstances of the case the defence by the insurance company is taken over under section 170 of the Motor Vehicles Act. A cursory glance at section 149(2)(a)(i)(a) would reveal that it is only in a case where the vehicle on the date of contract of insurance was being plied for hire or reward but such a vehicle itself is not covered by the permit, then any violation of permit conditions can be claimed. Clause(c) of section 149(2)(a)(i) also postulates that the vehicle was being used for a purpose other than the one restricted by the permit conditions. Mere use of the vehicle by a person not authorised by the permit being not the registered owner, cannot given right to the insurance company to escape its liability under section 149(2) of the Motor Vehicles Act, when the use of a particular vehicle in itself is not in contravention with the permit conditions"
29. In view of the aforesaid law laid down, the insurance company is not entitled for any exemption and also not entitled to the recovery rights. Hence,the prayer of the insurance company stands rejected accordingly.
APPORTIONMENT OF LIABILITY:
30. The Hon'ble High Court of Delhi in its latest judgment in Union of India and Another Vs. Nanisari and Others MACA 682/2005 decided on 13.1.2010 have given certain guidelines and directions to the Motor Accident Tribunals to the effect that henceforth the Tribunals shall direct the insurance companies to deposit the award amount in the bank within 30 days with further direction as to the disbursement of the same in terms of the award and case be kept pending till the compliance is placed on record. The directions given by Hon'ble High Court of Delhi as mentioned and endorsed in the said order has already been re affirmed by Hon;ble Supreme Court of India in order dated 17.12.2009 in SLP (C) No. 11801-11804/2005 which contains certain schemes initiated for the benefit of the victims of the road accidents after the award amount is passed. The para no.18 of the judgment of the Hon'ble High court of Delhi runs as under:-
Suit No.896/11 Page No.7/10"19. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the insurance companies in consultation with the Life Insurance Corporation of India, State Bank of India or any other Nationalized Banks under which the compensation is kept in fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for claimants having to approach either the Court or their counsel or the Bank for that purpose. The scheme should ensure that the amount of compensation is utilized only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family. We extract below the particulars of a special Scheme offered by a nationalized Bank at the instance of the Delhi High Court:
(i) The fixed deposit shall be automatically renewed till the period prescribed by the Court.
(ii) The interest on the fixed deposit shall be paid monthly.
(iii) The monthly interest shall be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without permission of the Court.
(viii) No loan,advance or withdrawal shall be allowed on the fixed deposit without permission of the Court.
(ix) The claimant can operated the saving bank account from the nearest branch of UCO Bank on the request of the claimant, the bank shall provide the said facility."
31. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, Suit No.896/11 Page No.8/10 the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. H S Rawat, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb:
09717044322) or to UCO Bank through Mr. M M Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
32. The petitioners have moved an application requested that the award amount may be directed to be deposited in Punjab National Bank, Branch Gokhle Market Opposite Tis Hazari Court, Delhi.
33. In view of the direction passed by the Hon'ble High Court in CM(M) No. 649/2011 in case titled as Amodh Rai & Ors Vs. Raj Kumar Chauhan & Ors , directions of Hon'ble High Court in Nainsiri case(supra);considering the submissions and application moved by the petitioners, the insurance company is directed to deposit the award amount in Punjab National Bank, Branch Gokhle Market Opposite Tis Hazari Court, Delhi.
34. Accordingly, respondent No.3 is directed to deposit the award amount in Punjab National Bank, Branch Gokhle Market Opposite Tis Hazari Court, Delhi within a period of 30 days and shall filed the compliance report. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay
35. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
36. The copy of this award be given to the insurance company as well as to the petitioners free of cost. The Bank Manager is at liberty to transfer the saving account of the claimants in some other branch of his bank which is nearer to the residence of the claimants.
Suit No.896/11 Page No.9/1037. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 03/06/2012 to be fixed by insurance company.
Announced in open court (SANJAY KUMAR AGGARWAL) 12th of April,2012 PO: MACT (WEST): DELHI Suit No.896/11 Page No.10/10 Suit No. 896/1 12/04/2012 Present: None Judgment announced vide separate sheets of even date. File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 03/06/2012, to be fixed by insurance company.
(SANJAY KUMAR AGGARWAL) PO: MACT(WEST) : DELHI Suit No.896/11 Page No.11/10