Delhi District Court
1 Vijay Dubey & Ors. vs . Bharat Tomar on 1 April, 2013
1 Vijay Dubey & Ors. Vs. Bharat Tomar
IN THE COURT OF SHRI SANJIV JAIN : PRESIDING OFFICER : MACT02
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
In Suit No. 148/10
Unique Case ID : 02403C0170602007
1. Sh. Vijay Dubey
S/o Late Sh. Aaliar Dubey ........... Father (Expired)
2. Smt. Pramila
W/o Late Sh. Vijay Dubey ........... Mother
3. Abhishek Dubey
S/o Sh. Ajay Dubey ........... Brother
4. Kanchan Kumari
D/o Sh. Ajay Dubey ........... Sister
All R/o Vill. Sewari,
Post - Dumri
Distt. Rohtash (Bihar)
...... Petitioners
Versus
1. Bharat Tomar
S/o Sh. S S Tomar
R/o 59/29, New Rohtak Road,
Karol Bagh, New Delhi ............ Driver / Owner
2. Bajaj Allianz General Insurance Co. Ltd.
GE Plaza, Airport Road,
Yerawada, Pune - 411 006 .......... Insurance Company
...... Respondents
Suit No. : 148/10 Page No. 1 of 36
2 Vijay Dubey & Ors. Vs. Bharat Tomar
Date of Institution : 20.03.2007
Date of reserving of judgment/order : 07.12.2012
Date of pronouncement : 01.04.2013
J U D G M E N T
1. This petition U/s 166 & 140 of the Motor Vehicle Act, 1988 as amended upto date has been filed by Sh. Vijay Dubey and ors. being the parents of the deceased Vivek Dubey for claiming compensation for untimely death of Vivek Dubey in an accident on 17.09.06 at 8.30 PM at Moti Bagh Flyover, New Delhi.
2. The case of the petitioners in brief is that on 17.09.06 the deceased with his uncle was going to the market. When he was crossing the road, near Moti Bagh Flyover, a car bearing no. DL 2C P 5687 being driven by the respondent no.1 in a manner so rash and negligent came from the side of R K Puram and hit him. He fell down and sustained injuries. He was taken to Safdarjung Hospital. A case was registered at the police station R K Puram vide FIR 617/06. The injuries on his person proved fatal. His postmortem was conducted. Doctor opined the cause of death as shock due to cervical fracture produced by blunt force impact possible in road traffic Suit No. : 148/10 Page No. 2 of 36 3 Vijay Dubey & Ors. Vs. Bharat Tomar accident. The deceased was 17 years of age. He used to take tuitions and earn Rs. 5000/ p.m. He was survived by his parents, brother and sister who were financially dependent on him. The vehicle was also owned by respondent no.1 and it was insured with respondent no.2. It was stated that due to untimely death of Vivek Dubey, the parents of the deceased have been under pain and agony, since lost the affectionate company of the deceased. It is stated that petitioners be adequately compensated.
3. Notice of the petition was given to the respondents.
4. Both the respondents contested the petition and filed their written statements wherein they denied the averments made in the petition and their liability to pay compensation.
Respondent no.1 stated that the accident as alleged was not caused by him and he was falsely involved in the case. He stated that on 17.09.06 at about 8.00 PM an accident had taken place with his vehicle on the foothill of Moti Bagh flyover as one person all of a sudden came in front of his vehicle somewhere near the divider of the flyover. Two persons Harish Sharma and Naveen Kumar who were working in Star News channel were going at that time on their motorcycles. Harish Sharma called the PCR. An ambulance deputed by PCR came there. First Aid was given to that injured person who Suit No. : 148/10 Page No. 3 of 36 4 Vijay Dubey & Ors. Vs. Bharat Tomar thereafter withdrew himself from the scene as he hardly sustained any injury. He stated that local police also came and asked him to accompany them to the police station. He called his father Sh. S S Tomar and his brother who reached there at 8.40 PM. They all went to the police station alongwith Harish Sharma and Naveen Kumar.
He stated that he came to know that another accident had taken place at a distance of 2 metres towards the east side to the Moti Bagh flyover (towards Hyatt Regency) with some vehicle which had hit a person. I.O. SI Sompal and officiating SHO Inspector B P Yadav made enquiries from him, made site visit and did the mechanical inspection of his vehicle. They were convinced that no accident took place with the vehicle of the respondent no.1 involving Vivek Dubey. He stated that Inspector B P Yadav also recorded the statement of Harish Sharma in this regard. He stated that there was no blood stain of any kind on his car. He was accordingly allowed to leave the police station and asked to come on the next day at about 6.00 PM for joining the investigation. He left the vehicle in the police station on the direction of the Inspector. He alleged that the relatives of Vivek Dubey in the meantime, managed the police to register a false case against him to obtain compensation.
5. Respondent no.2 in its written statement alleged that the respondent no.1 did not have a valid and effective license at the time of accident. However, it Suit No. : 148/10 Page No. 4 of 36 5 Vijay Dubey & Ors. Vs. Bharat Tomar admitted that the vehicle was insured in the name of respondent no.1 vide policy no. OG071104180100006277 for the period from 16.06.06 to 13.06.07.
6. During the proceedings one of the petitioner namely Vijay Dubey expired on 24.02.2013. His LRs are already on record.
7. From the pleadings of the parties following issues were framed vide order dated 17.11.07 :
1. Whether deceased Vivek Dubey had died in motor vehicle accident due to rash and negligent driving of vehicle no. DL 2C P 5687 by its driver and owned by R1, insured with R2 on 17.09.06 as claimed in the petition? OPP.
2. If issue no.1 is proved in affirmative, whether petitioners are entitled for any compensation, if yes from whom and to what amount? OPP.
3. Relief.
8. Parties were thereafter called upon to lead their evidence.
9. Petitioners examined Vijay Dubey as PW1, Ajay Dubey as PW2, Ramesh Kumar as PW3 and Sh. Harish Sharma as PW4. Respondent no.1 examined himself as R1W1. Respondent no.2 examined Ms. Ramnique Suit No. : 148/10 Page No. 5 of 36 6 Vijay Dubey & Ors. Vs. Bharat Tomar Sachchar as R2W1, Vishesh Thakur also as R2W1 and Sh. Alexander, LDC Record Room, Saket Courts as R2W2.
10. I have heard the arguments advanced by Ld. counsel Sh. Siddharth Shankar Dev for the petitioners, Sh. S S Tomar for the respondent no.1 and Sh. M Awasthi for the respondent no.2. The parties have also filed their written submissions.
11. It was submitted on behalf of the petitioners that the accident was caused by the respondent no.1 while driving the car bearing no. DL 2C P 5687 in a rash and negligent manner. The deceased at that time was coming from the market with his uncle. Due to multiple injuries, he died on the spot. Ld. counsel submitted that the accident had occurred at about 8.15 PM on 17.09.06 which fact was also stated by PW2 in his testimony. The MLC of the deceased was prepared at 8.45 PM and in the MLC it was mentioned that the injured was brought by Ajay Dubey, uncle of the deceased on 17.09.06 which also establishes the presence of PW2 on the spot at the time of accident. The FIR finds mention of DD No. 48 B dated 17.09.06 registered at 8.30 PM. Time of 9.50 PM mentioned in the FIR was the time of sending rukka to the police station and not of the accident. Ld. counsel stated that the mechanical inspection report of the offending car shows fresh dents on Suit No. : 148/10 Page No. 6 of 36 7 Vijay Dubey & Ors. Vs. Bharat Tomar the bonnet of the car i.e. front bumper slightly dented, bonnet dented from the right side which fact was admitted by the respondent no.1 himself. Ld. counsel stated that had the respondent no.1 caused minor accident at about 8.00 PM on 17.09.06, how such dents had appeared on the car of the respondent no.1. Ld. counsel stated that PW4 has supported the case of the petitioners that the accident of the deceased was caused by the respondent no.1 while driving the car bearing no. DL 2C P 5687. Ld. counsel stated that in MACT proceedings, the claimants are supposed to prove negligence of the driver of the offending vehicle on preponderance of probabilities. The acquittal in a criminal case would have no bearing upon the claim case before the Tribunal as in a criminal case the prosecution has to prove the charge beyond any shadow of the reasonable doubt. He placed reliance on the case Union of India & Ors Vs. Yakub 2011 (5) LRC 428 (J&K). Ld. counsel stated that First Information Report need not contain the minutest details as to how the offence had taken place nor it is required to contain the names of the offenders or the witnesses. It must at least contain some information about the crime committed and also some information about the manner in which the cognizable offence has been committed. He placed reliance on the case Patai @ Kishan Kumar Vs. State of UP (2010) 4 SCC 429.
Suit No. : 148/10 Page No. 7 of 36
8 Vijay Dubey & Ors. Vs. Bharat Tomar
12. Ld. counsel for the respondent no.1 on the contrary argued that the respondent no.1 did not cause the alleged accident. In support of his contentions, he placed on record the judgment of the trial Court to contend that the respondent no.1 was acquitted in the criminal case. Ld. counsel stated that PW2 is the relative of the deceased. There are contradictions / discrepancies in his statement as in his affidavit he has stated that he was going to the market of Sector12 after crossing the road with his nephew but in his crossexamination he stated that he was coming from Sector12 and going to Sector13. The police did not arrest the respondent no.1 on the night of 17.09.06 though respondent no.1 was very much there in the police station with his father and brother and the eye witness Harish Sharma upto 12.30 AM. It was only after 24 hours, he was made an accused and his car was impounded. DD no. 23 A forming part of FIR has not been placed on record, so the contents of the DD could not be known and it was done solely to help the claimants. There are contradictions as to how the deceased was taken from the spot to the hospital either in PCR Van or in an auto rickshaw. Ld. counsel stated that the accident with the car of the respondent no.1 had taken place at the flyover at about 8.00 PM and in that accident an old man who was under the influence of liquor sustained minor injuries which fact has also come in the testimony of the witnesses examined in the criminal court. Statement of Suit No. : 148/10 Page No. 8 of 36 9 Vijay Dubey & Ors. Vs. Bharat Tomar Harish Chand Sharma recorded U/s 161 Cr.P.C. also shows that the injured was an old person aged about 50 years. Ld. counsel also placed reliance on the photographs filed in the criminal case.
13. Ld. Counsel for the respondent no.2 submitted that the petitioners did not prove on record the educational qualification and the earning of the deceased. Ld. Counsel stated that the notional income of Rs. 15,000/ be taken for calculating the loss of dependency. Ld. Counsel stated that at the time of accident respondent no.1 was holding a license Ex.R2W1/4 issued by the licensing authority, Bristol, United Kingdom. R2W1 has proved the notice U/o 12 R 8 CPC sent to the respondent no.1. The license produced by the respondent no.1 on receipt of notice was issued on 26.03.07 by the Licensing Authority in India and is of no consequence as the same was obtained after the date of accident. The license Ex.R2W1/4 was not valid in India, thus he was not authorised to drive the insured vehicle at the time of accident. Ld. counsel referred the provision of Section 3 and Section 2 (10) of the Motor Vehicle Act to contend that there is no provision in the Motor Vehicle Act recognising the driving license in India, if the said license was issued from abroad. Reliance was placed on the case New India Assurance Co. Ltd. Vs. Amit Kumar 2685/2006 decided by the National Commission on 17.10.07. Ld. counsel stated that in the present case the Suit No. : 148/10 Page No. 9 of 36 10 Vijay Dubey & Ors. Vs. Bharat Tomar respondent no.1 was holding a provisional license issued from Britain and it was not valid in India, so it is a clear case of violation of terms and conditions of the policy.
14. In rebuttal, Ld. counsel for the respondent no.1 contended that driver means any person including the insured provided that a person driving holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license; provided also that a person holding an effective learner license may also drive the vehicle. Ld. counsel stated that it is not in dispute that respondent no.1 was not disqualified from holding or obtaining the license. Ld. Counsel stated that the provisional license issued to him by the Govt. of United Kingdom is equally an effective driving license. Ld. counsel stated that the respondent no.1 obtained the driving license from the authority in India on the basis of provisional license issued by the competent authority in U.K. without undergoing any driving test or the learner license prior thereto. Ld. counsel stated that in the case Petition no. 265/06 (Supra) the person who was holding a driving license issued in USA had not taken any new license in India but in this case, respondent no.1 has taken the license on the basis of the provisional license issued from the competent authority in U.K. Ld. counsel referred the case of National Insurance Company Vs. Swaran Singh 2004 ACJ 1 to contend that it is incumbent Suit No. : 148/10 Page No. 10 of 36 11 Vijay Dubey & Ors. Vs. Bharat Tomar upon the insurance company to prove that the respondent no.1 was not competent to drive the vehicle which it failed to prove.
15. I have considered the submissions and gone through the record. My findings on the issues are as follows :
I S S U E No. 1
16. It is well settled law that where a petition under Section 166 of the Act is instituted, it becomes the duty of the petitioners to establish rash and negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has to simply quantify the compensation which is just rational and reasonable on the basis of enquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs New India Assurance Co. Ltd. 2001 ACJ 421 SC.
17. The petitioners have examined the two eyewitnesses i.e. PW2 and PW4.
PW2 has stated that on 17.09.06, the deceased, his nephew was going to the market with him. A car bearing no. DL 2C P 5687 being driven by Suit No. : 148/10 Page No. 11 of 36 12 Vijay Dubey & Ors. Vs. Bharat Tomar respondent no.1 in a rash and negligent manner hit the deceased and crushed him. The information to that effect was given to the police station R K Puram by the PCR. He stated that at the time of accident they were returning from the market of Sector12 to their house at Sector13. He denied that he was not with the deceased at that time and he is a planted witness. He stated that there existed grill on the central verge so as to prevent crossing from one side of the road to the other side but there was a gap in the grill through which the people were crossing the road. He stated that the accident site was about 100150 yds. from Moti Bagh flyover towards the Safdarjung side. He stated that the accident took place at about 8.00 PM. PW3 who was the Supervisor with Perfect Security Services where PW2 had been working has stated that on 17.09.06 PW2 was not on duty being Sunday.
PW4 has stated that at about 8.00/8.30 PM he was coming from his office at Noida to his residence at Najafgarh on his motorcycle. At the place before Moti Bagh flyover he saw a car hitting a boy by its driver side. He stated that the car was going in the same direction where he was going. The car driver took brakes after about 1012 meters. He chased the car and got it stopped on the flyover. His friend Naveen Bhardwaj was also with him. He called the police at 100 No. When the police reached there, the car driver was with them. He took the police to the spot but by that time the injured Suit No. : 148/10 Page No. 12 of 36 13 Vijay Dubey & Ors. Vs. Bharat Tomar had been removed to the hospital. He with the police went to the police station alongwith the driver of the car but the police did not record his statement. He stated that the driver revealed his name Bharat and in his view, the accident had occurred partially due to the negligence of the person who was crossing the road and partially due to the negligent driving of the car. He stated that the car was just ahead of him and he had informed the police about the accident. He denied that the accident took place at the slope of the flyover rather he stated that it was just before the flyover. He stated that he did not see any Ambulance at the flyover or giving First Aid to any person. He admitted that after sometime father and brother of respondent no.1 had come. He stated that when he left the police station respondent no.1 was in the police station. He was read over his statement u/s 161 Cr.P.C. Ex.RW1/1 but he denied having given such statement to the police. He stated that he did not provide the medical aid to the person who met with the accident since he was chasing the car. He admitted that he was summoned by the Trial Court 34 times but every time he was out of station. He denied that he is deposing at the behest of the petitioners or that the respondent no.1 did not cause the fatal accident at the place just before the Moti Bagh Flyover or that the respondent no.1 had caused a minor accident that too at the slope of the flyover or that his information to the police at 100 No. was with respect to that minor accident. Suit No. : 148/10 Page No. 13 of 36
14 Vijay Dubey & Ors. Vs. Bharat Tomar
18. Respondent no.1 in his testimony has stated that he did not cause the accident to Vivek Dubey on 17.09.06 as alleged. He clarified that on 17.09.06 at about 8.00 PM an accident had taken place with his car on the foothill of Moti Bagh flyover as a person aged about 50 years all of a sudden came in front of his car near the divider and in that accident he sustained minor injuries. He stated that PW4 was just behind his car who called the police. An Ambulance was called by the PCR, First Aid was given to that person who thereafter left the scene. He stated that he was falsely involved in the case. He stated that he had made a complaint in the police station of his false implication.
19. In the instant case the respondent no.1 has placed on record the certified copy of proceedings of criminal Court, evidence and the judgment. On perusal of the FIR/Charge Sheet I find that PCR had informed the local police station vide DD no. 48B registered at about 8.32 PM about an accident near flyover Ring Road Dhaula Kuan and a person in serious condition. The local police reached the spot but did not find the injured or the eyewitness. During local enquiries it found that the injured had been taken to Safdarjung Hospital in a private vehicle. Police then went to Safdarjung Hospital where it collected the MLC of Vivekanand Dubey whom the doctor had declared brought dead. The police did not find any eye Suit No. : 148/10 Page No. 14 of 36 15 Vijay Dubey & Ors. Vs. Bharat Tomar witness in the hospital, made endorsement on the DD and got the case registered. During investigation Harish Chand Sharma produced the driver and the car DL 2C P 5687. The eyewitness Ajay Dubey also came in the police station who identified the car and the car driver and alleged that the accident had occurred due to rash and negligent driving of the car at the place before the Moti Bagh flyover on the Ring Road. The mechanical inspection of the vehicle was got conducted. Fresh damages on the front bumper right side were noticed. Site plan of the spot was prepared. The postmortem of the deceased was got conducted and the doctor opined the cause of death as shock due to cervical fracture produced by blunt force impact possible in road traffic accident. Notice u/s 133 MV Act was also given to the driver/accused who had stated that he was the owner of the vehicle. From the photographs I find that there was a railing on the central verge of the Ring Road and there were also the blood marks on the road towards the right side of the road leading to Dhaula Kuan from Safdarjung Hospital. Criminal proceedings of the case reveals that PW4 did not appear in the witness box despite he was summoned. The Ld. Metropolitan Magistrate did not believe the testimony of PW2 as there were numerous contradictions. He acquitted the accused/respondent no.1 on the ground that the prosecution failed to prove its case beyond reasonable doubt. Suit No. : 148/10 Page No. 15 of 36
16 Vijay Dubey & Ors. Vs. Bharat Tomar
20. In the trial Court the prosecution had examined H.C. Sat Narayan, Sh.
Nirmal Kumar Tiwari, Assistant Ambulance Office, Charak Palika Hospital, Moti Bagh, Ajay Dubey and ASI Som Pal, the IO. On perusal of testimony of H.C. Sat Narayan and ASI Sompal Singh, I find that the police party reached the spot on receipt of DD no. 48B. They met Harish Chand Sharma who had apprehended the accused i.e. the respondent no.1 alongwith the vehicle. He brought the vehicle and the accused at the police station. On the next day i.e. on 18.09.06 they met the eyewitness Ajay Dubey who gave his statement and identified the car on the basis of which they arrested the accused. They stated that the DD no.48B was received at 8.30 PM and it was recorded on the basis of information given by the PCR. IO had stated that he had seen the blood stain on the foothill of the flyover where he reached at 8.45 PM. He stated that he had enquired from the person on duty at CATS Ambulance on 23.09.06. He had stated about a minor accident with the car of the accused. He explained that the accused after causing a minor accident had caused another accident i.e. 510 ft. ahead. He denied that Ajay Dubey is a planted witness.
Sh. Nirmal Kumar Tiwari had stated that on receipt of call about the accident he went to the spot with the Ambulance and found a person in injured condition whom he provided the First Aid.
21. On perusal of the MLC placed on record, I find that the deceased was Suit No. : 148/10 Page No. 16 of 36 17 Vijay Dubey & Ors. Vs. Bharat Tomar brought at Safdarjung Hospital by Ajay Dubey the uncle of the deceased. The doctor had recorded the history of road traffic accident. The MLC was prepared at about 8.45 PM. From the MLC and the record it is clear that the accident had occurred at about 88.30 PM. The time of 9.50 PM as mentioned is the time of sending the rukka to the police station. The MLC belies the contention of the respondent no.1 that PW2 was not present on the spot and was an introduced witness. Testimony of PW3 also shows that on 17.09.06, PW2 was not on duty being Sunday. PW2 has categorically stated that he was with the deceased at the time of accident and he had taken the deceased to the hospital after the accident. He has stated that the accident took place near the central verge of the road before flyover which fact is also evident from the blood marks as seen from the photographs. DD no. 48B also shows that the PCR had informed that the injured was in serious condition. Had it been a case of minor injury, PCR would have informed that the person had sustained minor injuries in the accident. PW4, whose presence has also been admitted by the respondent no.1 in his testimony, has stated that the accident was caused by the respondent no.1 which resulted in the death of deceased. He has categorically stated that he had apprehended the respondent no.1 on the spot with the car.
As regards minor accident, keeping in view the testimony of Nirmal Kumar Tiwari and IO ASI Sompal Singh, the possibility of causing accident Suit No. : 148/10 Page No. 17 of 36 18 Vijay Dubey & Ors. Vs. Bharat Tomar by the respondent no.1 prior to the above accident cannot be ruled out but on this very ground it cannot be presumed that he did not cause the above accident. PW4 has categorically stated that the above accident was caused by the respondent no.1 which fact was also stated by the PW2 in his testimony. The mechanical inspection report also shows fresh dents on the car. Had there been a minor accident, there would not have been so much damage to the car.
22. It is true that the police did not arrest the respondent no.1 on the same day in the police station and allowed him to go but the record shows that the car of the respondent no.1 remained in the police station on that day and the police had arrested the respondent no.1 after recording the statement of PW2 who identified the car and the respondent no.1 there in the police station. It is not the case that the police had discharged the respondent no.1 on 17.09.06 from the case rather the respondent no.1 was directed to come on the next day to join the investigation. I do not find any force in the contention of Ld. Counsel for respondent no.1 that PW4 was tutored by the petitioners. PW4 was subjected to detailed crossexamination but I find his testimony cogent and worth believing. There is nothing on record to show that PW4 had animus against the respondent no.1 or interested in his false implication. Suit No. : 148/10 Page No. 18 of 36
19 Vijay Dubey & Ors. Vs. Bharat Tomar
23. As regards the contention that the respondent no.1 was acquitted of the charges in the criminal Court, on perusal of the criminal record I find that during the criminal trial the PW4 could not appear and the Court finding discrepancies in the testimony of PW2 acquitted the respondent no.1 of the charges. Even otherwise, in a criminal trial the charges are to be proved beyond reasonable doubt but in MACT proceedings, the claimants are supposed to prove negligence of the driver of the offending vehicle on preponderance of probabilities. It was held in the case of Union of India & Ors Vs. Yakub 2011 (5) LRC 428 (J&K) that the acquittal in a criminal case would have no bearing upon the claim case before the Tribunal as in a criminal case the prosecution has to prove the charge beyond any shadow of the reasonable doubt.
24. For the foregoing reasons, I am of the considered opinion that the deceased Vivek had died in the accident involving the car bearing no. DL 2C P 5687 being driven by the respondent no.1.
25. Now coming to the negligence aspect. PW2 has stated that respondent no.
1 was driving the car in a manner so rash and negligent. But PW4 has stated that the accident had occurred partially due to the negligence of the deceased and partially due to the negligence of the car driver. The site plan shows that the deceased was not crossing the road from the Zebra crossing Suit No. : 148/10 Page No. 19 of 36 20 Vijay Dubey & Ors. Vs. Bharat Tomar rather he was trying to pass through the opening/space left in the grills of the central verge. Thus, it can be very well said that the accident had occurred partially due to the negligence of the respondent no.1 and partially due to the deceased.
26. In view of the above findings it is established that the deceased Vivek Dubey had died in motor vehicle accident involving the vehicle bearing no. DL 2C P 5687 being driven by the respondent no.1, however, the said accident had occurred partially due to the negligence of respondent no.1 and partially due to the negligence of the deceased. It has come on record that the vehicle was owned by respondent no.1 and it was insured with respondent no.2.
27. Seeing the totality of the facts and circumstances of the case, and it being the case of contributory negligence, I am of the view that the respondent no.1 should be held liable in the proportion of 70%.
28. Issue no.1 is accordingly decided in favour of the petitioners and against the respondents.
ISSUE NO. 2
29. It has been held in a catena of judgments that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. General principle in calculating such Suit No. : 148/10 Page No. 20 of 36 21 Vijay Dubey & Ors. Vs. Bharat Tomar sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. The amount of compensation no doubt cannot bring back the dead but it certainly helps the LR's and dependents to live life with dignity and comfort as they were living during the lifetime of the deceased. The amount of compensation is awarded on the basis of age, the earning capacity and other liabilities of the deceased. The appropriate method of calculating compensation in fatal cases is multiplier method. The Hon'ble Supreme Court in plethora of judgments has laid down that in India, the multiplier method is proper for calculation of compensation.
30. In order to calculate the amount of compensation, the sum is required to be considered under the various heads :
(a) LOSS OF DEPENDENCY :
31. PW1 has stated that the deceased was his elder son. He left behind his parents, younger brother and sisters. This fact has not been controverted by the respondents and no contrary evidence to that effect has been brought on record. No one else has challenged the claim of the petitioners, therefore, deposition of PW1 is to be believed on this aspect.
32. PW1 has further stated that the deceased was a student of B.A. He used to give tuitions to the students of 10th and 12th class and earn Rs. 5,000/ p.m. Suit No. : 148/10 Page No. 21 of 36 22 Vijay Dubey & Ors. Vs. Bharat Tomar He was 17 years of age. He was very hard working, sincere and brilliant student totally committed to his family. He stated that due to untimely death of his son, all the future plans of the petitioners have shattered. He stated that the deceased was possessing a good health. He was spending all the earnings to look after his family. After his death it has become very difficult to maintain the family properly. He placed on record educational certificates of the deceased. On its perusal, I find that the deceased was pursuing B.A. from Beni Singh College, Chenari, Rohtas under Veer Kunwar Singh University, Ara, Bihar. However, no documentary proof has been filed by PW1 with respect to the income of the deceased. In the absence of any documentary evidence on record, regard is to be had to the minimum wages prevailing at the time of accident with respect to a "Matriculate" as the deceased was pursuing B.A. Minimum wages with respect to a "Matriculate" prevailing at the time of accident i.e. 17.09.06 was Rs. 3,760/ p.m. The net income of the deceased comes to Rs. 3,760 x 12 = Rs. 45,120/. I do not find force in the contention of Ld. Counsel for respondent no.2 that notional income of Rs. 15,000/ be taken for calculating the loss of dependency. In the instant case the deceased was 17 years of age at the time of accident and not below 15 years. He could earn income by taking tuitions or by other means. The notional income is taken in case the deceased is below 15 years.
Suit No. : 148/10 Page No. 22 of 36
23 Vijay Dubey & Ors. Vs. Bharat Tomar
33. In the case of Rakhi vs. Satish Kumar & Ors. MAC App. 390/2011, Hon'ble High Court of Delhi vide order dated 16.07.12 held that on the basis of judgment in Santosh Devi Vs. National Insurance Co. Ltd. & Ors. Manu/SC/0322/2012, it can very well be said that the persons who are getting fixed salary or who are self employed as skilled / unskilled workers like Barber, Blacksmith, Cobbler, Mason, Carpenter etc. would be entitled to an increase in the income to the extent of 30% on account of inflation when the deceased or the victim is aged upto 50 years. Applying the ratio of the case (Supra), the claimants in the present case are entitled to an increase of 30% in the salary/income/wages on account of inflation. Adding the future prospects the annual income comes to Rs. 45,120 + 13,536/ (30% of Rs. 45,120/) = Rs. 58,656/. In the present case the deceased was a bachelor and the claimants were the parents, younger brother and sister of the deceased. It was held in the case of Sarla Verma Vs. DTC 2009 (6) Scale 129 that in regard to the bachelor, normally 50 per cent is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there was a possibility of his getting married in a short time, in which time the contribution to the parents and siblings would be cut drastically. It was also held that even if the deceased is survived by parents and siblings, only the mother would be considered as dependent and 50 per cent would be treated as personal and Suit No. : 148/10 Page No. 23 of 36 24 Vijay Dubey & Ors. Vs. Bharat Tomar living expenses of the bachelor and 50 per cent as the contribution to the family. Thus, the net income of the deceased for calculating loss of dependency comes to Rs. 29,328/. It was also held in Sarla Verma (Supra) that while calculating the dependency, the multiplier is to be applied with reference to the age of the mother in the case of a bachelor. In the present case, the mother of the deceased was 40 years as on the date of the death of the deceased. Hence, a multiplier of '14' is taken for calculating the loss of dependency. Using the multiplier of 14, the total loss of dependency comes to Rs. 4,10,592/ (14 x 29,328) which is rounded off to Rs. 4,10,600/.
(b) LOSS OF LOVE AND AFFECTION
34. Petitioners at this stage of their life have lost their son/brother on whom they were financially and emotionally dependent. Care, love and affection which they had required from him cannot be measured or assessed. In view thereof, compensation "Loss of Love and Affection" is assessed as Rs. 25,000/
(c) FUNERAL EXPENSES
35. A sum of Rs. 10,000/ is assessed towards "Funeral Expenses".
(d) LOSS OF ESTATE
36. A sum of Rs. 10,000/ is assessed towards "Loss to Estate". Suit No. : 148/10 Page No. 24 of 36
25 Vijay Dubey & Ors. Vs. Bharat Tomar L I A B I L I T Y
37. As the offending vehicle was being driven by respondent no. 1 therefore primary liability to compensate the petitioners is that of respondent no. 1. As the offending vehicle was also owned by respondent no. 1 therefore, he becomes vicariously liable to compensate the petitioners. It has come on record that the offending vehicle was insured with respondent no. 2. Therefore, respondent no. 2 becomes contractually liable to compensate the petitioners to the extent of liability of the insured.
38. Ld. Counsel for the respondent no.2 however in his quest to exonerate the respondent no.2 from its liability contended that at the time of accident respondent no.1 was holding a license Ex.R2W1/4 issued by the licensing authority, Bristol, United Kingdom. R2W1 has proved the notice U/o 12 R 8 CPC sent to the respondent no.1. The license produced by the respondent no.1 on receipt of notice was issued on 26.03.07 by the Licensing Authority in India and is of no consequence as the same was obtained after the date of accident. The license Ex.R2W1/4 was not valid in India, thus he was not authorised to drive the insured vehicle at the time of accident. Ld. counsel referred the provisions of Section 3 and Section 2 (10) of the Motor Vehicle Act to contend that there is no provision in the Motor Vehicle Act recognising the driving license in India, if the said license was issued from abroad. Suit No. : 148/10 Page No. 25 of 36
26 Vijay Dubey & Ors. Vs. Bharat Tomar
39. In rebuttal, Ld. counsel for the respondent no.1 contended that driver means any person including the insured provided that a person driving holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license; provided also that a person holding an effective learner license may also drive the vehicle. Ld. counsel stated that it is not in dispute that respondent no.1 was not disqualified from holding or obtaining the license. Ld. Counsel stated that the provisional license issued to him by the Govt. of United Kingdom is equally an effective driving license. Ld. counsel stated that the respondent no.1 had obtained the driving license from the authority in India on the basis of provisional license issued by the competent authority in U.K. without undergoing any driving test or the learner license prior thereto. Ld. counsel referred the provisions of Section 9 of the Act interalia that the applicant holds a driving license to drive such class of vehicle issued by the Competent Authority of any country outside India subject to the condition that the applicant complies the provisions of Section 3 of SubSection 8.
40. I have considered the rival contentions.
41. As per the terms of the policy Ex.R2W1/1, any person including the insured driving must hold an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license. Suit No. : 148/10 Page No. 26 of 36
27 Vijay Dubey & Ors. Vs. Bharat Tomar
42. In the instant case the respondent no.1 had the provisional license issued by the Authority in England. He obtained the driving license in India bearing no. P060327007186363 only after the accident. It is to be mentioned that he got the permanent license issued from India on the basis of provisional license issued from the Authorities in England and he did not go into the rigor of appearing driving test for getting the permanent license in India. So, it can be inferred that he was qualified to drive the vehicle.
43. Now, the question arises whether the license issued by the Authority in England can be said to be valid and effective as laid down under the Motor Vehicles Act, 1988. Section 3 of the Act provides that "no person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him authorizing him to drive the vehicle". Section 2(10) defines driving license. It means a license issued by the Competent Authority. Here the Competent Authority is any Licensing Authority in India and not the Authority in abroad. In the case petition no. 2658/2006 New India Assurance Co. Ltd. Vs. Amit Kumar (Supra), the respondent had the license issued from the State of Illinois, USA. It was held that it was only valid in the State of Illinois, USA. Section 9 of the Act provides that any person who is not for the time being disqualified for holding or obtaining driving license may apply to the licensing authority having jurisdiction in the Suit No. : 148/10 Page No. 27 of 36 28 Vijay Dubey & Ors. Vs. Bharat Tomar area in which he ordinarily resides or carries out business or in which the school or establishment referred to in Section 12 from where he is receiving or has received instructions for driving a motor vehicle is situated for the issue to him of a driving license. SubSection 3 lays down the passing of the test by the applicant for the issue of driving license but such test is not necessary in three conditions as given in proviso 3 of SubSection 3 of Section 9 which deals as under :
"The applicant holds a driving license to drive such class of vehicle issued by the Competent Authority of any Country outside India subject to condition that the applicant complies with the provisions of Sub Section 3 of Section 8."
44.SubSection 7 of Section 9 provides for the issue of a driving license to the applicant, who fulfills the above conditions.
45. In the instant case the respondent no.1 has been issued the driving license for the reason that he was holding a provisional license issued by the Competent Authority in UK and he was not asked to produce a learner license for the issue of permanent driving license to him meaning thereby that he had requisite qualification to drive the vehicle.
46. I do not find force in the contention of Ld. Counsel for respondent no.1 that the word 'effective' as given in the insurance policy does not lay down that Suit No. : 148/10 Page No. 28 of 36 29 Vijay Dubey & Ors. Vs. Bharat Tomar the driving license ought to be from the Competent Authority in India alone. Section 2 (10) clearly defines that he must hold an effective driving license issued by the Competent Authority. Here the meaning of Competent Authority is the Transport Authority in India not the Authority abroad. Had the license issued from the Authority at UK, been valid in India, the respondent no.1 would not have obtained fresh license from the Competent Authority in India even before the expiry of license issued from the UK. It means that he knew the provisions/laws for the motor license in India which he later on followed and got the license issued from the Competent Authority in India.
47. As regards the contention/testimony of R2W1 that she is not aware whether her department had seen the provisional license before issuing the policy, I am of the view that the policy is issued in respect of the vehicle and the policy clearly stipulates that the driver or the insured must hold an effective driving license. The policy does not provide that the vehicle is to be driven by insured only and not by his driver. Thus, there was no requirement to see the provisional license of the insured before issuing the policy. Rather, it is incumbent upon the insured to see that the insured vehicle is driven by the driver having a valid and effective license.
Suit No. : 148/10 Page No. 29 of 36
30 Vijay Dubey & Ors. Vs. Bharat Tomar
48. I am of the view that insurance company has proved that at the time of accident, respondent no.1 did not have a valid and effective driving license and thus, he committed breach of the policy.
49. Legislature being conscious of the magnitude of the plight of the victims of road accident have introduced the present beneficial provisions to protect the interest of third parties i.e. victims of road accident so as to enable them to claim compensation from the driver/ owner of the vehicle. Legislature in its wisdom has made it a statutory obligation of every owner to have his vehicle insured against third party risks. This has been made mandatory so that victims of road accident even after being granted compensation from the court, should not run from pillar to post to have the orders of the court executed and to facilitate them to get the same from the Insurance Company. It was held in the case of "National Insurance Co. Ltd. Vs. Vasdev Kukreja & Ors II (2010) ACC 148" that primary liability to pay the award amount is of insurance company. In that case there was a breach of terms and conditions of the policy as there was violation as to the category of the vehicle which the driver was authorised to drive. The Hon'ble High Court directed the insurance company to pay the award and granted the recovery rights in its favour to recover the award amount from the owner of the offending vehicle.
Suit No. : 148/10 Page No. 30 of 36
31 Vijay Dubey & Ors. Vs. Bharat Tomar
50. In the case of United India Insurance Co. Ltd. Vs. Lehru & Ors. 1 (2003) ACC 611 (SC), it was held that if it ultimately turns out that the license was fake insurance company would continue to remain liable to innocent third party but may recover from insured.
51. Balancing the "twin interest" of the Insurance Company at one hand and that of the third party i.e. petitioners for whose benefit the present legislation was brought on the statute book, I am of the view that the Insurance Company i.e. respondent no.2 should pay the compensation to the petitioners within the time given in award and with the right to recover the same from respondent no. 1.
52. For the foregoing reasons, the respondent no. 2 is directed to pay compensation to the petitioners and shall have the right to recover the same from the respondent no. 1.
53. Issue No. 2 is decided accordingly in favour of the petitioners.
R E L I E F
54. In view of my findings on issue no. 1 and 2, the total compensation is assessed as under :
Suit No. : 148/10 Page No. 31 of 36
32 Vijay Dubey & Ors. Vs. Bharat Tomar
1) LOSS OF DEPENDENCY = Rs. 4,10,600/
2) LOSS OF LOVE AND AFFECTION = Rs. 25,000/
3) FUNERAL EXPENSES = Rs. 10,000/
4) LOSS OF ESTATE = Rs. 10,000/ ============ TOTAL = Rs. 4,55,600/ ============
55. Being a case of contributory negligence, the petitioners are therefore, awarded a sum of Rs. 3,19,000/ (70% of Rs. 4,55,600/) as compensation alongwith interest @ 7.5% per annum from the date of filing the petition till realization of the amount.
: RELEASE OF THE AWARDED AMOUNT : In the share of Petitioner No. 2 : (Mother of the deceased)
56. A sum of Rs. 2,69,000/ alongwith the proportionate interest thereon, is awarded to the petitioner no. 2 being mother of the deceased.
57. Out of this awarded amount, a sum of Rs. 1,50,000/ be deposited in the form of FDR in the name of petitioner no. 2 in the following phased manner :
1. Rs. 75,000/ for a period of 2 years.
2. Rs. 75,000/ for a period of 4 years.
In the share of Petitioner No. 3 and 4 : (Brother and Sister of the deceased)
58. A sum of Rs. 25,000/ each alongwith proportionate interest thereon, is awarded to petitioner no. 3 and 4 being brother and sister of the deceased. Suit No. : 148/10 Page No. 32 of 36
33 Vijay Dubey & Ors. Vs. Bharat Tomar Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
59. In terms of the directions given by Hon'ble High Court in case titled " Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
60. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
61. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, Insurance Company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners.
within a period of 30 days from today, failing which the respondent no.2 shall be liable to pay future interest @ 9% per annum till realization (for the delayed period).
Suit No. : 148/10 Page No. 33 of 36
34 Vijay Dubey & Ors. Vs. Bharat Tomar
62. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner:
(i) The interest on the fixed deposit be paid to the petitioners/ claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimants / petitioners after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
(iii) No cheque book be issued to claimants / petitioners without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimant / petitioner alongwith the photocopy of the FDR's .
(v) The original fixed deposit receipts shall be handed over to claimants / petitioners at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court.
(viii)On the request of claimants / petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimants / petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
DIRECTIONS FOR THE INSURANCE COMPANY/RESPONDENT NO.2
63. The Respondent no.2 is directed to file the compliance report of its having Suit No. : 148/10 Page No. 34 of 36 35 Vijay Dubey & Ors. Vs. Bharat Tomar deposited the awarded amount with State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
64. The Insurance Company i.e. respondent no.2 shall intimate to the claimants / petitioners about its having deposited the cheques in favor of the petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
65. Copy of this award / judgment be given to the parties.
66. The case is fixed for compliance by insurance company on 10.05.13.
Announced in the open court
on 01st Day of April, 2013 (SANJIV JAIN )
Presiding Officer : MACT02
South Distt. : Saket Courts
New Delhi : 01.04.2013
Suit No. : 148/10 Page No. 35 of 36
36 Vijay Dubey & Ors. Vs. Bharat Tomar
Vijay Dubey & Ors. Vs. Bharat Tomar
Suit No. : 148/12
01.04.2013
Present : None.
Vide separate order of even date a compensation of Rs. 3,19,000/ Rs. Three Lacs Nineteen Thousand only (70% of Rs. 4,55,600/) with interest @ 7.5% p.a. from the date of filing the petition till the date of realisation of the amount is passed in favour of petitioners and against the respondent no.2.
Copy of the award be given to the parties.
The case is fixed for compliance by insurance company on 10.05.13.
(SANJIV JAIN ) Presiding Officer : MACTII South Distt. : Saket Courts New Delhi : 01.04.2013 Suit No. : 148/10 Page No. 36 of 36