Delhi District Court
Smt. Meena Sarkar (Widow) (Aged 23 Yrs.) vs Sh. Dushyant Singh (Owner) on 3 January, 2014
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 34/13
IN THE MATTER OF :
1. Smt. Meena Sarkar (Widow) (aged 23 yrs.)
W/o late Sh. Uttam Sarkar
2. Kumari Shweta Sarkar (Daughter) (aged 03 yrs.)
D/o late Sh. Uttam Sarkar
Both permanent R/o Basant Pur,
Palus Bagh, P.O. Surchiya,
P.S. Bhatar, Distt. Vardhman (West Bengal)
Presently at House of Sh. Ravi Kumar,
Village Pochanpur, Sector23,
Dwarka, New Delhi.
... Claimants
Versus
1. Sh. Dushyant Singh (Owner)
S/o Sh. Rajbir Singh,
R/o H.No. 1256/3, Gali No. 5,
Rajiv Nagar, Gurgaon (HR).
2. Oriental Insurance Co. (Insurer)
DO: Payal Cinema Complex,
Sector14, Delhi Road,
Gurgaon (HR).
RO: Oriental House, A25/27,
Asaf Ali Road, New Delhi2.
... Respondents
MACT No. 34/13 Smt. Meena Sarkar & Anr. v. Sh. Dushyant Singh & Anr. Page No. 1 of 17
FILED ON : 03.04.2013
RESERVED ON : 06.12.2013
DECIDED ON : 03.01.2014
: J U D G M E N T :
1. This is a claim petition filed under Section 163 A of
the Motor Vehicles Act, 1988 for grant of compensation.
2. Claimant No. 1 is the Widow and Claimant No. 2 is
the minor daughter of the deceased late Sh. Uttam Sarkar who
suffered fatal injuries in a road traffic accident on 12.11.2011.
3. Respondent No. 1 is the owner and Respondent No. 2
is the insurer of the offending vehicle.
4. It is stated in this claim petition that on 12.11.11, at
about 6.32 a.m., the deceased met with an accident and suffered
fatal injuries. The said accident was caused due to use of Vehicle
No. HR26BF6488.
5. It is stated that the deceased was 24 years old and was
doing a private job earning Rs. 40,000/ per annum.
6. It is also stated that the accident had taken place in
front of Sector21 Metro Station, Dwarka, New Delhi. At P.S.
Sector 23, Dwarka, FIR No. 150/11 was registered under Section
279/304 A of IPC.
7. Notice of this claim petition was issued to the owner
and insurer of the offending vehicle.
8. Only insurance company filed its written statement
and owner of the vehicle did not file any written statement.
9. Insurance company has stated in its written
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statement that as per the facts and circumstances, the deceased
was driving his vehicle and there is no eye witness of the alleged
accident which occurred on 12.11.11. After one year, the
concerned Investigating Officer has filed Closure Report of the
case. Hence, under the law time being in force, no case is made
out against the deceased because the deceased himself was
driving the motorcycle.
10. It is also stated that there is no specific evidence that
the deceased was driving the alleged offending vehicle and
hence there is no cause of action against alleged offending
vehicle and therefore, the claim petition be dismissed.
11. It is also stated that the Ld. Magistrate has accepted
the present charge sheet and the case has been closed because
the driver of the alleged offending vehicle has not been traced
out, hence no case is made out against the offending vehicle.
12. It is also stated that in case the deceased was not
holding any valid and effective driving license to drive the
vehicle and in case he was disqualified from holding the same,
then the answering respondent will not be liable to pay any
compensation to the claimants.
13. It is also stated that the compensation claimed is
exorbitant and disproportionate.
14. Insurance company reserved liberty to take all pleas
under Section 149 (2) and 170 of the Motor Vehicles Act at any
stage.
15. Rest of the contents of claim petition were also
denied but insurance of the vehicle involved in the accident was
MACT No. 34/13 Smt. Meena Sarkar & Anr. v. Sh. Dushyant Singh & Anr. Page No. 3 of 17
admitted.
16. From the pleadings of parties, following issues were
framed:
(i) Whether Sh. Uttam Sarkar, son of Sh. Pulin
Sarkar had sustained fatal injuries on his person
in an accident which took place on 12.11.2011
due to involvement of vehicle bearing registration
no. HR26BF6488 which was owned by
respondent no. 1 and insured with respondent no.
2? ... OPP
(ii) In case, issue no. 1 is decided in favour of the
claimant, to what amount of compensation she is
entitled to and from whom? ... OPP
(iii) Relief.
17. Widow of the deceased entered in the witness box as
PW1. She stated in her evidence by way of affidavit similar facts
as were already stated by her in her claim petition. She proved
documents regarding birth of her child as Ex. PW1/1, her
marriage certificate as Ex. PW1/2 and birth certificate of the
Claimant No. 2 as Ex. PW1/3.
18. In cross examination, PW1 stated that at the time of
accident, she was in West Bengal and had come to know about
the accident on the date of accident itself. She stated that she
has no family and was grown up in an orphanage. The deceased
was also an orphan and now she is living with a lady who had
brought up the deceased like her own son. She stated that she
does not know whether her husband had a driving license or not
and she had come to Delhi after four days of the accident.
19. No other witness was examined.
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20. Arguments were addressed by Sh. Ajit Kumar, learned
Counsel for the claimants and Sh. Shyam Singh, learned Counsel
for the insurance company.
21. On the basis of pleadings of parties, evidence on
record and arguments addressed, issue wise findings are as
under:
ISSUE NO. 1:
22. Burden of proving this issue is on the claimants.
23. For succeeding in a claim petition filed under Section
163 A of the Motor Vehicles Act, it is for the claimants to prove
that the deceased had suffered fatal injuries due to accident
arising out of the use of motor vehicle.
24. Insurance company has challenged maintainability
of this claim petition.
25. In support of maintainability of this Claim Petition,
Counsel for the claimants has relied on New India Assurance Co.
Ltd. v. Kaljeet Singh & Anr., 2013 (1) TAC 968 (Chhattisgarh).
26. In this case, Respondent No. 1 was the driver of the
bus but due to failure of brakes, it had dashed against a tree
resulting in grievous injuries to the said driver Sh. Kaljeet Singh.
He had filed a claim petition under Section 163 A of the Motor
Vehicles Act, 1988 for claiming compensation for the injuries
sustained in the accident. Ld. Claims Tribunal had awarded a
compensation of Rs. 1,90,000/ in favour of the claimant.
However, the Award was challenged by the insurance company
before the Hon'ble High Court where a plea was taken that since
the driver himself was negligent, the petition is not
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maintainable. The Hon'ble High Court, in para 8, held as
under:
"8. Section 163A of the Act was brought into the
Motor Vehicles Act, 1988 by Act No. 54/1994 by way
of a social security scheme to provide for a new
predetermined structured formula for payment of
compensation to the road accident victims on the
basis of age/income of the deceased or the person
suffering permanent disablement. In view of the
language used in the said section there could be no
manner of doubt that the said provision has an
overriding effect as it contains a non obstante
clause in terms whereof the owner of the motor
vehicle or the authorised insurer is liable to pay
compensation in the case of death or permanent
disablement due to accident arising out of the use
of motor vehicle, as indicated in the Second
Schedule, to the legal heirs or the victim, as the
case may be. The above provision has been
analysed in case of Deepal Girishbhai Soni v.
United India Insurance Co. Ltd., 2004 A.C.J. 934 :
2004 (2) T.A.C. 289 (S.C.), in which Hon'ble
Supreme Court has held in paras 42 and 66 as
under:
"(42) Chater XI was, thus, enacted for grant of
immediate relief to a section of the people whose
annual income is not more than Rs. 40,000/
having regard to the fact that in terms of Section
163A of the Act read with the Second Schedule
appended thereto; compensation is to be paid on a
structured formula not only having regard to the
age of the victim and his income but also the other
factors relevant thereof. An award made
thereunder, therefore, shall be in full and final
settlement of the claim as would appear from the
different columns contained in the Second
Schedule appended to the Act. The same is not
interim in nature. The note appended to column 1
which deals with fatal accidents makes the
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position furthermore clear stating that from the
total amount of compensation onethird thereof is
to be reduced in consideration of the expenses
which the victim would have incurred towards
maintaining himself had he been alive. This
together with the other heads of compensation as
contained in column Nos. 2 to 6 thereof leaves no
manner of doubt that the Parliament intended to
lay a comprehensive scheme for the purpose of
grant of adequate compensation to a section of
victims who would require the amount of
compensation without fighting any protracted
litigation for proving that the accident occurred
owing to negligence on the part of the driver of the
motor vehicle or any other fault arising out of use
of a motor vehicle.
(66) We may notice that Section 167 of the Act
provides that where death of, or bodily injury to,
any person gives rise to claim of compensation
under the Act and also under the Workmen's
Compensation Act, 1923, he cannot claim
compensation under both the Acts. The Motor
Vehicles Act contains different expressions as, for
example, "under the provision of the Act",
"provisions of this Act", "under the provision of
Act", "Provisions of this Act", "under any other
provisions of this Act" or "any other law or
otherwise". In Section 163A, the expression
"notwithstanding anything contained in this Act or
in any other law for the time being in force" has
been used, which goes to show that the Parliament
intended to insert a nonobstante clause of wide
nature which would mean that the provisions of
Section 163A would apply despite the contrary
provisions existing in the said Act or any other law
for time being in force. Section 163 A of the Act
covers cases where even negligence is on the part
of the victim. It is by way of an exception to
Section 166 and the concept of social justice has
been duly taken care of."
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27. Therefore, relying on the case of Deepal Girish Bhai
Soni (supra), the Hon'ble High Court held that the claim petition
is maintainable even where negligence is on the part of the
victim or the claimant as Section 163 A is by way of an exception
to Section 166 of the Act and the concept of social justice has
been taken care of. Therefore, reiterating that a claim petition
under Section 163 A of Motor Vehicles Act is maintainable even
in case where the negligence is on the part of the victim or the
claimant, appeal of insurance company was dismissed.
28. On the other hand, counsel for the insurance
company has relied on a judgment passed by the Hon'ble
Supreme Court of India in the case of Ningamma & Anr. v.
United India Insurance Co. Ltd., 2009 ACJ 2020. In this case, the
deceased Ramappa was traveling on a motorcycle which he had
borrowed from its real owner for going to his native place. On
the way, a bullock cart proceeding ahead of the said motorcycle,
carrying iron sheets, suddenly stopped and consequently the
deceased Ramappa, who was proceeding on the said motorcycle,
dashed against it and suffered fatal injuries. Widow and minor
son of the deceased had filed a claim petition under Section 163
A of the Motor Vehicles Act, 1988 before the Claims Tribunal
which awarded a compensation of Rs. 2,59,800/ with interest
payable by the insurance company. However, the insurance
company challenged the order before Hon'ble High Court on the
ground that the accident occurred due to the fault of the
deceased and the claim petition before the Tribunal was not
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maintainable as Section 163 A of the Act is not applicable unless
there was another vehicle involved in the accident. The Hon'ble
High Court upheld the appeal holding that claim petition was
not maintainable as there was no tortfeasor involved. The
judgment passed by the Claims Tribunal was reversed and the
appellants were directed to refund the amount of compensation
to the insurance company. This order was challenged before
Hon'ble Supreme Court by the appellants.
29. The question before the Hon'ble Supreme Court was
whether the legal representatives of a person, who was driving a
motor vehicle, after borrowing it from the real owner meets with
an accident without involving any other vehicle, would be
entitled to compensation under Section 163 A of the M.V. Act or
under any other provision(s) of law and also whether the insurer
who issued the insurance policy would be bound to indemnify
the deceased or his legal representatives.
30. The Hon'ble Supreme Court held that the deceased
was not the owner of the motor bike in question. He had
borrowed the said motor bike from its real owner. The deceased
cannot be held to be employee of the owner of the motor bike
although he was authorised to drive the said vehicle by its owner
and, therefore he would step into the shoes of the owner of the
motor bike.
31. However, in this case, it is evident from the "Brief
Facts" filed by S.I. Sanjay Panghal alongwith D.A. Report that the
deceased was working on contract basis for Sh. Dushyant of Palam Vihar, Gurgaon. Therefore, as per the Investigating MACT No. 34/13 Smt. Meena Sarkar & Anr. v. Sh. Dushyant Singh & Anr. Page No. 9 of 17 Officer, the deceased was the driver of the owner of the vehicle in question.
32. For this reason, the judgment in the case of Ningamma (supra) is distinguishable and hence not applicable to this case.
33. Counsel for the insurance company has also relied on Oriental Insurance Co. Ltd. v. Joseph & Ors., 2012 ACJ 1441. In this case, the Hon'ble High Court of Kerala at Ernakulam held that the policy in question did not cover the rider of the vehicle, therefore, if the rider was not covered, question of indemnifying the owner would not arise. Only in a case where the coverage of rider is included in the policy or where the owner of the policy is covered and the permitted rider takes the position of a owner by virtue of terms of contract then alone the insurer would be liable to pay compensation.
34. The Hon'ble High Court has also noted that it is not in dispute that the deceased, the rider of the vehicle was not the paid driver under the insured. As the deceased was not covered under the policy, the liability of the insurance company was absolved.
35. However, as noted above, in present case the deceased was driver employee of owner of the vehicle. Therefore, even this second judgment relied upon by the insurance company is distinguishable.
36. In the case of National Insurance Company Ltd. v. Sinitha & Ors., 2012 ACJ 1 (SC) the Hon'ble Supreme Court has held that it is open to the owner or insurance company, as the MACT No. 34/13 Smt. Meena Sarkar & Anr. v. Sh. Dushyant Singh & Anr. Page No. 10 of 17 case may be, to defeat a claim under Section 163 A of the Act by pleading and establishing through cogent evidence a "fault" ground ("wrongful act" or "neglect" or "default").
37. In this case, there is no evidence that the deceased had suffered fatal injuries due to his own negligence.
38. In the Untraced Final Form Report filed under Section 173 of Cr.P.C. by the Investigating Officer, it is mentioned that an oil tanker had hit the motorcyclist but its number could not be noted by anyone.
39. Therefore, in this case the deceased had suffered accident due to negligence of driver of an oil tanker and the deceased died due to accident arising out of use of motorcycle No. HR26BF6488.
40. Moreover, in the case of United India Insurance Co. Ltd. v. Sunil Kumar & Anr., 2013 XIII AD (SC) 295, the Hon'ble Supreme Court has noted that the Three Judge Bench Judgment of the Hon'ble Supreme Court in the case of Deepal Girishbhaisoni (supra) was not placed before the Hon'ble Supreme Court who decided the Sinitha's case.
41. Though in the case of Sunil Kumar (supra), the matter was referred to Larger Bench on the point of conflict between two judgments of the Hon'ble Supreme Court on different legal issue but simultaneously the question whether insurance company can defeat a claim petition by proving self negligence of the deceased was also referred to the Larger Bench in following manner: "The Three Judge Bench of this Court in Deepak MACT No. 34/13 Smt. Meena Sarkar & Anr. v. Sh. Dushyant Singh & Anr. Page No. 11 of 17 Girishbhai Soni & Ors. v. United India Insurance Co. Ltd., Baroda (2004) 5 SCC 385 made a detailed analysis of the scope of Sections 166 and 163A and held that the remedy for payment of compensation both under Sections 163A and 166 being final and independent of each other, as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. The Court also extensively examined the scope of Section 163A and held that Section 163A was introduced in the Act by way of a social security scheme and is a Code by itself. The Court also held that Section 140 of the Act deals with interim compensation but by inserting Section 163A, the Parliament intended to provide for making of an award consisting of a predetermined sum without insisting on a longdrawn trial or without proof of negligence in causing the accident. The Court notices that Section 163A was inserted making a deviation from the common law liability under the Law of Torts and also in derogation of the provisions of the Fatal Accidents Act. The Three Judge Bench also held that Section 163A has an overriding effect and provides for special provisions as to payment of compensation on structured formula basis. SubSection (1) of Section 163A contains a nonobstante clause, in terms whereof the owner of the motor vehicle or the authorised insurer is liable to pay, in the case of death of permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. The Court also held that the scheme of the provisions of Section 163A and Section 166 are distinct and separate in nature. In Section 163 A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that the Parliament intended to insert a non MACT No. 34/13 Smt. Meena Sarkar & Anr. v. Sh. Dushyant Singh & Anr. Page No. 12 of 17 obstante clause of wide nature which would mean that the provisions of Section 163A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of. The abovementioned ThreeJudge Bench judgment was not placed before the learned Judges who decided the Sinitha's case (supra)."
42. Under Section 147 of the Motor Vehicles Act, an insurance policy covers death or bodily injury to an employee under Workmen's Compensation Act who is engaged for driving the vehicle or if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle or if it is a goods carriage, being carried in the vehicle.
43. Therefore, as deceased was driver employee of the owner of the vehicle, he is covered under the insurance policy and his LRs are entitled to recover the compensation from the insurance company.
44. In the case of Oriental Insurance Co. Ltd. v. Phulo Devi, 2011 (185) DLT 1, compensation was awarded under Section 163 A of Motor Vehicles Act to LRs of a driver of vehicle who was murdered when the said vehicle was stolen. So far as the question of granting relief to LRs of the deceased driver under Workman's Compensation Act is concerned, it was held in para 10 as under: "10. The answer to the plea of the appellant that proper forum for the claimants was under the Workman's Compensation Act and not a claim MACT No. 34/13 Smt. Meena Sarkar & Anr. v. Sh. Dushyant Singh & Anr. Page No. 13 of 17 petition under the Motor Vehicles Act, is in the observations made in Rita Devi (supra) by the Supreme Court which are as under:
15. ...We do not see how the object of the two Acts, namely, the Motor Vehicles Act and the Workmen's Compensation Act are in anyway different. In our opinion, the relevant object of both the enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to Workmen as defined under that Act while the relief provided under Chapter X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a Motor Vehicle. In this conclusion of ours we are supported by Section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmen's Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operation in the same field, hence judicially accepted interpretation of the word 'death' in Workmen's Compensation Act is, in our opinion, applicable to the interpretation of the work death in the Motor Vehicles Act also."
45. In the case of National Insurance Co. Ltd. v. Munesh Devi & Ors., MAC APP. No. 563/09 the Hon'ble High Court of Delhi had awarded compensation under Section 163 A of the Motor Vehicles Act, 1988 to LRs of driver who had died as he had come in contact with electricity wires over his petrol tanker.
46. In the case of Rita Devi v. National Insurance Co. Ltd., 2000 ACJ 801 (SC) compensation was awarded to LRs of deceased driver of a three wheeler under Section 163 A of Motor Vehicles Act whose dead body was recovered but vehicle was not MACT No. 34/13 Smt. Meena Sarkar & Anr. v. Sh. Dushyant Singh & Anr. Page No. 14 of 17 recovered as it was stolen by some passengers who had engaged that vehicle.
47. As in this case the accident was due to negligence of driver of an oil tanker whose number could not be noted by anybody and the deceased suffered fatal injuries due to accident arising out of use of motorcycle No. HR26BF6488, the claim petition would be maintainable.
ISSUE NO. 2:
48. Assuming income of the deceased to be Rs. 40,000/ p.a. and after deducting 1/3rd for his personal expenses, the loss for the claimants would be Rs. 26,666/ p.a. As the age of the deceased as per post mortem report is 22 years, applying a multiplier of 17, the total Financial Loss for the claimants will be Rs. 4,53,333/.
49. Additionally, claimants are entitled to Rs. 2,000/ for Funeral Expenses, Rs. 5,000/ for Loss of Consortium and Rs. 2,500/ for Loss of Estate.
50. Hence, total compensation payable to the claimants would be Rs. 4,62,833/ which shall be payable with interest @ 7.5% per annum from the date of filing of this petition, which is 03.04.2013, till its realization.
51. Let compensation be deposited by the insurance company within 30 days from today under intimation to claimants as well as their counsel by registered post. In case even after passing of 90 days insurance company fails to deposit this compensation, it shall be recovered by attaching its bank account with a cost of Rs. 5,000/ as per directions of the Hon'ble MACT No. 34/13 Smt. Meena Sarkar & Anr. v. Sh. Dushyant Singh & Anr. Page No. 15 of 17 High Court of Delhi in the case of New India Assurance Co. Ltd. v. Kashmere Lal & Ors., 2007 ACJ 688.
52. Nazir of this court will also send intimation of deposit of compensation to the claimants as well as to their counsel.
53. Ahlmad will put up this file with report from Nazir regarding deposit of compensation again on 05.04.2014.
54. Following directions are given for apportionment of compensation: (1) 40%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Claimant No. 1, Widow of the deceased. This amount shall be deposited by the insurance company in the name of Smt. Meena Sarkar. Out of this compensation 10% compensation shall be released in her favour immediately. Balance compensation shall be deposited in 5 FDRs of equal amount for a period of 1 to 5 years in any nationalised bank of the choice of Claimant No. 1. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1 regularly.
(2) 60% out of the total awarded compensation with proportionate interest shall be payable in favour of Claimant No. 2, Daughter of the deceased. This payment shall be deposited by insurance company in the name of Shweta Sarkar. This compensation will be kept in an FDR in any nationalised bank of the choice of Claimant No. 1 till the time Claimant No. 2 attains age of 21 years. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1 regularly so that she can use it for maintenance of Claimant No. 2.
(3) All the original FDRs shall remain with the bank. Only copies thereof will be given to the claimants. However, pass books will be given to the claimants.
MACT No. 34/13 Smt. Meena Sarkar & Anr. v. Sh. Dushyant Singh & Anr. Page No. 16 of 17 No cheque book shall be issued to the claimants.
(4) No loan or advance will be given against these deposits.
(5) FDRs shall not be prematurely encashed without leave of this Tribunal.
55. Copy of this order be given to all the parties.
56. File be consigned to the Record Room.
Announced in the Open Court On the 03rd day of January, 2014 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
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