Delhi District Court
Sh. Sukhadeo Singh (Aged 67 Yrs.) ... vs M/S. Chaudhary Transport Co. (Owner) on 6 September, 2012
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENTS CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 209/11/10
IN THE MATTER OF :
1. Sh. Sukhadeo Singh (Aged 67 yrs.) (Father)
S/o Sh. Surat Singh
2. Smt. Champa Devi (Aged 37 yrs.) (Mother)
W/o Sh. Sukhadeo Singh
Both R/o Village Bangra Doraray
Post Nanda Mura, P.S. M.H. Nagar
Distt. Siwan841203 (Bihar)
... Petitioners
Versus
1. M/s. Chaudhary Transport Co. (Owner)
10, Transport Centre
Main Rohtak Road
Punjabi Bagh
New Delhi110035.
2. Bajaj Allianz General Insurance Co. Ltd. (Insurer)
C31, First Floor, Connaught Place
New Delhi.
... Respondents
Filed on : 17.04.2010
Reserved on : 04.09.2012
Decided on : 06.09.2012
MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 1of 15
J U D G M E N T:
1. This claim petition is filed under Section 163 A of the Motor Vehicles Act, 1988 for grant of compensation.
2. Petitioners are the parents of the deceased Late Sh. Narender Singh and respondent no. 1 is the owner and respondent no. 2 is the insurer of Tempo No. HR38H0782 which was being driven by the deceased at the time of accident.
Case of the petitioners:
3. As per claim petition, Late Sh. Narinder Singh, aged 24 years, was working as a driver with M/s. Chaudhary Transport Co. at a monthly salary of Rs. 3,300/.
4. On 30.11.08, the deceased was driving one Tempo Swaraj Mazda, bearing no. H338H0782, from Bijwasan to Rangpuri.
5. On that day, at about 11.30 a.m., when the above said tempo reached near NH8 Dwarka Road, opp. Malik Farm House, Samalkha, Delhi an unknown offending vehicle hit the above said tempo which turned turtle due to the accident and the deceased fell down on the side of the road i.e. footpath and due to this, he suffered grievous injuries and died on the spot.
6. The deceased was removed to DDU Hospital where postmortem was conducted on his body.
7. Petitioners have stated that they had spent Rs. 50,000/ on transportation and cremation. They have stated that they are the only legal heirs of the deceased and claimed a compensation of Rs. 8,00,000/ with interest @ 12% p.a. from the respondents.
MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 2of 15 Case of respondent no. 1:
8. Respondent no. 1 in his written statement stated that the compensation claimed by the petitioners is exaggerated.
Case of insurance company:
9. Insurance company has stated in its written statement that the deceased is not a third party under Motor Vehicles Act and claim petition is not maintainable.
10. It is also stated in the written statement of insurance company that unless insured proves that the driver had a valid and effective driving license and vehicle had a fitness certificate and permit, insurance company will have no liability.
11. Rest of the averments made in claim petition were denied but it was admitted that vehicle bearing no. HR38H0782 Make Swaraj Mazda was insured with answering insurance company in the name of M/s. Chaudhary Transport and Company vide commercial vehicle class D policy bearing no. OG08110100000637 for period 22.02.08 to 21.02.09 subject to terms, conditions, exception and limitation of insurance policy.
12. From the pleadings of parties, following issues were framed:
1) Whether Narender Singh, son of petitioners had sustained fatal injuries on his person in an accident which took place on 30.11.2008 due to involvement of vehicle bearing registration no. HR38H0782 which was owned by respondent no. 1 & insured with respondent no. 2? OPP
2) In case, issue no. 1 is decided in favour of the petitioner, to what amount of compensation he is MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 3of 15 entitled to and from whom? OPP
3) Relief.
Evidence on behalf of petitioners:
13. Only petitioner no. 1 entered in the witness box as PW1 and stated similar facts in his evidence by way of affidavit as were already stated in the claim petition. Death certificate of the deceased was exhibited as Ex. PW1/1, FIR No. 279/08 was exhibited as Ex. PW1/2, Postmortem report was exhibited as Ex. PW1/3, final report under Section 173 of Cr.P.C. was exhibited as Ex. PW1/4 and Election ICard of PW1 was exhibited as Ex. PW1/5.
14. In cross examination, PW1 deposed that he is not dependent on his other surviving son. Meaning thereby that the petitioners were dependent on their deceased son. He proved driving license of deceased as Ex. PW1/D1.
Evidence on behalf of insurance company:
15. On behalf of insurance company, its Sr. Executive (Legal) entered in the witness box as R2W1. She proved attested computerised copy of insurance cover as Ex. R2W1/A, notices sent to insured as well as to father of driver to produce insurance policy, permit and driving license as Ex. R2W1/B, postal receipts as per which these notices were sent as Ex. R2W1/C, acknowledgment due cards showing service upon owner/insured as Ex. R3W1/D, report of investigator along with endorsement on Form No. 54 as Ex. R3W1/E, copy of challan of enforcement staff of MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 4of 15 Delhi as Mark A.
16. There are two Form 54 reports.
17. As per one report, Licensing Authority, Motor Vehicle Department, Deoria has stated that DL. No. 20781/DRA/05 is issued in the name of Arun Kumar Srivastava, S/o Sh. Om Prakash Srivastava. It is stated that no license is issued in the name of Narender Singh, deceased.
18. In the second Form 54 report it is stated that in the year 2000, no DL. No. 20781/DRA/2000 was issued to anyone.
19. It was stated by this witness that till date permit is not supplied by owner/insured to the insurance company and driving license is fake.
20. Arguments were addressed by Sh. Jai Kumar, learned Counsel for petitioners and Sh. M.P. Shahi, learned Counsel for insurance company who confined his arguments only to recovery rights.
21. On the basis of pleadings of parties, evidence on record and arguments addressed, issue wise findings are as under: ISSUE NO.1:
22. As this claim petition is under Section 166 A of Motor Vehicles Act, only accident arising out of the use of motor vehicle is to be proved.
23. Perusal of FIR No. 279/08, registered in P.S. Kapashera under Section 279/304 A, shows that one Sanvir S/o Sh. Sahid Ahmad had informed the Police that the driver of Chaudhary Transport, Rohtak Road, Punjabi Bagh, Tempo HR380782, aged MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 5of 15 2425 years, is lying dead on the footpath/pavement at red light NH8. The Investigating Officer has noted that on reaching at the site of accident, he found abrasions on the face and knees of both legs of the deceased and at a distance of 10 steps from the dead body, Tempo Swaraj Mazda No. HR38H0782 was found standing with empty cylinders.
24. Owner of the offending vehicle has not denied that on the date of accident the deceased was the driver on vehicle no. HR38H0782.
25. Admittedly, in this case, there is no eye witness. Therefore, police after investigation in the matter has filed untraced report.
26. In the case of National Insurance Company Ltd. v. Munesh Devi & Ors., MAC APP. No. 563/06 dated 04.05.2012 the Hon'ble High Court of Delhi referred to the case of Rita Devi v. New India Assurance Co. Ltd. 2000 ACJ 801 SC as under: "The deceased was employed to drive an auto rickshaw for ferrying passengers on hire. On the fateful day, the auto rickshaw was parked in the rickshaw stand at Dimapur when some unknown passengers engaged the deceased for journey. As to what happened on that day is not known. It was only on the next day that the police was able to recover the body of the deceased but the auto rickshaw in question was never traced out. The owner of the auto rickshaw claimed compensation from the insurance company for the loss of auto rickshaw. The heirs of the deceased claimed compensation for the death of the driver on the ground that the death occurred on account of accident arising out of use of the motor vehicle. The MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 6of 15 Apex Court held that the heirs of the deceased would be entitled to compensation. The question as to whether the case of murder would be covered was also gone into. Paras 9 and 10 are relevant and are quoted below: "9. A conjoint reading of the above two Sub clauses of Section 163A shows that a victim or his heirs are entitled to claim from the owner/Insurance Company a compensation for death or permanent disablement suffered due to accident arising out of use of the motor vehicle (emphasis supplied), without having to prove wrongful act or neglect or default of any one. Thus it is clear, if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of motor vehicle then they will be entitled for payment of compensation. In the present case, the contention of the Insurance Company which was accepted by the High Court is that the death of the deceased (Dasarath Singh) was not caused by an accident arising out of the use of motor vehicle. Therefore, we will have to examine the actual legal import of the words 'death due to accident arising out of the use of motor vehicle'.
10. The question, therefore, is can a murder be an accident in any given case' There is no doubt that 'murder', as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The differences between a 'murder' which is not an accident and a 'murder' which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killings is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 7of 15 murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder."
27. Reference was also made to the case of Samir Chanda v. Managing Director, Assam State Trans, Corporation 1998 ACJ 1351 (SC) where the Hon'ble Apex Court upheld the claim for compensation in respect of injuries suffered by the claimant due to bomb blast inside the vehicle relying on the decision given in Shivaji Dayanu Patil v. Vatschala Uttam More 1991 ACJ 777.
28. Further, reference was made to the case of National Insurance Company Ltd. v. Shiv Dutt Sharma 2004 ACJ 2049 J & K where two sets of claims were made; one relating to the accident in a bus and the other relating to an accident where bullets of terrorists killed the passengers of a bus. The Hon'ble Jammu and Kashmir High Court held as under: "43. On the basis of the judicial pronouncements and the material which has come on the record, it is concluded:
(i) That a passenger travelling in a bus when he suffers from an injury on account of bomb explosion or on account of any other activity including terrorist activity, he would be well within his rights to claim compensation. This view is spelt out from the decision given by the Supreme Court of India in Shivaji Dayanu Patil v. Vatschala Uttam More, 1991 ACJ 777 (SC) and the latter decisions noticed above;
(ii) That even if a person is not actually in the vehicle and is standing outside and suffers an injury, even in that case Supreme Court of India has allowed compensation in Shivaji Dayanu Patil v.
Vatschala Uttam More, 1991 ACJ 777 (SC).
MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 8of 15 Therefore, merely because some of the victims were taken out of the bus and thereafter shot dead, would not make any difference;
(iii) That the material which has come on the record justified the grant of the compensation and the quantum thereof is accordingly sustained."
29. In view of above stated position of law, the claimants are entitled to compensation under Section 163 A of the Motor Vehicles Act.
30. Therefore, this issue is decided in favour of petitioners and against respondents.
ISSUE NO. 2:
31. Since it is a petition under Section 163 A of the M.V. Act, compensation is to be assessed on the basis of Second Schedule appended to the Act.
32. Age of the deceased, as per his passport, was 25 years at the time of accident. His date of birth is 10.01.1984 .
33. In the case of Sarla Verma v. DTC 2009 (6) Scale 129, it is held by the Hon'ble Supreme Court of India that there is a clerical mistake in Second Schedule and multiplier applicable would be 18 when age of deceased was 25 years. Therefore, the multiplier applicable will be of 18.
34. Annual income of the deceased was Rs. 40,000/. From this, 1/3rd is to be deducted for personal expenses of the deceased.
35. After deducting 1/3rd, contribution to the family would be Rs. 26,666/ p.a. and applying a multiplier of 18, the Loss of Dependency would be Rs. 4,80,000/.
36. Additionally, petitioners will be entitled to a sum of Rs.
MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 9of 15 2,000/ for Cremation Charges and Rs. 2,500/ for Loss of Estate.
37. Therefore, total compensation payable to petitioners would be Rs. 4,84,500/ which shall be payable with interest @ 9% p.a. from the date of filing of this claim petition which is 17.04.10 till its deposit.
38. For granting interest @ 9% per annum reliance can be placed on the judgment of Hon'ble High Court of Delhi in Dhaneshwari & Anr. v. Tejeshwar Singh & Ors.: MAC APP. 997/11 dated 19.03.2012 where in para 72 and 73 the Hon'ble High Court has held as under: "72. In Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. (2011) 11 SCC 269, the interest granted by the National Commission @ 9% was upheld by the Supreme Court. In Sant Singh v. Sukhdev Singh (2011) 11 SCC 632, interest @ 9% per annum was awarded by the Hon'ble Supreme Court. In Raj Kumar v. Ajay Kumar and Anr. 2011 (1) SCC 343, the interest @ 9% p.a. awarded by the Claims Tribunal was approved. In Arvind Kr. Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254, interest @ 9% p.a. was awarded on the enhanced amount of compensation.
73. In these circumstances, I would also follow the Bank rate of interest and would award interest @ 9% p.a. on the enhanced amount."
39. In the case of Sheela Devi & Anr. Vs. Naib Singh & Ors. :
MAC Appeal No. 91/05 dated 11.05.2012 the Hon'ble High Court has held as under: "7. The Claims Tribunal has awarded interest @ 6% per annum which is on a lower side. The Apex MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 10of 15 Court has awarded interest @ 9% per annum, in the recent case of MCD V. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100. Following the judgment of the Apex Court, the rate of interest is enhanced from 6% per annum to 9% per annum."
40. Sixty percent of compensation will be given to Petitioner No. 2 mother of the deceased. Compensation will be deposited directly with SBI Dwarka Courts by a cheque drawn in the name of SBI A/c Champa Devi. Ten percent of compensation will be released in her saving bank account and balance will be kept in 10 FDRs of equal amount for a period from 1 to 10 years. She will be entitled to get monthly interest on these FDRs in her saving bank account regularly. She will have a choice to get her Saving Bank and FDR accounts transferred to any other branch of SBI of her advice, if so desired.
41. Forty percent of compensation will be given to Petitioner No. 1 father of the deceased. Compensation will be deposited directly with SBI Dwarka Courts by a cheque drawn in the name of SBI A/c Sukhadeo Singh. Ten percent of compensation will be released in her saving bank account and balance will be kept in 5 FDRs of equal amount for a period from 1 to 5 years. He will be entitled to get monthly interest on these FDRs in his saving bank account regularly. He will have a choice to get his Saving Bank and FDR accounts transferred to any other branch of SBI of her advice, if so desired.
42. Next question is which of the respondents is liable to pay this compensation.
MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 11of 15
43. The defence of insurance company is that the driving license of the driver of offending vehicle was fake and the vehicle was without any permit.
44. As already noted, on behalf of insurance company its Senior Executive (Legal) was examined as R2W1. She has proved
(i) Computerised copy of insurance cover as Ex. R2W1/A, (ii) Notice sent to insured as well as to the father of deceased driver to produce insurance policy, permit and driving license as Ex. R2W1/B, (iii) Postal receipts as per which these notices were sent as Ex. R2W1/C, (iv) Acknowledgment Cards showing service upon owner/insurer as Ex. R3W1/D, (v) Report of an investigator alongwith Form54 having endorsement of Licensing Authority, Motor Vehicles Department, Deoria that D.L. No. 20781/DRA/05 was issued to Sh. Arun Kumar Shrivastava S/o Sh. Om Prakash Shrivastava and not to Sh. Narender Kumar, the deceased. There is another Form54, as per which the Licensing Authority of Deoria has reported that D.L. No. 20781/DRA/2000 was not issued in the year 2000. This was exhibited as Ex. R3W1/E, (vi) photocopy of challan of Enforcement Staff, Transport Department GNCT of Delhi issued on 22.11.08 for plying the vehicle without permit.
45. Ld. Counsel for insurance company has relied upon National Insurance Co. Ltd. v. Geeta Bhat & Ors. 2008 ACJ 1498 in support of his argument for recovery rights.
46. In this case, contention of insurance company was that the driving license possessed by the driver of the vehicle was a fake one.
MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 12of 15
47. In the proceedings before the Motor Accidents Claims Tribunal, the insurance company had prayed for examination of the concerned clerk of the Motor Vehicles Department. However, even after service of summons in the Office of the Transport Authority the Transport Authority, did not depute any officer to produce the documents called for. Insurance company had brought on record evidence to the effect that on an investigation made by its own investigator, it was found that no such license had been issued in the name of driver of the vehicle. However, the Tribunal on the premise that the fact that driving license was fake was not proved, directed insurance company to pay the compensation.
48. The appeal filed before Hon'ble High Court was dismissed summarily and matter was taken by the insurance company before the Hon'ble Supreme Court.
49. The Hon'ble Supreme Court held that so far as a driving license of a professional driver is concerned, the owner of the vehicle, despite taking reasonable care, might have not been able to find out as to whether the license was a fake one or not. He is not expected to verify the genuineness thereof from the Transport Offices.
50. Finally, the Hon'ble Supreme Court assumed that the driving license possessed by driver was a fake one and therefore directed insurance company to pay the compensation to the claimants with liberty to recover the same from owner and driver of the offending vehicle in an appropriate proceedings in MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 13of 15 accordance with law.
51. Facts of this case are squarely covered with the case of Geeta Bhat (Supra) noted above. In this case also Licensing Authority, Deoria was served with a notice to appear with records of DL. No. 20781/DRA/2000 dated 21.02.2000 issued to Narender Singh, S/o Sh. Sukhadeo Singh.
52. Inspite of receiving notice no witness was deputed by the said Licensing Authority to produce the documents called for.
53. Insurance company has brought on record evidence to the effect that on an investigation made by its own investigator it has found that no such license had been issued in the name of Narender Singh. In its report dated 19.11.10, Ex. R2W1/E, the said investigator stated: "Kindly refer to your instruction in connection with the verification of driving license from L.A., Deoria. Accordingly, I visited the office of L.A., Deoria. There my letter alongwith the enclosures was handed over to Licensing Clerk for their verification and report obtained that the DL. No. 20781/DAR/05 was issued in the name of Arun Kumar Srivastav S/o Om Prakash Srivastav not in the name of Narender Singh, So it is a fake DL.
The requisite written consent as obtained from Transport Office, Deoria is enclosed, on the form no. 54, here for your perusals & necessary action at you end."
54. Therefore, relying on the case of Geeta Bhat (Supra), this Tribunal assumes that the driving license possessed by Sh. Narender Singh, the deceased was a fake one.
55. Therefore, the compensation, in the first instance, shall MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 14of 15 be paid by insurance company within 30 days under intimation to petitioner vide registered post and would have liberty to recover the same from the owner of the vehicle in an appropriate proceeding in accordance with law.
56. Copy of this order be given dasti to all the parties.
57. Copy of this order be also sent to State Bank of India, Dwarka Court, New Delhi.
58. File be consigned to Record Room.
Announced in the open Court On the 06th Day of September, 2012.
(ARUN BHARDWAJ) PRESIDING OFFICER MOTOR ACCIDENTS CLAIM TRIBUNALII DWARKA COURTS: NEW DELHI MACT No. 209/11/10 Sh. Sukhadeo Singh & Anr. v. Chaudhary Transport Co. & Ors. Page 15of 15