Delhi District Court
Smt. Meenakshi Asija W/O Late Sh. Dinesh ... vs Sh. Dharamjit So Sh. Sone Lal on 13 May, 2016
IN THE COURT OF MS. SANTOSH SNEHI MANN,
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL02, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Suit No.: 932/2014
Unique Case ID No.: 02401C0224892014
1. Smt. Meenakshi Asija W/o Late Sh. Dinesh Asija
(Wife of the deceased)
2. Master Suryansh Asija S/o Late Sh. Dinesh Asija
(Son of the deceased)
3. Sh. Ved Prakash Asija S/o Late Sh. Mohan Lal Asija
(Father of the deceased)
4. Smt. Kamlesh Asija W/o Sh. Ved Prakash Asija
(Mother of the deceased)
(Petitioner No. 2 is minor through his mother
Smt. Meenakshi Asija, being his natural guardian)
All are R/o: 3520, 1st Floor, Chuttani Manjil,
Nicholson Road, Mori Gate, Delhi - 110006 .......... Petitioners
Versus
1. Sh. Dharamjit So Sh. Sone Lal
R/o: Village Karim Ganj, PS Bidhua,
District Manipuri, Uttar Pradesh
(Driver)
2. M/s Sandhu Roadlines Private Limited
Plot No. 94, Village Habipur,
District Gautambudh Nagar,
NOIDA, Uttar Pradesh
(Owner)
3. The Royal Sundram Alliance Insurance Company Limited
Having its Office at:
150506, 15th Floor, Ambadeep Building,
K. G. Marg, New Delhi
Suit No.: 932/2014 Page No. 1 of 21
(Vide Policy No. VGT0012780000100
valid from 08.06.2013 to 07.06.2014)
(Insurer) ....... Respondents
Date of Institution : 09.05.2014
Arguments heard on : 13.05.2016
Judgment pronounced on : 13.05.2016
AWARD
1. This is a claim petition filed under Section 166 & 140 of the Motor Vehicles Act, 1988 (hereinafter referred as M. V. Act) by the wife, minor son and parents of deceased Dinesh Asija for compensation of Rs. 50,00,000/ (Rupees Fifty Lacs Only), who died in a vehicular accident on 30.11.2013 with respect to which FIR No. 484/2014, under Section 279/337 IPC was registered at PS Moti Nagar and charge sheet under Section 279/304 A/471/474 IPC & Section 185 M. V. Act was filed against Dharamjit, driver of the Trolla Truck bearing Registration No. NL02K8574 (Respondent No. 1).
2. Detailed Accident Report (hereinafter referred as DAR) has been filed by the Investigating Officer alongwith copies of the criminal proceedings including FIR and the chargesheet.
3. Brief facts of the vehicular accident as averred in the Claim Petition and DAR are that on 30.11.2013 at about 10.45 pm at Najafgarh Road, near Lavanya Orchid Banquet Hall, Moti Nagar, Delhi deceased Dinesh Asija alongwith his friends Baljeet Singh and Sumit Dhull was walking towards Grand Plaza Banquet Hall, when a Trolla Truck bearing Registration No. NL02K8574 loaded with iron grids, came at a very fast speed from Jakhira side and hit an electric pole on the road divider as a result of which Suit No.: 932/2014 Page No. 2 of 21 the iron grids slipped and fell on Dinesh Asija, who was passing by. Consequently he was seriously injured and succumbed to the injuries. Allegedly Trolla was driven in a rash and negligent manner by Dharamjit (Respondent No. 1). M/s Sandhu Roadlines Private Limited (Respondent No. 2) is the registered owner of the offending vehicle which was insured with The Royal Sundram Alliance Insurance Company Limited (Respondent No. 3).
4. Respondent No. 1 and Authorized Representative of the respondent No. 2 were produced by IO at the time of filing of the DAR on 09.05.2014. However, despite being given opportunity, they did not file written statement and absented from the proceedings thereafter. Therefore, their defence was struck off by the Ld. Predecessor vide order dated 13.10.2014.
5. In the written statement filed by respondent No. 3 Insurance Company, though it is admitted that the offending vehicle was duly insured vide Policy No. VGT0012780000100 valid from 08.06.2013 to 07.06.2014, including the date of accident, but the liability is contested on the ground that driver of the offending vehicle was not holding a valid Driving License, who was also under the influence of liquor at the time of the accident.
6. From the pleadings of the parties, contentions raised and material on record, the following issues were framed by the Ld. Predecessor vide order dated 13.10.2014:
1. Whether the deceased Dinesh Asija suffered fatal injuries in an accident that took place on 30.11.2013 at about 10.45 pm involving Trolla bearing Registration No. NL02K8574 driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3 Insurance Company?
OPP Suit No.: 932/2014 Page No. 3 of 21
2. Whether the petitioner is entitled to any compensation? If so, to what amount and from whom?
3. Relief
7. Petitioner No. 1 Meenakshi Asija, wife of the deceased has examined herself as PW1 and has deposed on the affidavit Ex. PW1/A. She has placed on record copy of the Voter Identity Card of deceased Dinesh Asija as Ex. PW1/1, copy of her own Voter Identity Card as Ex. PW1/2, copy of Birth Certificate of petitioner No. 2 Master Suryansh Asija, son of the deceased as Ex. PW1/3, copy of Voter Identity Card of petitioner No. 3 Ved Prakash Asija, father of the deceased as Ex. PW1/4 and copy of Voter Identity Card of petitioner No. 4 Kamlesh Asija, mother of the deceased as Ex. PW1/5. She has also placed on record Death Certificate of deceased Dinesh Asija as Ex. PW1/6 and has relied on DAR collectively exhibited as Ex. PW1/7. The witness has also placed on record copy of Secondary School Certificate of the deceased as Ex. PW1/8, allotment letter of agency, claimed to be given to the deceased as Ex. PW1/9 and a certificate with respect to income of the deceased as Ex. PW1/10. PW2 Sh. Baljeet Singh is an eye witness, who has deposed on the affidavit Ex. PW2/A.
8. The Royal Sundram Alliance Insurance Company Limited (Respondent No. 3) has examined R3W1 Sh. Prashant Pratap Singh, its Regional Head (Legal), who has deposed on the affidavit Ex. R3W1/A and has placed on record copy of the Insurance Policy as Ex. R3W1/1. He has proved the Notice under Order 12 Rule 8 CPC given by the Insurance Company to the respondent No. 2, owner of the offending vehicle as Suit No.: 932/2014 Page No. 4 of 21 Ex. R3W1/2 and its postal receipts Ex. R3W1/3.
9. No witness has been examined by the respondents No. 1 & 2 despite being given opportunity, who did not file any written statement and their defence was struck off by the Ld. Predecessor.
10. I have heard Sh. Bharat Bhushan, counsel for the petitioners and Sh. P. N. Singh, counsel for the respondent No. 3 Insurance Company. I have carefully perused the record.
11. My findings on the issues are as under:
Issue No. 1:
Whether the deceased Dinesh Asija suffered fatal injuries in an accident that took place on 30.11.2013 at about 10.45 pm involving Trolla bearing Registration No. NL02K8574 driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3 Insurance Company? OPP In a claim petition filed by LRs of the deceased for compensation under Section 166 of the M. V. Act, onus is on the petitioners to prove that the deceased suffered fatal injuries in a vehicular accident caused by the wrongful act or negligence of the driver of the offending vehicle.
12. PW2 Sh. Baljeet Singh is an eye witness, who has deposed on affidavit (Ex. PW2/A) that at the time of the accident he alongwith his friends Sumit Dhull and deceased Dinesh Asija was walking towards Grand Plaza Banquet Hall at Moti Nagar when a Trolla Truck bearing Registration No. NL02K8574, loaded with huge iron grids came from Jakhira side at a very fast speed, which was driven by its driver Dharamjit (Respondent No. 1) in a rash and negligent manner. It has come in the affidavit of the eye witness that due to the high speed, the trolla struck against an electric pole Suit No.: 932/2014 Page No. 5 of 21 on the road divider as a result of which iron grids slipped from the trolla and hit the deceased, who was passing by.
13. In the crossexamination of PW2 Baljeet Singh by the counsel for the respondent No. 3 Insurance Company, the witness stated that PCR was called and the police arrived within 10 minutes. He also stated that his statement was not recorded by the police at the spot and that deceased was removed to the hospital by him with the help of others. In reply to a question, the witness stated that the offending vehicle came from the side of Jakhira and that he alongwith the deceased was walking towards Jakhira where the Banquet Hall was situated. It has specifically come in his cross examination that he was just next to the deceased at the time of the accident.
14. PW2 Baljeet Singh has not been crossexamined by the respondents No. 1 & 2, driver and owner of the offending vehicle despite being given opportunity.
15. It is a settled legal position that while deciding the petition under Section 166 of the M. V. Act, the Claims Tribunal has to decide negligence on the touch stone of preponderance of probabilities. Reference in this regard is made to the observations of the Hon'ble Supreme Court of India in Kaushnumma Begum and Others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, wherein it was held that the issue of wrongful act or omission on the part of the driver of motor vehicle involved in the accident is of secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under Section 166 & 140 of Suit No.: 932/2014 Page No. 6 of 21 the M. V. Act.
16. In this context observation of the Hon'ble High Court of Delhi in National Insurance Company Limited Vs. Pushpa Rana, 2009 ACJ 287 is also relevant. It was held that if the petitioner files the certified copy of the criminal record showing the completion of investigation by the police or filing of charge sheet for the offences under Section 279/304A IPC or the certified copy of the FIR in addition to copy of recovery memo and mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach at the conclusion in the enquiry proceedings that the driver was negligent. Hon'ble High Court also observed that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and therefore strict rules of evidence are not required to be followed in this proceedings.
17. This aspect was also considered recently by the High Court of Delhi in a matter titled United India Insurance Company Ltd. vs. Smt. Rinki @ Rinku & Others, MAC App. No. 200/2012 decided on 23.07.2012. The Court held as under:
The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988 (the Act). It is also true that the proceedings for grant of compen sation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. vs. Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance Suit No.: 932/2014 Page No. 7 of 21 of probability. The standard of proof beyond reasonable doubt could not have been applied.
18. The DAR (Ex. PW1/7) includes copies of the FIR, chargesheet, MLC, Postmortem Reports of the deceased and Site Plan etc. These documents are admissible in evidence and deemed to be correct under Rule 7 of the Motor Accidents Claims Tribunal Rules, 2008, until proved to be contrary. DAR and criminal proceedings have not been challenged by any of the respondents and they have gone unrebutted.
19. PW2 Baljeet Singh has claimed to be an eye witness. As per copies of the criminal proceedings filed alongwith the DAR, FIR was registered on his statement. His testimony has remained unshaken in the crossexamination by the Insurance Company on material facts.
20. Site Plan filed on record shows MarkA as the place where iron grids had fallen and MarkC is the position of the electric pole on the road divider, which the trolla had struck, resulting in slipping of the iron grids loaded in the trolla and falling on the deceased who was passing by.
21. The manner of the accident recorded in the FIR and testified by the eye witness PW2 Baljeet Singh is corroborated by the site plan. The fact that the trolla had struck against an electric pole on the road divider shows negligence of the driver, who has not bothered to rebut the evidence against him. Moreover, considering the fact that the trolla was loaded with heavy metal objects, the driver was required to be more diligent and careful about the speed. As per the testimony of the eye witness PW2 Baljeet Singh, the trolla was driven at a very high speed, in a rash and negligent manner, which has gone unrebutted by the driver of the trolla. Evidence on Suit No.: 932/2014 Page No. 8 of 21 record shows that the driver of the trolla loaded with heavy iron grids had struck against an electric pole due to the fact that driver was not able to control the vehicle due to high speed, thus gross negligence on the part of the driver.
22. Further, it is not disputed that Dharamjit, driver of the offending vehicle (Respondent No. 1) has been chargesheeted to face criminal trial for his rash and negligent conduct in driving the trolla and for causing the accident resulting in death of deceased Dinesh Asija. He has not putforth any defence. Neither he crossexamined the eye witness PW2 Baljeet Singh, who has deposed against him, nor has led any independent evidence in his defence.
23. As per the Postmortem Report, deceased died due to haemorrhagic shock and multiple organ damage subsequent to Road Traffic Accident.
24. On the basis of material on record, above observations and discussion, I hold that the accident involving Trolla Truck bearing Registration No. NL 02K8574 took place due to rash and negligent conduct of its driver Dharamjit (Respondent No. 1) and further that deceased Dinesh Asija died of fatal injuries suffered in this accident.
Issue No. 1 is decided in favour of the petitioners and against the respondents.
Suit No.: 932/2014 Page No. 9 of 21
25. Findings on Issue No. 2 :
Whether the petitioner is entitled to any compensation? If so, to what amount and from whom?
Since, Issue No. 1 is decided in favour of the petitioners, they are entitled for compensation.
26. In Sarla Verma (Smt) and Others vs. Delhi Transport Corporation and Another, (2009) 6 Supreme Court Cases 121, Hon'ble Supreme Court of India laid down general principals for computation of compensation in death cases. The relevant paras of the judgment are reproduced as under:
18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
This issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference to the age of the deceased.
If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the Insurance Companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following wellsettled steps:
Step1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand. Step2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and Suit No.: 932/2014 Page No. 10 of 21 economic factors, a table of multiplier with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased. Step3 (Actual Calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added.
Age of the deceased
27. Petitioners have placed on record copy of Secondary School Examination Certificate of the deceased Dinesh Asija (Ex. PW1/8), according to which his Date of Birth is 02.10.1980. This document has not been controverted by any of the respondents, neither the Date of Birth mentioned in this document has been disputed. There is no reason to disbelieve the Secondary School Examination Certificate of the deceased and his Date of Birth mentioned therein, which has also been filed on record by the IO alongwith the DAR as proof of age. Accident took place on 30.11.2013. On the basis of Secondary School Examination Certificate of the deceased on record, he was around 33 years old at the time of the accident.
Income of the deceased
28. PW1 Smt. Meenakshi Asija, wife of the deceased has deposed in the affidavit (Ex. PW1/A) that deceased was a businessman, who was running a Courier Firm under the name and style of M/s Dev Couriers, a Franchisee of M/s Blazeflash Courier Private Limited and was earning Rs. 40,000/ per Suit No.: 932/2014 Page No. 11 of 21 month. She has placed on record a letter of M/s Blazeflash Courier Private Limited (Ex. PW1/9) addressed to M/s Dev Courier making allotment of agency for Mori Gate area. PW1 has also placed on record a certificate issued by General Manager (Admin. HR & Legal Affairs) of M/s Blazeflash Courier Private Limited (Ex. PW1/10) certifying that Dinesh Asija, Proprietor of Franchisee, who died in a road accident, was earning approximately Rs. 15,000/ to Rs. 20,000/ per month.
29. The above two documents have not been duly proved as the executors of the documents have not been examined as witnesses. Besides there is no evidence on record to prove that deceased was proprietor of M/s Dev Courier and had income as claimed. Therefore, in the facts and circumstances of the matter since deceased was a matriculate, his monthly income can be assessed on the basis of Minimum Wages Rate of a Matriculate prevailing in Delhi on the date of the accident. Accident took place on 30.11.2013, when the Minimum Wages Rate of a Matriculate in Delhi was Rs. 9,802/. Accordingly, annual income of the deceased is assessed as Rs. 1,17,624/ {(9,802/ X 12) (Rupees One Lac Seventeen Thousand Six Hundred Twenty Four Only)}.
Number of dependents
30. PW1 Smt. Meenakshi Asija, wife of the deceased, has testified on the affidavit (Ex. PW1/A) that she and her minor son Master Suryansh Asija (Petitioner No. 2) were dependent on her deceased husband and that deceased was the only son of Sh. Ved Prakash Asija (Petitioner No. 3) and Smt. Kamlesh Asija (Petitioner No. 4).
Suit No.: 932/2014 Page No. 12 of 21
31. The status of petitioner No. 1 as wife of the deceased and fact that Master Suryansh Asija (Petitioner No. 2) is the minor son of the deceased have not been disputed anywhere. The fact that Sh. Ved Prakash Asija (Petitioner No. 3) and Smt. Kamlesh Asija (Petitioner No. 4) are parents of the deceased is also not disputed. All the four (04) petitioners are shown as LRs of the deceased as per DAR on record.
32. According to the age mentioned in the Voter Identity Card (Ex. PW1/4) of Sh. Ved Prakash Asija (Petitioner No. 3), father of the deceased, he was 64 years old at the time of the accident and as per Voter Identity Card (Ex. PW1/5) of Smt. Kamlesh Asija (Petitioner No. 4), she was 58 years old at the time of the accident.
33. There is nothing on record to suggest that the petitioner No. 4, mother of the deceased, has any independent source of income. Similarly, considering the age of the petitioner No. 3, father of the deceased, at the time of the accident, in the absence of any material on record to suggest otherwise, he is also considered as dependent LR of the deceased, his only son.
34.Therefore, for the purpose of present claim petition, all the four (04) petitioners are the surviving dependent LRs of the deceased. Addition in the income towards future prospects:
35. This issue was considered recently by the Hon'ble High Court of Delhi in MAC. Appeal No. 622/2014 (The Oriental Insurance Co. Ltd. Vs. Lekharaj @ Lekh Raj & Ors.) decided on 27.01.2016. Relevant paras of the judgment are reproduced for reference:
Suit No.: 932/2014 Page No. 13 of 21
4. In the case reported as Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court interalia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was affirmed by a bench of three Hon'ble Judges in Resham Kumari & Ors. Vs. Madan Mohan & Anr. (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. Vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, interalia, by order dated 02.07.2014 in National Insurance Company Ltd. Vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No. 956/2012 Sunil Kumar Vs. Pyar Mohd & Ors., this court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No. 189/2014 (HDFC Ergo General Insurance Company Ltd.
Vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court. This applies to the matter at hand because the claimant here pleaded about gainful employment at a fixed salary and has not led any evidence showing the salary was subject to any periodic increase.
36. In view of the settled legal position as discussed above, no addition can be made towards future prospects in the income of the deceased Dinesh Asija, as there is no proof of employment and income has been assumed on the basis of Minimum Wages Rate of a Matriculate.
Deduction towards personal living expenses of the deceased:
37. Deceased Dinesh Asija was married at the time of accident. He is survived by four (04) dependent LRs including his wife, son and parents. On the basis of the criteria laid down in Sarla Verma case (supra), deduction in the income of the deceased towards his personal and living expenses Suit No.: 932/2014 Page No. 14 of 21 would be 1/4th of his income. Therefore, annual contribution to the family by the deceased would be Rs. 88,218/ {Rs. 1,17,624/ (annual income) - Rs. 29,406/ (1/4rd of the income)}, which is ascertained as multiplicand.
Selection of multiplier:
38. Age of the deceased was 33 years at the time of the accident and he was married. Keeping in view the criteria laid down in Sarla Verma case (supra), multiplier applicable according to age of deceased would be 16. Loss of financial dependency:
39. On the basis of facts and circumstances of this case and the material on record, total loss of financial dependency of the LRs of the deceased would be Rs. 14,11,488/ {Rs. 88,218/ (multiplicand) X 16 (multiplier)}. (Rupees Fourteen Lacs Eleven Thousand Four Hundred Eighty Eight Only).
Compensation under nonpecuniary heads:
40. In view of the judgment in Rajesh & Others v. Rajbir Singh & Others (2013) 9 SCC 54, petitioners are entitled to a sum of Rs. 1,00,000/ (Rupees One Lac Only) towards loss of love and affection, Rs. 25,000/ (Rupees Twenty Five Thousand Only) towards funeral expenses, Rs. 10,000/ (Rupees Ten Thousand Only) towards loss of estate. PW1 Smt. Meenakshi Asija, wife of the deceased, is also entitled to a sum of Rs. 1,00,000 (Rupees One Lac Only) towards loss of consortium. Suit No.: 932/2014 Page No. 15 of 21 Computation of compensation:
41. The total compensation is assessed as under:
Sl. No. Heads Amount
1. Loss of Financial Dependency 14,11,488
2. Loss of Love & Affection 1,00,000
3. Funeral Expenses 25,000
4. Loss of Estate 10,000
5. Loss of Consortium 1,00,000
Total 16,46,488
Accordingly, total compensation is assessed as Rs. 16,46,488/ (Rupees Sixteen Lacs Forty Six Thousand Four Hundred Eighty Eight Only). Liability:
42. Dharamjit (Respondent No. 1), is liable to pay the compensation being the driver of the offending vehicle ie. Trolla Truck bearing Registration No. NL02K8574 as the accident took place due to his rash and negligent conduct. M/s Sandhu Roadlines Private Limited (Respondent No. 2) is vicariously liable for the conduct of the driver, being owner of the offending vehicle.
43. It is admitted by The Royal Sundram Alliance Insurance Company Limited (Respondent No. 3) that the offending vehicle i.e. Trolla Truck bearing Registration No. NL02K8574 was duly insured vide Policy No. VGT0012780000100 valid from 08.06.2013 to 07.06.2014, including the date of accident. However, liability is contested on the ground that driver of the offending vehicle was not holding a valid driving license and was under the influence of liquor at the time of the accident.
Suit No.: 932/2014 Page No. 16 of 21
44.The Royal Sundram Alliance Insurance Company Limited (Respondent No. 3) has examined its Regional Head (Legal) Sh. Prashant Pratap Singh as R3W1, who has deposed on affidavit (Ex. R3W1/A) and has proved the Insurance Policy as Ex. R3W1/1, Notice under Order 12 Rule 8 CPC issued by the Insurance Company to the respondent No. 2 as Ex. R3W1/2 and postal receipt, as proof of service, as Ex. R3W1/3. Testimony of this witness and the documents filed have gone unrebutted by the respondents No. 1 & 2.
45. In the present proceedings, limited statutory defence is available to the Insurance Company under Section 149 of the M. V. Act. Though, as per the copy of chargesheet filed on record alongwith the DAR, driver of the offending vehicle has been chargesheeted for committing the offence of drunken driving under Section 185 of M. V. Act besides the penal offences of causing death by rash and negligent driving, it will not have any bearing on the statutory liability of the Insurance Company in the present proceedings because this is no ground under Section 149 of M. V. Act to avoid the statutory liability.
46. IO has filed on record report of Assistant Regional Transport Authority (Administration), Mainpuri, Uttar Pradesh, according to which copy of Driving License seized from the driver of the offending vehicle was not issued by the authority. This report has neither been rebutted by the respondents No. 1 & 2 nor they have placed on record any proof of valid Driving License.
47. Insurance Company has proved the Notice given to the respondent No. 2, owner of the offending vehicle, under Order 12 Rule 8 CPC making a Suit No.: 932/2014 Page No. 17 of 21 specific demand to produce the Driving License of Dharamjit, driver of the offending vehicle (Respondent No. 1). Service of this notice has been duly proved despite which M/s Sandhu Roadlines Private Limited (Respondent No. 2), owner has failed to produce the Driving License and to discharge the burden.
48. In view of above evidence and material on record, Insurance Company has proved on record that there is conscious breach of the Insurance Policy by M/s Sandhu Roadlines Private Limited (Respondent No. 2), owner because the driver of the offending vehicle was driving the vehicle without valid Driving License.
49. The issue of liability of the Insurance Company towards third party even in case of breach of the terms of Insurance Policy has been settled by the Hon'ble Supreme Court of India in Sohan Lal Passi v. P. Sesh Reddy (1996) 5 SCC 21) and National Insurance Company v. Swaran Singh & Ors (2004) 3 SCC 297. The settled legal position is that the liability of the Insurance Company visavis the third party is statutory and if the Insurance Company successfully proves the conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner or the driver as the case may be.
50. Therefore, in view of the above legal position, liability of the respondent Insurance Company to satisfy the Award in the first instance is statutory because the offending vehicle was duly insured to cover third party risk. However, since the driver of the offending vehicle did not have a valid Driving License at the time of the accident, respondent Insurance Company, will be entitled to recover the amount of compensation from the Suit No.: 932/2014 Page No. 18 of 21 respondents No. 1 & 2, driver and owner of the offending vehicle by filing an execution petition in this very Award without having recourse to an independent civil proceedings.
Relief:
51. In view of above findings on Issues No. 1 & 2, I award an amount of Rs. 16,46,488/ (Rupees Sixteen Lacs Forty Six Thousand Four Hundred Eighty Eight Only) as compensation to the petitioners. Petitioners are also entitled to get interest @ 9% pa from the date of filing of the DAR i.e. 09.05.2014 till realisation. Amount of Interim Award, if paid any, be deducted from the compensation amount.
Apportionment:
52. Share of petitioners in the award amount shall be as under:
Sr. No. Name Relationship with the Share in the
deceased award amount
1. Smt. Meenakshi Asija Wife 25%
2. Master Suryansh Asija Son 50%
3. Sh. Ved Prakash Asija Father 10%
4. Smt. Kamlesh Asija Mother 15%
Mode of payment and disbursement:
53. Respondent No. 3 Insurance Company shall deposit the award amount within 30 days from the date of Award in the State Bank of India, Tis Hazari Branch, Delhi in the name of the petitioners under intimation to the petitioners and the Tribunal. In default of payment within the prescribed period, respondent/Insurance Company shall be liable to pay interest @ 12% p.a. for the period of delay till its realisation. Suit No.: 932/2014 Page No. 19 of 21
54.While making the deposit, Insurance Company shall mention the particulars of this case, name of the Tribunal and the date of decision on the back side of the cheque. Insurance Company shall also file copy of the award attested by its responsible officer in the bank at the time of deposit. Insurance Company is further directed to place on record proof of deposit of the award amount, proof of delivery of notice to the petitioners in respect of deposit of the award amount and complete details in respect of calculation of interest etc. in the Tribunal within 30 days with effect from today.
55. In order to avoid the compensation money being frittered away, entire share of Master Suryansh Asija (Petitioner No. 2), minor son of the deceased would be kept in FDR for the period till after five (05) years of his attaining the age of majority. 50% of the share of Smt. Meenakshi Asija, wife of the deceased (Petitioner No. 1) and Smt. Kamlesh Asija, mother of the deceased (Petitioner No. 4) would be kept in FDRs in their names for a period of seven (07) years. No loan or advance shall be allowed against these deposits. However, the quarterly interest from these deposits can be withdrawn. Interest on FDR in the name of Master Suryansh Asija (Petitioner No. 2) can be withdrawn by his mother Smt. Meenakshi Asija (Petitioner No. 1).
56. Petitioners shall open accounts in State Bank of India, Tis Hazari Branch, Delhi. Manager of the Bank shall comply and release the award amount to the petitioners in terms of the Award.
57. Copy of the Award be given to the parties free of cost. Suit No.: 932/2014 Page No. 20 of 21
58. Nazir is directed to prepare a separate file for compliance and be put up on 09.06.2016.
59. File be consigned to Record Room.
Announced in the open Court (Santosh Snehi Mann) on 13.05.2016 Judge, Motor Accident Claims Tribunal02, West District, Tis Hazari Courts, Delhi Suit No.: 932/2014 Page No. 21 of 21