Delhi District Court
Smt. Sushila Devi Sharma vs Shri Manoj Kumar on 15 September, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.D289/14
Date of Institution: 25.07.2014
IN THE MATTER OF:
1. Smt. Sushila Devi Sharma
W/o Late Shri Radha Krishan Sharma
2. Shri Virender Sharma
S/o Late Shri Radha Krishan Sharma
3. Shri Mukesh Sharma
S/o Late Shri Radha Krishan Sharma
4. Smt. Shayari Devi
W/o Late Shri Mohan Lal Sharma
All residents of:
H.No.F2/127A Gali No.5
Mahavir Enclave
New Delhi. ...Petitioners
Versus
1. Shri Manoj Kumar
S/o Late Shri Ashok Kumar
R/o H.No.D244
Savda Ghevra, Delhi.
2. Shri Ajay Kumar
S/o Shri Charan Singh
Suit No. D289/14
Sushila v Manoj Kumar & Ors. Page no. 1 of 49
R/o H.No.229
Village & PO Ghevra Village
Delhi 110081.
3. Shri Ram General Insurance Co. Ltd.
Naiwala
Karol Bagh
New Delhi. ...Respondents
Final Arguments heard : 20.08.2015 Award reserved for : 15.09.2015 Date of Award : 15.09.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the DAR which is treated as claim petition u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that the deceased Shri Radha Krishan Sharma met with an accident on 10.05.2014 at about 5.00, 5.15 p.m. with a commercial vehicle Tempo Tata, number DL1LG1438 and died on the same day. It is averred that on 10.05.2014 the deceased was returning from his office situated at A320 Complex, IGI Airport New Delhi and was coming to his home situated at Palam, New Delhi on a two wheeler Suzuki Access bearing registration No.DL9TC0321, silver colour, at a normal speed. When he reached at IOC Red Light near Pehladpur Village, Delhi Cantt. at about 5.00, Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 2 of 49 5.14 p.m. the offending commercial vehicle Tempo TATA 407 No.DL1LG1438 which was being driven by the driver/ respondent No.1 Shri Manoj Kumar, without having any valid driving license and at a very high speed, rashly negligently, without taking necessary precaution, violating the traffic rules in a zigzag manner suddenly came at the back side of the two wheeler of the deceased and was trying to overtake the two wheeler of the deceased from the left side of the deceased that too at a very high speed which made the deceased imbalanced and the deceased fell down along with his two wheeler and in consequence thereto the rear wheel of the driver side of the offending vehicle ran over the deceased. Thereafter, the elder son of the deceased named Virendra Sharma got information about the incident and immediately rushed to the place of incident and without waiting anytime took the deceased to Base Hospital, Delhi Cantt. in his car. On way to Base Hospital, Delhi Cantt. the deceased narrated the incident to his son namely Virendra Sharma. It is submitted that the deceased died on the very same day of the accident i.e. on 10.05.2014 at 6.50 p.m. It is stated that in respect of the accident FIR No. 275/14 under sections 279/304A of IPC was registered at PS Delhi Cantt. It is contended that after the death of the deceased, an expense of Rs.1,50,000/ was incurred for transporting the dead body to his hometown situated at Jodhpur and for doing last rites of the deceased.
3. It is averred that the deceased was aged about 56 years at the time of the accident and he left behind his wife Smt. Sushila Devi, Shri Virendra Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 3 of 49 Sharma (son), Shri Mukesh Sharma (son) and Smt. Shayari Devi (mother). It is submitted that the deceased was previously working with Indian Air Force and after his retirement from Indian Air Force, he was drawing a monthly pension. The last drawn monthly pension for the month of May, 2014 was Rs. 12,748/ as per the Sixth Pay Commission. After his retirement from Indian Air Force, the deceased joined Indian Airlines Ltd. (now known as Air India Engineering Services Ltd.) as a Senior Inspector Radio and from there he was drawing a monthly salary of Rs.84,932/ per month. It is stated that as per the qualifications, service experience and designation of the deceased, even after his retirement from the present job he would easily get a job in any reputed company of similar nature on a minimum monthly salary of Rs. 60,000/ per month. It is contended that though the legal heirs of the deceased could not be compensated in terms of money, but they were claiming compensation against all the respondents jointly and severally on account of financial loss, loss of future prospects, loss of love and affection, mental agony, consortium, loss of estate. It is stated that the petitioners had lost the company of the deceased at an early age which could never be fulfilled during their life time. It is averred that the deceased was hale and hearty and free from any disease. After retiring from Indian Air Force he was working with Air India (AIESL) from the previous 24 years as Sr. Inspector (Radio), Engineering Dept. and he had good future prospects and if the accident had not killed him he would have crossed the age of 90 years. It is alleged that the accident took place due to the rash and negligent driving and inexperience of the respondent Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 4 of 49 No.1 and even the owner of the offending vehicle i.e. the respondent No.2 had not verified the driving license of the respondent No.1. The offending vehicle was insured by the respondent No.3 and all the respondents were jointly and severally liable to compensate the petitioners. It is prayed that an amount of Rs.2,50,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
4. Reply was filed on behalf of the respondent No.1 stating that the DAR report was not maintainable as it was against the law and facts and as the IO of the case had failed to give correct facts and circumstances of the case and had intentionally suppressed material facts from the Court. All the liabilities in the case were denied and it was contended that the alleged offending vehicle was duly insured with the insurer i.e. Bharti Axa General Insurance Ltd. and at the time alleged of the accident the driver was having valid license as he was engaged for driving. The contents of the FIR/ DAR were denied. It is alleged that the FIR was lodged at PS Delhi Cantt. with an ulterior motive against the respondent No.1 to ruin his economic condition, to harass him and to extract money from him. It is contended that the petitioners are not entitled for any amount as claimed by them as the alleged accident had occurred due to complete negligence of the petitioner (ought to be deceased) himself.
5. Replication to the written statement of the respondent No.3/ reply to the DAR was filed on behalf of the respondent No.2 submitting that the respondent Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 5 of 49 No.2 is the owner of Tata Tempo bearing registration number DL1LG1438 and Manoj Kumar was the driver of the said vehicle. It is submitted that the vehicle bearing registration number DL1LG1438 was standing on the road near the place of occurrence and the DTC bus driver namely Suresh Chand Kapri of bus bearing registration number DL1PC9549, route number 727/20A was coming very rashly and negligently and hit the standing Tata Tempo which hit the scooty driver resulting in injury to the scooty driver and his falling on the ground. On call on 100 number police came on the spot and the injured was taken to the hospital for proper treatment. It is alleged that the police personnel and the DTC driver in collusion made a plan and implicated the Tata Tempo driver for the accident whereas the Tata Tempo driver was completely innocent and he was not driving his tempo rashly and negligently and he had not broken the MV Rules and Regulations knowingly and deliberately. It is contended that the DTC bus driver was solely responsible for the accident because the Tata Tempo driver had parked his vehicle on his side near the place of occurrence and due to the forceful hit by the DTC bus in the back side of the Tata Tempo it hit the scooty driver, therefore, the driver of the Tata Tempo was not responsible for the same. It is submitted that the IO of the case and the DTC bus driver made a serious conspiracy to involve the Tata Tempo driver whereas the DTC bus driver was solely responsible for the occurrence and the FIR was lodged against the Tata Tempo driver in place of the DTC bus driver. Both the DTC bus and the Tata Tempo were taken to the police station by the IO but the DTC bus was released by the IO without any authentic Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 6 of 49 verification whereas the front side glass of the DTC bus had been completely broken and the entry of the bus depot also reported accidental. It is alleged that conspiracy was made and money was deposited to the IO for release of the bus and the bus driver. It is stated that the respondent No.2 made a complaint against the bus driver and the IO on 26.5.2014 but no action had been taken on the same. It is averred that the acts on the part of the driver of the DTC bus namely Shri Suresh Chand Kapri were illegal, unwarranted, arbitrary and without any authority of law and the driver of the DTC had committed the offence punishable under sections 279/304A IPC. It is stated that despite the complaint before the police officials, they had not taken any step against the driver of the DTC bus and had ignored the complaint of the respondent No.2 saying that no case had been made out against DTC. It is submitted that the DTC and the insurance company were liable to pay compensation to the claimants.
6. Written statement/ offer on behalf of the insurance company was filed stating that the policy No.10003/31/14/245540 supplied by the police was valid from 01.08.2013 to 31.07.2014 which was issued by the company in the name of Shri Amit for vehicle bearing No.DL01LG1438. However, the liability of the company was subject to terms and conditions of the policy. It is averred that the driver Manoj Kumar produced DL bearing No.33768 dated 18.03.2010 before the police and on verification from the concerned authority vide its report No.174/LC/Verification/2014 dated 21.05.2014 the said DL was found to Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 7 of 49 be fake because as per the verification report on 18.03.2010 license No.9031 was issued and as per the records of the authority DL No.M33768 dated 18.03.2010 was not issued in the name of Shri Manoj Kumar s/o Shri Ashok Kumar, therefore, the driver was driving the offending vehicle without holding valid driving license at the time of the accident. It is submitted that the injured was medically examined in Base Hospital, Delhi Cantt. Delhi vide MLC No. 292/05/14 dated 10.05.2014. It is contended that the insurance company is not liable to pay any compensation to the petitioners because the accident occurred due to complete negligence of the deceased as TP vehicle (scooter) being driven by the deceased slipped on the mid of the road and the alleged offending vehicle which was coming from behind dashed in the scooter resulting into the death of Mr. Radha Krishan Sharma. It is stated that as there is a breach of terms and conditions of the policy, therefore, the insurance company was not liable to pay any compensation to the injured because the driver of the offending vehicle was driving the vehicle without having any valid driving license at the time of accident.
7. Vide order dated 17.10.2014 from the pleadings of the parties, the following issues were framed:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 10.05.2014 at about 5 p.m. near Prahaladpur Bus Stand, on the road from IOC Red Light Delhi Cantt. to Palam Flyover, caused by rash and negligent driving of a Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 8 of 49 vehicle (Tempo) make Tata 407 bearing no.DL1LG1438, being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom? OPP
3. Relief.
8. On behalf of the petitioners, the petitioner No.1 Smt. Sushila appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A. Copy of death certificate of the deceased is Ex.PW1/1, copy of pension certificate is Ex.PW1/2, copy of FIR is Ex.PW1/3, copy of Passport of the petitioner No.1 is Ex.PW1/4, copy of bank passbook of the deceased is Ex.PW1/5, copy of salary slip of Vishnu Deo Vishwakarma and other documents is MarkPW1/A, copy of ITR of the deceased is MarkPW1/B, copy of pay slip of the deceased is MarkPW1/C and copy of post mortem report is MarkPW1/D.
9. On behalf of the petitioners, Shri Ramesh Chand Kapadi was produced in the witness box as PW2 and he deposed that on 10.05.2014, at about 5.005.15 p.m. he was driving his DTC bus bearing No.DL1PC9549 from Jawaharlal Nehru Stadium to Madhu Vihar. Thereafter, they had reached Prahlad Pur and there was a tempo bearing No.DL1L1438 going ahead of his bus. There was slight drizzle. The tempo was at speed and there was a scooty Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 9 of 49 on the right side of the tempo. The scooty slipped and Shri R.K. Sharma who was riding on the scooty fell down and came under the tyre of the tempo and the tyre of the tempo went over the chest of Shri R.K. Sharma. On seeing the same, he braked his bus due to which the tyre of his bus slipped and hit against the divider and the bumper and the front glass of the bus had broken. He stated that he stopped the bus and he along with the passengers in the bus got down and put Shri R.K. Sharma on the divider and gave him water. He asked them to call his son. Public gathered and someone made a call on 100 number. His family members had come to the spot and they put Shri R.K. Sharma in the car of his family members and he was taken to the Base Hospital. He stated that the accident had taken place due to the fault of the tempo as the tempo was at speed and the driver could not control the same when the scooty slipped and the tyre went over the chest of Shri R.K. Sharma.
10. Shri Fateh Singh, Administration Officer (Security Department)/ Assistant Manager (Personnel), Air India Engineering Services Ltd. (AIESL), IGI Airport had brought the record in respect of the deceased i.e. copy of attested salary slips for the months of April and May, 2014 which are Ex.PW3/1 (colly). Copy of his entry pass stating his current designation is Ex.PW3/2 and copy of ID card of his previous designation is Ex.PW3/3.
11. Cpl. Bhawesh Bhushan Singh, Indian Armed Forces, Air Headquarters, Dte of Air Veterans was examined as PW4 and his authority letter is Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 10 of 49 Ex.PW4/A. He had brought the copy of pension record of the deceased which is Ex.PW4/1 (Colly).
12. Shri Vishnu Deo Vishwakarma, Aircraft Structure Specialist, Department - Engineering (Spice Jet) appeared in the witness box as PW5 and he deposed that he retired from Air India from the Designation of Chief Inspector Engineering on 31.12.2008 and thereafter, he joined Spice Jet on 01.01.2009 as Aircraft Structure Specialist. He stated that he knew the deceased Radha Krishan Sharma who used to work with him. He stated that they were holding the same designation in the same Organization Air India. He stated that at present he was drawing salary of Rs.6,45,846/ p.a. (gross salary). His salary slip is Mark A. PE was closed on 24.3.2015.
13. The respondent No.1 Shri Manoj Kumar appeared in the witness box as R1W1 and led his evidence by way of affidavit which is Ex.R1W1/A. He deposed that the alleged offending vehicle was duly insured with the insurer i.e. Bharti AXA General Insurance Ltd. He stated that he was an illiterate person and was having a valid DL bearing No.33768 at the time of the alleged accident and the said DL was issued by the Transport Authority, U.P. He stated that the DL was genuine and prepared through the Local Agent. He stated that he was driving the vehicle with due precautions and by following all the traffic rules. While driving he was duly alert and as a principle of driving the vehicle, he was looking at the front road forward. While driving straight, he Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 11 of 49 acknowledged something was wrong under the back portion of the vehicle and took emergency brakes, in the meantime the DTC bus driver coming from behind rammed the bus from back side in his vehicle. When he came out from his vehicle, he found a scooty with driver at the back side of his vehicle. He stated that the accident was not caused due to his negligence and the same was caused due to the negligence of the deceased (scooty driver) but the FIR was wrongly registered against him. He stated that the scooty driver did not come from the front, nor he was overtaken by him. It was only the deceased who knew from which direction he came and hit his vehicle at its rear side. He stated that the reason of the accident was not in his control, nor was it practically possible to be caused due to his negligence and it was the scooty driver who could only cause such accident. He stated that the effect of the alleged accident was escalated due to the negligence of the DTC bus driver Shri Ramesh Chand Kapari who was driving the Government vehicle bearing No.DL1PC9549 route No.727, as well as due to rain.
14. The respondent No.2 Shri Ajay Kumar appeared in the witness box as R2W1 and led his evidence by way of affidavit which is Ex.R2W1/A reiterating the averments made in the written statement. He stated that he was the owner of Tata Tempo bearing registration No.DL1LG1438 and Manoj Kumar was the driver of the vehicle. He stated that he made a complaint against the bus driver and IO of the case on 26.5.2014 and the copy of the complaint had also been sent to Commissioner of Police, Delhi, DCP and the IO of the case but no Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 12 of 49 action had been taken till date in respect of the said acts and deeds. He stated that he was not liable to pay any compensation to the claimants as he was involved in connivance with the IO and the driver of DTC. He stated that the liability for compensation was of the insurance company of the concerned DTC bus driver namely Suresh Chand Kapri bearing registration No.DL1PC9549, route No.727/20A and his driver badge No.391. RE was closed on 28.5.2015.
15. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents and perused the record. The petitioners No.1 and 2 were also examined on 20.8.2015 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
16. My findings on the specific issues are as under:
Issue No. 1
17. As the case is U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 13 of 49 "The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 14 of 49 involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
18. The case of the petitioners is that the deceased Shri Radha Krishan Sharma met with an accident on 10.05.2014 at about 5.00, 5.15 p.m. with a commercial vehicle Tempo Tata, number DL1LG1438 and died on the same day. It was averred that on 10.05.2014 the deceased was returning from his office situated at A320 Complex, IGI Airport New Delhi and was coming to his home situated at Palam, New Delhi on a two wheeler Suzuki Access bearing registration No.DL9TC0321, silver colour, at a normal speed. When he reached at IOC Red Light near Pehladpur Village, Delhi Cantt. at about 5.00, 5.14 p.m. the offending commercial vehicle Tempo TATA 407 No.DL1LG1438 which was being driven by the driver/ respondent No.1 Shri Manoj Kumar, without having any valid driving license and at a very high speed, rashly negligently, without taking necessary precaution, violating the traffic rules in a zigzag manner suddenly came at the back side of the two wheeler of the deceased and was trying to overtake the two wheeler of the deceased from the left side of the deceased that too at a very high speed which made the deceased imbalanced and the deceased fell down along with his two wheeler and in consequence thereto the rear wheel of the driver side of the offending vehicle ran over the deceased. Thereafter, the elder son of the deceased named Virendra Sharma got information about the incident and immediately Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 15 of 49 rushed to the place of incident and without waiting anytime took the deceased to Base Hospital, Delhi Cantt. in his car. On way to Base Hospital, Delhi Cantt. the deceased narrated the incident to his son namely Virendra Sharma. It was submitted that the deceased died on the very same day of the accident i.e. on 10.05.2014 at 6.50 p.m. It was stated that in respect of the accident FIR No. 275/14 under sections 279/304A of IPC was registered at PS Delhi Cantt. The petitioner No.1 had also deposed to that effect. The petitioners in support of their case had examined PW2 who had reiterated the mode and manner of the accident.
19. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of seizure memos; copy of DD, copy of mechanical inspection report of the offending vehicle and of the scooty No.DL9TC0321 of the deceased, copy of verification report of the RC of the offending vehicle with a copy of the RC, copy of the insurance policy of the offending vehicle and its verification report, copy of DL of the respondent No.1 with its verification report as per which the DL was not issued by the Authority and copy of FIR registered in that respect, copy of the verification report of the permit of the offending vehicle along with a copy of the permit, copy of fitness certificate of the offending vehicle, copy of notice under Section 133 MV Act, copy of arrest memo and personal search memo, copy of post mortem report and MLC, copies of photographs and copies of documents in respect of the petitioners Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 16 of 49 and the deceased. As per the FIR No.275/14 under sections 279/304A IPC, PS Delhi Cantt the case was registered on the basis of complaint of Ramesh Chand Kapri who has been examined as PW2, wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/304A IPC.
20. The respondent No.1 who is the driver of the alleged offending vehicle had filed the reply averring that the IO of the case had failed to give correct facts and circumstances of the case and had intentionally suppressed material facts from the Court. The contents of the FIR/ DAR were denied. It was alleged that the FIR was lodged at PS Delhi Cantt. with an ulterior motive against the respondent No.1 to ruin his economic condition, to harass him and to extract money from him. It was contended that the petitioners were not entitled for any amount as claimed by them as the alleged accident had occurred due to complete negligence of the petitioner (ought to be deceased) himself. The respondent No.1 had also appeared in the witness box as R1W1 and he stated that he was driving the vehicle with due precautions and by following all the traffic rules. While driving he was duly alert and as a principle of driving the vehicle, he was looking at the front road forward. While driving straight, he acknowledged something was wrong under the back portion of the vehicle and took emergency brakes, in the meantime the DTC bus driver coming from behind rammed the bus from back side in his vehicle. When he came out from his vehicle, he found a scooty with driver at the back side of his vehicle. He Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 17 of 49 stated that the accident was not caused due to his negligence and the same was caused due to the negligence of the deceased (scooty driver) but the FIR was wrongly registered against him. He stated that the scooty driver did not come from the front, nor he was overtaken by him. It was only the deceased who knew from which direction he came and hit his vehicle at its rear side. He stated that the reason of the accident was not in his control, nor was it practically possible to be caused due to his negligence and it was the scooty driver who could only cause such accident. He stated that the effect of the alleged accident was escalated due to the negligence of the DTC bus driver Shri Ramesh Chand Kapari who was driving the Government vehicle bearing No.DL1PC9549 route No.727, as well as due to rain.
21. Reply was also filed on behalf of the respondent No.2 submitting that the vehicle bearing registration number DL1LG1438 was standing on the road near the place of occurrence and the DTC bus driver namely Suresh Chand Kapri of bus bearing registration number DL1PC9549, route number 727/20A was coming very rashly and negligently and hit the standing Tata Tempo which hit the scooty driver resulting in injury to the scooty driver and his falling on the ground. On call on 100 number police came on the spot and the injured was taken to the hospital for proper treatment. It was alleged that the police personnel and the DTC driver in collusion made a plan and implicated the Tata Tempo driver for the accident whereas the Tata Tempo driver was completely innocent and he was not driving his tempo rashly and negligently and he had Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 18 of 49 not broken the MV Rules and Regulations knowingly and deliberately. It was contended that the DTC bus driver was solely responsible for the accident because the Tata Tempo driver had parked his vehicle on his side near the place of occurrence and due to the forceful hit by the DTC bus in the back side of the Tata Tempo it hit the scooty driver, therefore, the driver of the Tata Tempo was not responsible for the same. It was submitted that the IO of the case and the DTC bus driver made a serious conspiracy to involve the Tata Tempo driver whereas the DTC bus driver was solely responsible for the occurrence and the FIR was lodged against the Tata Tempo driver in place of the DTC bus driver. Both the DTC bus and the Tata Tempo were taken to the police station by the IO but the DTC bus was released by the IO without any authentic verification whereas the front side glass of the DTC bus had been completely broken and the entry of the bus depot also reported accidental. It was alleged that conspiracy was made and money was deposited to the IO for release of the bus and the bus driver. It was stated that the respondent No.2 made a complaint against the bus driver and the IO on 26.5.2014 but no action had been taken on the same. It was averred that the acts on the part of the driver of the DTC bus namely Shri Suresh Chand Kapri were illegal, unwarranted, arbitrary and without any authority of law and the driver of the DTC had committed the offence punishable under sections 279/304A IPC. It was stated that despite the complaint before the police officials, they had not taken any step against the driver of the DTC bus and had ignored the complaint of the respondent No.2 saying that no case had been made out Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 19 of 49 against DTC. The respondent No.2 had also appeared in the witness box as R2W1 reiterating the averments made in the written statement. He stated that he made a complaint against the bus driver and IO of the case on 26.5.2014 and the copy of the complaint had also been sent to Commissioner of Police, Delhi, DCP and the IO of the case but no action had been taken till date in respect of the said acts and deeds. He stated that he was not liable to pay any compensation to the claimants as he was involved in connivance with the IO and the driver of DTC.
22. During crossexamination by the learned counsel for the respondent No.1 PW1 denied the suggestion that the accident had not taken place due to the negligence of the respondent No.1. She admitted that she was not the eye witness of the accident. She stated that her son had received a call regarding the accident and he informed her. Thus PW1 admitted that she was not the eye witness of the accident and her son had received a call regarding the accident and he informed her.
23. The petitioners in support of their case had examined PW2 and during crossexamination by the learned counsel for the respondent No.1 PW2 denied the suggestion that the tempo was not at high speed due to the rain. He stated that he did not see any bike which had fallen in front of the tempo. He denied the suggestion that the driver of the tempo had slowed down the tempo on seeing the bikes which had fallen. He denied the suggestion that his Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 20 of 49 bus was being driven at a high speed and he hit against the tempo and before that he hit the scooty due to which the deceased came under the tempo. He admitted that the front portion of the bus was damaged but he denied the suggestion that the same was on account of hitting the tempo. He admitted that the record of the accident was available with his office. He denied the suggestion that there was no negligence on the part of the tempo driver. He was not aware that the owner of the tempo had filed a complaint under Section 156 (3) CrPC for making him a party as an accused. He denied the suggestion that his vehicle was seized in the present case. During crossexamination by the learned counsel for the respondent No.2 PW2 denied the suggestion that there was no negligence of the driver of the tempo or that the accident had taken place due to his negligence. He was not aware if the owner of the tempo was present with his brother at the tea shop close to the spot of the accident. He admitted that the driver of the tempo did not escape from the spot after the accident. He denied the suggestion that the accident had taken place as his bus was at a high speed. PW2 thus stated that he did not see any bike which had fallen in front of the tempo but it is not even the case of the respondents No.1 and 2 that any bike had fallen in front of the tempo. It is pertinent that he admitted that the front portion of the bus was damaged though he denied the suggestion that the same was on account of hitting the tempo. He also admitted that the record of the accident was available with his office. He admitted that the driver of the tempo did not escape from the spot after the accident. Apart from that only suggestions were put to him which he denied.
Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 21 of 49
24. During crossexamination by the learned counsel for the petitioners R1W1 stated that the accident occurred at about 4.45 p.m. He stated that there was no entry time in the morning from 8.00 a.m. to 11.00 a.m. and in the evening from 5.00 p.m. to 9.00 p.m. After the accident, the FIR was registered and he was arrested and he was released on bail the next day. He denied the suggestion that the accident had occurred due to his sole negligence or that there was no involvement of DTC bus driver. He denied the suggestion that at the time of the accident he was driving the vehicle in no entry timings. He denied the suggestion that he was driving the vehicle in a rash and negligent manner volunteered his vehicle was at a speed of 40 k.m./hr and he had controlled the vehicle. During crossexamination by the learned counsel for the insurance company R1W1 stated that he went to police station two times i.e. firstly at the time of arrest and secondly, he received a call from the IO pertaining to the fake license. Thus R1W1 stated that the accident occurred at about 4.45 p.m. though in the FIR the time of the accident is recorded as 5 to 5.15 p.m. It was sought to be contended by the petitioners that it was no entry time for the respondent No.1 and R1W1 stated that there was no entry time in the morning from 8.00 a.m. to 11.00 a.m. and in the evening from 5.00 p.m. to 9.00 p.m. As such as per the FIR the accident had taken place during the no entry time. A suggestion was put to him that he was driving the vehicle in a rash and negligent manner which he denied and volunteered that his vehicle was at a speed of 40 k.m./hr and he had controlled the vehicle.
Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 22 of 49
25. During crossexamination by the learned counsel for the petitioners R2W1 stated that Shri Manoj Kumar was his driver. He stated that the vehicle by which the accident happened was driven by Shri Manoj Kumar. After the accident, the FIR was registered and Shri Manoj Kumar was arrested and he was released on bail. He stated that at the time of the accident he was not present at the spot. He stated that he had not filed the complaint and speed post slip referred to in para 7 of his affidavit. He denied the suggestion that his driver was driving the vehicle rashly and negligently or that the accident took place due to his negligence. During crossexamination by the learned counsel for the insurance company R2W1 stated that the driver had told him that his vehicle was stationary at the time of the accident. He had made a complaint against a DTC bus hitting his tempo. He denied the suggestion that it was no entry at the time of the accident. He denied the suggestion that he had not taken any action regarding the DTC bus hitting his tempo or that for the said reason he had not filed any document in that regard. He denied the suggestion that the respondent No.1 driver was driving the vehicle rashly and negligently due to which the accident took place. He denied the suggestion that the offending vehicle was not stationary. Thus R2W1 stated that at the time of the accident he was not present at the spot. PW2 had been asked if he was aware if the owner of the tempo was present with his brother at the tea shop close to the spot of the accident but R2W1 himself stated that he was not present at the spot. The respondent No.2 had stated about making a complaint against the bus driver but he had not filed the complaint and speed post slip referred to Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 23 of 49 in para 7 of his affidavit in the court. As such there is nothing to substantiate that any such complaint was filed. R2W1 stated that the driver had told him that his vehicle was stationary at the time of the accident. While the respondent No.1 had not stated specifically about his vehicle being stationary at the time of the accident, he had stated about taking emergency brakes.
26. It is thus seen that as per the case of the petitioners the respondent No. 1 was trying to overtake the two wheeler of the deceased from the left side at a very high speed due to which the deceased became imbalanced and fell down and the rear wheel of the offending vehicle ran over the deceased. PW2 who was driving the bus had deposed that the scooty of the deceased was on the right side of the tempo and the scooty slipped and the deceased fell down and came under the tyre of the tempo and the tyre of the tempo went over the chest of the deceased. He had stated about braking his bus which hit against the divider. As such he had also materially corroborated the case put forth by the petitioners. On the other hand the respondent No.1 had not stated about the manner of the accident in his reply. However when he appeared as R1W1 he deposed that he acknowledged something was wrong under the back portion of the vehicle and took emergency brakes, in the meantime the DTC bus driver coming from behind rammed the bus from back side in his vehicle. When he came out from his vehicle, he found a scooty with driver at the back side of his vehicle and that the accident was caused due to the negligence of the deceased (scooty driver). He stated that the effect of the alleged accident Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 24 of 49 was escalated due to the negligence of the DTC bus driver Shri Ramesh Chand Kapari as well as due to rain. The respondent No.2 in the reply had stated that the offending vehicle was standing on the road near the place of occurrence and the DTC bus driver namely Suresh Chand Kapri of bus hit the standing Tata Tempo which hit the scooty driver resulting in injury to the scooty driver and his falling on the ground.
27. A perusal of the record shows that in the site plan it was recorded that the scooty driver was stated to have slipped and came under the driver side tyre of the tempo. It is seen that the presence of the DTC bus at the spot has not been disputed and in fact the FIR was registered on the statement of the driver of the bus. However the mechanical inspection report of the bus is not on record. A perusal of the mechanical inspection report of the offending tempo shows that there was old damage to the left bumper and jali and dala and on the front bumper left side there was sign of fresh scratch. Thus there is no fresh damage to the back of the tempo which would have been there if the bus had rammed into it as had been sought to be contended by the respondents No.1 and 2. Further there is nothing to show that the tempo was stationary at the time of the accident and in fact the accident is stated to have taken place almost in the middle of the road as per the site plan so even if the tempo was stationary in the middle of the road, it would not absolve the respondents No.1 and 2. The mechanical inspection report of the scooty of the deceased shows that there were fresh scratch signs on the front left side body Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 25 of 49 and channel. It was contended on behalf of the petitioners that the deceased had slipped as the respondent No.1 was trying to overtake the scooty from the left side at very high speed and even the site plan shows that the tempo was on the left side of the scooty. However it is clear that the deceased would also have been at speed and was not taking due caution due to which the scooty had slipped resulting in the accident.
28. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/304A IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. There is nothing to disprove the involvement of vehicle No.DL1LG1438. In view of the testimony of PW1 and PW2 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved. At the same time the deceased had also contributed to the happening of the accident. In the facts and circumstances of the case, the negligence of the deceased is apportioned as 25% and of the respondent No.1 as 75%.
29. It was stated that the rear wheel of the driver side of the offending vehicle ran over the deceased. Thereafter, the elder son of the deceased Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 26 of 49 named Virendra Sharma got information about the incident and immediately rushed to the place of incident and without waiting anytime took the deceased to Base Hospital, Delhi Cantt. in his car. It was submitted that the deceased died on the very same day of the accident i.e. on 10.05.2014 at 6.50 p.m. Copy of the post mortem report is on record as per which the death was due to shock as a result of multiple ante mortem injuries sustained to head and chest consequent upon blunt force impact. Thus it stands established that the deceased had sustained injuries in the alleged accident due to which he died. This issue is decided accordingly.
Issue No.2
30. In T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, it was held as under:
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 27 of 49 partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
In the instant case as well though the deceased is found to have contributed to the negligence the claim for compensation by the petitioners cannot be defeated merely by reason of the negligence on part of the deceased but the compensation recoverable by the petitioners would stand reduced in proportion to the contributory negligence of the deceased.
31. The petitioners are the legal representatives of the deceased being the wife, sons and mother of the deceased. PW1 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the respondent No.1 PW1 stated that she got married in 1978. She was class 8th pass. She stated that her mother in law resided with her and PW1 had two children. She stated that her son was working and he was married and the other son was not working and he was 28 years old. She stated that her mother in law did not get any pension. She stated that she was residing in her own house. She was a housewife. She did not have any other house in Delhi. She stated that her deceased husband had two elder brothers. Thus PW1 stated that her mother in law resided with her and PW1 had two children. She stated that she was residing in her own house. She Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 28 of 49 was a housewife. During examination by the Tribunal, the petitioner No.1 Smt. Sushila Devi Sharma stated that she was 55 years old. She stated that she had two sons. She stated that her father in law had already expired. She stated that her mother in law was residing with her and she was aged about 75 years. She stated that she was not working. Being the wife the petitioner No.1 would be regarded as dependent on the deceased and being the mother the petitioner No.4 Smt. Shayari Devi would be regarded as dependent on the deceased.
32. During examination by the Tribunal, the petitioner No.2 Shri Virendra Sharma stated that he was 33 years old. He stated that he was a Software Developer and he was earning Rs.80,000/ per month. Being a major the petitioner No.2 would not be regarded as dependent on the deceased. It was stated that the petitioner No.3 Mahesh was aged about 28 years and he was not working. PW1 had also stated that her one son was not working. Though it was stated that the petitioner No.3 was not working but being a major he would not be regarded as dependent on the deceased. Accordingly only the petitioners No.1 and 4 would be regarded as dependent on the deceased.
33. The petitioners have claimed loss of dependency on the basis that the deceased was aged about 56 years at the time of the accident and he left behind his wife Smt. Sushila Devi, Shri Virendra Sharma (son), Shri Mukesh Sharma (son) and Smt. Shayari Devi (mother). It was submitted that the Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 29 of 49 deceased was previously working with Indian Air Force and after his retirement from Indian Air Force, he was drawing a monthly pension. The last drawn monthly pension for the month of May, 2014 was Rs.12,748/ as per the Sixth Pay Commission. After his retirement from Indian Air Force, the deceased joined Indian Airlines Ltd. (now known as Air India Engineering Services Ltd.) as a Senior Inspector Radio and from there he was drawing a monthly salary of Rs.84,932/ per month. It was stated that as per the qualifications, service experience and designation of the deceased, even after his retirement from the present job he would easily get a job in any reputed company of similar nature on a minimum monthly salary of Rs.60,000/ per month. It was contended that though the legal heirs of the deceased could not be compensated in terms of money, but they were claiming compensation against all the respondents jointly and severally on account of financial loss, loss of future prospects, loss of love and affection, mental agony, consortium, loss of estate. It was stated that the petitioners had lost the company of the deceased at an early age which could never be fulfilled during their life time. It was averred that the deceased was hale and hearty and free from any disease. After retiring from Indian Air Force he was working with Air India (AIESL) from the previous 24 years as Sr. Inspector (Radio), Engineering Dept. and he had good future prospects and if the accident had not killed him he would have crossed the age of 90 years. PW1 had also deposed to that effect. Copy of pension certificate is Ex.PW1/2, copy of bank passbook of the deceased is Ex.PW1/5, copy of salary slip of Vishnu Deo Vishwakarma and other Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 30 of 49 documents is MarkPW1/A, copy of ITR of the deceased is MarkPW1/B and copy of pay slip of the deceased is MarkPW1/C.
34. During crossexamination by the learned counsel for the respondent No.1 PW1 stated that her husband had retired from Indian Air Force in 1989. She stated that her husband was not suffering from any ailment nor he was under any treatment. She stated that her husband used to wear glasses only while reading. Thus PW1 reiterated that her husband had retired from Indian Air Force in 1989. She stated that her husband was not suffering from any ailment nor he was under any treatment. It is thus the case of the petitioners that the deceased was drawing pension and he was also working at the time of the accident.
35. It was contended on behalf of the petitioners that the deceased was receiving pension and that the last drawn monthly pension for the month of May, 2014 was Rs.12,748/ as per the Sixth Pay Commission. In support of their case the petitioners had examined PW4 who had brought the copy of pension record of the deceased which is Ex.PW4/1 (colly). During cross examination by the learned counsel for the respondent No.1 PW4 stated that he had personal knowledge about the service record of the deceased. The petitioners had placed on record a copy of the pension certificate as per which the deceased was receiving a pension of Rs.12,748/ out of which the basic amount was Rs.6,374/ and the DA was Rs.6,374/. The documents produced Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 31 of 49 by PW4 show the rate of pension as Rs.6,374/ w.e.f. 24.9.2012 but the same also show that the revised enhanced rate of family pension of Rs.7,445/ would be payable w.e.f. 24.9.2012 or from the date following the date of death whichever was later upto 7 years from date of death or upto 16.12.2022 whichever was earlier. Thereafter the normal rate of family pension would be payable which is Rs.4,467/ per month. Clearly DA would also be payable on the said rates and as such it is seen that after the death of the deceased, the petitioners would be entitled to family pension which would be higher for the first seven years than even the pension drawn by the deceased and only after 7 years of death a lower amount would be receivable. Considering that the petitioners would be entitled for family pension and for the first seven years a higher amount would be receivable by them, no addition can be made on this account to the income of the deceased for computing the loss of dependency.
36. In order to prove the income of the deceased the petitioners had produced PW3 in the witness box who had brought the copy of attested salary slips for the months of April and May, 2014 in respect of the deceased which are Ex.PW3/1 (colly). During crossexamination by the learned counsel for the respondent No.1 PW3 stated that he did not know personally the person and the salary slip filed by him. He did not have ID card which showed his designation as Assistant Manager (Personnel) volunteered the ID card had not been issued by the department and he had submitted the entry card where his designation was mentioned. Thus PW3 stated that he did not know personally Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 32 of 49 the person and the salary slip filed by him. The petitioners had placed on record the salary slip of the deceased for the month of April, 2014 and PW3 had also produced the salary slips for the months of April and May, 2014. Since the accident had taken place in May, 2014, the pay slip for the month of April, 2014 is considered. It may be mentioned that the petitioners had also placed on record the copy of ITR of the deceased for the assessment year 201314 as per which the income of the deceased was Rs.9,86,691/ but as the pay slip is available the same is being considered. As per the pay slip for the month of April, 2014, the total pay of the deceased was Rs.84,932/ but the amount towards Education Allowance, Tool Kit Allowance, Aircraft Procedure Sheet, Supervisory Allowance, RT License IATA, AIAEA, SS would not be included for computing the income of the deceased for the loss of dependency. Further income tax would be payable on the income. Accordingly the income of the deceased for computing the loss of dependency is taken as Rs.72,000/ per month.
37. It is the case of the petitioners that the deceased was about 56 years of age at the time of the accident and PW1 had deposed to that effect. Copy of the service documents in respect of the deceased show that his date of birth was 17.12.1957. Thus the age of the deceased would be more than 56 years on the date of the accident i.e. 10.5.2014. As per the judgment of the Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and others 2009 ACJ 1298 (SC) the multiplier of 9 applies for Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 33 of 49 calculating the loss of income where the age of the deceased is 56 to 60 years.
38. As observed above the dependents on the deceased are his wife and mother. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependents was 2 there would be 1/3rd deduction towards personal and living expenses of the deceased. As regards the future prospects a 3judge bench of the Hon'ble Supreme Court in a recent judgment in Munna Lal Jain and another v. Vipin Kumar Sharma and others Civil Appeal No.4497 of 2015 decided on 15.5.2015 has relied on the judgment in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 where in the Hon'ble Supreme Court held as under (in the case decided on 15.5.2015 the question was of grant of future prospects to selfemployed victim below 40 years):
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 34 of 49
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
Thus it was held that in the case of those above 50 years of age there shall be no addition and it was only in the case of those selfemployed or on fixed wages, an addition of 15% was provided where the age group was 50 to 60 years. In the present case it was contended on behalf of the petitioners that the deceased had good future prospects and even after his retirement from the present job the deceased would have easily got a job in any reputed company of similar nature on a minimum monthly salary of Rs.60,000/ per month. The petitioners in support of their case had examined PW5 who deposed that he retired from Air India from the Designation Chief Inspector Engineering on 31.12.2008 and thereafter, he joined Spice Jet on 01.01.2009 as Aircraft Structure Specialist. He stated that he knew the deceased Radha Krishan Sharma who used to work with him. He stated that they were holding the same designation in the same Organization Air India. He stated that at present he was drawing salary of Rs.6,45,846/ p.a. (gross salary). His salary slip is Mark A. During crossexamination by the learned counsel for the respondent No.1 PW5 could not tell whether his grades during the education were same as those of the deceased. He stated that a person retiring as Chief Inspector Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 35 of 49 Engineering from Air India may or may not get the same job as he was doing at present. Thus PW5 could not tell whether his grades during the education were same as those of the deceased. It is pertinent that PW5 stated that a person retiring as Chief Inspector Engineering from Air India may or may not get the same job as he was doing at present. As such it cannot be said with certainty that the deceased would get a similar job and the same would be dependent on a number of other factors. However there would have been some increase in the salary of the deceased on account of increase in DA and due to increments. Accordingly the petitioners would be entitled to addition of 15% of the income towards future prospects.
Accordingly the loss of dependency as per the monthly income i.e. Rs. 72,000/ is calculated as under:
Rs.72,000/ X 12 (annual) - Rs.2,88,000/ approximately (i.e. 1/3rd towards personal expenses) = Rs.5,76,000/ + Rs.86,400/ (15% towards future prospects) = Rs.6,62,400/ X 9 (multiplier) = Rs.59,61,600/. Since the negligence of the deceased has been apportioned as 25%, the petitioners would be entitled to 75% of Rs.59,61,600/ i.e. Rs.44,71,200/ rounded off to Rs.44,71,000/.
39. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses. PW1 had Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 36 of 49 deposed that after the death of the deceased an expense of Rs.1,50,000/ was incurred for transporting the dead body of the deceased to his hometown situated at Jodhpur and for doing last rites of the deceased. During cross examination by the learned counsel for the respondent No.1 PW1 stated that she had not placed on record anything to show expenditure of Rs.1,50,000/ on the last rites of her deceased husband. Thus there is nothing on record to show the same.
The total compensation is determined as under:
Loss of dependency : Rs.44,71,000/
Love and affection : Rs.1,00,000/
Loss of Consortium : Rs.1,00,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.25,000/
Total : Rs.47,06,000/
Thus, the total compensation would amount to Rs.47,06,000/. RELIEF
40. The petitioners are awarded a sum of Rs.47,06,000/ (Rs.Forty Seven Lacs Six Thousand only) along with interest @ 9% per annum from the date of filing of the DAR till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. The Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 37 of 49 petitioners No.2 and 3 Shri Virendra Sharma and Shri Mukesh Sharma would be entitled to 15% share each in the awarded amount, the petitioner No.4 Smt. Shayari Devi would be entitled to 20% share in the awarded amount and the petitioner No.1 i.e. Smt. Sushila Devi Sharma would be entitled to 50% share in the awarded amount.
41. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) 30% of the share of the petitioners No.2 and 3 be released to them by transferring it into their savings account in UCO Bank, Patiala House Court and the remaining amount be kept in FDRs in UCO Bank, Patiala House Court for a period of 2 years. 10% of the share of the petitioners No.1 and 4 be released to them by transferring it into their savings account and the remaining amount out of their share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 38 of 49
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
b)The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt. Sushila Devi Sharma, Shri Virendra Sharma, Shri Mukesh Sharma and Smt. Shayari Devi within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released.
Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 39 of 49
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioners No.1 and 4.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioners No.1 and 4 to facilitate their identity.
g) No cheque book shall be issued to the petitioners No.1 and 4 without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioners No. 1 and 4 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioners No.1 and 4 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 40 of 49
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
42. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
APPORTIONMENT OF LIABILITY:
43. The respondent No.1 is the driver, the respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. It is the case of the respondent No.3 that the respondent No.1 did not possess a valid and Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 41 of 49 effective license on the date of the accident and the respondent No.3 had relied on the DAR as per which the DL of the respondent No.1 was found to be fake and FIR No.376/2014 under Sections 468/471 IPC was registered against him in respect of the same at PS Delhi Cantt. A perusal of the report of the Licensing Authority, Kanpur shows that the license No.M33768 dated 18.3.2010 was not issued in the name of the respondent No.1 and the said DL was fake. Thus as per the report obtained by the IO from the concerned authority which was filed along with the DAR the alleged DL of the respondent No.1 had not been issued by the said authority. As such it stands established that the respondent No.1 did not possess a valid driving license on the date of the accident.
44. The respondent No.1 had appeared in the witness box as R1W1 and deposed that he was an illiterate person and was having a valid DL bearing No.33768 at the time of the alleged accident and the said DL was issued by the Transport Authority, U.P. He stated that the DL was genuine and prepared through the Local Agent. During crossexamination by the learned counsel for the petitioners R1W1 stated that the DL which he had mentioned in the affidavit, Ex.R1W1/A was the same license which he had given to the police at the time of the accident. Later on police officials informed him that the status of DL was fake. He had not submitted any report about the validity of his DL. He denied the suggestion that the DL which he had submitted to the police was fake. He denied the suggestion that he did not have any valid DL Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 42 of 49 with him at the time of the accident. During crossexamination by the learned counsel for the insurance company R1W1 stated that he went to police station two times i.e. firstly at the time of arrest and secondly, he received a call from the IO pertaining to the fake license. On second visit to PS, he was informed by the IO that the said license which he had produced to the IO was fake. The said fake report was told by the IO after the checking carried out by the IO. The photocopy of the DL was shown to the witness which is Mark A and he stated that the same was handed over by him to the IO. IO had stated that Mark A document after checking was fake. He stated that he got made the license through an agent. He went to the agent for getting the license and after his trial he got the license. He stated that after he got information through IO about the fake license he did not make any complaint against the agent nor he did anything pertaining to the same. He denied the suggestion that if his license was genuine then the accident would not have occurred. Thus R1W1 stated that the police officials informed him that the status of DL was fake. It is pertinent that R1W1 stated that he had not submitted any report about the validity of his DL. He reiterated that he got made the license through an agent. He stated that he went to the agent for getting the license and after his trial he got the license but he did not make any complaint against the agent on coming to know that the DL was fake. As such the respondent No.1 had come to know from the police officials that the DL was fake and nothing has been produced by him to the contrary.
Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 43 of 49
45. The respondent No.2 had also appeared in the witness box as R2W1 and during crossexamination by the learned counsel for the insurance company R2W1 stated that he knew Shri Manoj Kumar since about 2 months prior to the accident. He stated that he had checked the documents of Manoj including the license when he engaged him as a driver but he did not get the license verified from anywhere. He had taken his driving test before engaging him as a driver. Thus R2W1 stated that he had checked the documents of Manoj including the license when he engaged him as a driver but he did not get the license verified from anywhere. He also stated that he had taken his driving test before engaging him as a driver. There is also nothing to show to the contrary and even no suggestion was put to him that he had not checked the DL of the respondent No.1 or that he had not taken his driving test before engaging him as a driver.
46. It is settled law that the breach of conditions of the policy must be wilful and conscious. The issue was considered at length by the Hon'ble High Court of Delhi in Sanjay v. Suresh Chand & Ors. F.A.O. No.445/2000 decided on 3.8.2012 and it was observed:
"The issue of satisfying the third party liability even in case of breach of the terms of insurance policy is settled by three Judge Bench report in Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21. As per Section 149(2) of the Motor Vehicles Act (the Act), an insurer is entitled to defend the action on the grounds as mentioned under Section 149(2)(a)
(i)(ii) of the Act. Thus, the onus is on the insurer to prove that there is breach of the condition of the policy. It is well settled that the breach Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 44 of 49 must be conscious and willful. Even if a conscious breach on the part of the insured is established, still the insurer has a statutory liability to pay the compensation to the third party and will simply have the right to recover the same from the insured/tortfeasor either in the same proceedings or by independent proceedings as the case may be, as ordered by the Claims Tribunal or the Court."
Thus if the insurance company proves conscious breach of the terms of the policy, then only it would be entitled to recovery rights. In the instant case it would be argued on behalf of the respondent No.2 that the respondent No.2 had taken all reasonable care before engaging respondent No.1 as a driver and that he had checked the documents of Manoj including the license when he engaged him as a driver and he had taken his driving test before engaging him as a driver and there was no breach of policy condition committed by the insured.
47. In the judgment of the Hon'ble High Court of Delhi in MAC APP 2/2005 New India Assurance Co. Ltd. v. Mithlesh & Ors. decided on 1.5.2012 reference was made to the judgment of the Hon'ble Supreme Court in National Insurance Company Limited v. Swaran Singh (2004) 3 SCC 297 where it was held as under:
"SUMMARY OF FINDINGS:
106. The summary of our findings to the various issues as raised in these petitions are as follows:
(i) ....
(ii) Insurer is entitled to raise a defence in a claim petition filed Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 45 of 49 under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition, e.g. disqualification of driver or invalid driving license of the driver, as contained in Subsection (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer.
Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy, condition regarding holding of a valid license by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving license is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insured under Section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving license produced by the Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 46 of 49 driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case."
Even in the instant case there is no evidence to show that the insured was aware of the fact that the driving license of the driver was fake and R2W1 had stated about checking the DL of the driver.
48. During crossexamination R2W1 had stated that he did not get the license verified from anywhere but once all due and reasonable care had been taken it cannot be said that a duty was cast upon the respondent No.2 to also get the DL verified. The Hon'ble Supreme Court in PEPSU Road Transport Corporation v. National Insurance Company 2013 (4) TAC 16 (SC) held as under:
"8. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the license possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving license. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving license with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the Insurance Company requires Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 47 of 49 the owner of the vehicle to have the license duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the license issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the license from the licensing authority. That is what is explained in Swaran Singh's case (supra). If despite such information with the owner that the license possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the Insurance Company is not liable for the compensation."
In the instant case once the owner had checked the driving license and satisfied himself about the competence of the driver he could not be expected to go beyond that to the extent of verifying the genuineness of the driving license before hiring the services of the driver. There is nothing to show that the respondent No.3 had ever required the respondent No.2 to have the license duly verified from the licensing authority. In these circumstances it cannot be said that there was any wilful or conscious breach of conditions of policy by the owner. As such the insurance company cannot be held entitled to recover the amount from the insured.
49. The respondent No.1 is the driver, the respondent No.2 is the owner and the respondent No.3 being the insurer of the offending vehicle are held jointly and severally liable. The respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondents No.1 and 2. The respondent No.3 being the insurer is Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 48 of 49 directed to deposit the award amount within 30 days with interest at the rate of 9% from the date of filing of the DAR till its realization in UCO Bank, Patiala House Courts, New Delhi failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
50. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. The respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 14.12.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to Record Room.
Announced in open court on this 15th day of September, 2015 (GEETANJLI GOEL) PO: MACT2 NEW DELHI Suit No. D289/14 Sushila v Manoj Kumar & Ors. Page no. 49 of 49