Delhi District Court
Shri Naresh vs Shri Govind Ram Aggarwal on 19 September, 2015
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
SUIT NO.305/14
Unique Case ID No.02401C-0238132014
1. Shri Naresh,
S/o Shri Mangal Ram,
R/o 228, Dhobi Ghat,
Sangam Park, Delhi - 110 007 (Father)
.......Petitioner
Versus
1. Shri Govind Ram Aggarwal,
S/o Shri Brij Mohan Aggarwal,
R/o C-472, Gali No.11, Majlis Park,
Adarsh Nagar, Delhi - 110 033 (Driver-cum-owner)
2. The New India Assurance Company Ltd.
86-88, IInd Floor, Janpath,
New Delhi - 110001 (Insurance Company)
....... Respondents
Date of Institution of the suit : 02.04.2013
Date of reserving judgment/order : 11.09.2015
Date of pronouncement : 19.09.2015
JUDGMENT
1. Present claim petition has been preferred by the petitioner Naresh (father of deceased Karan) u/s 163-A of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation as provided under Schedule II of Motor Vehicles Suit No.305/14 - Naresh vs. Govind Ram Aggarwal & Anr. 1 of 13 Act in respect of fatal injuries sustained by Karan in the motor vehicle accident.
Brief facts of the case are that on 13.06.2011, Karan S/o Naresh (since deceased) was travelling as a pillion rider on motorcycle bearing registration no.DL-8S-AM-6615 which was driven by Respondent No.1 Govind Ram Aggarwal. At about 6:00 P.M., when they reached at ITO, New Flyover near I.G. Stadium and Power House, New Delhi, the motorcycle met with an accident with an unknown vehicle. Consequently, Govind Ram Aggarwal suffered grievous injuries and Karan suffered fatal injuries. Karan was immediately rushed to J.P.N. Hospital but succumbed to injuries at about 2:30AM on 14.06.2011. It is further the case of the petitioner that deceased was his only son and assisting him at his workplace and earning about Rs.3,300/-per month.
2. Respondent No.1/driver-cum-owner of motorcycle bearing registration no.DL-8S-AM-6615 Govind Ram Aggarwal did not file Written Statement and was proceeded ex parte vide order dated 18.12.2014.
In the Written Statement filed on behalf of Respondent No.2 The New India Assurance Company Ltd., it was averred that the Insurance Company cannot be held liable to pay any compensation to the petitioner until and unless it is proved that the alleged vehicle was being driven by Respondent No.1 having valid and effective driving licence at the time of accident. However, it was admitted that the vehicle Suit No.305/14 - Naresh vs. Govind Ram Aggarwal & Anr. 2 of 13 was insured in the name of Respondent No.1 Govind Ram Aggarwal vide policy No.31040131110100001553 for the period 02.06.2011 to 01.06.2012. It was submitted that the claim of petitioner is false, vexatious and malafide. It was also averred that the accident, if any, had occurred with some unknown vehicle and as such the Insurance Company is not liable to pay compensation.
3. On the pleadings of the parties the following issues were framed:
(i) Whether Karan suffered fatal injuries in road traffic accident on 13.06.2011 at ITO New Flyover, near I.G. Stadium & Power House, New Delhi due to use and involvement of the vehicle No.DL 8 S AM 6615 by respondent no.1?
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
4. In support of the claim, petitioner examined himself as PW1.
PW1 Naresh (petitioner) tendered in examination-in-chief his affidavit Ex.PW1/A and testified on the lines of the claim petition. He further proved attested copy of DAR Ex.PW1/1 and copy of his Voter's I-Card Ex.PW1/2.
During cross-examination, he admitted that he was not an Suit No.305/14 - Naresh vs. Govind Ram Aggarwal & Anr. 3 of 13 eyewitness to the accident. He denied suggestion that deceased was not accompanying Respondent No.1 and the motorcycle had been falsely implicated.
No evidence was led on behalf of Respondent No.2 The New India Assurance Company Ltd.
5. It was submitted by counsel for petitioner that since the petition is u/s 163-A of Motor Vehicles Act, the petitioner is not required to plead or prove negligence and compensation is payable by the respondents since the death occurred due to use of motorcycle which was driven and owned by Respondent No.1.
On the other hand, Counsel for Insurance Company contended that the compensation be assessed strictly in accordance with the structured formula as per Section 163-A r/w Second Schedule to Motor Vehicles Act.
6. I have given considered thought to the contentions raised. My issue-wise findings are as under:
Issue No. (I) Whether Karan suffered fatal injuries in road traffic accident on 13.06.2011 at ITO New Flyover, near I.G. Stadium & Power House, New Delhi due to use and involvement of the vehicle No.DL 8 S AM 6615 by respondent no.1?
Suit No.305/14 - Naresh vs. Govind Ram Aggarwal & Anr. 4 of 13 The provisions contained in section 163-A of the Motor Vehicles Act provide that notwithstanding anything contained in Motor Vehicles Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
It may be observed that in a claim petition filed under Section 163-A of MV Act, 1988, the cause of accident is not at all a question to be decided and mere involvement of vehicle is sufficient to entitle a person claiming compensation to seek the same. The claimants need not plead and prove that the accident occurred due to negligence of the driver of the vehicle involved in the accident. Reference may be made to Jitta Bikshapathi and another v. R. Venkat Reddy and another 2015 ACJ 1365. Even the contributory negligence by itself does not exonerate the owner/insurer of the vehicle from paying the amount of compensation and the liability cannot be limited in a petition under Section 163-A of MV Act, 1988 as held in Fazaluddin and another v. Oriental Insurance Co. Ltd. and others 2015 ACJ 1271.
Section 163-A of the Act was considered by the Hon'ble Supreme Court in Deepal Girishbhai Soni v. United India Insurance Co. Ltd., 2004 ACJ 934 (SC) and the observations made therein are apt to be noted:
Suit No.305/14 - Naresh vs. Govind Ram Aggarwal & Anr. 5 of 13 "(64) It is not in dispute that the claim of compensation irrespective of the death or bodily injury may arise under other statutes as, for example, the Workmen's Compensation Act, Factories Act, Fatal Accidents Act and other Acts governing various industries including hazardous industries.
(66)We may notice that section 167 of the Act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, 'under the provision of the Act', provisions of this Act, under any other provisions of this Act' or 'any other law or otherwise'. In section 163-A, the expression 'notwithstanding anything contained in this Act or in any other law for the time being in force' has been used, which goes to show that "Parliament intended to insert a non obstante clause of wide nature which would mean that the provisions of section 163-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases Suit No.305/14 - Naresh vs. Govind Ram Aggarwal & Anr. 6 of 13 where even negligence is on the part of the victim. It is by way of an exception to section 166 and the concept of social justice has been duly taken care of."
In view of the law laid down by the Hon'ble Apex Court in Deepal Girishbhai Soni (Supra), it is explicit that Section 163-A of the M.V. Act covers the cases where even negligence is on the part of the victim or the claimant. Reference may also be made to IV (2012) ACC 521 New India Assurance Company Ltd. Vs. Kaljeet Singh & Anr. (Chattisgarh High Court), wherein the claimant Kaljeet Singh suffered injuries while driving the bus met with an accident due to failure of brakes and dashed against a tree. The claim petition filed by the petitioners u/s 163-A of M.V. Act was held to be maintainable and it was observed that petition u/s 163-A of the M.V. Act is maintainable even in a case when the negligence is on the part of the claimant.
The factum of death of deceased arising out of the use of motorcycle bearing registration no. DL 8 S AM 6615 in the accident, which was driven by Respondent No.1, as detailed above cannot be doubted in view of FIR No.71/11 which has been filed along with the DAR. The same is further supported by the postmortem report, which has been placed on record. The site plan placed with the DAR reflects that the vehicle was driven on the left side and appears to have been hit by an unknown vehicle, as mentioned in the brief history in the postmortem report. It appears to be a case of hit and runp.
Suit No.305/14 - Naresh vs. Govind Ram Aggarwal & Anr. 7 of 13 In the facts and circumstances and evidence led on record, I am of the considered opinion that it has been proved on record that deceased Karan sustained fatal injuries in the accident caused on account of use of motorcycle bearing registration no. DL 8 S AM 6615.
Issue No. 1 is accordingly decided.
7. Issue No. (ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
The Hon'ble Supreme Court of India in Puttamma and others v. K.L. Narayana Reddy and another 2014 ACJ 526 while examining the applicability of Second Schedule to Motor Vehicles Act held that second schedule as was enacted in 1984 has become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy. Observations made in para 56 of the judgement may be further noticed which are relevant for assessing compensation U/s 163A M.V. Act in case the victim is a minor.
"56. The Central Government was bestowed with the duty to amend the Second Schedule in view of section 163- A (3), but it failed to do so for 19 years in spite of repeated observations of this court. For the reasons recorded above, we deem it proper to issue specific direction to the Suit No.305/14 - Naresh vs. Govind Ram Aggarwal & Anr. 8 of 13 Central Government through the Secretary, Ministry of Road Transport & Highways to make the proper amendments to the Second Schedule Table keeping in view the present cost of living, subject to amendment of Second Schedule as proposed or may be made by Parliament. Accordingly, we direct the Central Government to do so immediately. Till such amendment is made by the Central government in exercise of power vested under sub-section (3) of section 163-A of the Act, 1988 or amendment is made by Parliament, we hold and direct that the children up to the age of 5 years shall be entitled for fixed compensation of Rs.1,00,000/- (rupees one lakh) and persons more than 5 years of age shall be entitled for a fixed compensation of Rs.1,50,000/- (rupees one lakh and fifty thousand) or the amount may be determined in terms of Second Schedule whichever is higher. Such amount is to be paid if any application is filed under section 163-A of the Act. 1988.
It may also be noticed that the remedy for payment of compensation both under Section 163-A and 166 of Motor Vehicles Act are independent of each other as statutorily provided and as such one has to opt or elect to go either for a proceeding under Section 163-A or under Section 166 of the Act but not under both. Section 163-A was enacted to grant immediate relief to section of people whose annual income is not more than Rs. 40,000/- and the compensation is to be paid on a structured formula as per the Second Schedule appended thereto.As per Note 6 to the Second Schedule of Motor Vehicles Act, 1988 r/w Section Suit No.305/14 - Naresh vs. Govind Ram Aggarwal & Anr. 9 of 13 163-A, the notional income for compensation to those who had no income prior to accident is to be treated at Rs.15,000/- per annum. The note appended to column I which deals with fatal accidents further provides that from the total amount of compensation, 1/3rd thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive.
The compensation in the present case to be awarded u/s 163-A of M.V. Act is to be in accordance with the Second Schedule of the Motor Vehicles Act. Deceased Karan aged about 14 years 03 months approximately was a student at the time of accident and the same is not disputed. It is improbable to assume that deceased was earning Rs.3,300/- per month as contended by counsel for petitioner since no cogent evidence to prove the same has been led on record.
Applying the aforesaid principles, the notional income of deceased is to be treated as Rs.15,000/- per annum. Since the age of victim was 14 years 03 months, the relevant multiplier is 15 as per the Second Schedule, referred to above. After deducting 1/3rd in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive as provided under note to the Second Schedule, the petitioners are entitled to compensation of Rs.1,50,000/- {i.e.(Rs.15,000/- (annual income) X 15 (multiplier) X 2/3}. The petitioners are also entitled to funeral expenses of Rs.2,000/- and Rs.2,500/- towards loss of estate as provided under Second Schedule of M.V. Act.
It may be observed that there does not appear to be any Suit No.305/14 - Naresh vs. Govind Ram Aggarwal & Anr. 10 of 13 scope for providing for the compensation for loss of love and affection and funeral expenses much more than what has been provided under Second Schedule since the petition has been filed under Section 163-A M.V. Act 1988. Reliance for aforesaid purpose may be placed upon Salochana and another v. Krishan Lal and another 2015 ACJ 1100.
The petitioner/claimant is accordingly entitled to compensation under Second Schedule of M.V. Act,1988 as tabulated below:
Compensation as computed u/s 163A Rs.1,50,000/ Loss of Estate Rs.2,500/ Funeral Expenses Rs.2,000/ Total Rs.1,54,500/ ______________ (Rupees One Lakh Fifty Four Thousand and Five Hundred Only) The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 02.04.2013 till realization.
8. For the purpose of disbursement, on realisation/deposit, the 25% of the award amount with Suit No.305/14 - Naresh vs. Govind Ram Aggarwal & Anr. 11 of 13 interest be released to the petitioner and the balance 75% be fixed deposited for a period of 03 years.
9. It is further held that Respondent No.1 (Drivercum owner) and Respondent No.2 (Insurer) of motorcycle bearing registration no.DL 8 S AM 6615 are jointly and severally liable to make the payment of compensation to the petitioner/claimant.
10. Relief Since the offending vehicle was insured on the date of accident, Respondent No.2/Insurer of motorcycle bearing registration No.DL 8 S AM 6615 is directed to deposit the award amount of Rs.1,54,500/ with interest @ 9% per annum from the date of filing of the claim petition i.e. 02.04.2013 till realization with the Nazir within 30 days under intimation to the petitioner failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Insurance Company and drivercumowner and owner of the offending vehicle are also directed to place on record the Suit No.305/14 - Naresh vs. Govind Ram Aggarwal & Anr. 12 of 13 proof of deposit of the award amount, proof of delivery of notice in respect of deposit of amount with the Tribunal to the claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today.
A copy of this judgement be provided to The New India Assurance Company Ltd. for compliance.
Nazir is directed to place a report on record in the event of nonreceipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Announced in open court on 19th September, 2015 (Anoop Kumar Mendiratta) Judge, MACT-1 (Central), Tis Hazari Courts, Delhi.
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