Delhi District Court
Smt. Kusum Devi vs Dharam Singh on 5 February, 2007
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IN THE COURT OF SHRI PRADEEP CHADDAH : JUDGE : MACT :
DELHI
PETITION NO.186/06
DATE OF INSTITUTION: 27.03.03
DATE OF ARGUMENT : 20.01.07
DATE OF JUDGMENT : 05.02.07
1. SMT. KUSUM DEVI
W/O LATE SHANKATHA PRASAD PANDEY
2. SH. SATYAM KUMAR
S/O LATE SHANKATHA PRASAD PANDEY
3. SH. SHUBHAM KUMAR
S/O LATE SHANKATHA PRASAD PANDEY
4. MS. SONI
D/O LATE SHANKATHA PRASAD PANDEY
5. SH. DAYA SHANKAR PANDEY
S/O SH. RATAN DEVPANDEY
...Petitioners
Versus
1. DHARAM SINGH
S/O SH. KHUSHAL SINGH
R/O KAMIRKOT, P.S. LOHAGARH,
DISTT. CHAMPAT (UTTARANCHAL)
AT PRESENT: L-62, VIJAY VIHAR,
PHASE-II, DELHI.
2. M/S GARG ROADLINES,
PO MOHAN NAGA, GHAZIABAD (U.P.)
3. NEW INDIA ASSURANCE COMPANY LIMITED
GULAB BHAWAN, BAHADUR SHAH ZAFAR MARG,
NEW DELHI. ... Respondents
Kusum Devi Vs. Dharam Singh P. No. 1 OF 12
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AWARD
1. Smt. Kusum Devi, Satyam Kumar, Shubham Kumar, Ms. Soni and Sh. Daya Shankar Pandey instituted the present petition seeking compensation U/s 166 & 140 of the Motor Vehicle Act. The Petition was filed against Sh. Dharam Singh, M/s Garg Roadlines and New India Assurance Co. Ltd.
2. Their case as per the petition is that Sh. Shankatha Prasad Pandey who was son of Petitioner No. 5, husband of Petitioner No. 1 and father of Petitioner No. 2, 3 and 4 was 32 years old doing private service. He was earning Rs. 4500/- per month. On 04.02.2003 at about 11.30 pm Oil tanker no. UP-14E-2513 suddenly reversed and hit the deceased who received serious injuries. The deceased was rushed to Maharaja Agrasain Hospital where he died on 07.02.03. The accident had occurred due to rash and negligent driving of the offending truck by Respondent No. 1. The vehicle was owned by Respondent No. 2 and was insured with Respondent No. 3. Petitioners claimed that the deceased was spending more than 2/3rd of his salary on them. Had he not met with the untimely death, he would have lived till the age of 80 years. Kusum Devi Vs. Dharam Singh P. No. 2 OF 12 :3: Petitioners sought compensation amounting to Rs. 10 lacs.
3. Respondent No. 1& 2 despite opportunities given did not file Written Statement and their defence was struck off. Respondent No. 3 filed its Written Statement wherein it claimed that the spot of accident was not a "Public Place" and therefore it is not liable to indemnify any amount of compensation which is found payable to the claimants. Here the accident had taken place inside the gate/premises of the Oil Godown of Praveen Jain at Prahladpur. However, it admitted that the offending truck was insured with it from 28.04.02 to 27.04.03 in the name of Respondent No. 2. It had prayed for dismissal of the petition.
4. On the basis of pleadings my Ld. Predecessor framed the following issues on 06.10.03:
(1) Whether deceased sustained fatal injuries in motor accident caused by rash and negligent driving of tanker no.
UP-14-E-2513 by R-1 on 04.02.03 at about 11.30 pm at Oil godown of Praveen Jain, Prahladpur Bangar, Delhi? OPP
(ii) Whether petitioners are the LR's of the deceased? OPP.
(iii) Whether petitioners are entitled to compensation is so to Kusum Devi Vs. Dharam Singh P. No. 3 OF 12 :4: what amount and from whom?
(4) Relief.
5. I have heard Ld. Counsels for the parties. My findings on the issues is as follows.
6. ISSUE NUMBER ONE:
Petitioners in support of their case examined Sh. Kripa Shanker Pandey as PW1. He testified that on 04.02.03 at about 11.30 pm he was present near godown gate for loading truck no.
UP-14E-2513. Deceased Shankatha Prasad was also with him. Suddenly driver of the truck Respondent No. 1 reversed the truck without given any indication. Deceased got crushed between truck and the wall. He took the deceased to Maharaja Agrasen Hospital in the car belonging to Sh. Parveen Jain. Deceased died after three days of treatment in the hospital. Petitioner Kusum Devi in her similar testimony claimed that she was widow of the deceased. On 04.02.03 at about 11.30 pm truck no. UP-14E-2513 was reversed by its driver in negligent manner without taking precautions. It resulted in fatal injuries of the deceased who subsequently expired. We can ignore the testimony of the Kusum Devi Vs. Dharam Singh P. No. 4 OF 12 :5: Petitioner Kusum Devi since she was not an eye witness but testimony of PW1 Kripa Shanker whom I had referred to initially is of great importance. He very categorically testified that because of reversing of the vehicle without giving any indication, the deceased got crushed between the offending vehicle and the wall. Testimony of the witness coupled with certified copy of FIR and chargesheet and postmortem report makes it amply clear that the deceased had died because of negligent reversing of the offending truck by Respondent No. 1. Though opportunity to cross examine PW1 was given, the same was never availed and so there is no challenge to the testimony of the witness. I therefore hold that the deceased suffered fatal injuries in motor accident caused by rash and negligent driving of vehicle no. UP-14E-2513 by Respondent no. 1. The issue is decided in favour of the Petitioners and against the Respondents.
8. ISSUE NUMBER TWO:
Petitioner Kusum Devi had testified as PW2. She claimed that the deceased had left behind Petitioner No. 5 who was his father and Petitioner No. 2, 3&4 who were his children. She was cross examined by Ld. Counsel for the Respondent but not even Kusum Devi Vs. Dharam Singh P. No. 5 OF 12 :6: suggestion was put to her that the Petitioners were not legal heirs of the deceased. Copy of ration card has been placed on record. According to it, head of the family is Petitioner No. 5 Daya Shanker Pandey. Name of the deceased and Petitioner No. 1 Kusum Devi also finds mention in the ration card. I therefore hold that the Petitioners are legal heirs of the deceased. This issue is decided in favour of the Petitioners and against the Respondents.
9. ISSUE NUMBER THREE:
Whenever death of earning member of a family takes place in a road side accident, his dependants and legal heirs becomes entitled to be compensated by the owner and driver of the offending vehicle which caused the accident. Though the pain of separation can never be eased away, Courts make humble attempt to mitigate financial worries of the family members who are left behind. The amount of compensation does not bring back the dead but to a small extent it enable the legal heirs to live life as comfortably as they were living when their bread winner was alive. Family members of victims of road side accident are paid some amount of money so that they will be able to live their life with dignity.
Kusum Devi Vs. Dharam Singh P. No. 6 OF 12 :7:
10. In the case in hand, the deceased was taken to Maharaja Agrasen Hospital where he died after three days. Petitioner No. 1 who testified as PW2 claimed that they had spent Rs. 20,000/- on his treatment. However, not a single piece of paper was placed on record to substantiate their this averment of the expenses incurred on medical treatment. According to the Petition deceased was 32 years old at the time of his death. If we take a look at the postmortem report, we find that Doctor had mentioned the age as 25 years. We therefore adopt the age mentioned in the petition as 32 years. So multiplier of 17 shall apply in the instant case. Petitioner had claimed that the deceased was earning Rs. 4500/- per month. But there is nothing on record to substantiate this averment. Government of Delhi had prescribed minimum wages which are payable by the employer to their employees. An unskilled labourer was entitled to receive Rs. 2783.90p as on 1.02.03. By applying multiplier of 17, we arrive at a figure of Rs. 567916/-. If we deduct 1/3rd towards personal expenses, we are left with a figure of Rs. 3,78,610/-. This can be taken as loss of earnings for the family.
11. In addition to it, Petitioners are entitled to be compensated for loss of love and affection. Deceased was only 32 years old at Kusum Devi Vs. Dharam Singh P. No. 7 OF 12 :8: the time of his death. He left behind young widow, aged father and three small children. They got deprived of love, affection and care which the deceased would have showered upon them. Petitioner No. 1 was widowed at a very young age of 30 years. She is going to miss husband so long as she lives. Children were too small even to understand the tragedy that had fallen upon them. Let Petitioner be paid Rs. 80,000/- for loss of love and affection.
12. In addition to it, Petitioners are entitled to be compensated for funeral expenses. The second schedule has prescribed a figure of Rs. 2,000/- which is very much on the lower side. When price of all the commodities are revised from time to time and even minimum wages are being periodically increased, there is no point in sticking to low figure of Rs. 2,000/-. Let Petitioners be paid Rs. 20,000/- as funeral expenses as lot of money is required to be spent on numerous religious rites and ceremonies and also on transportation of body.
13. According to the Respondent No. 3, the place of accident was a private godown which was not a Public Place and hence it is not liable to pay at all. I am afraid, it is not so. In a similar case Kusum Devi Vs. Dharam Singh P. No. 8 OF 12 :9: titled as "New India Assurance Co. Vs. Amit Kumar Kanayalal, 1998 (1)TAC 720(Guj.) (DB)" A driver while reversing the vehicle from public road into factory premises caused damage to cement pipes. The place of damage was held to be "public place".
In Alias Vs. Paul, 2004 ACJ 158 (Ker.) (DB) An employee while reversing vehicle in the workshop dashed against another employee resulting in latter's death. It was held that workshop was a public place.
14. Similarly coming back to the case in hand, even if the accident had taken place in the godown of Praveen Jain. It will be treated as a public place and the owner and the insured cannot escape their liability. I therefore, hold that the Petitioners are entitled to receive Rs. 4,78,610/-. from the three Respondents jointly and severally. The issue is decided in favour of the Petitioners and against the Respondents.
15. RELIEF:
I have already held above that the Petitioners are entitled to receive Rs. 4,78,610/- from the Respondents. I direct Respondent Kusum Devi Vs. Dharam Singh P. No. 9 OF 12 :10: No. 3, insurer of the vehicle to pay the said amount within 30 days of today alongwith interest @ 9% per annum to be calculated from the date of institution of the petition till date of actual deposit. The amount paid will be as follows:
Let Petitioner No. 5 father of the deceased be paid Rs. 75,000/-. Three minor children of the deceased Petitioner No. 2,3&4 be paid Rs. 50,000/- each and the balance amount be paid to Petitioner No. 1 widow of the deceased. The amount paid to the children will be kept in the shape of FDR in some Nationalised Bank till the time they attain the age of majority.
16. Respondent no. 3 in its Written Statement had claimed that if it is found that Respondent No. 1 was not holding proper driving licence, it will not be liable to indemnify. Respondent No. 3 had examined Mr. N.K. Saxena in support of its case. The driving licence of Respondent No. 1 was purportedly issued at Mathura and subsequently renewed at Haldwani. According to Mr. Saxena, the licencing authority at Mathura had never issued the original driving licence which was possessed by Respondent No. 1 driver of the offending vehicle. Ex. R3W1/6 and R3W1/7 were the reports in this regard. So it means that the driver of the offending vehicle Kusum Devi Vs. Dharam Singh P. No. 10 OF 12 :11: never possessed any valid driving licence and so renewal of the fake licence at Haldwani is of no consequence.
17. My lord Mr. Justice K.T. Thomas and Mr. Justice R.P. Sethi of Supreme Court of India 2001 ACJ 843 held:
As a point of law we have no manner of doubt that a fake licence cannot get its forgery outfit stripped off merely on account of some officer renewing the same with or without knowing it to be forged. Section 15 of the Act only empowers any Licensing Authority to "renew" a driving licence issued under the provisions of this Act with effect from the date of its expiry." No Licensing Authority has the power to renew a fake licence and, therefore, a renewal if at all made cannot transform a fake licence as genuine. Any counterfeit document showing that it contains a purported order of a statutory authority would ever remain counterfeit albeit the fact that other persons including some statutory authorities would have acted on the document unwittingly on the assumption that it is genuine.
18. Coming back to the facts of the case, it is clear that the initial licence which Respondent No. 1 possessed was fake. Its renewal by the Licensing Authority at Haldwani will not matter. Kusum Devi Vs. Dharam Singh P. No. 11 OF 12 :12: Despite opportunities given, Respondents did not lead evidence and put their defence. I therefore grant recovery rights to Respondent No. 3 after making necessary deposits. It shall have a right to recover the same from insured Respondent No. 2.
19. Copy be provided to both the parties for compliance.
ANNOUNCED in the OPEN COURT (PRADEEP CHADDAH)
On 5th of FEBRUARY, 2007. JUDGE/MACT:ROHINI
DELHI
EXTRA TWO COPIES PREPARED
Kusum Devi Vs. Dharam Singh P. No. 12 OF 12