Delhi District Court
Malti Devi vs Vijay Kumar on 8 September, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.290/14
Date of Institution: 17.02.2014
IN THE MATTER OF:
1. Malti Devi
W/o Late Matadin
2. Harkesh
S/o Late Matadin
3. Manish
S/o Late Matadin
4. Amardeep
S/o Late Matadin
All R/o:
H.No.183, Narendrapur
Bhadaraha
Tehsil Haidergarh
Distt. Barabanki, U.P.
(Petitioners No.2 to 4 being minor
Represented through natural guardian/
Mother) ...Petitioners
Versus
1. Vijay Kumar
S/o Shri Netrapal
Suit No. 290/14 Page no. 1 of 31
Malti Devi v Vijay Kumar & Ors.
R/o Vill. Mudrah, PS Jevar
Distt. Gautam Budh Nagar
U.P.
Also C/o Shri Rajesh
S/o Shri Nirwar
Vill. Khandsa, Gurgaon
Haryana.
2. Jatinder @ Jitender
S/o Shri Attar Singh
R/o VPO - Bamdoli
Gurgaon
Haryana.
3. IFFCO TOKIO General Ins. Co. Ltd.
SBU Narayana, 601604
6th Floor, Ansal Imperial Tower
CBlock, Community Centre
Narayana Vihar
New Delhi 110028. ...Respondents
Final Arguments heard : 18.08.2015 Award reserved for : 08.09.2015 Date of Award : 08.09.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed 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.
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2. It is the case of the petitioners that on 28.12.2010, the deceased Matadin along with his brother Ram Khilawan and other passengers was going to Khandsa from Gurgaon Bus Stand by offending TSR No.HR55E5911. The respondent No.1 was driving the offending TSR rashly, negligently, without taking necessary precautions, without proper lookouts, neglecting the traffic rules and without taking care of the passengers. Despite the objection of the passengers to drive the TSR carefully the driver did not bother or pay any heed and kept driving continuously. At about 09:00 A.M, when they reached Rajiv Chowk, Gurgaon, then all of a sudden the driver took a sharp turn while overtaking a rickshaw and lost control over the TSR. As a result the TSR overturned and the deceased Matadin came under the TSR and sustained grievous/ fatal injuries. He was immediately taken to G.H. Gurgaon, Haryana where the doctors had declared him brought dead. It is submitted that the post mortem of the deceased was conducted at mortuary G.H. Gurgaon, Haryana. It is averred that the dead body of the deceased was taken by the petitioners and his relatives after post mortem. It is contended that the principle of res ipsa loquitur is attracted in the case because the accident took place due to rash and negligent driving on the part of the respondent No.1. It is stated that in respect of the accident FIR No.720/10 under sections 279/337/304A IPC was registered at PS Civil Lines, Gurgaon. It is submitted that Rs.50,000/ were incurred on funeral expenses.
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3. It is averred that at the time of the accident, the deceased was 35 years of age and he was hale and hearty without suffering from any kind of disease or ailment. The deceased was a labourer and was earning Rs.10,000/ per month and the deceased also used to do the household works of his family. It is submitted that the deceased used to expend his entire income on household things of his family. It is contended that the salary of the deceased was increasing with the passage of time. It is stated that the petitioners are the widow and minor children of the deceased and they are the only legal heirs of the deceased and there is no other legal heir of the deceased except the petitioners. It is contended that the legal heirs of the deceased were depending upon the income of the deceased. It is averred that the parents of the deceased had already expired. It is submitted that the respondents No.1 and 2 being the driver and owner of the offending vehicle were jointly and severally liable to pay compensation to the petitioners and the respondent No. 3 being the insurance company was vicariously liable to pay the compensation to the petitioners. It is prayed that an amount of Rs.30,00,000/ be awarded as compensation on account of unnatural, untimely and sudden death of the deceased in the accident, mental pain and agony, loss of love and affection, loss of company, loss of income, loss of future income, loss of consortium, loss on funeral expenses and other general and specific damages as admissible under the various provisions of the M.V. Act in favour of the petitioners and against the respondents.
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4. Written statement on behalf of the respondent No.1 was filed averring that the claim petition is not maintainable in the eyes of law because no cause of action arose in favour of the petitioners and against the respondent No.1 because no such accident had taken place due to any rash and negligent driving of the respondent No.1. It is submitted that the alleged offending vehicle was duly insured with the respondent No.3 at the time of the alleged accident, hence the liability, if any, was of the insurance company only. It is stated that the respondent No.1 was holding a valid driving license at the time of the accident and he had not contravened the terms and conditions of the insurance policy. It is contended that the claim petition is bad for nonjoinder and misjoinder of necessary parties because at the time of the alleged accident, the respondent No.2 was not the owner of the vehicle, the said vehicle was purchased by Shri Sunil Sharma and the respondent No.1 was driving the alleged offending vehicle under the employment of Sunil Sharma. Further the petitioner No.1 had claimed herself to be the widow of the deceased on the basis of her Election ICard whereas in the ration card the name of the wife of the deceased was mentioned as Dashrath Devi. The averments made in the claim petition were denied. It is submitted that the vehicle No.HR55E5911 has been falsely implicated in the case. It is contended that the amount claimed is not only an exaggerated and inflated figure but also does not disclose on what account the respondent No.1 is liable to pay any compensation to the petitioners. It is alleged that it was a hit and run case and the respondent No.1 had been falsely roped in the case with Suit No. 290/14 Page no. 5 of 31 Malti Devi v Vijay Kumar & Ors.
a view to facilitate the petitioners to get compensation.
5. Written statement on behalf of the respondent No.2 was filed making the same averments as those made in the written statement of the respondent No.1.
6. Written statement on behalf of the respondent No.3 was filed taking the preliminary objections that the claim petition is barred by limitation. It is averred that the accident had occurred on 28.12.2010 and the claim petition was filed in 2014 beyond the limitation from the date of the accident as required under section 166 (3) of the M.V. Act 1988 and its subsequent amendments thereof. It is averred that the accident had occurred in Gurgaon, Haryana and the petitioners are from Barabanki, Uttar Pradesh and the respondents No.1 and 2 are from Gurgaon, Haryana, thus the petition was beyond the jurisdiction of this court. It is submitted that no intimation as required under section 134 and 158(6) of M.V. Act was ever received by the respondent No.3 regarding the alleged accident and involvement of vehicle No.HR55S2868 and the involvement of the vehicle was denied. The averments made in the claim petition were denied. It is submitted that in case it is proved that the driver of the alleged vehicle was not holding a valid and effective driving license at the time of the accident, the liability of the respondent No.3, if any, shall cease. It is stated that the respondent No.3 had issued a policy bearing cover note No.70737952 with effect from 11.09.2010 to Suit No. 290/14 Page no. 6 of 31 Malti Devi v Vijay Kumar & Ors.
10.09.2011 in favour of the respondent No.2 in respect of TSR bearing registration No.HR 55E 5911. It is alleged that the amount claimed by the petitioners is highly excessive and without any basis or justification.
7. On 28.7.2014, copy of agreement was filed by the respondent No.2 stating that he had already sold the vehicle to another person. However, he admitted that he was still the registered owner of the offending vehicle. From the pleadings of the parties, the following issues were framed vide order dated 04.12.2014:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 28.12.2010 at about 09:00 A.M, near Rajiv Chowk, Gurgaon, Haryana caused by rash and negligent driving of vehicle No.HR55E5911 (TSR) 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?
3. Relief.
8. On behalf of the petitioners, the petitioner No.1 appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. Copy of ration card is Ex.PW1/1, copies of election ID card of the petitioner No.1, of the deceased and pariwar register are Ex.PW1/2 to Ex.PW1/4, FIR, Site Plan, Suit No. 290/14 Page no. 7 of 31 Malti Devi v Vijay Kumar & Ors.
Insurance Cover Note and PMR are Mark A, B, C and D respectively. The certified copies of the Criminal Court record are Ex.PX (colly). She was not crossexamined on behalf of the insurance company. PE was closed on 26.3.2015.
9. The respondent No.1 Shri Vijay Kumar appeared in the witness box as R1W1 and led his evidence by way of affidavit which is Ex.R1W1/A. He deposed that at the time of the alleged accident, he was under the employment of Shri Sunil Sharma. He stated that he was holding a valid driving license to drive three wheeler scooter. He also stated that the alleged accident had not taken place due to any kind of rash and negligent driving on his part. He was not crossexamined.
10. The respondent No.2 Shri Jitender appeared in the witness box as R2W1 and led his evidence by way of affidavit which is Ex.R2W1/A. He deposed that on 10.05.2007, he sold the vehicle to Shri Dhani Ram S/o Shri Hukam Singh R/o 8 Biswa, Near Mauziwala Kuan, Gurgaon, Haryana vide written agreement dated 10.05.2007, the original of which was with the police. After 10.05.2007, the vehicle was not in his possession and he had no control over the same. He stated that it was not disputed that at the time of the accident, the vehicle was registered in his name but he had already sold the same to the said purchaser, as such he was not liable to pay any compensation to the petitioners. Copy of agreement is Mark A. He was not crossexamined. RE was closed on 23.5.2015. An application was filed on Suit No. 290/14 Page no. 8 of 31 Malti Devi v Vijay Kumar & Ors.
behalf of the respondent No.3 for reopening the evidence stating that the driver of the offending vehicle was not having valid and effective DL on the date of the accident which was dismissed vide order dated 18.8.2015.
11. 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 18.8.2015 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.
12. My findings on the specific issues are as under:
Issue No. 1
13. As the petition has been filed 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:
"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 Suit No. 290/14 Page no. 9 of 31 Malti Devi v Vijay Kumar & Ors.
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 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.
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14. The case of the petitioners is that on 28.12.2010, the deceased Matadin along with his brother Ram Khilawan and other passengers was going to Khandsa from Gurgaon Bus Stand by offending TSR No.HR55E5911. The respondent No.1 was driving the offending TSR rashly, negligently, without taking necessary precautions, without proper lookouts, neglecting the traffic rules and without taking care of the passengers. Despite the objection of the passengers to drive the TSR carefully the driver did not bother or pay any heed and kept driving continuously. At about 09:00 A.M, when they reached Rajiv Chowk, Gurgaon, then all of a sudden the driver took a sharp turn while overtaking a rickshaw and lost control over the TSR. As a result the TSR overturned and the deceased Matadin came under the TSR and sustained grievous/ fatal injuries. He was immediately taken to G.H. Gurgaon, Haryana where the doctors had declared him brought dead. It was submitted that the post mortem of the deceased was conducted at mortuary G.H. Gurgaon, Haryana. It was averred that the dead body of the deceased was taken by the petitioners and his relatives after post mortem. It was contended that the principle of res ipsa loquitur is attracted in the case because the accident took place due to rash and negligent driving on the part of the respondent No.1. It was stated that in respect of the accident FIR No.720/10 under sections 279/337/304A IPC was registered at PS Civil Lines, Gurgaon. In paras 2, 3 and 6 of her affidavit Ex.PW1/A the petitioner No.1 had reiterated the mode and manner of the accident as stated in the claim petition.
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15. The petitioners had placed on record the certified copy of the criminal record consisting of copy of charge sheet; copy of FIR; copy of site plan; copy of post mortem report, copy of RC of the offending vehicle, copy of the insurance policy of the offending vehicle and copy of DL of the respondent No.
1. As per the FIR No.720/10 under sections 279/337/304A IPC, PS Civil Lines, Gurgaon the case was registered on the basis of complaint of Ram Khilawan, brother of the deceased who was stated to be with the deceased at the time of the accident 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 279/337/338/304A IPC.
16. The respondent No.1 had filed the written statement averring that no such accident had taken place due to any rash and negligent driving of the respondent No.1. It was submitted that the vehicle No.HR55E5911 had been falsely implicated in the case. It was alleged that it was a hit and run case and the respondent No.1 had been falsely roped in the case with a view to facilitate the petitioners to get compensation. Written statement on behalf of the respondent No.2 was filed making the same averments as those made in the written statement of the respondent No.1. The respondent No.1 had also appeared in the witness box as R1W1 and deposed that the alleged accident had not taken place due to any kind of rash and negligent driving on his part. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that she was not an eye witness to the accident. She stated that Suit No. 290/14 Page no. 12 of 31 Malti Devi v Vijay Kumar & Ors.
she came to know about the accident through one person namely Ravi telephonically. After the accident she had not come to Delhi. She stated that the dead body of her deceased husband was brought by her brother in law namely Ram Khilawan from Delhi to Village Barabanki U.P. Thus PW1 stated that she was not an eye witness to the accident and she came to know about the accident through one person namely Ravi telephonically.
17. The respondent No.1 had deposed that the alleged accident had not taken place due to any kind of rash and negligent driving on his part. However he was not crossexamined. It would be argued on behalf of the respondents that PW1 was not an eye witness and no eye witness had been produced in the witness box by the petitioners to prove the negligence of the respondent No.1 and as such the petitioners had failed to establish the negligence of the respondent No.1. However the criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/337/338/304A 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. Further, the offending vehicle was found at the spot of accident. There is nothing to disprove the involvement of vehicle No.HR55E5911 in the accident. In view of the testimony of PW1 and the documents on record which have remained Suit No. 290/14 Page no. 13 of 31 Malti Devi v Vijay Kumar & Ors.
unrebutted, the negligence of the respondent No.1 has been prima facie proved.
18. It was stated that due to the accident the deceased Matadin came under the TSR and sustained grievous/ fatal injuries. He was immediately taken to G.H. Gurgaon, Haryana where the doctors had declared him brought dead. It was submitted that the post mortem of the deceased was conducted at mortuary G.H. Gurgaon, Haryana. It was averred that the dead body of the deceased was taken by the petitioners and his relatives after post mortem. Copy of the post mortem report is on record as per which the cause of death was head injury following antemortem blunt force impact, consistent with the manner as alleged. Thus it stands established that the deceased had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioners and against the respondents. Issue No.2
19. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation as per the provisions of the Act. The petitioners are the legal representatives of the deceased being the wife and children of the deceased. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that she was illiterate. She stated that her real name was Dashrath Devi. It was contended on behalf of Suit No. 290/14 Page no. 14 of 31 Malti Devi v Vijay Kumar & Ors.
the respondents No.1 and 2 that as per the voter identity card, the name of the petitioner No.1 was shown as Malti Devi whereas the ration card showed her name as Dashrath Dei. However both in the ration card and the voter identity card she has been shown as the wife of Matadin and as per the copy of the pariwar register her name was shown as Malti Devi and she was stated to be wife of Matadin. As such the relationship of the petitioner No.1 with the deceased cannot be disputed. PW1 was not crossexamined on the point of dependency. During examination by the Tribunal the petitioner No.1 Smt. Malti Devi was unable to state her age. She stated that she had 3 children namely Harkesh, Manish and Amardeep. She stated that she was not working. She stated that her inlaws had already expired. Being the wife the petitioner No.1 would be regarded as dependent on the deceased as also the petitioners No.2 to 4 being the minor children. Accordingly all the petitioners would be regarded as dependent on the deceased.
20. The petitioners have claimed loss of dependency on the basis that at the time of the accident, the deceased was 35 years of age and he was hale and hearty without suffering from any kind of disease or ailment. The deceased was a labourer and was earning Rs.10,000/ per month and the deceased also used to do the household works of his family. It was submitted that the deceased used to expend his entire income on household things of his family. It was contended that the salary of the deceased was increasing with the passage of time. It was stated that the legal heirs of the deceased Suit No. 290/14 Page no. 15 of 31 Malti Devi v Vijay Kumar & Ors.
were depending upon the income of the deceased. PW1 in paras 4 and 5 of her affidavit Ex.PW1/A had deposed to that effect. However the petitioners have not placed on record any document to show what the deceased was doing or how much amount he was earning.
21. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that her deceased husband was working in Delhi but she did not know the exact place. She admitted that he was residing with his brother in Delhi. She did not know the total amount of salary he was earning per month. She denied the suggestion that her husband was not working in Delhi. Thus PW1 stated that her deceased husband was working in Delhi but she did not know the exact place. She admitted that he was residing with his brother in Delhi and even in the FIR it was stated by the brother of the deceased that the deceased had come to him for work. She did not know the total amount of salary he was earning per month. As such PW1 did not even know the total amount of salary of the deceased and there is nothing to show what work the deceased was doing or how much he was earning. The petitioners have not placed on record any document to show the educational qualifications of the deceased or to show that he had acquired any skill. Accordingly the income of the deceased would be computed on the basis of minimum wages for an unskilled work prevailing in Delhi (though the address of the petitioners is of UP and the accident had taken place in Haryana but as per the FIR the deceased was residing in Delhi at the time of the accident) on Suit No. 290/14 Page no. 16 of 31 Malti Devi v Vijay Kumar & Ors.
the date of the accident i.e. 28.12.2010 which were Rs.5,278/ per month. Thus the income of the deceased for computing the loss of dependency is taken as Rs.5,278/ per month.
22. It is the case of the petitioners that the deceased was 35 years of age at the time of the accident and it was so stated in the claim petition and PW1 had also deposed to that effect. Copy of the pariwar register shows that the year of birth of the deceased was 1976 which would make him more than 34 years old on the date of the accident i.e. 28.12.2010. As per the voter ID card of the deceased his age as on 1.1.1995 was 18 years which would make him more than 33 years old on the date of the accident. Thus the age of the deceased is taken as more than 33 years on the date of the accident i.e. 28.12.2010. 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 16 applies for calculating the loss of income where the age of the deceased is 31 to 35 years.
23. As observed above the dependents on the deceased are his wife and three children. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependents was 4 there would be 1/4th 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 Suit No. 290/14 Page no. 17 of 31 Malti Devi v Vijay Kumar & Ors.
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."
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."
As such the petitioners would be entitled to addition of 50% of the income towards future prospects as the deceased was less than 40 years old.
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Accordingly the loss of dependency as per the monthly income i.e. Rs. 5,278/ is calculated as under :
Rs.5,278/ X 12 (annual) - Rs.15,834/ (i.e. 1/4th towards personal expenses) = Rs.47,502/ + Rs.23,751/ (50% towards future prospects) = Rs.71,253/ X 16 (multiplier) = Rs.11,40,048/ rounded off to Rs.
11,40,000/.
24. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses. It was stated that Rs.50,000/ were incurred on transportation and last rites of the deceased. However there is nothing on record to show the same.
The total compensation is determined as under:
Loss of dependency : Rs.11,40,000/
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.13,75,000/
Thus, the total compensation would amount to Rs.13,75,000/.
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RELIEF
25. The petitioners are awarded a sum of Rs.13,75,000/ (Rs.Thirteen Lacs Seventy Five Thousand only) along with interest @ 9% per annum from the date of filing of the claim petition till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. The petitioners No.2, 3 and 4 Harkesh, Manish and Amardeep would be entitled to 10% share each in the awarded amount and the petitioner No.1 Smt. Malti Devi would be entitled to 70% share in the awarded amount.
26. 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) The entire share of the petitioners No.2 to 4 be kept in FDRs in UCO Bank, Patiala House Court till they attain majority and for 2 years thereafter and 20% of the share of the petitioner No.1 be released to her by transferring it into her savings account and the remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
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1. Fixed deposit in respect of 20% for a period of one year.
2. Fixed deposit in respect of 20% for a period of two years.
3. Fixed deposit in respect of 20% for a period of three years.
4. Fixed deposit in respect of 20% for a period of four 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. Malti Devi, Harkesh, Manish and Amardeep 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.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioner No.1.
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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 petitioner No.1 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No.1 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 petitioner No.1 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 petitioner No.1 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.
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.
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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.
27. 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:
28. The respondent No.1 is the driver, the respondent No.2 is the registered owner and the respondent No.3 is the insurer of the offending vehicle. It is the case of the respondents No.1 and 2 that the respondent No.2 was not the owner of the offending vehicle on the date of the accident and in the written statement it was contended that the claim petition was bad for nonjoinder and misjoinder of necessary parties because at the time of the alleged accident, the respondent No.2 was not the owner of the vehicle, the said vehicle was Suit No. 290/14 Page no. 23 of 31 Malti Devi v Vijay Kumar & Ors.
purchased by Shri Sunil Sharma and the respondent No.1 was driving the alleged offending vehicle under the employment of Sunil Sharma. The respondent No.1 had also deposed that at the time of the alleged accident, he was under the employment of Shri Sunil Sharma. He was not crossexamined. However he had not produced any documentary evidence to show the same or to show that the offending vehicle had been purchased by Shri Sunil Sharma.
29. The respondent No.2 Shri Jitender had appeared in the witness box as R2W1 and he deposed that on 10.05.2007, he sold the vehicle to Shri Dhani Ram S/o Shri Hukam Singh R/o 8 Biswa, Near Mauziwala Kuan, Gurgaon, Haryana vide written agreement dated 10.05.2007, the original of which was with the police. After 10.05.2007, the vehicle was not in his possession and he had no control over the same. He stated that it was not disputed that at the time of the accident, the vehicle was registered in his name but he had already sold the same to the said purchaser, as such he was not liable to pay any compensation to the petitioners. Copy of agreement is Mark A. He was not crossexamined. It is thus seen that the respondent No.2 had admitted that he was the registered owner of the offending vehicle but he had contended that he had sold the vehicle to Shri Dhani Ram in 2007 and he had relied on the agreement Mark A. However it is seen that Mark A is not even an agreement but only an affidavit which bears the signatures of only the respondent No.2 and there is nothing to show that the documents in respect of sale of the Suit No. 290/14 Page no. 24 of 31 Malti Devi v Vijay Kumar & Ors.
vehicle were executed. The copy of the RC shows the name of the respondent No.2 and even the insurance policy which was issued in 2010 bears the name of the respondent No.2. Further in the written statement it was stated that the vehicle was sold to Shri Sunil Sharma whereas the respondent No.2 had deposed about selling the vehicle to Dhani Ram. As such it cannot be said to be established that the vehicle stood sold by the respondent No.2 and admittedly he was the registered owner of the vehicle.
30. It was argued by the learned counsel for the insurance company that the DL of the respondent No.1 was valid only for LMV whereas the respondent No.1 was driving a TSR at the time of the accident and as such the respondent No.1 did not have a valid license to drive a TSR which amounted to fundamental breach of condition of policy and as such the insurance company was not liable to pay the compensation. While no evidence has been led on behalf of the respondent No.3 and its application for reopening the evidence was dismissed, the respondent No.1 Shri Vijay Kumar appeared in the witness box as R1W1 and deposed that he was holding a valid driving license to drive three wheeler scooter. The respondent No.1 was not cross examined. However a copy of the DL of the respondent No.1 has been placed on record which shows that it was valid for driving only motorcycle, LMV NT whereas at the time of the accident he was driving a TSR. Thus the DL which the respondent No.1 was holding was valid only to drive a motorcycle and LMV NT. The effect of a person possessing a DL to drive an LMV driving a vehicle Suit No. 290/14 Page no. 25 of 31 Malti Devi v Vijay Kumar & Ors.
of another category was gone into at length by the Hon'ble High Court of Delhi and it was observed by the Hon'ble High Court of Delhi in IFFCO Tokio General Insurance Co. Ltd. v. Parsan & Ors. MAC. APP. 532/2012 decided on 20.5.2015 as under:
"As far as driving licence is concerned, although no driving licence was produced by the Respondents, but a copy of the driving licence No.3119/F/97 which was valid for motorcycle and LMV only was available on record. The same was got verified from the Transport Authority. The validity of this driving licence is not disputed by the learned counsel for the Appellant. At the same time, it is urged that on the strength of this driving licence, Respondent Paramjit Singh was not competent to drive TSR which is a transport vehicle. It is also urged that the Claims Tribunal erred in relying on the report of the Transport Authority to say that since gross weight of the vehicle was less than 7,500/ kg., the driver was competent to drive a transport vehicle. This question was gone into at great length by this Court in Shashi Bhushan & Ors. v. National Insurance Co. Ltd. & Ors., MAC APP.517/2007, decided on 31.05.2012. Para 9 to 11 of the report are extracted hereunder: "9. In National Insurance Co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464, His Lordship Mr. Justice S.B. Sinha (as he then was) drew a distinction between the validity of a licence for LMV, to drive a light goods carriage or a light passenger vehicle before amendment in form 4 prescribed under Rule 2
(e) in the Central Motor Vehicles Rules, 1989 (the Rules).
Before the amendment in 2001 the entries Medium Goods Vehicle and Heavy Goods Vehicle existed which have been substituted by a "transport vehicle". It was held that a person holding a licence for Light Motor Vehicle after 28.03.2001 would not be competent to drive a "transport vehicle". In the Suit No. 290/14 Page no. 26 of 31 Malti Devi v Vijay Kumar & Ors.
aforesaid case, the accident occurred on 09.12.1999. It was in that context that it was held that the driver by holding a valid licence for LMV was authorized to drive a Light Goods Vehicle as well. In this case, the accident took place on 21.04.2005 and thus the driver who was holding a driving licence to drive a Light Motor Vehicle was not competent to drive a transport vehicle. Paras 12 to 17 of the report are extracted hereunder: "12. The Central Government has framed Rules known as The Central Motor Vehicles Rules, 1989.
13. The word "Form" has been defined in Rule 2(e) to mean a Form appended to the rules.
"I Apply for a licence to enable me to drive vehicles of the following description:
(d) Light motor vehicle
(e) Medium goods vehicle
(g) Heavy goods vehicle
(j) Motor vehicles of the following description:...."
After amendment the relevant portion of Form 4 reads as under:
"I Apply for a licence to enable me to drive vehicles of the following description:
(d) Light motor vehicle
(e) Transport vehicle
(j) Motor vehicles of the following description:...."
14. Rule 14 prescribes for filing of an application in Form 4, for a licence to drive a motor vehicle, categorizing the same in nine types of vehicles.
Clause (e) provides for "Transport vehicle" which has been substituted by G.S.R. 221(E) with effect from 28.3.2001. Before the amendment in 2001, the entries "medium good vehicle" and "heavy goods vehicle" existed which have been substituted by "transport vehicle". As noticed hereinbefore, "Light Motor Vehicles" also found place therein.
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Malti Devi v Vijay Kumar & Ors.
15. "Light Motor Vehicle" is defined in Section 2(21) and, therefore, in view of the provision, as then existed, it included a light transport vehicle. Form 6 provides for the manner in which the licence is to be granted, the relevant portion whereof read as under:
"Authorisation to drive transport vehicle Number.... Date....
Authorised to drive transport vehicle with effect from.... Badge number....
Signature.... ...
Designation of the licensing authority Name and designation of their authority who conducted the driving test."
16. From what has been noticed hereinbefore, it is evident that "transport vehicle" has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, "light passenger carriage vehicle" and "light goods carriage vehicle". A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well.
15.The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law."
10. In National Insurance Co. v. Kusum Rai, (2006) 4 SCC 250 a driver holding a driving licence to drive a Light Motor Vehicle was held to be not entitled to drive a taxi.
2. Subsequently, in New India Assurance Company Limited v. Roshanben Rahemansha Fakir & Anr., (2008) 8 SCC 253; the Supreme Court differentiated between a transport vehicle and non transport vehicle and held that a driver who had a valid licence to drive a Light Motor Vehicle was not authorized to drive a light goods vehicle. It was further held that the person must possess the licence for the class Suit No. 290/14 Page no. 28 of 31 Malti Devi v Vijay Kumar & Ors.
of vehicle involved in the accident."
8.Since the driving licence which was available on the record was valid for driving LMV only and not LMV (Transport) and no other licence was produced by the insured, it has to be held that the driver possessed valid driving licence to drive Light Motor Vehicle (LMV) only and not a transport vehicle. Thus, in view of the judgment in Shashi Bhushan & Ors. v. National Insurance Co. Ltd. & Ors., MAC APP.517/2007, decided on 31.05.2012; National Insurance Co. v. Kusum Rai, (2006) 4 SCC 250; and New India Assurance Company Limited v. Roshanben Rahemansha Fakir & Anr., (2008) 8 SCC 253, the driver was not competent to drive the vehicle involved in the accident.
9.The owner has not come forward with any explanation as to under which circumstances the vehicle was entrusted to the driver. The Appellant discharged the initial onus of proving conscious and willful breach on the part of the insured and is, therefore, entitled to recover the amount of compensation paid from the insured in view of the judgment of this Court in Oriental Insurance Company Limited v. Rakesh Kumar & Ors., MAC APP.329/2010, decided on 29.02.2012.
Thus it was held that the driving license which was available on the record was valid for driving LMV only and not LMV (Transport) and no other license was produced by the insured, it had to be held that the driver possessed valid driving license to drive Light Motor Vehicle (LMV) only and not a transport vehicle and similar is the position in the present case.
31. In the above case where the driver was not competent to drive the vehicle involved in the accident recovery rights were given. In the instant case Suit No. 290/14 Page no. 29 of 31 Malti Devi v Vijay Kumar & Ors.
as well the DL of the respondent No.1 was valid only for an LMV NT and motorcycle whereas at the time of the accident he was driving a TSR. In view of the settled law the insurance company is liable qua third party though it shall be vested with the right to recover the amount of liability from the insured after depositing the compensation awarded to the third party. Since the respondents No.1 and 2 did not produce a valid license to drive a TSR on the date of the accident the respondent No.3 shall have the right to recover the amount of compensation from the respondent No.2 who is the owner of the offending vehicle. Accordingly the respondent No.3 shall deposit the amount of compensation for which the respondent No.2 would be liable and after depositing the same shall have the right to recover the same from the respondent No.2. The respondent No.3 being the insurer is directed to deposit the award amount in the bank account of the claimants in UCO Bank, Patiala House Court within 30 days of the passing of the award with interest at the rate of 9% per annum from the date of filing the claim petition till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
32. 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 Suit No. 290/14 Page no. 30 of 31 Malti Devi v Vijay Kumar & Ors.
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 07.12.2015.
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 Court, New Delhi. File be consigned to record room.
Announced in open court
on this 8th day of September, 2015 (GEETANJLI GOEL)
PO: MACT2
NEW DELHI
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Malti Devi v Vijay Kumar & Ors.