Delhi District Court
Delhi vs Shri Kanhaiya Lal S/O Sh. Lakhan Singh on 18 February, 2013
IN THE COURT OF MS. REKHA RANI : JUDGE : MACT :
DELHI
SUIT No. : 363/09
UNIQUE ID NO. :02404C0147582009
1 Smt. Poonam Devi (widow of deceased)
2 Km. Jyoti (minor daughter of deceased)
3. Km. Deepa (minor daughter of deceased)
4. Master Manish (minor son of deceased)
5. Master Nitish (minor son of deceased)
All R/o. Jhuggi No. 302, near Sulabh Sauchalaya Cigrate
Wala Bagh, Bhamashah Road, Model Town - 1, Delhi - 110 009.
Also at: Village Pokhram, P.S. Birol, Distt. Darbhanga,
Bihar.
Through: Sh. R. N. Choudhary Adv.
Ch. No. D614, Karkardooma Court,
Delhi Enrl No. D/1416/01
.........Petitioners
Versus
1 Shri Kanhaiya Lal S/o Sh. Lakhan Singh
R/o. Jhuggi No. A21, Lal Bagh, Azadpur, Delhi.
Also at Ram Nagar, Kosi Kalan, Mathura, U.P.
............ Driver
2 Rajesh Kumar S/o. Sh. Ram Prasad
R/o. C - 127, Lal Bagh, Azadpur, Delhi
SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 1/20
........... Owner
3 Bajaj Allianz General Insurance Co. Ltd.
st nd
C3132, 1 & 2 Floor,
Cannaught Place, New Delhi - 01
Also at: G.E. Plaza, Airport Road, Yerewada,
Pune - 411 006
......Ins. Co.
.......Respondents
DATE OF INSTITUTION : 06.05.2009 DATE OF RESERVING ORDER : 18.02.13 DATE OF PRONOUNCEMENT : 18.02.13 A W A R D
1. A petition was filed U/s 140 & 166 of the Motor Vehicles Act (in short the Act) by legal representatives of Arun Chaudhary who died in road accident.
2. Facts pleaded in the petition are as follows:
On 20.02.2009 at about 08:15 pm Arun Chaudhary (in short the deceased) was coming back from Azadpur on his bicycle. Shashi Kant Chaudhary was with him on his separate bicycle. The deceased was peddling his bicycle at a distance of 10 to 12 meters ahead of Shashi Kant Chaudhary (in short the complainant). Complainant saw that the deceased was peddling his bicycle SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 2/20 observing all traffic rules. A motorcycle bearing registration No. DL 8SAM 3703 (in short the offending vehicle) which was being driven rashly and negligently and at a very high speed came from behind and hit the deceased with great force. The deceased fell down on the road and he was badly injured. Police reached the site of accident within few minutes and shifted the deceased to the hospital. He died the same day.
3. The deceased was working in Sulabh Sauchalya and earning Rs. 8,000/ per month. Petitioners were depended on the earnings of the deceased and they had no other source of income. He was the sole breadearner of the family. Petitioner no.1 is widow of deceased and Petitioners No. 2 to 5 are their children. Parents of deceased have already expired.
4. Complainant, who saw the accident, was interrogated by the police and on his statement an FIR No. 63/09 was registered at police station Model Town. An amount of Rs. 15,00,000/ (fifteen lacs) with interest @ 12% per annum is claimed.
5. Kanhaiya Lal (in short R 1) and Rajesh Kumar Owner of the offending vehicle (in short R 2) filed common written statement. It is pleaded that the offending vehicle was insured with SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 3/20 Bajaj Allianz General Insurance Co. Ltd. (in short R 3) vide policy No. OG 09 1101 1802 00009861 valid from 27.10.2008 to 26.10.2009. R1 was having valid DL. It is alleged that it was the deceased who was peddling his bicycle rashly and negligently due to which accident took place.
6. R3 filed written statement in which it is pleaded that accident took place on account of sole negligence of the deceased. It is also stated that R 3 will not be liable to pay compensation if it is proved that R 1 was not holding valid and effective Driving License at the time of accident. It is however admitted that the offending vehicle was insured with R 3 in the name of R 2 vide policy No. OG 09 1101 1802 00009861 from 27.10.2008 to 26.10.2009.
7. Following issues were framed by my Ld. Predecessor vide his order dated 13.10.2009.
1. Whether deceased died in road accident on 20.02.2009 at 08:15 pm at ring road in front of Chhatrasal Stadium, Model Town Delhi while going on his bicycle, caused due to rash and negligent driving of motorcycle No. DL 8SAM 3703 which was being driven by R 1? OPP 2 Whether petitioners are entitled for compensation and SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 4/20 if so, to what amount and from whom? OPP 3 Relief.
8. Widow of deceased was examined as PW1. Complainant was examined as PW2 and thereafter petitioners closed their evidence. Respondents did not adduce any evidence.
9. ISSUE No.1 QUA NEGLIGENCE Complainant was examined as PW2. He deposed that on 20.02.2009 at about 08:50 pm he along with deceased were coming back from Azadpur on their separate bicycles. When they reached in front of Chhatarshal Stadium, Model Town, the offending vehicle which was being driven rashly and negligently and at a very fast speed came from behind the deceased and hit him. As a result of the accident the deceased fell down on the road and received fatal injuries.
10. In his cross examination the only suggestion given by Ld. Counsel for R 1 and R 2 to the witness is that the offending vehicle was not being driven in a rash and negligent manner at a fast speed and that the deceased was peddling his bicycle at a very fast speed.
11. Investigating Officer met the complainant at the site of SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 5/20 accident. R1 was handed over by him to investigating officer. R1 was arrested at the site of accident. Offending vehicle was seized by investigating officer from the site of accident. R1 has not disputed that accident did take place resulting into death of Arun Choudhary. However he has alleged that deceased died due to his own negligence. R1 himself did not step into witness box to explain how negligence could be attributed to the deceased.
12. It has to be borne in mind that Motor Vehicles Act does not stipulate holding a trial for petition preferred under section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal holds an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. In State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943. Hon'ble Apex Court held " that tribunal exercising quasijudicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources and through all channels, without being fettered by rules and procedure, which SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 6/20 govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts"
13. In Bimla Devi and ors. Vs. Himachal Road Transport Corporation and Ors (2009) 13 SC 530, Supreme Court held that " In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
14. In National Insurance Company Pvt. Ltd. Vs. Smt. Pushpa Rana & Ors. Decided on 20th December, 2007. Hon'ble Delhi High Court observed that SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 7/20 "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 Supreme Court in Oriental Insurance Co. Ltd. V. Meena Variyal. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (1) certified copy of the criminal record of criminal case in FIR No. 955/2001, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304A, IPC 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 the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles 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."
15. Petitioners have placed on record certified copies of SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 8/20 criminal case. Report u/s 173 Cr.PC shows that R1 was charge sheeted for causing the said accident under section 279/304A IPC at PS Model Town. R1 has not explained why he was charge sheeted by the police. MLC of deceased shows that he was brought to Sushruta Trauma Centre with history of road traffic accident. Postmortem Report reads that " All injuries are antimortem in nature caused by blunt force impact and are possible in road side accident. Cause of death is cerebral damage (Head injury)".
16. In view of the aforesaid judgements and certified copies of record of criminal case, preponderance of probability is that R1 caused the said accident by driving the offending vehicle rashly and negligently resulting into the death of deceased.
This issue is accordingly decided in favour of petitioners and against the respondents.
ISSUE No. 2 QUA QUANTUM OF COMPENSATION
17. In para No. 23 (c) of the petition it is pleaded that the deceased was working in Sulabh Sauchalaya, Model Town, Delhi and earning Rs. 8,000/ per month. However, no evidence to prove the same was adduced.
SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 9/20
18. In ICICI Lombard General Insurance Company Ltd. Vs. Hari Singh & Ors. MAC APP No. 122/2011 it was urged by LRs of the deceased that she used to sell milk and milk products at her house and was earning Rs.15,000/ per month. It was contended by Ld. Counsel for LRs of the deceased that Claims Tribunal ought to have accepted the deceased's income at Rs.15,000/ per month. Since no documentary evidence with regard to deceased's profession was produced, Claims Tribunal was held right in awarding loss of dependency on minimum wages.
19. In New India Assurance Company Ltd. Vs. Maya Devi & Ors. MAC.APP.627/2011 there was no documentary evidence with regard to the employment of the deceased as a cook at M/s Aman Deep Dhaba or his salary at Rs.8,000/ per month. Dhaba was not registered with the Sales Tax/Vat Department. No register for payment of wages was maintained. No receipt regarding payment of any salary to the deceased was produced. In absence of any evidence regarding employment of the deceased with the said Dhaba or his salary at Rs.8,000/ per month, Hon'ble High Court vide its order dated 27.08.2012 observed "In the absence of any evidence with regard to the SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 10/20 deceased's income, the only option left is to award loss of dependency on minimum wages of an unskilled worker which, at the time of accident were Rs.3934/ per month."
20. In the present case in absence of documentary evidence with regard to either occupation or income of the deceased, loss of dependency has to be computed on minimum wages.
21. Ld. Counsel for the petitioners, during the course of arguments also conceded that the loss of dependency may be computed on the basis of minimum wages admissible to an unskilled which were Rs. 3,934/ on the date of accident.
22. In Santosh Devi V. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 it was held by Hon'ble Apex Court that even in the absence of any evidence as to future prospects an increase of 30% in the income has to be provided where the victim had fixed income or was self employed. Relevant part of the order is extracted below :"
"14........In our view, it will be naive to say that the wages or total emoluments/income of a person who is self employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 11/20 life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of the rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are selfemployed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in salaries of the Government employees and those employed in private sectors but it cannot be denied that there SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 12/20 has been incremental enhancement in the income of those who are selfemployed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is selfemployed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 13/20
23. Thus, LRS of deceased would be entitled to an addition of 30% towards inflation. Deceased was survived by his widow and four minor children. As per Sarla Verma Vs. DTC (2009) 6 SCC 121 , 1/4th amount has to be deducted towards personal and living expenses.
24. Ex. PW1/B is copy of voter ID of the deceased in which his age is shown as 35 years on 01.01.2003. The deceased was 41 years old on the date of accident.
25. Calculation Minimum Wages Rs. 3,934/ Addition of 30% towards inflation Rs. 3,934 / + 1180/ = 5114/ rd 1/4 deduction towards personal and living expenses Rs. 51141278=3836 The loss of dependency comes to Rs.6,44,448/ (Rs.
3836X12X14)
26. Regarding compensation payable on account of loss of love and affection para 9 of the judgment in ICICI Lombard (Supra) is reproduced below :
"Loss of love and affection can never be measured in terms of money. Thus, uniformity has to be adopted by the Courts while granting nonpecuniary damages. The Supreme Court in SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 14/20 Sunil Sharma V. Bachitar Singh (2011) II SCC 425 and in Baby Radhika Gupta V. Oriental Insurance Company Limited (2009) 17 SCC 627 granted Rs.25,000/ (in total to all the claimants) only under the head of loss of love and affection. This, I would reduce the compensation under this head to Rs.25,000/ only."
Accordingly, compensation of Rs.25,000/ is granted under the head of loss of love and affection.
27. Compensation of Rs.10,000/ is granted under the head funeral expenses as no document is available with regard to the expenses incurred on last rites.
28. A sum of Rs.10,000/ is awarded under the head loss to estate. A sum of Rs. 10,000/ is awarded under the head of loss of consortium to widow of deceased.
The over all compensation thus comes to Rs.6,67,288/ and after deduction of interim award, it comes of Rs. 6,17,288/ (6,67,28850,000).
29. R3 has taken general defence in its written statement that it will not be liable to pay any compensation if it is proved that R1 was not having valid and effective driving licence at the time of accident. Petitioners have placed on record certified copies of SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 15/20 criminal case which includes seizure memo of driving licence of R1. Investigating officer has reported that driving licence of R1 is valid from 21.11.06 to 27.11.09.
30. The reply of R3 was therefore "play it safe" reply. Attitude of insurers to "deny everything await the award syndrome"
was deprecated by Karnataka High Court in Ramakrishana Reddy Vs. Manager, HMT Ltd., 2003 ACJ 105, as under :
"We may also at this stage refer to the pernicious habit of some branches of insurance companies in filling stereotyped written statements denying all and everything. They routinely deny the insurance, then alternatively plead that even if there was an insurance, there was a breach of terms of the policy, that driver did not have a valid driving licence, and lastly there was no negligence on the part of driver of the insured vehicle. They do not bother to verify whether the insurance policy covered the risk or not and whether driver had a licence or not. We recognize that insurers are sometime handicapped for want of full information, while giving instructions to their counsel and, therefore, the objections may be general in nature.
We are also conscious that we cannot frown upon a party taking all permissible SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 16/20 defences. But, applications for motor accident claims are not to be treated by insurers as normal private adversary litigation, their technical contentions can abound in pleadings and the sole intention is winning the lis. Under the policies of insurance, the insurers discharge statutory obligations towards third parties. They should do so keeping in view the objection and spirit of the Act, and the position of hapless victims of motor accidents. Insurers should balance their concerned to safeguard its financial interest with their obligations as instruments of social justice, under the Motor Vehicles Act".
"The claimants are not litigants by choice, but are constrained to approach the Tribunal, because of death of the breadwinner or injury to self, and because the owner and insurer of the vehicle involved, fail to pay the compensation. The insurer should bear in mind that the claimants are also handicapped in obtaining particulars of the insurance policy held by owner or driving licence held by the driver of the vehicle, and they solely depend upon the police for these particulars. The insurer should, therefore, verify whether there was any insurance policy or not, whether the SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 17/20 insured was covered by insurance policy in regard to the claim or not, and whether the driver had a licence or not before filing its statement of objections and narrow down the area of controversy. If the insurers were to file " play it safe' written statements, without verifying these aspects and mechanically denying all petition averments, the trial gets delayed and the claimants are put to misery and injustly kept away from the direly needed compensation. It is time that insurers get rid of "deny everything await the award syndrome" and become responsible and responsive opponents in motor accident claims. We make it clear that the above observations are intended only for those officers of insurance companies who refuse to recognise their statutory obligations to third parties, under the insurance policies issued to the insured".
31. In new India Assurance Co. Ltd. v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733 it was held that " onus is on the insurer to prove that there was breach of conditions of policy"
R1 has not adduced any evidence to that effect. SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 18/20
32. In New India Assurance Co. Ltd. v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733. It was held that initial onus to prove breach of conditions of insurance policy is on the insurance. R3 could have discharged initial onus of proving absence of valid driving licence by serving a notice under Order 12 Rule 8 of the Code of Civil Procedure on R1 & R2 calling upon them to produce driving licence of R1, which was valid and effective on the date of accident and failure of R1 & R2 to respond to the notice would have fortified the case of insurance that R1 did not have a valid and effective driving licence on the date of accident and therefore it is not liable to indemnify the insured.
33. R3 is, accordingly directed to deposit with this Tribunal within 30 days the award amount of Rs.6,17,288/with interest at the rate of 7.5 % per annum from the date of filing of claim petition till notice of deposit to LR's of deceased and their counsel to be given by insurance co.
34. I heard counsel for petitioners regarding financial needs of the legal heirs. In view of examination of counsel for petitioners and further in view of the judgment in General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 19/20 Others, 1994 (2) SC, 1631 following arrangements are hereby ordered:
35. Rs.1 lac each be given to petitioners no. 2 to 5, minor children of the deceased. Remaining Rs. 2,17,288/ be given to widow of deceased petitioner no.1.
36. Rs. 2 lacs be released to widow of deceased out of her share. Remaining Rs. 17,288/ be kept in FDR in her name for a period of one year in any nationalised bank. The entire amount of petitioners no. 2 to 5 be kept in FDR till they attain the age of majority. The fixed deposit on its maturity may be renewed at the discretion of the petitioners or deposited in their saving bank accounts.
37. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Accounts.
38. The petitioners shall not be having any facility of loan or advance on these FDRs. However, in case of emergent need, they may approach this court for premature encashment of FDRs. 39 Copy of this order be given to parties for compliance.
40. Petition is disposed of on aforesaid terms.
ANNOUNCED IN THE OPEN JUDGE/MACT:ROHINI
COURT ON 18.02.13 DELHI
SUIT 363/09 Smt. Poonam Devi Vs. Kanhaiya Lal 20/20