Delhi District Court
Smt. Rajwanti W/O Late Sh. Virender ... vs Sh. Davender Singh S/O Sh. Rawat Singh on 12 February, 2016
IN THE COURT OF MS. SANTOSH SNEHI MANN,
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL02, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Suit No.: 599/2014
Unique Case ID No.: 02401C0116222013
1. Smt. Rajwanti W/o Late Sh. Virender Singh
(Wife of the deceased Sh. Virender Singh)
2. Smt. Sarwati W/o Late Sh. Mahavir Singh
(Mother of the deceased Sh. Virender Singh)
Both R/o: House No. 516, New No. 556,
Panna Ramayan, Tikri Kalan, Delhi. .......... Petitioners
Versus
1. Sh. Davender Singh S/o Sh. Rawat Singh
R/o: House No. 1270, Panna Ramayan,
Tikri Kalan, Delhi.
(Driver)
2. Sh. Kamal Singh S/o Sh. Chhatar Singh
R/o: House No. 974, Ashok Nagar, Line Par,
Bahadurgarh, District Jhajjar (Haryana)
(Owner)
3. Future Generali India Insurance Company Limited
1st Floor, Unit No. 110115, Krishna Apra Business Square,
Plot No. D46, Netaji Subhash Place, New Delhi
(Cover Note No. E1500805, Valid upto 28MM13)
(Insurer) .......... Respondents
Date of Institution : 06.03.2013
Arguments heard on : 22.01.2016
Judgment pronounced on : 12.02.2016
Suit No.: 599/2014 Page No. 1 of 22
AWARD
1. This is a claim petition filed under Section 166 & 140 of the Motor Vehicles
Act, 1988 (hereinafter referred as M. V. Act) by the wife and mother of the
deceased Virender Singh for compensation of Rs. 25,00,000/ (Rupees
Twenty Five Lacs Only) alongwith interest in respect of fatal injuries
suffered by the deceased Virender Singh in a vehicular accident on
02.12.2012.
2. FIR No. 219/2012, under Section 279/304A IPC was registered at Police
Station Mundka about the accident. Matter was investigated by the police
and chargesheet was filed under Section 279/304A IPC against Davender
Singh (Respondent No. 1), driver of the offending vehicle.
3. Detailed Information Report (hereinafter referred as DAR) has been filed by
the Investigating Officer (hereinafter referred as IO) containing copy of the
criminal proceedings including the FIR and the ChargeSheet.
4. Brief facts of the vehicular accident as averred in the Claim Petition and
DAR are that on 02.12.2012 at about 06.30 pm at main gate of Plot
No. 1270, Village Tikri Kalan, Delhi, deceased Virender Singh, who was
sitting on the mudguard of Tractor bearing Registration No. HR13G5407,
driven by Davender Singh (Respondent No. 1), fell off the Tractor and came
under its wheels when the driver of the Tractor accelerated the speed of the
Tractor to enter the plot through a raised inclined passage. Allegedly, the
Tractor Trolley was driven by Davender Singh (Respondent No. 1) in a rash
and negligent manner. Kamal Singh (Respondent No. 2) is the registered
owner of the offending vehicle, which was insured with Future Generali
India Insurance Company Limited (Respondent No. 3).
Suit No.: 599/2014 Page No. 2 of 22
5. Petitioner No. 1 Rajwanti is the wife and petitioner No. 2 Sarwati is the
mother of the deceased Virender Singh, who are seeking compensation of
Rs. 25,00,000/ (Rupees Twenty Five Lac Only) alongwith interest, for loss
of dependency and other damages.
6. Davender Singh (Respondent No. 1) and Kamal Singh (Respondent No. 2)
driver and owner of the offending Tractor bearing Registration No. HR13
G5407 have filed a joint written statement, taking the plea that no accident
took place, as alleged, involving the respondent No. 1 and the vehicle. It is
claimed that a false FIR was lodged to make a claim wherein respondent
No. 1 has been falsely implicated. It is claimed that the offending vehicle
was duly insured.
7. Future Generali India Insurance Company Limited (Respondent No. 3) has
admitted in the written statement that the offending vehicle i.e. Tractor
bearing Registration No. HR13G5407 was insured vide Policy No. 2012
V2230761FCV from 30.11.2012 to 29.11.2013. However, liability is contested
on the grounds interalia that driving license of the driver was not of the
category of the offending vehicle; that at the time of the accident, Tractor
was attached with Trolley, which changed the nature of the Tractor, thus
violation of the policy and lastly that deceased Virender Singh was sitting
on the mudguard of the Trolley in violation of the Registration Certificate of
the Tractor.
8. From the pleadings of the parties, contentions raised and material on
record, the following issues were framed by the Ld. Predecessor vide order
dated 18.05.2013:
1. Whether the deceased Virender Singh suffered fatal
injuries in an accident that took place on 02.12.2012 at
Suit No.: 599/2014 Page No. 3 of 22
about 08.20 hours involving Tractor bearing Registration
No. HR13G5407 driven by Devender Singh, owned by
Kamal Singh and insured with the Future Generali India
Insurance Company Limited? OPP
2. Whether the petitioner/petitioners is entitled for
compensation? If so, to what amount and from whom?
3. Relief
9. Petitioners have examined Smt. Rajwanti, wife of the deceased Virender
Singh as PW1. Sh. Davender Singh, respondent No. 1 has examined
himself as R1W1. Insurance Company has examined Sh. Satya Prakash,
LDC from Transport Authority, West Zone1, Janakpuri as R3W1 and
Ms. Khushbu Tyagi, its Senior Executive (Legal) as R3W2.
10. I have heard Sh. S. K. Singh, counsel for the petitioners, Sh. D. V. Goel,
counsel for the respondents No. 1 & 2 and Sh. M. Awasthi, Counsel for the
respondent No. 3 Insurance Company. I have carefully perused the record.
11. My findings on the issues are as under:
Issue No. 1:
Whether the deceased Virender Singh suffered fatal injuries in an
accident that took place on 02.12.2012 at about 08.20 hours
involving Tractor bearing Registration No. HR13G5407 driven
by Devender Singh, owned by Kamal Singh and insured with the
Future Generali India Insurance Company Limited? OPP
12. In a claim petition filed by LRs of the deceased for compensation under
Section 166 of the M. V. Act, onus is on the petitioners to prove that the
deceased suffered fatal injuries in a vehicular accident caused by the
wrongful act or negligence of the driver of the offending vehicle.
13. It is a settled legal position that while deciding the petition under Section
166 of the M. V. Act, the Claims Tribunal has to decide negligence on the
Suit No.: 599/2014 Page No. 4 of 22
touch stone of preponderance of probabilities. Reference in this regard is
made to the observations of the Hon'ble Supreme Court of India in
Kaushnumma Begum and Others v/s New India Assurance Company
Limited, 2001 ACJ 421 SC, wherein it was held that the issue of wrongful
act or omission on the part of the driver of motor vehicle involved in the
accident is of secondary importance and mere use or involvement of motor
vehicle in causing bodily injuries or death to a human being or damage to
property would make the petition maintainable under Section 166 & 140 of
the M. V. Act.
14. In this context observation of the Hon'ble High Court of Delhi in National
Insurance Company Limited Vs. Pushpa Rana, 2009 ACJ 287 is also
relevant. It was held that if the petitioner files the certified copy of the
criminal record showing the completion of investigation by the police or
filing of charge sheet for the offences under Section 279/304A IPC or the
certified copy of the FIR in addition to copy of recovery memo and
mechanical inspection report of the offending vehicle, these documents are
sufficient proof to reach at the conclusion in the enquiry proceedings that
the driver was negligent. Hon'ble High Court also observed that the
proceedings under the Motor Vehicles Act are not akin to the proceedings in
a civil suit and therefore strict rules of evidence are not required to be
followed in this proceedings.
15. This aspect was also considered recently by the High Court of Delhi in a
matter titled United India Insurance Company Ltd. vs. Smt. Rinki @
Rinku & Others, MAC App. No. 200/2012 decided on 23.07.2012. The
Court held as under:
Suit No.: 599/2014 Page No. 5 of 22
"The Claims Tribunal was conscious of the fact that
negligence is a sine qua non to a Petition under Section
166 of the Motor Vehicles Act, 1988 (the Act). It is also true
that the proceedings for grant of compensation under the
Act are neither governed by the criminal procedures nor
are a civil suit. A reference may be made to a judgment of
the Supreme Court Bimla Devi and Ors. vs. Himachal
Road Transport Corporation and Ors, (2009) 13 SC 530
where it was held as under:
15. 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
any accident caused by a particular bus in a
particular manner may not be possible to be done
by the claimant. The claimants were merely to
establish their case on the touchstone of prepon
derance of probability. The standard of proof
beyond reasonable doubt could not have been
applied."
16. PW1 Smt. Rajwanti is not an eye witness. She has relied on DAR
Ex. PW1/3, which includes copy of the chargesheet, FIR, Site Plan,
Seizure Memo of the offending vehicle, Mechanical Inspection Report of the
offending vehicle, MLC and Postmortem Report of the deceased Virender
Singh. As per Rule 7 of the Motor Accidents Claims Tribunal Rules, 2008,
the DAR and copies of the criminal proceedings, filed by the IO, are
admissible in evidence without formal proof and are presumed to be correct
till proved to be contrary.
17. As per DAR, FIR was registered on the statement of Sujender Singh,
brother of the deceased, who is not an eye witness. As per the charge
sheet, statement of eye witness Bijender Singh was recorded, who was
travelling with the deceased in the offending vehicle. After investigation,
Suit No.: 599/2014 Page No. 6 of 22
Davender Singh (Respondent No. 1), driver of the offending vehicle was
chargesheeted under Section 279/304A IPC for driving the offending
vehicle in rash and negligent manner and for causing death of Virender
Singh.
18. Davender Singh (Respondent No. 1), driver of the offending vehicle has
claimed to be falsely implicated and has denied his involvement in the
accident. He has deposed as a witness as R1W1 and filed affidavit
Ex. R1W1/A on the line of defence taken. In the crossexamination by the
counsel for the petitioners, though he claimed that he was not driving the
offending vehicle at the time of the accident, he admitted that he was
arrested by the police in this case and is on bail now. He stated that the
criminal proceedings are still pending against him. In the crossexamination
on behalf of the Insurance Company, he stated that he has not made any
written complaint to the police regarding his false implication.
19. While the criminal proceedings filed on record clearly show involvement of
Davender Singh (Respondent No. 1) in the accident, he has denied his
involvement. Though he has deposed as witness R1W1 on the line of
defence taken, but he has failed to substantiate his plea of false implication.
He has not been able to controvert the criminal proceedings against him, as
claimed. The fact that he has not filed any complaint to any authority about
his false implication, goes against him. Had he been falsely implicated,
there was no reason for him not to take up the matter to the higher
authorities, especially when there are penal consequences of the criminal
proceedings against him.
20. As per the Site Plan, accident took place on an inclined passage for entry to
Suit No.: 599/2014 Page No. 7 of 22
a gated plot. According to the chargesheet, deceased Virender Singh who
was sitting on the mudguard of the Tractor, fell off the vehicle when
Davender Singh (Respondent No. 1) accelerated the speed of the Tractor to
enter the plot by an inclined passage to the plot. Keeping in view the over
all situation and the fact that deceased Virender Singh was sitting on the
mudguard, driver Davender Singh (Respondent No. 1) was under
responsibility to be diligent and careful while driving the Tractor attached
with the Trolley on an inclined passage.
21. The criminal proceedings on record have not been controverted by any of
the respondents. Keeping in view the scope of enquiry and burden of proof
required to prove the conduct of Davender Singh (Respondent No. 1) for
the purposes of the present enquiry, there is sufficient evidence on record
to show that Davender Singh (Respondent No. 1) was driving the Tractor
bearing Registration No. HR13G5407 at the time of the accident on which
deceased Virender Singh was sitting on the mudguard.
22. As per the MLC of the deceased Virender Singh prepared in Sanjay Gandhi
Memorial Hospital, he was brought dead in the casualty. As per the
Postmortem Report, he died due to asphyxia associated with damage
for chest structures as a result of blunt force impact which could be
possible in Road Traffic Accident.
23. On the basis of material on record, above observations and discussion, I
hold that the accident involving Tractor bearing Registration No. HR13
G5407, took place due to rash and negligent conduct of its driver Davender
Singh (Respondent No. 1) and further that deceased Virender Singh died of
injuries suffered in this accident.
Suit No.: 599/2014 Page No. 8 of 22
Issue No. 1 is decided in favour of the petitioners and against the
respondents.
24. Finding on Issue No. 2 :
Whether the petitioner/petitioners is entitled for compensation? If so,
to what amount and from whom?
Since, Issue No. 1 is decided in favour of the petitioners, they are entitled
for compensation.
25. In Sarla Verma (Smt) and Others vs. Delhi Transport Corporation and
Another, (2009) 6 Supreme Court Cases 121, Hon'ble Supreme Court of
India laid down general principals for computation of compensation in death
cases. The relevant paras of the judgment are reproduced as under:
18. Basically only three facts need to be established by
the claimants for assessing compensation in the case of
death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
This issues to be determined by the Tribunal to arrive at
the loss of dependency are:
1. additions/deductions to be made for arriving at the
income;
2. the deduction to be made towards the personal
living expenses of the deceased; and
3. the multiplier to be applied with reference to the age
of the deceased.
If these determinations are standardized, there will be
uniformity and consistency in the decisions. There will be
lesser need for detailed evidence. It will also be easier for
the Insurance Companies to settle accident claims without
delay.
19. To have uniformity and consistency, the Tribunals
should determine compensation in cases of death, by the
following wellsettled steps:
Suit No.: 599/2014 Page No. 9 of 22
Step1 (Ascertaining the multiplicand)
The income of the deceased per annum should be
determined. Out of the said income a deduction should be
made in regard to the amount which the deceased would
have spent on himself by way of personal and living
expenses. The balance, which is considered to be the
contribution to the dependent family, constitutes the
multiplicand.
Step2 (Ascertaining the multiplier)
Having regard to the age of the deceased and period of
active career, the appropriate multiplier should be selected.
This does not mean ascertaining the number of years he
would have lived or worked but for the accident. Having
regard to several imponderables in life and economic
factors, a table of multiplier with reference to the age has
been identified by this Court. The multiplier should be
chosen from the said table with reference to the age of the
deceased.
Step3 (Actual Calculation)
The annual contribution to the family (multiplicand) when
multiplied by such multiplier gives the 'loss of dependency'
to the family.
Thereafter, a conventional amount in the range of
Rs. 5,000/ to Rs. 10,000/ may be added as loss of
estates. Where the deceased is survived by his widow,
another conventional amount in the range of Rs. 5,000/ to
Rs. 10,000/ should be added under the head of loss of
consortium. But no amount is to be awarded under the
head of pain, suffering or hardship caused to the legal
heirs of the deceased.
The funeral expenses, cost of transportation of the body (if
incurred) and the cost of any medical treatment of the
deceased before death (if incurred) should also be added.
Suit No.: 599/2014 Page No. 10 of 22
Age of the deceased
26. PW1 Rajwanti, wife of the deceased Virender Singh, has placed on record
Voter Identity Card of the deceased Virender Singh as Ex. PW1/2, which
shows his age as 26 years on 01.02.1994. She has also placed on record
School Leaving Certificate of the deceased Virender Singh as Ex. PW1/X,
which mentions Date of Birth of the deceased Virender Singh as
01.05.1968. None of these documents have been controverted by any of the
respondents. For the purpose of present proceedings, Date of Birth of
deceased Virender Singh mentioned in the School Leaving Certificate as
01.05.1968 is taken into consideration which is more credible for the
purpose of Date of Birth. Accident took place on 02.12.2012, accordingly
age of the deceased was 44½ years on the date of the accident.
Income of the deceased:
27. PW1 Rajwanti, wife of the deceased Virender Singh, has deposed in the
affidavit Ex. PW1/A that her deceased husband was an agriculturist and
was earning Rs. 10,000/ per month. However, no evidence has been
brought on record as proof of the claim. The School Leaving Certificate filed
on record Ex. PW1/X shows that deceased Virender Singh has studied
upto 8th class.
28. In the above facts and circumstances, monthly income of the deceased
Virender Singh can been assessed on the basis of minimum wages rate of
a nonmatriculate worker prevailing in Delhi at the time of accident.
Accident took place on 02.12.2012 when the minimum wages rate of a non
matriculate worker prevailing in Delhi was Rs. 8,008/.
Suit No.: 599/2014 Page No. 11 of 22
Number of dependents:
29. PW1 Rajwanti, wife of the deceased Virender Singh, has deposed in the
affidavit Ex. PW1/A that both the petitioners were totally dependent on the
deceased Virender Singh, who was the sole bread earner in the family. It
has also come in the affidavit that deceased Virender Singh is not survived
by any child. Though, in the crossexamination of PW1 Rajwanti by the
counsel for the respondent No. 3 Insurance Company, it has come that the
father of the deceased was owning agricultural land, but that would not take
away the fact of dependency of the widow and mother of the deceased.
Therefore, for the purpose of present claim petition, it is held that both the
petitioners are the surviving dependent LRs of the deceased Virender
Singh.
Addition in the income towards future prospects:
30. It was argued on behalf of the petitioners that addition be made in the
income of the deceased considering the future prospects. This claim has
been contested by the counsel for the Insurance Company on the ground
that since no evidence has been led to show the possibility of addition in
the income of the deceased in future, no addition can be given while
calculating the compensation.
31. As far as the addition towards the future prospects is concerned, the issue
was considered recently by the Hon'ble High Court of Delhi in MAC. Appeal
No. 622/2014 (The Oriental Insurance Co. Ltd. Vs. Lekharaj @ Lekh Raj
& Ors.) decided on 27.01.2016. Relevant paras of the judgment are
reproduced for reference:
Suit No.: 599/2014 Page No. 12 of 22
4. In the case reported as Sarla Verma & Ors.
Vs. Delhi Transport Corporation & Anr., (2009) 6
SCC 121, Supreme Court interalia, ruled that the
element of future prospects of increase in income will
not be granted in cases where the deceased was "self
employed" or was working on a "fixed salary". Though
this view was affirmed by a bench of three Hon'ble
Judges in Resham Kumari & Ors. Vs. Madan
Mohan & Anr. (2013) 9 SCC 65, on account of
divergence of views, as arising from the ruling in
Rajesh & Ors. Vs. Rajbir & Ors., (2013) 9 SCC 54,
the issue was later referred to a larger bench, inter
alia, by order dated 02.07.2014 in National Insurance
Company Ltd. Vs. Pushpa & Ors., (2015) 9 SCC
166.
5. Against the above backdrop, by judgment dated
22.01.2016 passed in MAC Appeal No. 956/2012
Sunil Kumar Vs. Pyar Mohd & Ors., this court has
found it proper to follow the view taken earlier by a
learned single judge in MAC Appeal No. 189/2014
(HDFC Ergo General Insurance Co. Ltd. Vs. Smt.
Lalta Devi & Ors.) decided on 12.01.2015, presently
taking the decision in Reshma Kumari (Supra) as the
binding precedent, till such time the law on the subject
of future prospects for those who are "self employed"
or engaged in gainful employment at a "fixed salary" is
clarified by a larger bench of the Supreme Court. This
applies to the matter at hand because the claimant
here pleaded about gainful employment at a fixed
salary and has not led any evidence showing the
salary was subject to any periodic increase."
32. In view of the settled legal position as discussed above, no addition can be
made in the monthly income of the deceased Virender Singh towards future
prospects, because there is no proof of employment.
Suit No.: 599/2014 Page No. 13 of 22
Deduction towards personal living expenses of the deceased:
33. Since deceased Virender Singh was married and is survived by two
dependent LRs, on the basis of criteria laid down in Sarla Verma case
(Supra), deduction towards personal and living expenses of the deceased
would be 1/3rd of the income. Therefore, monthly contribution to the family
by deceased would be Rs. 5,339/ (2/3rd of Rs. 8,008/) and the annual
contribution to the dependent LR would be Rs. 64,068/ (Rs. 5,339/ X 12),
which is ascertained as multiplicand.
Selection of multiplier:
34.Age of the deceased Virender Singh was 44½ years on the date of the
accident. He was a married person. Keeping in view the criteria laid down in
Sarla Verma case (Supra), multiplier applicable according to age of the
deceased would be 14.
Loss of financial dependency:
35. On the basis of facts of this case and the material on record, total loss of
financial dependency of the petitioners would be Rs. 8,96,952/ (Rupees
Eight Lacs Ninety Six Thousand Nine Hundred Fifty Two Only)
{Rs. 64,068/ (multiplicand) X 14 (multiplier)}.
Compensation under nonpecuniary heads:
36. In view of the judgment in Rajesh & Others v. Rajbir Singh & Others
(2013) 9 SCC 54, petitioners are also entitled to a sum of Rs. 1,00,000/
(Rupees One Lac Only) towards loss of love and affection, Rs. 25,000/
(Rupees Twenty Five Thousand Only) towards funeral expenses and
Rs. 10,000/ (Rupees Ten Thousand Only) towards loss of estate.
Petitioner No. 1 Rajwanti, wife of the deceased Virender Singh, is also
Suit No.: 599/2014 Page No. 14 of 22
entitled to a sum of Rs. 1,00,000/ (Rupees One Lac Only) towards loss of
Consortium.
Computation of compensation:
37. The total compensation is assessed as under:
Sl. No. Heads Amount
1. Loss of financial dependency 8,96,952
2. Loss of Love and Affection 1,00,000
3. Funeral Expenses 25,000
4. Loss of Estate 10,000
5. Loss of Consortium 1,00,000
Total 11,31,952
Accordingly, total compensation is assessed as Rs. 11,31,952/ (Rupees
Eleven Lacs Thirty One Thousand Nine Hundred Fifty Two Only).
Liability:
38. Respondent No 1 Davender Singh is liable to pay compensation, being the
driver of the offending vehicle i.e. Tractor bearing Registration No. HR13
G5407, as the accident took place due to his rash and negligent conduct.
Respondent No. 2 Kamal Singh is vicariously liable for the conduct of the
driver Davender Singh, respondent No 1, being the owner of the offending
vehicle.
39. It is not disputed by the respondents that the offending vehicle i.e. Tractor
bearing Registration No. HR13G5407 was duly insured with the
Insurance Company vide Policy No. 2012V2230761FCV from 30.11.2012 to
29.11.2013, which covers the date of the accident. However, the liability is
contested by the Insurance Company on the ground that at the time of the
Suit No.: 599/2014 Page No. 15 of 22
accident, the Tractor was attached with the Trolley, which then becomes a
commercial vehicle and the driver of the Tractor Trolley was not carrying
Driving License for the commercial vehicle, thus a breach in the policy. It is
also argued that since the deceased was sitting on the mudguard of the
Tractor, there is a violation of Registration Certificate with respect to sitting
capacity and therefore Insurance Company cannot be held liable to pay
compensation under the Insurance Policy. Reliance is placed on Natwar
Parikh & Company Limited vs. State of Karnataka & Others (AIR 2005
SC 3428); Ramjeelal vs. Deenanath & Others (MANU/MP/ 0720/2013);
The New India Assurance Company Limited vs. Omprakash & Others
(MANU/MP/0890/2013); National Insurance Company Limited vs.
Hukam Chand and Another (2014 ACJ 1843) and National Insurance
Company Limited vs. Shinder Kaur & Others (AIR 1998 Punjab &
Haryana 184).
40. Respondent Insurance Company has examined Sh. Satya Prakash, LDC,
Transport Authority as R3W1, who produced the record of Transport
Authority and stated that the Driving License, which was issued in the name
of Davender Singh S/o Sh. Rawat Singh, respondent No. 1 from 05.08.2005
to 31.12.2021 is of the category of motorcycle or Light Motor Vehicle (Non
Transport) and produced the relevant extract of the Driving License as Ex.
R3W1/1. He categorically stated that a person holding this category of
Driving License is not authorised to drive a commercial vehicle or a Tractor.
But, in the crossexamination by counsel for the driver & owner
(Respondents No. 1 & 2) of the offending vehicle, the witness stated that he
cannot tell whether the Tractor falls in the category of commercial vehicle
Suit No.: 599/2014 Page No. 16 of 22
and that Davender Singh (Respondent No. 1) was not authorised to drive
the Tractor. He further stated that Tractor does not fall in the category of
light vehicle and denied the suggestion given to the contrary.
41. Insurance Company has also examined Ms. Khushbu Tyugi, its Senior
Executive (Legal) as R3W2, who has deposed on the affidavit
Ex. R3W2/A. She has relied on Authority Letter Ex. R3W2/1 and filed
attested copy of the Insurance Policy as Ex. R3W2/2. The witness has also
proved service of Notice Ex. R3W2/3 under Order XII Rule 8 CPC and
postal receipt as Ex. R3W2/4. In the crossexamination by the counsel for
the respondents No. 1 & 2, the witness admitted that LMV License holder
can drive a Tractor and also that Tractor cannot be put in the category of
commercial vehicle.
42. The Driving License of the driver Davender Singh (Respondent No. 1)
Ex. R3W1/1 shows that it was valid to drive a Light Motor Vehicle (NT) and
Motorcycle. R3W1 Sh. Satya Prakash stated in the examinationinchief
that the person holding this type of Driving License is not authorised to
drive the commercial vehicle, but in response to a specific question put to
him in the crossexamination by the counsel for the driver and owner
(Respondents No. 1 & 2), he could not tell whether Tractor falls in the
category of commercial vehicle or not, though, he stated that Tractor does
not fall in the category of light vehicle. Therefore, evidence produced by the
Insurance Company through R3W1 Sh. Satya Prakash is not conclusive on
the aspect whether Tractor with or without Trolley falls in the category of
commercial vehicle or whether a different type of Driving License is required
to drive a Tractor. It is pertinent to observe that R3W2 Ms. Khushbu Tyagi
Suit No.: 599/2014 Page No. 17 of 22
has admitted in her crossexamination that LMV License Holder can driver
the Tractor also and that Tractor cannot be put in the category of
commercial vehicle. Therefore, contention of the Insurance Company about
the type of Driving License, as statutory defence, does not hold merit.
43. Issue of validity of driving license, when the person has been granted
license for one type of vehicle but at the relevant time he was driving
another type of vehicle, has been discussed and dealt in detail by Hon'ble
Apex Court in National Insurance Company Limited Vs. Swaran Singh
& Ors. AIR 2004 SC 1531 (1). The relevant paras of judgment are
reproduced as under :
83. Section 10 of the Act provides for forms and
contents of licenses to driver. The license has to be
granted in the prescribed form. Thus, a license to drive
a light motor vehicle would entitle the holder there to
drive the vehicle falling within that class or description.
84. Section 3 of the Act casts an obligation to hold
an effective driving license for the type of vehicle
which he intends to drive. Section 10 of the Act
enables Central Government to prescribe forms of
driving licenses for various categories of vehicles
mentioned in subsection (2) of said section. The
various types of vehicles described for which a
driver may obtain a license for one or more of them
are: (a) Motorcycle without gear, (b) motorcycle with
gear, (c) invalid carriage, (d) light motor vehicle, (e)
transport vehicle, (f) road roller, and (g) motor vehicle
of other specified
description. ..................................................................
.......................................................................................
In each case on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing license for one type of vehicle but found Suit No.: 599/2014 Page No. 18 of 22 driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of license, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving license.
85. We have construed and determined the scope of subclause (ii) of subsection 2 of Section 149 of the Act. Minor breaches of license conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconse quential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties.
44.In view of the above legal position, type of the Driving License granted will be inconsequential for the purposes of breach of condition until or unless insurer is able to establish that the type of the driving license held by the driver was the fundamental or main cause of the accident.
45. The facts and circumstances of this case and the material on record show that accident took place because of negligence of the driver of the offending vehicle. Moreover, respondent Insurance Company has failed to discharge its burden to prove that the driver possessing license of one type of vehicle but found driving another type of vehicle was the main or contributory cause of accident. It has also failed to show any willful Fundamental Breach on the part of insured respondent No 2.
Suit No.: 599/2014 Page No. 19 of 22
46. In Natwar Parikh (Supra), the issue before the Supreme Court was whether the Taxation Authority under the Karnataka Motor Vehicles Taxation Act, 1957 was right in taxing the TractorTrailer as separate and distinct vehicle, different from a Tractor and denying the exemption from the tax. Therefore, the judgment is not relevant in the present case.
47. In Ramjeelal (Supra), Omprakash (Supra) and Hukam Chand (Supra) the Trolley attached with the Tractor was not covered in the Insurance Policy. In the present case, the Insurance Policy Ex. R3W2/2 covers both the Tractor and Trailer i.e. Trolley attached to it and therefore all these judgments are not applicable to the facts of this case.
48. The issue of liability of the Insurance Company in a TractorTrolley case was considered by the Apex Court in Kishan Gopal & Another vs. Lala & Others, 2013 ACJ 2594 where Insurance Company had taken the plea for exhoneration from the liability on the same lines as in this case. Rejecting the contentions of the Insurance Company, the Apex Court held the Insurance Company is responsible and liable to pay the compensation because the accident was caused by rash and negligent conduct of the driver of the Tractor Trolley.
49. For the sake of arguments, assuming that the deceased was sitting on the mudguard of the Tractor in violation of the Registration Certificate of the vehicle about the sitting capacity, it will not have any bearing on the liability of the Insurance Company becasue the defence available to the Insurance Company in the present proceedings is very limited and cannot go beyond Section 149 of the M. V. Act, which does not include violation of RC condition. Therefore, there is no ground to exhonerate the respondent Suit No.: 599/2014 Page No. 20 of 22 Insurance Company from liability to pay compensation on this ground.
50. In view of the above observations, respondent No. 3 Insurance Company is jointly and severally liable to pay the compensation to both the petitioners. Since the offending vehicle was duly insured to cover the third party risk, respondent No. 3 Insurance Company is under the statutory liability to pay the compensation to both the petitioners.
Relief:
51. On the basis of findings on Issues No. 1 & 2, I award an amount of Rs. 11,31,952/ (Rupees Eleven Lacs Thirty One Thousand Nine Hundred Fifty Two Only) as compensation to the petitioners with interest @ 9% pa from the date of filing of the DAR i.e. 06.03.2013 till its realisation. Amount of Interim Award, if any paid, be deducted from the compensation amount.
Apportionment:
52. Rajwanti (Petitioner No. 1), widow of the deceased Virender Singh will get 60% share in the award amount and Sarwati (Petitioner No. 2), mother of the deceased Virender Singh will get 40% share in the award amount with proportionate interest thereon.
Mode of payment and disbursement:
53. Respondent No. 3 Insurance Company shall deposit the award amount within 30 days from the date of Award in the State Bank of India, Tis Hazari Branch, Delhi in the name of the petitioners under intimation to the petitioners and the Tribunal. In default of payment within the prescribed period, respondent No. 3 Insurance Company shall be liable to pay interest @ 12% p.a. for the period of delay till its realisation. Suit No.: 599/2014 Page No. 21 of 22
54.While making the deposit, Insurance Company shall mention the particulars of this case, name of the Tribunal and the date of decision on the back side of the cheque. Insurance Company shall also file copy of the award attested by its responsible officer in the bank at the time of deposit. Insurance Company is further directed to place on record proof of deposit of the award amount, proof of delivery of notice to the petitioner in respect of deposit of the award amount and complete details in respect of calculation of interest etc. in the Tribunal within 30 days with effect from today.
55. In order to avoid the money being frittered away, 50% share of both the petitioners shall be kept in FDRs in their names for a period of seven (07) years. No loan or advance shall be allowed against these deposits. However, petitioners can withdraw the quarterly interest from these deposits.
56. Petitioners shall open account in State Bank of India, Tis Hazari Branch, Delhi. Manager of the Bank shall comply and release the award amount to the petitioner in terms of the Award.
57. Copy of the Award be given to the parties free of cost.
58. Nazir is directed to prepare a separate file for compliance report and put up the same on 23.03.2016.
59. File be consigned to Record Room.
Announced in the open Court (Santosh Snehi Mann) on 12.02.2016. Judge, Motor Accident Claims Tribunal02, West District, Tis Hazari Courts, Delhi Suit No.: 599/2014 Page No. 22 of 22