Delhi District Court
Sunita Nagar & Ors. vs . Aashid & Ors. on 5 October, 2013
Sunita Nagar & Ors. Vs. Aashid & Ors.
IN THE COURT OF SH. SANJIV JAIN : PRESIDING OFFICER : MACT
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
In Petition No. 238/11
Unique ID : 02406C0281792011
1. Smt. Sunita Nagar
W/o Sh. Ashok Nagar
2. Sh. Lokesh Kumar
S/o Sh. Sarjeet Nagar
Both R/o A1/97, Birla Colony,
Chattarpur Ext., New Delhi - 74
..... Petitioners
Versus
1. Aashid
S/o Sh. Abdul Hamid
R/o Vill. Firojpur, PS Bulund Sahar,
Distt. Bulund Sahar, UP
Also at : Khasra No. 899,
Khark Village, Satbari, New Delhi
2. Nauman
S/o Sh. Sarfuddin
R/o H. No. 156, Chandan Hola,
New Delhi
3. Future Generali India Insurance Co. Ltd.
M10, Deep Building, 2nd Floor,
NDSE, PartII, South Ext.
New Delhi
Petition No. : 238/11 Page No. 1 of 36
Sunita Nagar & Ors. Vs. Aashid & Ors.
4. Sanjay Sejwal
S/o Sh. Amarjeet Sejwal
R/o F317, Vill. Lado Sarai,
New Delhi - 110 030
..... Respondents
Date of Institution : 13.10.2011
Date of DAR : 16.07.2011
Date of reserving of judgment/order : 24.09.2013
Date of pronouncement : 05.10.2013
J U D G M E N T :
1. Sunita Nagar & Ashok Nagar being the parents of the deceased Priyanshu, a student aged 8 years filed a petition U/s 166 & 140 of the Motor Vehicles Act, 1988 for claiming compensation for untimely death of their child Priyanshu in an accident on 14.05.2011 at main road, Chattarpur, TPoint, Tivoli Garden, Mehrauli, New Delhi of which a case was registered vide FIR 219/11 at the police station Mehrauli. A Detailed Accident Report was also filed by the SHO after investigation which was clubbed with the petition.
2. Briefly, the facts are that on the aforesaid date at about 3.15 PM, Lokesh and Priyanshu were going to market on a motorcycle bearing no. DL 3S BK 0155 from their house, it was being driven by Lokesh. When they reached near Petition No. : 238/11 Page No. 2 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
main road, Sadarpur, TPoint Tivoli Garden, all of a sudden a Gramin Sewa bearing no. DL 2W T 2552 being driven by respondent no.1 in a rash and negligent manner came from behind and hit the motorcycle. As a result of this forceful impact, both of them fell down and sustained injuries. They were taken to JPN Trauma Centre, AIIMS where doctors declared Priyanshu brought dead. He was a student of Vth class studying in Kathuria Public School, Mahipalpur, Vasant Kunj. His postmortem was conducted. Cause of death was opined as Antemortem cranio cerebral injuries consequent to blunt trauma to head possible in road traffic accident. The injuries on the person of Lokesh were opined grievous. Respondent no.1 was driver on the Gramin Sewa. It was registered in the name of respondent no.2 and insured with respondent no.3. Lokesh was a Photographer. He was 25 years of age. The deceased Priyanshu was survived by his parents.
3. On getting notice of the DAR and the petition, the respondents appeared and filed their reply / written statements. Respondent no.1 alleged that he does not have any connection with the alleged accident. He was falsely arrested on 17.05.2011. He was not named in the FIR. Respondent no.2 alleged that he was working as a Conductor on the offending vehicle. It was owned by Sanjay Sejwal who used to pay him Rs. 200/ per month. He stated that earlier, the Gramin Sewa was under the supervision of Sanjay Sejwal but later he asked him (Noman Khan) to pay Rs. 600/ p.m. and keep the Petition No. : 238/11 Page No. 3 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
balance as his wages by maintaining the trip record. He stated that the ownership and supervision remained with the owner and Abdul Hameed was the driver on the Gramin Sewa. He alleged that on 14.05.2011, he had handed over the vehicle to its driver Abdul Hameed on the instructions of Sanjay Sejwal since he had to go to attend a marriage in his relations. He stated that on 17.05.2011, H.C. Radhey Shyam stopped the Gramin Sewa and took him with the vehicle to village Lado Sarai at the residence of Sanjay Sejwal and asked him to sign some stamp papers and blank papers. When he objected, they beat him and got those papers signed. He was thereafter taken to Police Station Mehrauli where his brother was informed. ASI Ved Prakash served him a notice on 03.06.2011 and on 04.06.2011 he alongwith his father and four more persons met the ASI and came to know of the accident and death of a child in that accident. He stated that Ashit was driver on the said vehicle appointed by Sanjay Sejwal. He had given a written complaint to DCP on 06.06.2011 in this context and it was Sanjay Sejwal who got the vehicle released on superdari.
4. Vide order dated 11.09.2012 Sanjay Sejwal was impleaded as the respondent no.4. He also filed his reply submitting that in May, 2011 he was the registered owner of the vehicle. He was approached by the respondent no.1 Ashit for a job of a driver. After taking his driving test and photocopy of his driving licence, he kept him as a driver. He stated that respondent no.1 Petition No. : 238/11 Page No. 4 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
had told him that he has a prospective buyer. He got him introduced to respondent no.2 Noman Khan. A deal was struck on 12.05.2012 and respondent no.2 paid him Rs. 50,000/, executed an affidavit and took the possession of the vehicle giving a written assurance that he would comply with all the conditions of Motor Vehicles Act. He also sought time to seek no objection from the Financier for transfer of the vehicle, so he did not sign the Form no. 29 and 30 regarding transfer of ownership. He stated that Ashit who was accompanying the respondent no.2 drove the vehicle on 12.05.2011 and thereafter, it remained under the supervision of respondent no. 2. After 34 days he came to know of the registration of the case in the police station Mehrauli in respect of the vehicle. He disclosed all the facts to the Investigating Officer and on the asking of the respondent no.2 he got the vehicle released on superdari and handed over to him. He stated that on 02.09.2011 respondent no.2 again approached him and expressed him his inability to pay the installments and asked him to take back the vehicle assuring him that he would take full responsibility of the criminal case and executed the affidavit. He alleged that the vehicle as on the date of alleged accident was under the supervision and control of the respondent no.2. It had a valid insurance policy, permit and was being driven by a duly licensed driver as per his knowledge. He denied the other averments made in the petition and his liability to pay compensation to the petitioners. Petition No. : 238/11 Page No. 5 of 36
Sunita Nagar & Ors. Vs. Aashid & Ors.
5. Respondent no.3, the insurer alleged that the accident had occurred solely due to the negligence of Lokesh. It denied its liability and alleged that it is a case of contributory negligence. It alleged that the driver of the vehicle bearing no DL 2W T 2552 was not holding any driving licence to drive the insured vehicle which fact was also within the knowledge of the insured which is apparent from the fact that the driver/insured were also challaned U/s 3/181 and 5/180 MV Act respectively. It also alleged that the vehicle was plying in violation of permit conditions of the Gramin Sewa. The driver was driving it without PSV Badge and without any authorisation. It however, admitted that it was insured with it vide commercial policy no. 2010 V0989136FCV for the period from 27.11.10 to 26.11.11 in the name of Sanjay Sejwal.
6. From the DAR, petition and the reply filed by the respondents, following issues were framed vide order dated 18.08.2011 :
1. Whether the deceased Priyanshu succumbed to the injuries sustained in road accident on 14.05.2011 at 1515 hrs. near main road Chattarpur TPoint, Tivoli Garden, Mehrauli, New Delhi due to rash and negligent driving of the vehicle no. DL 2W T 2552 by its driver, owned by R1 and insured with R2 insurance company?
2. Whether on 14.05.11 the petitioner Lokesh has suffered injuries due to rash and negligent driving of vehicle no. DL 2W T 2552 at 1515 hrs. near main road Chattarpur TPoint, Tivoli Garden, Mehrauli, New Delhi due to rash and negligent driving of the vehicle no. DL Petition No. : 238/11 Page No. 6 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
2W T 2552 by its driver, owned by R1 and insured with R2 insurance company?
3. To what amount of compensation, the petitioners are entitled to and from whom?
4. Relief.
7. The claimants/petitioners examined Lokesh Kumar as PW1 and Ms. Sunita Nagar as PW2. In rebuttal respondent no.1 examined himself as R1W1 and respondent no.2 examined himself as R2W1. Respondent no.3 examined its legal officer as R3W1, Record Keeper Transport Department Taxi Unit Burari, Sh. Shankar Oli as R3W2 and Sh. Parkash Chand, LDC Transport Department as R3W3. Respondent no.4 examined himself as R4W1.
8. I have heard the arguments advanced by Ld. counsel Sh. Chaman Mandal for the petitioners, Sh. Rajpal Tanwar for the respondent no.2, Sh. Kamal Deep for respondent no.3, Sh. Charan Singh for respondent no.1 and Sh. Dinesh Kumar for respondent no.4.
9. It was submitted by Ld. counsel for the petitioners that the Gramin Sewa being driven by respondent no.1 had hit the motorcycle on which the deceased Priyanshu was the pillion rider from behind at TPoint Chattarpur road. It was being driven by respondent no.1 rashly and negligently. Petition No. : 238/11 Page No. 7 of 36
Sunita Nagar & Ors. Vs. Aashid & Ors.
Motorcycle rider also sustained multiple injuries. He was a Photographer and used to earn Rs. 6000/ p.m. On his treatment Rs. 30000/ were incurred. The deceased was 10 years of age. He was studying in Vth class. Ld. counsel stated that the deceased was the only child of the petitioners.
10. Ld. counsel for respondent no.2 submitted that he was Conductor on the Gramin Sewa and used to get Rs. 200/ per day. Later the owner had asked him to pay Rs. 600/ per day and keep the balance with him as his wages. The owner knew that the driver did not have a licence. He stated that he was falsely involved by taking signatures on blank papers by use of force for which he had made complaint to the authorities. Ld. counsel stated that the respondent no.4 was the registered owner of the vehicle and he concocted a false story with the help of police to avoid his liability. Although the fact is that it was respondent no.4 who got the vehicle released on superdari. The permit and insurance was also in the name of respondent no.4. Even otherwise, he did not have a financial capacity to purchase the vehicle.
11. Ld. counsel for respondent no.3 submitted that respondent no.1 did not have any licence and badge at that time. The driving licence produced by respondent no.1 was got prepared from Nagaland. Though as per the charge sheet the driver did not have any licence. Ld. counsel stated that it has come in the testimony of respondent no.1 that he did not have any Petition No. : 238/11 Page No. 8 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
licence. So, how could the respondent no.4 produce the licence of respondent no.1 that too from Nagaland. Respondent no.1 did not produce the original licence of the respondent no.1. As per the permit conditions, the vehicle cannot be sold to anyone. Even Lokesh did not have the driving licence at that time nor was wearing helmet. So, it is a case of contributory negligence.
12. Ld. counsel for respondent no.4 submitted that the respondent no.1 had a valid licence so, liability is of respondent no.3 to compensate the petitioners. The respondent no.4 prior to the accident had an agreement to sell with the respondent no.2. He did not sign Form no. 29 and 30 since no objection certificate from the finance company was awaited. He had taken the driving test of the respondent no.1 before employing on the Gramin Sewa copy of which he had retained. No suggestions came from the side of respondent no.1 that respondent no.4 got prepared a fabricated licence. Ld. counsel stated that not carrying a badge is violation of traffic rules and cannot be taken as a violation of policy.
13. Ld. counsel for the respondent no. 1 stated that respondent no.1 was falsely implicated in the present case. The vehicle in question was given to Adbul Hameed in presence of two persons. He was in computer class at that time. Petition No. : 238/11 Page No. 9 of 36
Sunita Nagar & Ors. Vs. Aashid & Ors.
14. I have carefully considered the arguments and the documents placed on record. My findings on the issues are as follows :
I S S U E No. 1
15. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs New India Assurance Co. Ltd. 2001 ACJ 421 SC.
16. PW1 tendered his affidavit Ex.PW1/A and stated that on 14.05.2011 at about 3.15 PM, he and Priyanshu were going to market on the motorcycle bearing no. DL 3S BK 0155 from their house, it was being driven by him. When they reached near main road, Chattarpur, TPoint Tivoli Garden, all of a sudden a Gramin Sewa bearing no. DL 2W T 2552 being driven by respondent no.1 in a rash and negligent manner came from behind and hit their motorcycle. As a result of this forceful impact, both of them fell down and sustained injuries. Petition No. : 238/11 Page No. 10 of 36
Sunita Nagar & Ors. Vs. Aashid & Ors.
They were taken to JPN Trauma Centre, AIIMS where doctors declared Priyanshu brought dead. His MLC Ex.PW1/1 was prepared. He remained hospitalised from 15.05.2011 to 20.05.2011. He proved his discharge summary Ex.PW1/2 and OPD cards Ex.PW1/3. He stated that he has a driving licence bearing no. DL0320110269334. He placed on record the driving licence Ex.PW1/8. He however, admitted that the aforesaid licence was not valid for driving motorcycle. He also admitted that at the time of accident, he was not wearing helmet which was in his hand. He also admitted that the deceased was not wearing helmet. He however, denied that he was driving on the wrong side of the road or the accident had occurred due to his negligence. He stated that his statement was recorded after 2 or 3 days of the accident. He was confronted with his MLC wherein he admitted that as per the MLC he received injuries when he applied sudden brakes while riding the bike.
17. PW2 is the mother of the deceased. She proved the site plan Ex.PW2/3, postmortem report Ex.PW2/56, FIR Ex.PW2/7. She denied that they falsely implicated Noman Khan after conniving with the registered owner Sanjay Sejwal. She denied that the accident occurred due to rash and negligence of PW1. She admitted that she is not the witness of the accident.
18. R1W1 tendered his affidavit Ex.R1W1/X and stated that he is a student of Petition No. : 238/11 Page No. 11 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
11th Class. He was a Computer Trainee. On 16.05.2011, at about 7.00 PM Noman Khan and Sanjay Sejwal had come to him and took him to police station Mehrauli where police enquired from him about his licence. His father also came in the police station who intervened and asked as to why his licence was required. Thereafter, the police released him and asked him to appear in the Court on 18.07.2011. He stated that he was not present on the place of occurrence nor driving the vehicle and he was falsely implicated at the behest of respondent no. 2 and 4. He at that time was present in his computer class. He produced the certificate in this respect. He stated that his father Abdul Hameed is a driver by profession. He however, admitted that he has been facing criminal trial in the case FIR 219/11 registered at the police station Mehrauli for an offence U/s 279/304A IPC. He admitted that he did not lodge any report against his false implication. He stated that he does not have any driving licence to drive any vehicle. He stated that Sanjay Sejwal used to meet his father and he knows Noman Khan for three years. He came to know of the accident on 16.05.2011. He denied that he had approached Sanjay Sejwal for the job of driver and had given copy of his driving licence Mark "X" or that Sanjay Sejwal had disclosed his intention to sell his vehicle and thereafter, he got him introduced to Noman Khan and Noman Khan had paid Rs. 50000/ to Sanjay Sejwal on 12.05.2012 after execution of the documents. He denied that he was driving the Gramin Sewa on 14.05.2011. He however, admitted that the signature appearing on Petition No. : 238/11 Page No. 12 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
the copy of licence Mark "X" is identical to his signature but he stated that he did not sign the document. He denied that licence mark "X" has his photograph.
19. R2W1 tendered his affidavit Ex.R2W1/1 and stated that he was conductor on Gramin Sewa bearing no. DL 2W T 2552 owned by respondent no.4 on daily wages. It was under the control and supervision of Sanjay Sejwal. On his suggestions he agreed to pay him Rs. 600/ p.m. and keep the remaining earnings as his wages for maintaining the trip record but he stated that he never purchased the vehicle. He stated that at the relevant time, Abdul Hameed was the driver on the Gramin Sewa. On 14.05.2011 he had gone to attend his marriage in his relations and handed over the vehicle to Abdul Hameed on the instructions of Sanjay Sejwal. On 17.05.2011 he was on duty as conductor. He reiterated the facts as stated in his written statement and stated that he had lodged complaint with DCP(South) on 06.06.2011 Ex.R2W1/4.
20. R3W1 tendered her affidavit Ex.R3W1/A and stated that the vehicle was insured in the name of respondent no.4 vide policy Ex.R3W1/1. Lokesh Kumar was not carrying driving licence. The owner/driver of the offending vehicle did not produce the licence despite notice u/o 12 R 8 CPC Ex.R3W1/2 and they were also charge sheeted u/s 5/180 and 3/181 MV Act. Petition No. : 238/11 Page No. 13 of 36
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She stated that it is a case of violation of terms and conditions of the policy. She denied that no notice was issued to the insured and there was no willful breach of the policy conditions by the insured.
21. R3W1 brought the permit record in respect of the vehicle Ex.R3W1/A. He stated that Sanjay Sejwal was the permit holder and as per the terms and conditions of permit for Gramin Sewa, no authorisation in respect of the driver appointed to drive the vehicle was submitted to their office. As per conditions, permit holder has to ensure that the vehicle is driven by the insured having authorisation card issued from the department. Permit is not transferable for a minimum period of one year except in the case of death/disability/insanity. He stated that in this case they did not receive any fee for transfer of permit.
22. R3W3 brought the record in respect of the vehicle DL 2W 2552. He deposed on the lines of R3W1. He stated that the vehicle is still in the name of Sanjay Sejwal and no application for transfer was received in their office.
23. R4W1 tendered his affidavit Ex.R4W1/A and stated that Ashit had approached him for the job of a driver and he after taking his driving test and copy of driving licence kept him as driver on the vehicle. He proved the copy mark "A". He deposed on the lines of his written statement and stated that Petition No. : 238/11 Page No. 14 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
the vehicle had a valid insurance, valid permit and was being driven by a licensed driver and there was no willful breach of insurance policy. He stated that he did not receive the notice U/o12 R 8 CPC. He denied that he made a false story of sale and purchase of the vehicle to escape liability. He stated that at the time he had an agreement to sell with Noman Khan, 14 to 15 installments of loan were to be paid. He denied that the licence of Ashid is forged and fabricated. He stated that he is a transporter and has two vehicles. He knows Ashid since May, 2011. He stated that he came to know of this case from the police. He denied that he obtained the signatures of Noman Khan on blank papers and affidavit and falsely implicated Ashid.
24. On perusal of the documents filed with the charge sheet i.e. FIR Ex.PW2/7, I find that the police reached the spot on receipt of DD no. 21 A dated 14.05.2011 as there was a call about quarrel near Bank of India, Tivoli Garden. There they found a motorcycle bearing no. DL 3S BK 0155 in accidental condition and blood on the road. They did not meet the eye witness and seized the motorcycle. They then went to the hospital where on the MLC of Priyanshu, doctor had declared him brought dead. They met the injured Lokesh, who was unfit for statement. They did not meet any other eyewitness. They again went to the spot and came to know that the accident was caused by Gramin Sewa bearing no. DL 2W T 2552 which after causing the accident ran away from the spot. It also came in the notice Petition No. : 238/11 Page No. 15 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
of the police that the accident had occurred due to rash and negligent driving of the Gramin Sewa by its driver. They registered the case U/s 279/337/304 A IPC on the same day vide FIR 219/11. They prepared the site plan. During the investigation they met the eyewitness Narender Kumar. They recorded his statement and made search of the Gramin Sewa. They got conducted the postmortem of the deceased. It then served the notice to respondent no.4, the registered owner of the vehicle who on 17.05.2011 produced the respondent no.2 and told that the vehicle in question was taken on contract by Noman Khan. He also produced the driver i.e. respondent no. 1 and stated that the vehicle was being driven by respondent no.1. Notice was also served on the respondent no.1 who produced the documents. They then arrested the respondent no.1. and also challaned him U/s 3/181 MV Act. They collected the MLC of Lokesh on which doctor opined the injuries on his person grievous. They got both the vehicles mechanically inspected and produced the accused Ashid to his TIP in which he refused to participate.
25. As per the mechanical inspection report, there were fresh damages on both motorcycle and Gramin Sewa. Nothing has come in the testimony of respondent witnesses that the Gramin Sewa was not involved in the accident. Further, number of the Gramin Sewa had come to the notice of the police on the same day oaf accident. There was no delay in the registration Petition No. : 238/11 Page No. 16 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
of the case. The report submitted by the IO shows that the driver of the Gramin Sewa fled away from the spot with the vehicle. He was produced by the respondent no.4 on 17.05.2011. He was subject to TIP where he refused to participate. He (R1W1) has admitted in his testimony that he has been facing criminal trial in the criminal Court and he did not lodge any report to the police of his false implication. Had he not caused the accident, what him refuse to participate in TIP. His refusal would lead to an inference that he was driving the Gramin Sewa at the time of accident. Although he stated that at that time he was taking computer class and to that effect he has produced a letter but he did not call the author of that document in the witness box to substantiate this fact. R4W1 has stated that the respondent no.1 was driver on the offending vehicle at that time.
26. For the foregoing discussions, it is proved that the offending vehicle was being driven by the respondent no.1 at the time of accident.
27. In the instant case the motorcycle of the claimant Lokesh was hit from behind which perse amounts to negligence. PW1 has categorically stated that he was driving the motorcycle at a normal speed following all the traffic rules. Admittedly, he was not wearing the helmet and the deceased was not wearing helmet but on this very ground it cannot be said that it is a case of Petition No. : 238/11 Page No. 17 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
contributory negligence as there is nothing on record to indicate that the factor of not wearing helmet by Lokesh and the deceased had contributed to the accident or that the motorcycle was being driven in a negligent/zig zag manner. In the instant case Lokesh had a driving licence for the category of the vehicle LMV but at the time of accident he was driving motorcycle. Keeping in view the fact that there is nothing on record to state that he was driving negligently or in a zig zag manner, or he did not know driving. Although in his crossexamination he admitted that he took brakes all of a sudden but it is also expected from the vehicle coming behind to maintain reasonable distance so as to avoid the possibility of accident. Further, during investigation police had recorded the statement of eyewitness Narender. He had stated that the accident had occurred solely due to rash and negligent driving by the driver of the Gramin Sewa. The accident resulted in the death of a minor child aged 8 years and grievous injuries on the person of motorcyclist Lokesh.
28. Now, the question arises as to who was in control and command of the Gramin Sewa.
29. The documents placed on record show that Sanjay Sejwal was the registered owner of the Gramin Sewa. Permit was also in the name of Sanjay Sejwal. He was the person who got the Gramin Sewa released on Petition No. : 238/11 Page No. 18 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
Superdari after the accident. He has admitted that he did not sign Form no. 29 and 30 qua the transfer of the vehicle in the name of respondent no.2. He also admitted that he had employed the respondent no.1 on Gramin Sewa as driver. Although during evidence he produced certain documents as an Agreement to sell of the vehicle, delivery receipts etc. but the fact of the matter is that as on the date of accident the vehicle was registered in the name of the registered owner and it was not transferred in the name of respondent no.2, the alleged purchaser. Respondent no.2 has categorically denied having purchased the vehicle in question rather has stated that he did not have financial capacity to purchase the vehicle. He was simply a conductor on the Gramin Sewa and control and supervision was of Sanjay Sejwal i.e. respondent no.4.
30. It is well settled law that mere execution of documents of the vehicle will not absolve the registered owner from his liability, if the vehicle remained registered in his name at the time of accident. The offending vehicle was registered in the name of respondent no.4 as is evident from the registration certificate. Therefore, he becomes vicariously liable to compensate the petitioners.
31. As per Section 147 of Motor Vehicle Act, the liability of the registered owner continues till the vehicle is registered in his name even if the vehicle is sold / Petition No. : 238/11 Page No. 19 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
transferred. It was held in the case of "Dr. T.V. Jose Vs. Chako 2002 (1) RCR (Civil) 120 (SC)" that there can be transfer of title by payment of consideration and the delivery of the vehicle but the owner still continues to remain liable to the third party as long as his name continues in the record of the R.T.O.
32. In the case of Pushpa Vs. Shakuntla 2011 AIR SC 682, it was held that the registered owner continues to be the owner of the vehicle for the purposes of the Act even though under civil law, he ceases to be the owner after sale and thus is equally liable for the payment of the compensation. It was held that since an insurance policy in respect of truck was taken out in the name of the recorded owner by the transferee, the liability would shift on to the insurer. The insurer was accordingly directed to pay compensation as determined by the Tribunal. In that case, the reference was also made of the case of Dr. T.V. Jose (supra) and it was held that the compensation amount is equally realisable from the Insurance Company. Thus, insurance company was directed to make full compensation of amount as determined by the Tribunal. In the case of Pride Constructions Vs. Suhas Dattar & Ors. II (2012) ACC 77, Delhi High Court, it was held that the registered owner cannot escape liability as far as the third party is concerned. In that case the Appellant was the registered owner. He had sold the vehicle to respondent no. 5. Respondent no.5 had given an affidavit and undertaking before the Petition No. : 238/11 Page No. 20 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
criminal court stating that he was the rightful owner of the vehicle which was involved in the case FIR 426/97. It was held that the Appellant and respondent no.5 both were liable to pay compensation to the respondent no. 1 to 3.
33. Now, the question arises whether respondent no.1 had a valid and effective licence at the time of accident.
34. R4W1 has stated that the respondent no.1 had approached him for a job of a driver. He took his driving test and copy of his driving licence mark "X" and thereafter, employed him on the Gramin Sewa. R1W1 has stated that the signature on the licence mark "X" appears similar to his signatures. Since the document mark "X" was a photocopy and the photo was not clearly visible so, it led to the respondent no.1 to say that he cannot identify the photographs on the document mark "X" as the same is not clearly visible, however, from his testimony it cannot be conclusively held that the photograph on the document mark "X" is not of the respondent no.1. Since, respondent no.1 has alleged that he was falsely implicated in this case, so as to avoid his criminal liability possibility of his denying the fact that he did not have any licence nor got prepared his licence cannot be ruled out. Question arises, how a person can produce a licence issued from the authority bearing the signature and photograph similar to that of the respondent no.1. Petition No. : 238/11 Page No. 21 of 36
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On appreciation of evidence on preponderance of probabilities, I am of the view that the licence produced by the respondent no.4 was of the respondent no.1 and he denied this fact to avert the criminal proceedings.
35. In this case, the respondent no.4 did not file the verification report of the licence from the Authority at Nagaland but it is equally settled that the owner before employing the driver on a vehicle is required to check the competence and skill of the driver and to see his driving licence he is however, not required to get it verified from the authority. I am of the view that there was no willful breach on the part of the respondent no.4 of the terms and conditions of the policy as he had employed the licensed driver on the offending vehicle.
36. It was held in the case of United India Insurance Co. Ltd. Vs. Lehru & Ors. 1 (2003) ACC 611 (SC) that the owner at the time of hiring a driver has to check whether the driver has a driving license. If the driver produces a driving license which on the face of it looks genuine, the owner is not expected to find out whether the license has in fact been issued by a competent authority or not. He would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. In the case of Lal Chand Vs. Oriental Insurance Co. Ltd. (2006) ACJ 2161 SC, the owner had not only seen and examined the driving license produced Petition No. : 238/11 Page No. 22 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
by the driver but also took test of the driving of the driver and found that the driver was competent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. It was held that the owner had satisfied himself that the driver had a license and was driving competently so there would be no breach of Section 149 (2) (a) (ii) and the insurance company would not then be absolved of its liability. In that case, National Insurance Co. Ltd. Vs. Swarn Singh 2004 (3) SCC 297 was also referred and sub para (iii) of para 102 discussed.
"(iii) The breach of policy conditions e.g. disqualification of driver or invalid driving license of the driver, as contained in subsection (2) (a) (ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insured against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time."
37. It was held that as observed in the above para the insurer has to prove that the insured, namely the owner of the vehicle was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by a duly licensed vehicle or one who was not disqualified to drive at the relevant point of time. Hon'ble Supreme Court Petition No. : 238/11 Page No. 23 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
Court allowed the appeal filed by the owner of the vehicle and absolved him from any liability.
38. The facts of the present case are similar to the case supra. In the present case also the respondent no.4 had checked the license and driving skills before appointing him as a driver on the vehicle in question. After satisfying himself that the respondent no.1 had a license and was driving competently he engaged him on the offending vehicle. He did not observe any time prior to the aforesaid incident that he drove the offending vehicle negligently or did not exercise reasonable care. I am of the view that the respondent no.4 fulfilled the conditions of the policy regarding use of the vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant point of time. I am of the view that the respondent no.3 cannot be absolved of its liability to compensate the petitioners and no liability can be fastened on the respondent no.4, the insured since at the time of accident, the policy was valid.
39. For the foregoing reasons, Issue No. 1 is decided in favour of the petitioners and against the respondent no.3.
ISSUE NO.2 Death case of Priyanshu
40. As the issue no.1 is decided in favour of petitioners and against the Petition No. : 238/11 Page No. 24 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
respondents thus, they become entitled for the compensation. Quantum of the compensation however, is required to be calculated. LOSS OF DEPENDENCY :
41. It has been held in a catena of judgments by Hon'ble Apex Court and various High Courts that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. It has been held in a number of judgments that general principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place.
42. PW2 during the course of her deposition has stated that the claimants are the parents and only legal heirs of the deceased. Testimony of PW1 remained unchallenged as nothing contradictory was brought on record to controvert the stand taken by the claimant.
43. In the case of "New India Assurance Company Limited V/s. Satender & Ors." reported as JT 2006(10) SC 234, it was held by the Hon'ble Supreme Court that :
"In case of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of future increase in their income not chances of Petition No. : 238/11 Page No. 25 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievement in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."
44.In case of "Shyam Narayan V/s. Kitty Tours Travels and Ors. Reported as IV (2005) ACC1" delivered by Hon'ble Mr. Justice Pradeep Nandrajog of Hon'ble High Court of Delhi has held that in case of death of minor child below 15 years as per second schedule appended to Section 163 (A) of Motor Vehicle Act 1988, notional income should be taken of Rs.15,000/ per annum to which multiplier of 15 is to be taken as provided in second schedule appended to Section 163 A of the Motor Vehicle Act, therefore, compensation comes out to be Rs.2.25 lakhs. On this Hon'ble High Court has awarded Rs. 50,000/ on account of the loss of company of child and for pain & suffering, therefore, a total amount of Rs.2.75 lakh was awarded by the Hon'ble High Court of Delhi.
45. Although the present petition is filed under section 166 of the Motor Vehicles Act, however, considering the fact that deceased was a minor child aged about 08 years and was not earning any amount, guidance for the purposes of calculation of loss of dependency can be had from the second Petition No. : 238/11 Page No. 26 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
schedule appended to Section 163A of the Motor Vehicle Act, where "notional income" is provided, which has got the statutory recognition. Therefore, total loss of dependency will be Rs.2.25 lakhs as provided in the judgments of Hon'ble High Court of Delhi.
46. I therefore, award Rs. 2,25,000/ to the claimant on account of "loss of dependency".
LOVE & AFFECTION / LOSS TO ESTATE / FUNERAL EXPENSES :
47. In case titled "R. K. Malik Vs. Kiran Pal, III (2006) ACC 261", Hon'ble High Court have considered various heads under nonpecuniary damages for grant of compensation like loss of love and affection, loss to estate and funeral expenses etc. Hon'ble High Court after considering all these damages, had granted a sum of Rs.75,000/ towards "nonpecuniary damages" to the unfortunate parents who had lost their dear child in a road accident.
48. This amount of Rs.75,000/ awarded towards "nonpecuniary damages" by Hon'ble High Court, was upheld by Hon'ble Supreme Court in case titled "R. K. Malik V/s. Kiran Pal" reported as 2009 (8) Scale 451. The same amount was subsequently awarded by Hon'ble High Court in another case titled "Jitender Kumar & Anr. V/s. Oriental Insurance Company Limited & Petition No. : 238/11 Page No. 27 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
Anr." bearing M.A.C. Appeal Number 68/2009 decided on 31.07.2009 towards "nonpecuniary damages" after considering all the precedents relating to death of minor in road accidents.
49. The facts of the present case, also requires grant of similar compensation towards 'nonpecuniary damages' as awarded by Hon'ble High Court and Hon'ble Supreme Court in the above mentioned cases.
50. In view of the observations made and law laid down by Hon'ble Apex Court, I award Rs. 75,000/ to the claimants towards "nonpecuniary damages". COMPENSATION TOWARDS FUTURE PROSPECTS :
51. As per law laid down by Hon'ble Apex Court in "R.K.Malik Vs. Kiran Pal, 2009 (8) Scale 451" it was held that claimants i.e. unfortunate parents who are survived by their dear child, who died in a road accident, are also entitled to compensation towards 'future prospects'. It was further held by Hon'ble Apex Court that the claimants are entitled to be compensated towards "future prospects" and were granted compensation of Rs.75,000/ towards future prospects of the children.
52. In view of law laid down by Hon'ble Apex Court in R.K. Malik Vs. Kiran Pal (Supra), I award a sum of Rs. 75,000/ to the claimants being parents of Petition No. : 238/11 Page No. 28 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
deceased Priyanshu, towards compensation under the head of "future prospects".
53. The total compensation assessed is as follows :
LOSS OF DEPENDENCY : Rs. 2,25,000/
NONPECUNIARY DAMAGES : Rs. 75,000/
FUTURE PROSPECTS : Rs. 75,000/
TOTAL : Rs. 3,75,000/ Injury case of Lokesh Kumar
54. The injured has claimed compensation for the injuries sustained by him in the accident. It is true that when a person is injured in a road accident, he is entitled to the compensation for the pecuniary and nonpecuniary damages.
55. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that : "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of Petition No. : 238/11 Page No. 29 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury, the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life." Let me assess the compensation which the claimant is entitled to under different heads.
MEDICAL EXPENSES :
56. PW1 has stated that after the accident he was taken to JPN Trauma Centre, AIIMS where his MLC no. 257966 Ex.PW1/1 was prepared. As per the discharge summary Ex.PW1/2 (colly.) he was diagnosed with Rt. 3rd to 6th RIB#, Lt. 3rd Rib # B/L Pneumothorax # Rt. Body of Scapula. He was advised NCCT Head and NCCT Spine. He remained hospitalised from 15.05.2011 to 20.05.2011. He has filed the medical bills of Rs. 969/. Looking into his injuries and treatment he undertook, I award Rs. 1,000/ to the claimant towards medical expenses.
PAIN AND SUFFERINGS & ENJOYMENT OF LIFE :
57. PW1 sustained multiple injuries in the accident. He remained hospitalised from 15.05.11 to 20.05.11. Due to the injuries, he suffered lot of mental pain Petition No. : 238/11 Page No. 30 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
and agony. Keeping in view the injuries he sustained and the treatment he underwent, I award Rs. 30,000/ to the claimant towards Pain and Sufferings and enjoyment of life.
SPECIAL DIET, CONVEYANCE & ATTENDANT CHARGES :
58. PW1 sustained multiple injuries in the accident. He was advised followup.
He was advised special diet for early recovery. I therefore, award Rs. 8,000/ to the petitioner towards special diet and conveyance. His condition is such that he might have taken the help of an attendant for a period of three months. I award Rs. 12,000/ to the claimant towards attendant charges. LOSS OF INCOME :
59. PW1 has stated at the time of accident he was working as a photographer.
He used to earn Rs. 6,000/ p.m. He was engaged with his brother. He has filed a certificate Ex.PW1/5 showing his monthly salary as Rs. 6,000/ p.m. In the instant case the injuries on the injured were such that he might have remained bed ridden for about four months. Taking the salary of the injured as Rs. 6,000/ and the period of four months, he remained on bed rest, the loss of income is calculated as 4 x 6,000 = Rs. 24,000/. I therefore, award Rs. 24,000/ to the injured towards loss of income.
60. Thus, the total compensation in favour of the petitioner is assessed as under : Petition No. : 238/11 Page No. 31 of 36
Sunita Nagar & Ors. Vs. Aashid & Ors.
Medical Expenses : Rs. 1,000/
Pain and Sufferings and Enjoyment of Life : Rs. 30,000/
Special Diet, Conveyance & Attendant : Rs. 20,000/
Loss of Income : Rs. 24,000/
============
TOTAL : Rs. 75,000/
============
: L I AB I L I T Y :
61. As the offending vehicle was being driven by respondent no.1 therefore, primary liability to compensate the petitioners/claimant is that of respondent no. 1. As the offending vehicle was owned by respondent no. 4 therefore, he becomes vicariously liable to compensate the petitioners/claimants. While deciding issue no.1 it is already held that the liability to compensate the petitioners/claimants is that of respondent no.3.
62. Issue No. 2 is accordingly decided in favour of the petitioners/claimant and against the respondent no.3.
R E L I E F Death case of Priyanshu
63. In view of my findings on issues, I award a sum of Rs. 1,87,500/ (Rs. One Lac Eighty Seven Thousand Five Thousand only) each to the petitioners as compensation with interest @ 9% per annum from the date of filing of the petition till realisation of the amount.
Petition No. : 238/11 Page No. 32 of 36
Sunita Nagar & Ors. Vs. Aashid & Ors.
Out of this awarded amount, a sum of Rs. 1,50,000/ each be kept in the form of FDR in the name of the petitioners in the following phased manner :
1. Rs. 75,000/ for a period of 2 years.
2. Rs. 75,000/ for a period of 4 years.
Injury case of Lokesh
64. In view of my findings on issues, I award a sum of Rs. 75,000/ (Rs. Seventy Five Thousand only) to the claimant as compensation with interest @ 9% per annum from the date of filing of the DAR till realisation of the amount. Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
65. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
66. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal Petition No. : 238/11 Page No. 33 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
67. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble High Court, Insurance Company is directed to deposit the awarded amount in favour of the claimants with State Bank of India, Saket Courts Complex Branch, against account of claimants.
within a period of 30 days from today, failing which respondent no. 3 Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
68. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner:
(i) The interest on the fixed deposit be paid to the petitioners / claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimants / petitioners after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
(iii) No cheque book be issued to claimants / petitioners without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in Petition No. : 238/11 Page No. 34 of 36 Sunita Nagar & Ors. Vs. Aashid & Ors.
safe custody. However, the original Pass Book shall be given to the claimants / petitioners alongwith the photocopy of the FDR's .
(v) The original fixed deposit receipts shall be handed over to claimants / petitioners at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court.
(viii)On the request of claimants / petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimants / petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
DIRECTIONS FOR THE RESPONDENT NO.3
69. Respondent no. 3 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
70. The Respondent no.3 shall intimate to the petitioners about its having deposited the cheques in favor of the petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
Petition No. : 238/11 Page No. 35 of 36
Sunita Nagar & Ors. Vs. Aashid & Ors.
71. Copy of this award / judgment be given to the claimants/petitioners who are directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after their having received the notice of the deposit of awarded amount from the Insurance company.
72. The case is now fixed for compliance by the insurance company for 07.11.2013.
Announced in the open court
on 05th Day of October, 2013 (SANJIV JAIN)
Presiding Officer : MACT02
South Distt. : Saket Courts
New Delhi : 05.10.2013
Petition No. : 238/11 Page No. 36 of 36