Delhi District Court
Smt. Razia vs Sh. Arjun Kumar Manjhi on 14 March, 2014
IN THE COURT OF SH. ARVIND KUMAR: PRESIDING OFFICER MOTOR
ACCIDENT CLAIM TRIBUNAL: KARKARDOOMA COURTS: (SHAHDARA)
DELHI
M.A.C. Petition No:30A/13
Unique Case I.D No: 02402C01092620013
1. Smt. Razia
W/o Late Mohd. Yusuf
( 24 years old widow of the deceased)
2. Mohd. Farman
S/o Late Mohd. Yusuf
( 6½ years old minor son of the deceased)
3. Mohd. Salman
S/o Late Mohd. Yusuf
( 2½ years old minor son of the deceased)
4. Smt. Shayda Khatoon
W/o Late Mohd. Hanif
( 70 years old mother of the deceased
Petitioner No. 2 & 3 are minor sons of the deceased
and as such are being represented through their
natural guardian/ mother/ petitioner No. 1 Smt. Razia
Petitioner No. 1 to 3 are presently residing at C/o
Sh. Akbar, E-13/B-399, near Ravi Das Mandir,
Seelampur, Delhi.
Petitioner No. 4 is presently residing at B-16F,
Gali No. 2, B-Block, Shastri Park, Delhi.
All were earlier resident of C-40, Gali No. 2,
Chand Bagh, Delhi-110094. ...Petitioners
VERSUS
1. Sh. Arjun Kumar Manjhi
S/o Sh. Parmeshwar Manjhi
R/o A-587, Raja Vihar, Samaypur Badli
Delhi.
Permanent Resident of Village Dhanaur,
Katra, Muzaffarpur, Bihar
( Driver of Tempo Recovery Van No.
HR-38-G-2502)
M.A.C. Petition No: 30A/13 Page No. 1/14
2. Sh. Rakesh Chaudhary
S/o Sh. Dhanraj Chaudhary
R/o H. No. 219, Gali No. 7,
E-Block, Main Pushta Road,
Swami Sharadhanand Park,
near Bhalaswa dairy, Delhi.
Also at:-
Gali No. 12, 45, Sanjay Nagar,
Mahendra Park, New Delhi.
( Registered owner of Tempo recovery Van
No. HR-38-G-2502)
3. Shriram General Insurance Company Ltd.
Office at: 431/64/1, Ground Floor,
LDA Estate, Kewal Park Extension,
Azadpur, Delhi.
Registered Office:-
E-8, RIICO Industrial Area,
Sita Pura, Jaipur, Rajasthan-302022
( Policy No. 10003/31/13/069790, valid from
30.05.2012 to 29.05.2013, Insurer of Tempo
Recovery Van No. HR-38-G-2502) ... Respondents
Presented on : 10.04.2013
Reserved for judgment on : 07.03.2014
Judgment delivered on : 14.03.2014
JUDGMENT
1. The petitioners have filed the present claim under section 166 & 140 of the Motor Vehicles Act, claiming compensation of Rs. 40,00,000/-( Rs. Fourty Lacs ) for the death of Mohd. Yusuf, in the road side accident occurred on 14.02.2013.
2. Briefly stating the facts, as stated by petitioners, are that on 14.02.2013, Mohd. Yusuf, the deceased, was driving the Hero Honda Passion M.A.C. Petition No: 30A/13 Page No. 2/14 motorcycle bearing registration No. DL-1ST-9079 and was going from his home towards Nand Nagari and when he reached on Wazirabad road, in front of Hernam Palace, a recovery van bearing No. HR-38G-2502, driven by its driver rashly, negligently and at a high speed, hit the motorcycle. Mohd. Yusuf fell down and came under the rear wheel of the offending vehicle. It is stated that Mohd. Yusuf was taken to GTB hospital where he expired on the same day. It is stated that deceased was doing the work of supplying of jeans buttons and was earning Rs. 17000/- per month.
3. Written statement is filed by the respondent No. 1 & 2 denying the involvement of vehicle bearing No. HR-38G-2502 in the accident. It is stated that offending vehicle might had caused the accident and might had run away from the spot after the accident and number of the vehicle of the answering respondent was noted in place of number of actual offending vehicle and the respondent No. 1 had been falsely implicated by the police. It is stated that vehicle was insured with respondent No. 3 and hence, if any liability would be imposed on the answering respondent that would be covered by the respondent No. 3.
4. The respondent 3/ insurance company filed written statement admitting therein that the vehicle bearing No. HR-38G-2502 was insured vide policy/cover note No. 10003/31/12/069790, valid for the period from 30.05.2012 to 29.05.2013. It is stated that driver was not holding valid and effective driving licence . It is also stated that insurance company was not liable as the insured vehicle was being driven without permit. It is also stated that as per the FIR the said vehicle was towing the generator which was not mechanically propelled vehicle and hence, the insurance company was not liable to pay compensation.
5. On the basis of the pleadings following issues were framed:-
1. Whether the deceased Mohd. Yusuf suffered fatal injuries in the accident occurred on 14.02.2013 due to M.A.C. Petition No: 30A/13 Page No. 3/14 rash and negligent driving of the vehicle No. HR-38-
G-2502 being driven by respondent No. 1 ?
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom?
3. Relief.
6. The petitioner examined Constable Sudesh Kumar, as PW-1, Smt. Razia as PW-2 and Sh. Rajesh as PW-3. On the other hand, respondent No. 1 examined himself as R-1W1, Sh. Rakesh Chaudhary( respondent No.
2) as R-2W1. The insurance company examined Sh. Rohit Sharma, Legal Officer, Shriram General Insurance Company Ltd. as R-3W1.
7. I have heard counsels for the parties and gone through the material on record. My findings on issues are as under : -
Issue No. 18. The petitioner No. 1 namely Smt. Razia examined herself as PW- 2 and stated that her husband Mohd. Yusuf met with road accident on 14.02.2013 with the vehicle No. HR-38G-2502 because of rash and negligent driving of the driver of said vehicle. The PW-2 exhibited the certified copies of criminal case record as Ex. PW-2/1, copy of driving licence of deceased as Ex. PW-2/2, copy of PAN card of deceased as Ex. PW-2/3, copy of acknowledgment of income tax return for the assessment year 2011-12 and 2012-13 along with computation as Ex. PW-2/4, copy of death certificate as Ex. PW-2/5, copy of certificate dated 15.03.2013, issued by Local MLA as Ex. PW-2/6, copy of voter I-card of deceased as Ex. PW-2/7, copy of ration card as Ex. PW-2/8, copy of her Aadhaar card as Ex. PW-2/9, copy of school I- card of Master Farman as Ex PW-2/10, copy of ration card of the petitioner No. 1, 2 and 3 as Ex. PW-2/11, copy of voter I-card of mother of the deceased is marked as mark X, copy of acknowledgment of Aadhaar card of Master M.A.C. Petition No: 30A/13 Page No. 4/14 Farman as mark Y, copy of burial receipt as mark Z and copy of receipt of dead body as mark Z-1. During cross-examination, the PW-2 stated that she had not witnessed the accident.
9. The testimony of PW-1, Constable Sudesh Kumar is relevant on this issue. The PW-1 stated that on 14.02.2013 he was posted at Harnam Palace in front of Aggarwal Sweets, main Wazirabad Road, and he saw that a motorcyclist was coming from Wazirabad side and was going towards Nand Nagri side with due care and caution and the number of the motorcycle was DL-1ST-9079 and the recovery van/ crane bearing No. HR-38G-2502, being driven by its driver rashly, negligently and at a high speed, came from Wazirabad side and hit the motorcyclist from behind. The PW-1 stated that the motorcyclist fell down and came under the rear wheel of the crane and an FIR No. 60/2013 was recorded on his statement. The PW-1 further stated that deceased was wearing helmet. During cross-examination, the PW-1 stated that the injured was removed to the GTB hospital by the PCR van and the driver of crane was caught by the public persons.
10. On the other hand respondent No. 1 namely Sh. Arjun Kumar Manjhi examined himself as R-1W1 and stated that no accident was caused with his vehicle and offending vehicle might had caused the accident and might had run away from the spot after causing the accident and the number of the vehicle of respondent No. 2 was wrongly noted down. During cross- examination the R-1W1 stated that police had arrested him in relation to FIR No. 60/2013, PS- Jyoti Nagar and he was on police bail. The R-1W1 further stated that his driving licence was seized by the police and recovery van No. HR-38G-2502 was impounded by the police and he had not filed any complaint against registration of FIR. The R-1W1 stated that charge-sheet has already been filed and he had been appearing as an accused in the said case. The R-1W1 stated that he was driving the recovery van No. HR-38G- 2502 and on 14.02.2013, at about 8.30 p.m. he was passing through Harnam Palace, Ashok Nagar, Munshi Market, Main Wazirabad road, Delhi, at the above mentioned time and date.
M.A.C. Petition No: 30A/13 Page No. 5/1411. The respondent No. 2 stated almost same facts as stated by R- 1W1 and during cross-examination the R-2W1 stated that he did not witness the accident and the recovery van was seized by the police in the FIR No. 60/2013 and it was released on superdari and he had not moved any application regarding impounding of the said vehicle before any authority including Hon'ble High Court.
12. I have gone through the material on record. The testimonies of R- 1W1 (driver) and R-2W1 (owner) are not reliable. Both these witnesses have vaguely denied the accident with the vehicle bearing No. HR-38G-2502 although the R-1W1 clearly admitted during cross-examination that on 14.02.2013 at about 8.30 p.m. he was there at Harnam Palace. An FIR has already been registered against the respondent No. 1 and the charge-sheet has also been filed. It is not the case of respondent No. 1 & 2 that they had preferred any representation against lodging of the FIR against them.
13. The FIR, site plan, postmortem report and the testimony of the PW-1 taken together, fully establish the death of Mohd. Yusuf, caused by the injuries sustained by him involving vehicle bearing registration No. HR-38G- 2502, in a road accident. There is nothing on record to dispel the inference that deceased Mohd. Yusuf , died on account of injuries sustained by him in a road accident which occurred on 14.02.2013 because of rash and negligent driving of vehicle bearing registration No. HR-38G-2502, being driven by the respondent No. 1. The issue No. 1 is decided in favour of petitioner and against the respondents.
Issue No. 214. The PW-2, Smt. Razia, deposed that the deceased was supplier of jeans buttons and used to earn Rs. 17,000/- per month and he was an income tax payee. The PW-2 stated that deceased was 27½ years of age being born on 21.07.1985 and he had left behind his wife, the petitioner No.1, his sons namely Mohd. Farman,( aged 6 ½ years ), Mohd. Salman ( aged 2 ½ M.A.C. Petition No: 30A/13 Page No. 6/14 years ) and his widowed mother namely Smt. Shayda Khatoon. The PW-2 exhibited the certified copies of criminal case record as Ex. PW-2/1, copy of driving licence of deceased as Ex. PW-2/2, copy of PAN card of deceased as Ex. PW-2/3, copy of acknowledgment of income tax return for the assessment year 2011-12 and 2012-13 along with computation as Ex. PW-2/4, copy of death certificate as Ex. PW-2/5, copy of certificate dated 15.03.2013, issued by Local MLA as Ex. PW-2/6, copy of voter I-card of deceased as Ex. PW-2/7, copy of ration card as Ex. PW-2/8, copy of her Aadhaar card as Ex. PW-2/9, copy of school I-card of Master Farman as Ex PW-2/10, copy of ration card of the petitioner No. 1, 2 and 3 as Ex. PW-2/11, copy of voter I-card of mother of the deceased is marked as mark X, copy of acknowledgment of Aadhaar card of Master Farman as mark Y, copy of burial receipt as mark Z and copy of receipt of dead body as mark Z-1. During cross-examination, the PW-2, stated that she had not filed any document regarding purchase and sales of jeans buttons to the shop keepers.
15. The PW-3 Sh. Rajesh, Income Tax Inspector, produced the income tax return of Mohd. Yusuf, for the assessment year 2011-12, Ex. PW- 3/1 and year 2012-13 as Ex. PW-3/2. During cross-examination, the PW-3 exhibited his authorization letter as Ex. PW-3/X. The PW-3 stated that he had not brought any certificate to the effect that print was taken from computer and the computer was maintained in due course of its maintenance and the computer was virus free. The PW-3 further stated that he had brought the attested copy of income tax return and the same was attested by the Income Tax Officer.
16. I have gone through the material on record. The income tax returns of Mohd. Yusuf, for the assessment year 2012-13, part of exhibit PW- 2/4 shows the gross income of the petitioner to be Rs. 2,02,500/-. Under the facts and circumstances, the income of the deceased at the time of accident is taken to be Rs. 2,02,500/- per annum.
17. In the judgment of "Rajesh & Others Vs Rajbir Singh & Others"
M.A.C. Petition No: 30A/13 Page No. 7/142013 (6) Scale in C.A. No. 3860/2013 (Arising out of SLPC) No. 24825/2010) Hon'ble Supreme Court observed as under :-
11. Since, the Court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any.
Addition should be 30% in case the deceased was in the age group of 40 to 50 years".
12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
20. .......Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view M.A.C. Petition No: 30A/13 Page No. 8/14 that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium."
21. ......There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses' , in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/-."
18. As stated above, the income of the deceased is taken to be Rs. 2,02,500/- per annum. The age of the deceased at the time of accident was about 27 years ( as per income tax return, Ex. PW-2/4). After adding 50% towards future prospects, the annual income comes to Rs. 3,03,750/- ( 2,02,500 + 101250). The deceased left behind his wife, two minor children and his widowed mother. Therefore, there are four dependents. Interest of justice in the present case would be met if 1/4 th i.e. Rs. 75937.5/- ( rounded off to Rs. 75,938/-) is deducted as the personal and living expenses of the deceased. After such deduction the contribution to the family (dependents) is determined as Rs. 2,27,812/-( 3,03,750 - 75,938) per month. The multiplier applicable would be 17. Therefore, the total loss on dependency would be Rs. 38,72,804/-( 2,27,812 x 17).
19. The petitioners are also entitled to Rs. 1,00,000/- for love and affection, Rs. 10,000/- for loss of estate, Rs 25,000/- towards funeral expenses and the petitioner No. 1, being the wife of the deceased, is also entitled to Rs. 1,00,000/- towards loss of consortium. Therefore, the total compensation comes to Rs. 41,07,804/-( 38,72,804 + 2,35,000).
Liability
20. The respondent No. 2 examined himself as R-2W1 and stated that M.A.C. Petition No: 30A/13 Page No. 9/14 the vehicle was insured with respondent No. 3 at the time of alleged accident and the respondent No. 1 was having driving licence and permit to drive the vehicle. During cross-examination, the R-2W1 stated that he had not placed on record the permit of recovery van bearing No. HR-38G-2502. The R-2W1 further stated that recovery van did not require permit.
21. On the other hand, the insurance company examined Sh. Rohit Sharma, Legal Officer, Shriram General Insurance Company Ltd, as R-3W1. The R-3W1 stated that vehicle bearing No. HR-38G-2502 was insured in the name of Sh. Rakesh with the answering respondent vide policy No. 10003/31/13/069790, for the period 30 th May'2012 to 29th May'2013 subject to the terms, conditions and stipulation contained therein. The R-3W1 further stated that the insurance company was not liable to pay the compensation as there was violation of terms and conditions of policy under limitations as to use clause. The R-3W1 stated that as per use clause 2, the policy did not cover use whilst drawing a trailer except the towing of any one disabled mechanically propelled vehicle. The R-3W1 stated that insured vehicle was towing generator. The R-3W1 also stated that insurance company had issued a notice under order 12 Rule 8 CPC, dated 08.12.2013 to the driver and owner of the said vehicle to produce the original driving licence, insurance policy and other documents of the vehicle but they failed to comply with the said notice. The R-3W1 exhibited the copy of insurance policy as Ex. R- 3W1/1, postal receipt as Ex. R-3W1/2, courier receipts as Ex. R-3W1/3, office copy of notice under order XII Rule 8 CPC, as Ex. R-3W/1/4 and copy of authority letter as R-3W1/5. During cross-examination, the R-3W1 stated that the documents necessary for issuing the policy had been seen by their agent.
22. I have gone through the material on record. Ld. Counsel for petitioner contended that recovery van was plied without permit, hence, there was violation of terms and conditions of insurance policy.
23. Section 2(31) of M. V. Act, defines permit, which means permit issued by State or Regional Transport Authority, authorizing the use of motor M.A.C. Petition No: 30A/13 Page No. 10/14 vehicle as transport vehicle. Further, section 2(47) defines transport vehicle. According to said section transport vehicle means public service vehicle, a goods carrier, educational institutional bus and private service vehicle.
24 Vide S. O. 1248 ( E) 5th November'2004 , the Central Government has specified the category of the vehicles as transport vehicle and non transport vehicle. The said notification clearly shows that Tow trucks, Break down van and recovery vehicle were falling under category of non transport vehicle. It is therefore clear that recovery van is not a transport vehicle, therefore, it cannot be said that permit is required for recovery van.
25. Ld. Counsel for insurance company also contended that the recovery van was towing generator while it was meant for towing vehicles and hence there was breach of terms and conditions of policy and hence insurance company would not be liable to pay compensation. The contentions of counsel for insurance company are without any basis. The insurance company can avoid liability to pay compensation on establishing any of the condition laid down under section 149(2) of M. V. Act. The breach of every terms and condition of insurance policy will not absolve the insurance company to pay compensation. The insurance company failed to establish breach of any of the condition laid down under section 149(2) of M. V. Act.
26. Since Insurance company has admitted the policy as on date of accident therefore respondent No. 3/insurance company is liable to pay the compensation amount.
27. There being no evidence of violation of the conditions U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
Relief
28. While granting the relief to petitioners, I am also to award the interest @ 7.5% p.a. on the above said amount of Rs. 41,07,804/-, from the M.A.C. Petition No: 30A/13 Page No. 11/14 date of filing of petition till realization of the amount.
29. Hence the respondent No. 3 is hereby directed to pay a compensation of Rs. 41,07,804/- within one month. The respondent No. 3 shall also pay interest @ 7.5% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
30. For the aforesaid reasons, I pass the following award :-
AWARD In view of the above the petition is allowed. The respondent No. 3 is liable to pay the compensation of Rs. 41,07,804/-(inclusive of interim compensation). Hence the respondent No. 3 is directed to deposit a compensation of Rs. 41,07,804/-(inclusive of interim compensation) within one month. The respondent No. 3 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner. The claimants are entitled to the compensation in the following proportions along with corresponding interest :-
(a) Petitioners No.1 : Rs. 18,48,512/-along with
corresponding interest.
(b) Petitioners No.2 : Rs. 8,21,561/-along with
corresponding interest.
(c) Petitioners No. 3 : Rs. 8,21,561/-along with
corresponding interest.
(d) Petitioners No. 4 : Rs. 6,16,170/-along with
corresponding interest.
31. The award amount along with interest be deposited by insurance company with UCO Bank, Nodal Officer through Nodal Officer, Karkardooma Branch, within 30 days in the petitioners' accounts.
32. Upon the aforesaid amount being deposited, the UCO Bank is directed to keep the amount awarded to petitioners in fixed deposit in the following manner:-M.A.C. Petition No: 30A/13 Page No. 12/14 Petitioner No. 1
A sum of Rs. 2,00,000/-(each) be kept in FDR for the period of two years, four years, six years, eight years, ten years and twelve years respectively and rest of the amount shall be released to the petitioner No. 1 with immediate effect by transferring the same to her saving bank account.Petitioner No. 2 and 3
The amount awarded to the petitioner No. 2 and 3 be kept in FDR till their attaining the age of majority.Petitioner No. 4
50% of the amount be kept in FDR for the period of two years and rest of the amount be released to the petitioner No. 4.
33. The interest on the aforesaid FDR shall be paid monthly by automatic credit of interest in the savings account of petitioners.
34. Withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card of petitioner to facilitate identity.
35. No cheque book be issued to the petitioners without the permission of the court.
36. The original fixed deposit receipts shall be retained by the bank in the safe custody. However, the original pass book shall be given to the appellant along with photocopy of the FDRs.
37. The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the FDRs.
38. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.M.A.C. Petition No: 30A/13 Page No. 13/14
39. Half yearly statement of account be filed by the bank in the court.
40. On the request of the petitioner, the bank shall transfer the saving account to any other branch of UCO bank according to the convenience of the petitioners.
41. The petitioners shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to Nodal Officer, UCO Bank, Karkardooma Court, Delhi.
42. The insurance company shall deposit the awarded amount with interest up to the date of notice of deposit to the claimants with copy to their counsel. The insurance company will also send copy of notice to the counsel for petitioners at his office address mentioned in the vakalatnama.
43. List for reporting compliance on 15.05.2014. A copy of this order be given free of cost to the parties concerned.
Announced in the open ( Arvind Kumar )
court on 14.03.2014 Presiding Officer: MACT:
Karkardooma Court/Shahdara
Delhi.
M.A.C. Petition No: 30A/13 Page No. 14/14