Delhi District Court
Amrendra Prasad Yadav vs Suit No. 428/14 on 9 February, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.428/14
Date of Institution: 23.04.2012
IN THE MATTER OF:
1. Amrendra Prasad Yadav
S/o Shri Bhutai Yadav
2. Pinki Kumari
D/o Shri Amrendra Prasad Yadav
3. Raja Kumar
S/o Shri Amrendra Prasad Yadav
4. Vikas Kumar
S/o Shri Amrendra Prasad Yadav
R/o Village Bhariya Visanpur
PO Simari
Distt. Madhubani, Bihar.
Also at CN145, Gali No.9
Harijan Basti Jhuggi
East Sagar Pur
New Delhi 110045. ...Petitioners
Versus
Suit No. 428/14
Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 1 of 56
1. Union of India Ministry of Railway
Through General Manager
Northern Railway, Head Office
Baroda House
K. G. Marg
New Delhi 110001.
2. Ram Naresh Yadav
S/o Shri Shree Sita Ram Yadav
R/o Village & PO Shambhuar
PS & Distt. Madhubani
Bihar.
3. National Insurance Co. Ltd.
Through Manager, DROI
124, Connaught Circus
LevelIV, TowerII
Jeevan Bharti Building
New Delhi 110001. ...Respondents
Final Arguments heard : 16.01.2015 Award reserved for : 09.02.2015 Date of Award : 09.02.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident. Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 2 of 56
2. It is the case of the petitioners that on 22.05.2011, the deceased Sunaina Devi @ Maya Devi along with others was going to Raj Nagar from Village Bhariya Visanpur by offending vehicle No.BR32C7001 (Bolero). They were going in the freedom rally of Gram Pradhan (Mukhiya) for participating. It is averred that the respondent No.1/ driver was driving the offending vehicle rashly, negligently, without taking necessary precautions, without proper lookouts, neglecting the traffic rules and without taking care of the travelers. Even the travelers objected to drive the vehicle carefully but the driver did not pay any heed and kept driving continuously. It is averred that at about 12.30 p.m. when they reached Manav Rahit Railway Crossing near Jai Nagar Railway Station K.M. 23/6, Unman Gate No.17, Madhubani, Bihar, when the driver was crossing the track, suddenly train No.12570 (Express Jaynagar Garib Rath) came and hit the offending vehicle. As a result of the same the deceased and others sustained grievous/ fatal injuries. It is stated that the driver of the offending vehicle had expired in the accident. It is stated that in respect of the accident DD No.397/11 under Sections 279/337/338/304A IPC and 161 Railway Act was registered at PP Railway Jai Nagar, Madhubani, Bihar and FIR No.24/11 at PS Railway, Darbhanga, Bihar was registered.
3. It is averred that at the time of the accident, the deceased was 40 years of age, with very good health and physique and was not suffering from any disease or ailment. It is averred that the deceased was doing the work of tailoring and was earning Rs.8,000/ per month. It is averred that the Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 3 of 56 petitioners are the husband and daughter of the deceased and they are the only legal heirs of the deceased and there is no other legal heir of the deceased except the petitioners. It is averred that the petitioners also incurred about Rs.50,000/ on transportation and last rites of the deceased. It is averred that the principle of resipsaloquitur is attracted in the case because the accident took place due to the rash and negligent driving on the part of the driver of the offending vehicle and the negligence of the northern railway administration. It is averred that the respondent No.1 being the principal tort feasor is liable to compensate the petitioners. Respondent No.2 being the owner of the offending vehicle is liable to pay compensation to the petitioners and the respondent No.3 being the insurer of the offending vehicle is vicariously liable to pay compensation to the petitioners. It is prayed that an amount of Rs.20,00,000/ be awarded as compensation on account of unnatural, untimely and sudden death of the deceased in the accident in question, mental pain and agony, loss of love and affection, loss of company, loss of consortium, loss of income, loss of future income, expenses on medical treatment, loss on funeral expenses and other general and specific damages in favour of the petitioners and against the respondents.
4. Written statement was filed on behalf of the respondent No.1 making the preliminary submissions that on 22.05.2011 Train No.12570 Garib Rath was going to Jai Nagar from Anand Vihar Terminal. It is averred that the train arrived at Madhubani Railway Station (Bihar) at 12.15 hrs and left at 12.20 hrs Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 4 of 56 for Jai Nagar. It is averred that as the train was passing giving a long signal at unmanned level crossing No.17/C/EKC, at that very time a motor vehicle (Bolero) No.BR32C7001 entered from the right and collided with the engine as a result of which the motor vehicle was dragged and badly damaged and 20 persons died while 05 were seriously injured and one person suffered simple injury. It is averred that an enquiry was conducted and as per the conclusion the driver did not follow the cautions and also did not follow the instructions given under Section 131 of Motor Vehicle Act and he was liable for the accident. It is averred that yet as a special case the Ministry of Railways announced an exgratia of Rs.50,000/ each to the six injured and Rs. 2,00,000/ for the 20 expired persons. It is averred that the said amount was paid to the injured on 24.05.2011 and to the dependent of the deceased on 26.05.2011. Preliminary objections were taken that the petition is not maintainable against the respondent No.1 i.e. Northern Railway under the provisions of M. V. Act, 1988 and reliance is placed on Section 2 (28) of the M.V. Act 1988 and it is averred that a rail/train is not covered under the definition of motor vehicle in the Act and the petition is liable to be dismissed qua the respondent No.1. It is averred that the petition is also liable to be dismissed qua the respondent No.1 under the provisions of section 166 (2) of the M. V. Act since the accident occurred at Madhubani Bihar and the vehicle also had a Bihar Registration Number. It is averred that the petition is without any cause of action. It is averred that as per the petitioners the number of the alleged offending vehicle was BR32C4001 (Bolero) and as per the Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 5 of 56 allegations in the petition, the passengers warned the driver to be cautious and to drive properly but he overlooked all the suggestions, rules and regulations and was driving in most careless and reckless manner and therefore the accident of collision with the train occurred and as such the petition is liable to be dismissed qua the respondent No.1. It is averred that there is nonjoinder/ misjoinder of proper parties. The averments made in the claim petition were denied. It is averred that the alleged demand of Rs.20 lacs is totally arbitrary, illegal, unlawful, without any basis and without any merits. It is averred that the Railway administration is at no fault and the petitioners had admitted that it was purely the negligence of the driver and there was no negligence on the part of the northern railway.
5. Written statement was filed on behalf of the respondent No.3 insurance company taking the preliminary objections that the petitioners are not entitled to claim any compensation from the respondent No.3, as the deceased was traveling in a Bolero Jeep as a gratuitous passenger. It is averred that traveling in a commercial vehicle as a gratuitous passenger is violation of the terms and conditions of the insurance company. It is averred that as per the registration certificate of the Bolero Jeep i.e. BR32C7001, the seating capacity was of 8 persons and on the date of the alleged accident some 20 persons were traveling as gratuitous in the alleged offending vehicle at the time of the accident which was a sheer violation of the terms and conditions of the insurance policy. It is averred that this court has no Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 6 of 56 jurisdiction to entertain the present claim petition as the alleged accident occurred in Bihar and the deceased was the resident of Bihar and the present petitioners are also the residents of Bihar. It is averred that at the time of the alleged accident, there was violation of terms and conditions of the insurance policy hence the insurance company is not liable to pay any compensation on account of the alleged accident. It is averred that the policy of insurance is subject to the terms and conditions and the owner of the insured vehicle is/was required to intimate the insurer/ respondent company about any mis happening, but the insurance company was never intimated about the alleged accident. It is averred that the driver, if any of the alleged offending vehicle was not holding any valid/ effective driving license, permit and fitness certificate at the time of the accident and hence, the respondent company was not at all liable to pay any compensation to the petitioners on account of the alleged accident. It is averred that the insured vehicle was not driven by an authorized person according to the terms and conditions of the insurance policy. The averments made in the claim petition were denied. It is averred that the vehicle No. BR32C7001 Bolero Jeep, was insured with the respondent No.3 in the name of Shri Ram Naresh Yadav under policy No.170607/31/10/6100009789 valid from 30.11.2010 to 29.11.2011 subject to the terms, conditions, warrants, exceptions and limitations of the insurance policy. It is averred that the deceased was travelling as a gratuitous passenger with around 20 other passengers in the insured vehicle much beyond the capacity of the vehicle which is a commercial vehicle which amounted to violation of the terms and Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 7 of 56 conditions of the insurance policy.
6. Vide order dated 19.09.2013, from the pleadings of the parties the following issues were framed:
1.Whether Smt. Sunaina Devi @ Maya Devi sustained fatal injuries in the accident which occurred on 22.05.2011 at about 12.30 PM at Manav Rahit Railway crossing between Jai Nagar Railway Station K.M. 23/6, Unman Gate No.17, Madhubani, Bihar caused by rash and negligent driving of vehicle No.BR32C7001 owned by respondent no.2 and insured with respondent no.
3? OPP.
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief.
An application under Section 170 MV Act was filed on behalf of the respondent No.3 which was allowed vide order dated 3.5.2014.
7. On behalf of the petitioners, the petitioner No.1 appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He stated that the deceased was immediately shifted to the Government Hospital where she Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 8 of 56 was declared brought dead. He stated that the dead body of his wife was taken by him after postmortem. He stated that the deceased was unmarried at the time of accident. He stated that the accident took place due to the negligence of the Indian Railway. Copy of ration card and Voter I card is Ex.PW1/1 and Ex.PW1/2. PE was closed on 3.5.2014.
8. On behalf of the respondent No.1, Ms. Rani Vats working as Assistant Commercial Manager at Claims Office, NDCR Building, New Delhi appeared in the witness box as R1W1 and led her evidence by way of affidavit which is Ex.R1W1/A. She deposed that on 22.05.2011 Train No.12570 Garib Rath was going to Jai Nagar from Anand Vihar Terminal. She stated that the train arrived at Madhubani Railway Station (Bihar) at 12.15 hrs. and left at 1220 hrs for Jai Nagar. She stated that as the train was passing giving a long signal at unmanned level crossing No.17/C/EKC, at the very same time a Motor Vehicle (Bolero) No.BR32C7001 entered from the right and collided with the engine as a result of which the motor vehicle was dragged and badly damaged and 20 persons died while 05 were seriously injured and one person suffered simple injury. She stated that an enquiry was conducted and as per the conclusion the motor vehicle driver did not follow the cautions and also did not follow the instructions given under Section 131 of M. V. Act and he was liable for the accident. She stated that yet as a special case the Ministry of Railways announced an exgratia Rs.50,000/ each to six injured and Rs.2 lacs for the 20 expired persons. She stated that the said amount was paid to Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 9 of 56 the injured on 24.05.2011 and to the dependent of the deceased on 26.05.2011. She stated that the petition was not maintainable against Northern Railway under the provisions of M.V. Act, 1988 since the Railways was not covered under the M.V. Act. She stated that the petition was liable to be dismissed qua the respondent No.1 under the provisions of Section 166 (2) of the M.V. Act since the accident occurred at Madhubani Bihar and the vehicle also had a Bihar Registration Number. She stated that the petition was liable to be dismissed based upon nonjoinder/ misjoinder of proper parties. She stated that there was no cause of action and as per the petitioners the passengers had warned the driver to be cautious and to drive properly but he overlooked all the suggestions, rules and regulations and was driving in a most careless and reckless manner and therefore the accident of collision with the train occurred. She stated that the Railway administration was at no fault and the petitioners are not entitled for any compensation from the respondent No.1 i.e. Railways and the petitioners had admitted in the petition that the alleged accident was purely due to the negligence of the Bolero vehicle driver. Copy of authority letter is Ex.R1W1/1 and copy of inquiry report is Ex.R1W1/2 (colly).
9. On behalf of the respondent No.3, Shri Harinder Kumar, AO appeared in the witness box as R3W1 and led his evidence by way of affidavit which is Ex.R3W1/A. He stated that the vehicle No.BR32C7001 Bolero Jeep was insured with the respondent No.3 in the name of Shri Ram Naresh Yadav Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 10 of 56 under policy No.170607/31/10/6100009789 valid from 30.11.2010 to 29.11.2011 subject to the terms, conditions, warrants, exceptions and limitations of the insurance policy which is Ex.R3W1/1. He stated that as per the registration certificate of the Bolero Jeep i.e. BR32C7001, the seating capacity was of 8 persons and on the date of the alleged accident more than 20 persons were travelling in the alleged offending vehicle at the time of the accident. He stated that the vehicle was insured only for 8 persons including the driver. He stated that the driver and owner of the vehicle had violated the terms and conditions of the insurance policy. Statement of Shri Hari Kishore Yadav is Ex.R3W1/2 and copy of registration certificate of the Bolero Jeep is Ex.R3W1/3. He stated that as such the insurance company was not liable to pay any compensation to the petitioners. RE was closed on 4.7.2014.
10. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents No.1 and 3 and perused the record. The petitioners were also examined on 1.8.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
11. At the outset an objection was taken on behalf of the respondents that this Tribunal lacks the territorial jurisdiction to entertain the present petition. The respondent No.1 had taken the preliminary objection that the petition is liable to be dismissed qua the respondent No.1 under the provisions of section Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 11 of 56 166 (2) of the M. V. Act since the accident occurred at Madhubani Bihar and the vehicle also had a Bihar Registration Number. Similarly the respondent No. 3 had averred that this court has no jurisdiction to entertain the present claim petition as the alleged accident occurred in Bihar and the deceased was the resident of Bihar and the present petitioners are also the residents of Bihar. Arguments were also advanced at length on the issue of territorial jurisdiction. It is not in dispute in the present case that the accident had taken place at Madhubani, Bihar. Further the address of the respondent No.2 who is the owner of the Bolero is of Madhubani, Bihar. The respondent No.1 has been arrayed as the accident had taken place with a train but it is pertinent that the concerned Division of the Railways is not the Northern Division but Northeast Division which is not headquartered at Delhi. Besides the insurance policy in question was issued by the office of the respondent No.3 insurance company at Madhubani, Bihar. It was contended on behalf of the petitioners that the address of the petitioners/ claimants was within the jurisdiction of this Tribunal and hence this Tribunal has the jurisdiction to entertain the present petition. It is not in dispute that along with the claim petition no document was filed by the petitioners to show that they were residents of Delhi. During crossexamination by the learned counsel for the respondent No.1 PW1 stated that he was residing presently in Delhi. During crossexamination by the learned counsel for the respondent No.3 - insurance company PW1 admitted that he had not filed any residential proof of his living in Delhi. He stated that at the time of the accident, he was living in his native village at Distt. Madhubani in Bihar. Thus Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 12 of 56 PW1 stated that he was residing presently in Delhi though he admitted that he had not filed any residential proof of his living in Delhi. PW1 had stated that at the time of the accident, he was living in his native village at Distt. Madhubani in Bihar and in fact a voter identity card was produced showing the address of the petitioner No.1 of Madhubani. However at the time of arguments, a voter identity card was produced by the petitioner No.1 which was dated 20.2.2011 whereas the earlier voter card was of 1995. While the second voter identity card is dated 20.2.2011 i.e. prior to the accident and PW1 had stated that at the time of the accident he was living in his native village but it shows the address of East Sagarpur which would support the contention of the petitioners that at the time of filing of the petition the petitioner No.1 was residing at Delhi. As such this Tribunal would have the jurisdiction to entertain the present petition.
12. Another objection was taken on behalf of the respondent No.1 that the petition is not maintainable against the respondent No.1 i.e. Northern Railway under the provisions of M. V. Act, 1988 and reliance is placed on Section 2 (28) of the M.V. Act 1988 and it is averred that a rail/train is not covered under the definition of motor vehicle in the Act and the petition is liable to be dismissed qua the respondent No.1. Section 2 (28) of the MV Act provides as under:
"(28) 'motor vehicle' or 'vehicle' means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 13 of 56 thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding [twentyfive cubic centimeters];"
Looking at the definition of 'motor vehicle' in Section 2 (28) of the MV Act, a train would per se not be included in the definition and a claim in respect in respect of an accident involving a train would not lie before the Motor Accident Claims Tribunal and in fact separate Railway Claims Tribunals exist. However it is settled law that where in an accident along with a train a motor vehicle is also involved the MACT would have the jurisdiction to entertain the claim petition. In Union of India v. United India Insurance Co. (1997) 8 SCC 683 wherein applications for compensation had been filed either by the injured passengers or the dependent of the deceased passengers travelling in the Motor Vehicle both against the insurer of the Motor Vehicle as well as against the Railway Administration and one of the contentions which had been raised by the Railway Administration was whether a claim for compensation would at all be maintainable before the Tribunal against other persons or agencies which were held to be guilty of composite negligence or were joint tortfeasors, and if the same arose out of the use of the Motor Vehicle, on consideration of different provisions of the Motor Vehicles Act it was observed by the Hon'ble Supreme Court as under:
Suit No. 428/14
Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 14 of 56 "..we hold that the claim for compensation is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composites, negligence or are joint tort feasors, and if arising out of use of the motor vehicle. We hold that an award could be passed against the Railways if its negligence in relation to the same accident was also proved. We find that there has been a conflict of judicial opinion among the High Courts on the above aspect. The Andhra Pradesh High Court in Oriental Fire & General Insurance Co. Ltd vs. Union of India 1975 ACC 33 (AP) AIR 1975 AP 222 took the view that the claims before the Tribunal are restricted to those against the driver, owner and insurer of the motor vehicles and not against the railways. But on facts the decision is correct inasmuch as though it was an accident between a lorry and a train at a railway crossing, it was a case where the driver, cleaner etc, travelling in the lorry were injured and there was no claim against the lorry owner. The suit was filed in 1967 in the Civil Court and was decreed against the railway. A plea raised in the High Court that the Civil Court had no jurisdiction and only the Tribunal had jurisdiction was negatived. In our view, on facts the decision is correct because the plea was one of the exclusive negligence of the railway. In Union of India vs. Bhimeswara Reddy [1988 ACT 660 (AP)], though the driver and owner were parties, the ultimate finding was that the driver of the motor vehicle was not negligent and the sole negligence was that of the railway. The case then at that stage comes out of Section 110 (1). Here also the concluded on facts, in our view, is correct. But certain general broad observations made in these two cases that in no circumstances a claim can be tried by the Tribunal against the persons/agencies not referred to in the second part of Section 110 B, are not correct. Similarly the Gauhati High Court in Swarnalata Dutta vs. National Transport India (Pvt.) Ltd.s [AIR 1974 Gav.31], by the Orissa High Court in Orissa Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 15 of 56 RTC Ltd. vs. Umakanta Singh (AIR 1987 Orissa 110) and the Madras High Court in Union of India vs. Kailasan 1974 AC] 488 (Mad.) have held that no award can be passed against others except the owner\driver or insurer of the motor vehicle. On the other hand the Allahabad High Court in Union of India vs. Bhagwati Prasad AIR 1982 (All) 310, the majority in the Full Bench of the Punjab & Haryana High Court in Rajpal Singh vs. Union of India 1986 ACT 344 (P&H), the Gujarat High Court in Gujarat SRTC vs. Union of India (AIR 1988 Guj.13), the Kerala High Court in the Judgment under appeal and in United India Insurance Co.
vs. Premakumarar [1988 ACT 597 (Ker)] and the Rajasthan High Court in Union of India vs. Dr. Sewak Ram 1993 ACT 366 (Raj.) have taken the view that a claim lies before the Tribunal even against another joint tortfeasor connected with the same accident or against whom composite negligence is alleged.
We are of the opinion that the view taken by the Andhra Pradesh, by way of obiter and the views of the Gauhati, Orissa and Madras High Court is not correct and that the view taken by the Allahabad, Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts is the correct view.
Further, as pointed by the Gujarat High Court, claims where it is alleged that the driver\owner of the motor vehicle is solely responsible for the accident, claims on the basis of the composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal but in the latter type of case, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would them become one of exclusive negligence of railways. Again if the accident had arisen only Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 16 of 56 on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal."
Thus it was held that the claims on the basis of composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal. Further in Union of India v. Bhagwati Prasad (Dead) and Ors. in Appeal (Civil) 431446 of 1988 decided on 7.3.2002 while referring to the judgment in Union of India v. United India Insurance Co. it was observed:
"The Court also came to hold that the views expressed by Gauhati, Orissa, and Madras High Courts to the effect that no award can be passed against others except the owner/driver or insurer of the motor vehicle are not correct, and on the other hand the view taken by the Allahabad, Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts to the effect that the claim lies before the Tribunal even against another joint tortfeasor connected with the same accident or against whom composite negligence is alleged. We are in respectful agreement with the aforesaid conclusion of the Court in the aforesaid case. Having said so it was further held that if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of other parties/agencies then on that finding the claim would go out of Section 110 of the Act because the case Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 17 of 56 would become of exclusive negligence of Railways and again if the accident had arisen only on account of the negligence of persons other than the driver/ owner of the motor vehicle the claim would not be maintainable before the Tribunal. It is this observation of the Court in the aforesaid case which is strongly relied upon by Mrs. Indira Sawhney , the learned counsel appearing for the Railway Administration and it is this observation with which the two learned Judges hearing the appeal did not prima facie agree with for which the reference has been made to this larger Bench. The question that arises for consideration, therefore, is whether an application filed before a Claims Tribunal for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of Motor Vehicle and the claim is made both against the insurer, owner and driver of the motor vehicle as well as the other joint tortfeasors, if a finding on hearing is reached that it is solely the negligence of the joint tortfeasor and not the driver of the Motor Vehicle then would the Tribunal loose the jurisdiction to award compensation against the joint tortfeasor. It is not disputed, and as has been already held by this court in the case of Union of India vs. United India Insurance Co. Ltd.(supra) that a claim for compensation on account of the accident arising out of the use of a Motor Vehicle could be filed before a Tribunal constituted under the Motor Vehicles Act not only against the owner or insurer of the Motor Vehicle but also against another joint tortfeasor connected with the accident or against whom composite negligence is alleged. A combined reading of Section 110, 110A, which deal with the Constitution of one or more Motor Accidents Claims Tribunal and Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 18 of 56 application for compensation arising out of an accident, as specified in subsection (1) of Section 110 unequivocally indicates that Claims Tribunal would have the jurisdiction to entertain application for compensation both by the persons injured or legal representatives of the deceased when the accident arose out of the use of Motor Vehicle. The crucial expression conferring jurisdiction upon the Claims Tribunal constituted under the Motor Vehicles Act is the accident arising out of use of Motor Vehicle, and therefore, if there has been a collision between the Motor Vehicle and Railway train then all those persons injured or died could make application for compensation before the Claims Tribunal not only against the owner, driver or insurer of the Motor Vehicle but also against the Railway Administration. Once such an application is held to be maintainable and the Tribunal entertains such an application, if in course of enquiry the Tribunal comes to a finding that it is the other joint tortfeasor connected with the accident who was responsible and not the owner or driver of the Motor Vehicle then the Tribunal cannot be held to be denuded of its jurisdiction which it had initially. In other words, in such a case also the Motor Vehicle Claims Tribunal would be entitled to award compensation against the other joint tortfeasor, and in the case in hand, it would be fully justified to award compensation against the Railway Administration if ultimately it is held that it was the sole negligence on the part of the Railway Administration. To denude the Tribunal of its jurisdiction on a finding that the driver of the Motor Vehicle was not negligent, would cause undue hardship to every claimant and we see no justification to interpret the provisions of the Act in that manner. The jurisdiction of the Tribunal to Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 19 of 56 entertain application for compensation flows from the provisions contained in Section 110A read with sub section (1) of Section 110. Once the jurisdiction is invoked and is exercised the said jurisdiction cannot be divested of on any subsequent finding about the negligence of the tortfeasor concerned. It would be immaterial if the finding is arrived at that it is only other joint tortfeasor who was negligent in causing accident and not the driver of the Motor Vehicle. In our considered opinion the jurisdiction of the Tribunal to entertain application for claim of compensation in respect of an accident arising out of the use of Motor Vehicle depends essentially on the fact whether there had been any use of Motor Vehicle and once that is established the Tribunal's jurisdiction cannot be held to be ousted on a finding being arrived at at a later point of time that it is the negligence of the other joint tortfeasor and not the negligence of the Motor Vehicle in question. We are therefore, of the considered opinion that the conclusion of the Court in the case of Union of India vs. United India Insurance Co. Ltd. (supra) to the effect "It is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agenncies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of the exclusive negligence of Railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal" is not correct in law and to that extent the aforesaid decision must be held to have not been correctly decided.Suit No. 428/14
Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 20 of 56 In the instant case as well the accident involved Bolero which is undisputedly covered in the definition of a 'motor vehicle' and a train and the claim petition is based on the alleged composite negligence of both, hence this Tribunal would have the jurisdiction to entertain the present claim petition also against the Railways.
13. My findings on the specific issues are as under:Issue No. 1
14. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 21 of 56 offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 22 of 56
15. The case of the petitioners is that on 22.05.2011, the deceased Sunaina Devi @ Maya Devi along with others was going to Raj Nagar from Village Bhariya Visanpur by offending vehicle No.BR32C7001 (Bolero). They were going in the freedom rally of Gram Pradhan (Mukhiya) for participating. It was averred that the respondent No.1/ driver was driving the offending vehicle rashly, negligently, without taking necessary precautions, without proper lookouts, neglecting the traffic rules and without taking care of the travelers. Even the travelers objected to drive the vehicle carefully but the driver did not pay any heed and kept driving continuously. It was averred that at about 12.30 p.m. when they reached Manav Rahit Railway Crossing near Jai Nagar Railway Station K.M. 23/6, Unman Gate No.17, Madhubani, Bihar, when the driver was crossing the track, suddenly train No.12570 (Express Jaynagar Garib Rath) came and hit the offending vehicle. As a result of the same the deceased and others sustained grievous/ fatal injuries. It was stated that the driver of the offending vehicle had expired in the accident. It was stated that in respect of the accident DD No.397/11 under Sections 279/337/338/304A IPC and 161 Railway Act was registered at PP Railway Jai Nagar, Madhubani, Bihar and FIR No.24/11 at PS Railway, Darbhanga, Bihar was registered. The petitioner No.1 in paras 2 and 3 of his affidavit Ex.PW1/A had reiterated the mode and manner of the accident as stated in the claim petition. He stated that the deceased was immediately shifted to the Government Hospital where she was declared brought dead. He stated that the dead body of his wife was taken by him after postmortem. He stated that the accident took place due to Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 23 of 56 the negligence of the Indian Railway.
16. The petitioners had filed the certified copies of the criminal record consisting of copy of charge sheet; copy of tehrir, copy of DD and copies of documents in respect of the offending vehicle. As per the charge sheet FIR No.24/11 under sections 279/337/338/304A IPC, PS Rail Darbhanga was registered in respect of the accident on the statement of Hari Kishor Yadav wherein he had stated about the manner of the accident. As the driver of the offending Bolero had expired in the accident, the matter stood abated as per the charge sheet.
17. The driver of the offending Bolero had expired in the accident and the respondent No.2 who is the owner of the alleged offending vehicle had neither appeared to file the written statement nor to crossexamine PW1. However the respondent No.1 had filed the reply averring that on 22.05.2011 Train No.12570 Garib Rath was going to Jai Nagar from Anand Vihar Terminal. It was averred that the train arrived at Madhubani Railway Station (Bihar) at 12.15 hrs and left at 12.20 hrs for Jai Nagar. It was averred that as the train was passing giving a long signal at unmanned level crossing No.17/C/EKC, at that very time a motor vehicle (Bolero) No.BR32C7001 entered from the right and collided with the engine as a result of which the motor vehicle was dragged and badly damaged and 20 persons died while 05 were seriously injured and one person suffered simple injury. It was averred that an enquiry Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 24 of 56 was conducted and as per the conclusion the motorcycle driver did not follow the cautions and also did not follow the instructions given under Section 131 of Motor Vehicle Act and he was liable for the accident. It was averred that as per the petitioners the number of the alleged offending vehicle was BR32C4001 (Bolero) and as per the allegations in the petition, the passengers warned the driver to be cautious and to drive properly but he overlooked all the suggestions, rules and regulations and was driving in most careless and reckless manner and therefore the accident of collision with the train occurred and as such the petition is liable to be dismissed qua the respondent No.1. It was averred that the Railway administration is at no fault and the petitioners had admitted that it was purely the negligence of the driver and there was no negligence on the part of the northern railway. On behalf of the respondent No. 1 R1W1 appeared in the witness box and reiterated the averments made in the written statement filed on behalf of the respondent No.1. Copy of inquiry report is Ex.R1W1/2 (colly). Thus as per the case of the respondent No.1 the railway was not at fault in the accident. Even the petitioners had not specifically attributed any negligence on the part of the railways while narrating the facts in the petition though it was stated that the accident took place due to the rash and negligent driving on the part of the driver of the offending vehicle and the negligence of the northern railway administration and that the respondent No.1 being the principal tort feasor was liable to compensate the petitioners.
Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 25 of 56
18. During crossexamination by the learned counsel for the respondent No. 1 PW1 admitted that Bolero driver was driving carelessly, inspite of warning of the passengers he was driving wrongly. He admitted that the driver of the Bolero had not stopped at the railway crossing before crossing. He stated that he had not filed any claim against the insurance company of the Bolero. He admitted that there were many passengers in Bolero at the time of the accident. He stated that there were about 20 passengers in Bolero at the time of the accident. He stated that he had not filed any claim in the Railway Claim Tribunal for the death of his wife. He denied the suggestion that he had not filed the claim against the Railway because the Railway was not negligent in the present accident in which his wife died. He stated that the accident occurred because of the accident of the Bolero. During crossexamination by the learned counsel for the respondent No.3 - insurance company PW1 admitted that his wife was going in the Bolero No.BR32C7001 Mahindra Bolero to attend a rally of the village Mukhiya. He could not tell whether the Bolero was hired for the purpose of rally or not. He admitted that his wife had not taken any ticket or paid any amount to travel in the Bolero. He could not tell whether the Bolero was private or commercial one. He admitted that all the injured and dead persons belong to his village except the driver of the Bolero. He admitted that the accident had occurred on the Railway Track. He admitted that he was not the eye witness of the accident. He admitted that he was deposing about the facts of the accident on the basis of what the other persons told him. He denied the suggestion that the accident had not occurred Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 26 of 56 because of the rash and negligent driving of the driver of the Bolero or that the accident had taken place due to the negligence of the Railways as the fatak was not closed. Thus PW1 admitted that Bolero driver was driving carelessly, inspite of warning of the passengers he was driving wrongly. He admitted that the driver of the Bolero had not stopped at the railway crossing before crossing. As such even during crossexamination the negligence was attributed to the driver of the Bolero. PW1 stated that he had not filed any claim against the insurance company of the Bolero though in the present claim petition the insurance company of the Bolero has been arrayed as respondent No.3. He stated that he had not filed any claim in the Railway Claim Tribunal for the death of his wife though he denied the suggestion that he had not filed the claim against the Railway because the Railway was not negligent in the present accident in which his wife died.
19. During crossexamination by the learned counsel for the petitioners R1W1 denied the suggestion that she was deposing falsely to escape from liability which incurred from the terms and conditions of the insurance policy. She stated that she did not have any personal knowledge about the occurrence of the accident. She stated that on the basis of the inquiry conducted by DRM, she deposed the contents of para No.1 of her affidavit. During crossexamination by the learned counsel for the respondent No.3 R1W1 admitted that there was mention of a board cautioning the motor traffic or general public to cross the railway line after looking right and left Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 27 of 56 before crossing the line. She denied the suggestion that there was no board or sign to caution the general public to cross the unmanned railway crossing. Thus R1W1 stated that she did not have any personal knowledge about the occurrence of the accident. R1W1 admitted that there was mention of a board cautioning the motor traffic or general public to cross the railway line after looking right and left before crossing the line. Thus according to R1W1 a board was also put up cautioning the general public. As such there is nothing to show the negligence of the railways once it is clear that the driver of the Bolero had not stopped at the crossing. Moreover as per the case of the petitioners the Bolero had hit the engine of the train which implies that the train was very close when the driver of the Bolero tried to cross the railway crossing and it could not be that the train had come suddenly and hit the Bolero. Even otherwise a duty is cast on the drivers while crossing unmanned crossings to exercise due care and caution. PW1 stated that the accident occurred because of the accident (ought to be negligence) of the Bolero and as such even from the testimony of PW1 the accident had taken place due to the negligence of the driver of the Bolero who had also expired in the accident. PW1 had admitted that he was not the eye witness of the accident and that he was deposing about the facts of the accident on the basis of what the other persons told him. But even the charge sheet was prepared against the driver of the Bolero who had expired. In fact PW1 also denied the suggestion that the accident had not occurred because of the rash and negligent driving of the driver of the Bolero or that the accident had taken place due to the negligence Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 28 of 56 of the Railways as the fatak was not closed.
20. It was argued on behalf of the respondent No.3 that there were more passengers in the Bolero than its seating capacity. The respondent No.3 in support of its case had examined R3W1 who deposed that as per the registration certificate of the Bolero Jeep i.e. BR32C7001, the seating capacity was of 8 persons and on the date of the alleged accident more than 20 persons were travelling in the alleged offending vehicle at the time of the accident. He stated that the vehicle was insured only for 8 persons including the driver. He stated that the driver and owner of the vehicle had violated the terms and conditions of the insurance policy. Statement of Shri Hari Kishore Yadav is Ex.R3W1/2 and copy of registration certificate of the Bolero Jeep is Ex.R3W1/3. He stated that as such the insurance company was not liable to pay any compensation to the petitioners. During crossexamination by the learned counsel for the petitioners R3W1 denied the suggestion that he was deposing falsely to escape from liability which incurred from the terms and conditions of the insurance policy. He did not have any personal knowledge about the occurrence of the accident. Thus R3W1 did not have any personal knowledge about the occurrence of the accident. However PW1 had admitted that there were many passengers in Bolero at the time of the accident and stated that there were about 20 passengers in Bolero at the time of the accident. Even in the FIR it was stated that there were many persons in the Bolero. PW1 admitted that his wife was going in the Bolero No.BR32C7001 Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 29 of 56 Mahindra Bolero to attend a rally of the village Mukhiya which was also stated in the FIR. A perusal of the RC of the Bolero which is on record shows that its seating capacity was 7 and the driver and as per the evidence there were about 20 passengers in the Bolero at the time of the accident. However on that basis it cannot be said that any contributory negligence could be attributed to the deceased.
21. It was also argued on behalf of the respondent No.3 that the deceased was travelling in the Bolero as a gratuitous passenger whereas it was a commercial vehicle. PW1 could not tell whether the Bolero was hired for the purpose of rally or not though he admitted that his wife had not taken any ticket or paid any amount to travel in the Bolero. He could not tell whether the Bolero was private or commercial one. He admitted that all the injured and dead persons belong to his village except the driver of the Bolero. The same is also evident from the FIR that all the persons were the family members or village persons of the person who was elected as the village Mukhiya. However there is nothing to show whether the Bolero was hired or not. It is not necessary that the deceased ought to have herself purchased a ticket and it could be possible that the Bolero had been hired by some other person but there is no evidence to show that the deceased was a gratuitous passenger or not.
Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 30 of 56
22. In view of the above discussion it cannot be said that there was any negligence on the part of the respondent No.1. The respondent No.2 who is the owner of the offending vehicle has not adduced any evidence to dispute the version put forth by the petitioners or in the criminal record. The criminal record has been placed on record which shows that the driver of the Bolero who had also expired had been charge sheeted for the offence under Sections 279/337/338/304A IPC though the matter stood abated. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondent No.2 has also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.BR32C7001. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the driver of the Bolero who had expired has been prima facie proved.
23. It was stated that due to the accident the deceased sustained grievous/ fatal injuries. The deceased was immediately taken to Government Hospital where she was declared brought dead. The post mortem report of the deceased is on record as per which the death was due to shock and hemorrhage caused by the injuries mentioned. Thus it stands established that the deceased had sustained injuries in the alleged accident due to which she Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 31 of 56 died. This issue is decided accordingly.
Issue No.2
24. The petitioners are the legal representatives of the deceased being the husband and children of the deceased. PW1 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the respondent No.1 PW1 stated that he had filed Ration Card for the proof of his relationship with his wife. He admitted that in his affidavit it was inadvertently written that his wife was unmarried at the time of the accident. In fact, he was married to his wife in 1984. During crossexamination by the learned counsel for the respondent No.3 - insurance company PW1 stated that at the time of the accident, he was doing labour work in his village. He admitted that he owns 1 bigha of agricultural land in his village. He admitted that he was running all the house hold expenses from his own income. He stated that he had 2 sons and 2 daughters. Out of them only one daughter was married and all other sons and daughter were residing with him. He denied that it had been wrongly stated in the claim petition that the only LRs of his wife were himself and his daughter. He stated that his one son is aged about 12 years and the other is 18 years old. Thus PW1 stated that he had filed Ration Card for the proof of his relationship with his wife. PW1 stated that at the time of the accident, he was doing labour work in his village and he admitted that he owns 1 bigha of agricultural land in his village and that Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 32 of 56 he was running all the house hold expenses from his own income. During examination by the Tribunal the petitioner No.1 Amrendra Prasad stated that he is 50 years old at present. He stated that he does labour work and earns Rs.4,000/ to Rs.5,000/ per month. He stated that his wife was residing at Bihar at the time of the accident and his daughter was also at Bihar, though he was in Delhi. However as the petitioner No.1 had his own source of income he cannot be regarded as dependent on the deceased. PW1 stated that he had 2 sons and 2 daughters. Out of them only one daughter was married and all other sons and daughter were residing with him. He denied that it had been wrongly stated in the claim petition that the only LRs of his wife were himself and his daughter. However he himself stated that his one son was aged about 12 years. As per the copy of the ration card which has been placed on record the petitioner No.2 was stated to be 16 years (though in the evidence by way of affidavit her age was stated to be 10 years) and the two sons were aged about 14 years and 12 years. During examination by the Tribunal the petitioner No.2 Ms. Pinki stated that she was 18 years old at present. She stated that at the time of the accident she was studying in class 11th. As such petitioner No.2 would be regarded as dependent on the deceased as also the two sons of the deceased i.e. petitioners No.3 and 4 Raja Kumar and Vikas Kumar who have been subsequently named petitioners in the present case.
Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 33 of 56
25. The petitioners have claimed loss of dependency on the basis that the deceased was 40 years of age, with very good health and physique and was not suffering from any disease or ailment. It was averred that the deceased was doing the work of tailoring and was earning Rs.8,000/ per month. PW1 in para 4 of his affidavit had also deposed to that effect. However the petitioners have not placed on record any document to show what the deceased was doing or how much amount she was earning. During crossexamination by the learned counsel for the respondent No.1 PW1 admitted that he had not filed any proof of income of Rs.8,000/ of his deceased wife. He denied the suggestion that his wife was not earning Rs.8,000/ p.m. He could not tell the breakup of the calculation of Rs.20 lacs claim which he had filed before the Court. During crossexamination by the learned counsel for the respondent No.3 - insurance company PW1 admitted that his wife was illiterate. He admitted that he had not filed any proof for the tailoring work which his wife used to do in the village. He denied the suggestion that his wife was not doing tailoring work and was not earning any money at the time of the accident. Thus PW1 admitted that he had not filed any proof of income of Rs.8,000/ of his deceased wife. PW1 admitted that his wife was illiterate and during examination by the Tribunal the petitioner No.2 had also stated that her mother was illiterate. PW1 admitted that he had not filed any proof for the tailoring work which his wife used to do in the village. As such the petitioners had not filed any proof of the income of Rs.8,000/ of the deceased nor any proof for the tailoring work which the deceased used to do in the village. In the absence Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 34 of 56 of any documentary proof, the income of the deceased would be taken as per the minimum wages prevailing in Bihar (the accident had taken place in Bihar and it was stated that the deceased was resident of Bihar at the time of the accident) at the time of the accident i.e. on 22.5.2011 for an unskilled worker which were Rs.125/ per day i.e. Rs.3,250/ per month. Accordingly the income of the deceased for the computation of loss of dependency would be taken as Rs.3,250/ p.m.
26. It is the case of the petitioners that the deceased at the time of the accident was aged 40 years and it was so stated in the claim petition and PW1 had also deposed to that effect. During crossexamination by the learned counsel for the respondent No.3 - insurance company PW1 stated that he had filed only ration card as a proof of the age of his wife. He admitted that he had not filed voter ID card of his wife but he had the Voter Card with him in the village and he could produce the same, if required. Thus the petitioners have placed on record only the ration card and no other document to show the age of the deceased. As per the post mortem report the age of the deceased was 40 years. However as per the ration card the age of the deceased was 43 years and as such the age of the deceased is taken as 43 years on the date of the accident. As per the judgment of the Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and others 2009 ACJ 1298 (SC) case the multiplier of 14 applies for calculating the loss of income where the age of the deceased is 41 to 45 years. As such the multiplier Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 35 of 56 applicable in the instant case would be of 14.
27. As observed above the dependents on the deceased were her daughter and 2 sons. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependents was 3 there would be 1/3rd deduction towards personal and living expenses of the deceased. As regards the future prospects in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. MAC. APP.189/2014 decided on 12.1.2015 which has been further relied on in Shriram General Insurance Co. Ltd. v. Preeti & Ors. MAC. APP. 1145/2013 decided on 28.1.2015 and U.P. State Road Transport Corporation v. Shahida & Ors. MAC. APP. 325/2013 decided on 28.1.2015 it was held that the judgment in Reshma Kumari & Ors. v. Madan Mohan & Anr. (2013) 9 SCC 65 shall be taken as a binding precedent. It was observed in paras 9 to 21 of the judgment in Lalta Devi as under: "9. The learned counsel for the Claimants has referred to a three Judge Bench decision of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future prospects have to be added in all cases where a person is getting fixed wages or is a seasonal employee or is a student.
10.It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extended in all cases.
Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 36 of 56 On the other hand, the learned counsel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under: "38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], this Court has noted the earlier decisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Sarla Dixit[(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], SCC p. 134) "24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary‟ should be read as actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 37 of 56 the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
39.The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was selfemployed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
12.The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to contend that in case of divergence of opinion in judgments of benches of coequal Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 38 of 56 strength, earlier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon'ble Judges wanted an authoritative pronouncement from a Larger Bench on the question of applicability of the multiplier and whether the inflation was built in the multiplier. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of multiplier. It further laid down that addition towards future prospects to the extent of 50% of the actual salary shall be made towards future prospects when the deceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 4050 years. No addition towards future prospects shall be made where the deceased was selfemployed or was getting a fixed salary without any provision of annual increment.
14.Of course, three Judge Bench of the Supreme Court in its later judgment in Rajesh relying on Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be addition of 30% and 50%, depending upon the age of the deceased, towards future prospects even in the case of self employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
15.The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under: Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 39 of 56 "14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044] , a twoJudge Bench of this Court while considering the following questions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para
10) "(1) Whether the multiplier specified in the Second Schedule appended to the Act should be scrupulously applied in all the cases?
(2)Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards determination of future prospects?"
15.Answering the above reference a threeJudge Bench of this Court in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p. 88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121:
(2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was selfemployed the actual income at the time of death should be taken into account for determining the loss of income unless there are extraordinary and exceptional circumstances. Though the expression "exceptional and extraordinary circumstances" is not capable of any precise definition, in Shakti Devi v. New India Insurance Co. Ltd.
[(2010) 14 SCC 575 : (2012) 1 SCC (Civ) 766 : (2011) 3 SCC (Cri) 848] there is a practical application of the aforesaid principle. The near certainty of the regular employment of the deceased in a government department following the retirement of his father was held to be a valid Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 40 of 56 ground to compute the loss of income by taking into account the possible future earnings. The said loss of income, accordingly, was quantified at double the amount that the deceased was earning at the time of his death."
16.Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another latest judgment in National Insurance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under: "Be it noted, though the decision in Reshma (supra) was rendered at earlier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there should be an authoritative pronouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."
17.Now, the question is which of the judgments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18.In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under: "12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 41 of 56 legal position in the following terms:
(1)The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2)[Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 332005.] A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated 1712005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 42 of 56 proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19.Similarly, in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as under: "27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are constrained to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a coordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regarding the interpretation of Section 2(c) of the Act and its application to the petition schedule property, judicial discipline and practice required them to refer the issue to a larger Bench. The learned Judges were not right in overruling the statement of the law by a coordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the wellaccepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20.In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the decision of the Coordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Coordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under: Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 43 of 56 "9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] . It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The decision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."
21.This Court in New India Assurance Co. Ltd. v. Harpal Singh & Ors., MAC APP.138/2011, decided on 06.09.2013, went into this question and held that in view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors. (surpa) shall be taken as a binding precedent."
In the instant case no evidence has been led to show future prospects of the deceased and there is even nothing to show that the deceased had a permanent job. As such the actual income at the time of death without any addition to income for future prospects has to be taken and the petitioners would not be entitled to any addition to the income towards future prospects. Accordingly the loss of dependency as per the monthly income i.e. Rs.3,250/ is calculated as under :
Suit No. 428/14
Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 44 of 56 Rs.3,250/ - Rs.1,083/ (approximately (i.e. 1/3rd towards personal expenses) = Rs.2,167/ X 12 (annually) X 14 (multiplier) = Rs.3,64,056/ rounded off to Rs.3,64,000/.
28. It was averred that the petitioners incurred about Rs.50,000/ on transportation and last rites of the deceased. During crossexamination by the learned counsel for the respondent No.1 PW1 admitted that he had not filed any proof of Rs.50,000/ spent by him on transportation and last rites of his deceased wife. There is also nothing on record to show the same.
The total compensation is determined as under:
Loss of dependency : Rs.3,64,000/
Love and affection : Rs.1,00,000/
Loss of Consortium : Rs.1,00,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.25,000/
Total : Rs.5,99,000/
Thus, the total compensation would amount to Rs.5,99,000/.
29. It was argued on behalf of the respondents No.1 and 3 that the petitioners had already received compensation in respect of the death of the deceased. In fact the respondent No.1 in its written statement had stated that as a special case the Ministry of Railways announced an exgratia of Rs. Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 45 of 56 50,000/ each to the six injured and Rs.2,00,000/ for the 20 expired persons. It was averred that the said amount was paid to the injured on 24.05.2011 and to the dependent of the deceased on 26.05.2011. During crossexamination by the learned counsel for the respondent No.1 PW1 admitted that the Railway Department paid Rs.50,000/ to the injured persons on 24.05.2011 and Rs.2 lacs to the LRs of the deceased persons on 26.05.2011 on humanitarian ground. He admitted that he had received Rs.2 lacs from the Railway Department for the death of his wife. During crossexamination by the learned counsel for the respondent No.3 - insurance company PW1 admitted that the Bihar Government had also given him Rs.1.5 lacs for the death of his wife besides Rs.2 lacs given by the Railway. Thus PW1 admitted that he had received Rs.2 lacs from the Railway Department for the death of his wife. He admitted that the Bihar Government had also given him Rs.1.5 lacs for the death of his wife besides Rs.2 lacs given by the Railway. As such the petitioners had already received Rs.3.5 lacs on account of the death of the deceased in the accident. In Mrs. Helen C. Rebello v. Maharashtra State Road Transport (1999) 1 SCC 90 the Hon'ble Supreme Court while considering the question whether the amount receivable under life insurance policy was deductible from the amount awarded as compensation under the Act of 1939 observed:
"So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 46 of 56 the claimant of the future pecuniary benefits that would have accrued to him but for the death with the 'pecuniary advantage which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, corelating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle. would not be covered under the Motor Vehicles Act. Thus the application of general principle under the common law of loss and gain for the computation of compensation under this Act must corelate to this type of injury or deaths, viz, accidental. If the words "pecuniary advantage' from whatever source are to be interpreted to mean any form of death under this Act it would dilute all possible benefits conferred on the claimant and would be contrary of the spirit of the law. If the 'pecuniary advantage' resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable, shares, bank accounts, case and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 47 of 56 considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accident death. Thus, under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death. The constitution of the Motor Accidents Claims Tribunal itself under Section 110 is, as the Section states; "....for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, ....."
Thus, it would not include that which claimant receives on account other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the "pecuniary advantage", liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our legislature has taken not of such contingency, through the proviso of Section 95. Under it the liability of the insurer is excluded in respect of injury or death, arising out of, in the course of employment of an employee.
This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 48 of 56 employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution."
Thus it was observed that the compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. It was observed that if there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle would not be covered under the Motor Vehicles Act. It was held that the application of general principle under the common law of loss and gain for the computation of compensation under this Act must corelate to the type of injury or deaths, viz, accidental. While reference was made in the judgment to even death by accident, through train, it is pertinent that the reference therein was to death by accident not involving motor vehicle which could not be covered under the MV Act. As such accidental death involving motor vehicle would be covered by the Act and the pecuniary advantage accruing on account of the same would be liable to be deducted from the compensation payable under the Act while that would not be so in case of pecuniary advantage accruing in the case of death not involving a motor vehicle. This is further clear from the observation that under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death and would not Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 49 of 56 include that which claimant receives on account of other form of deaths, which he would have received even apart from accidental death. It was observed that any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the "pecuniary advantage", liable for deduction. However in the instant case though the ex gratia payment by the Railway and the Bihar Government was on account of the death of the deceased in an accident in which a train was also involved, but it is pertinent that it has been held above that in respect of the accident in question this Tribunal would have the jurisdiction to deal with the matter since it also involved a motor vehicle and as such the death of the deceased in the present case did not arise out of an accident which was not covered by the MV Act. Once the petitioners are entitled to claim compensation in respect of the death of the deceased from the MACT as the accident also involved a motor vehicle, clearly any compensation received by them only on account of the death of the deceased in the said accident from any other source would be liable to be deducted from the compensation payable under the Act as it would not have been receivable by them but for the death in the accident involving a motor vehicle and as such would amount to pecuniary advantage arising out of the accidental death. The reason for the same is also given in the judgment that the claimant for the happening of the same incidence i.e. the accident may not gain twice from two sources. In these circumstances the amount of Rs.3,50,000/ received by the petitioners as ex gratia payment would be liable to be deducted from the Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 50 of 56 compensation payable under the Act. As such the total compensation awarded in favour of the petitioners in the present case would amount to Rs.2,49,000/ after deducting the amount of Rs.3,50,000/.
RELIEF
30. The petitioners are awarded a sum of Rs.2,49,000/ (Rs.Two Lacs Forty Nine Thousand only) with interest at the rate of 9% per annum from the date of filing the claim petition till its realization, including, interim award, if any already passed in favour of the petitioners and against the respondents. The petitioner No.2 Pinki Kumari would be entitled to 40% share in the awarded amount and the petitioners No.3 and 4 Raja Kumar and Vikas Kumar would be entitled to 30% share each in the awarded amount. The petitioner No.1 would not be entitled to any share in the awarded amount as he was not dependent on the deceased and the amount of Rs.3,50,000/ has already been received by him. The amount awarded in favour of the petitioners No.2, 3 and 4 be kept in FDR till they attain the age of majority and for three years thereafter. The respondent No.3 is directed to deposit the award amount directly in the bank account of the claimants in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 51 of 56 APPORTIONMENT OF LIABILITY:
31. The respondent No.1 is the Railway which has not been found to be liable in any manner. The respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. It was sought to be contended on behalf of the respondent No.3 that as per the registration certificate of the Bolero Jeep i.e. BR32C7001, the seating capacity was of 8 persons and on the date of the alleged accident more than 20 persons were travelling in the alleged offending vehicle at the time of the accident and that the vehicle was insured only for 8 persons including the driver. R3W1 stated that the driver and owner of the vehicle had violated the terms and conditions of the insurance policy. As such it was contended that the owner had committed fundamental breach of the terms and condition of the policy and the insurance company was not liable to pay the compensation amount. However that is not one of the defences which is available to the insurance company under Section 149 of the MV Act. The issue came up before the Hon'ble High Court of Delhi and in a recent judgment in Geeta & Ors. v. Dinesh Chander & Ors. MAC. APP.23/2013 decided on 13th January, 2015 it was held:
19. Now, turning to the plea raised on behalf of Respondent no. 3 Insurance Company that there was a breach of the terms and conditions of the insurance policy as there were 14 passengers being carried in the offending vehicle as against its capacity of
7. Section 149(2) of the Motor Vehicles Act, 1988 (the M.V.Act) Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 52 of 56 entitles an insurer to avoid its liability on certain conditions only.
The relevant conditions regarding permit are given in Section 149(2)(a)(i)(c) of the M.V. Act, which are extracted hereunder: "149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks (1)..............................
(2) No sum shall be payable by an insurer under subsection (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle
(a) .............
(b) .........
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or..........."
20. In the instant case, it is not the case of Respondent Insurance Company that the vehicle was being used for a purpose not allowed by permit. There is hence, no violation of the terms and conditions of the policy. In case of overloading of a transport vehicle, the Supreme Court in National Insurance Company Limited v. Anjana Shyam & Ors., (2007) 7 SCC 445, held that where persons more than the permitted capacity are Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 53 of 56 carried by the driver/owner of the vehicle, the liability of the Insurance Company will be limited only to the number of passengers which the owner was authorised to carry and the said compensation can be apportioned amongst all the Claimants and the balance compensation shall be paid by the owner.
21. In the instant case, it is admitted by the learned counsel for Respondent no.3 that there was only one claim arising out of the accident. In the circumstances, Respondent no.3 is under an obligation to satisfy the award."
In the present case there is nothing to show that any other claim petition has been filed arising out of the accident and as such the respondent No.3 would be under an obligation to satisfy the award.
32. It was also contended on behalf of the respondent No.3 that the deceased was a gratuitous passenger in the offending vehicle but there is nothing to establish the same. As such no ground has been shown which would absolve the insurance company of its liability to pay the compensation amount. Thus the respondents No.2 and 3 are held jointly and severally liable. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondent No.2. The respondent No.3 being the insurer is directed to deposit the award amount in the bank account of the claimants in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award with interest at the rate of 9% from the date of filing of the claim petition till its realization failing which it is liable to pay interest at the rate of 12% per Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 54 of 56 annum for the period of delay.
33. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. The insurer shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 11.5.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi. Suit No. 428/14 Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 55 of 56 File be consigned to record room.
Announced in open court
on this 9th day of February, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 428/14
Amreindra Prasad Yadav & Ors. v Union of India & Ors. Page no. 56 of 56