Delhi District Court
Yashpal Singh Lomas vs . Vinod Yadav on 13 January, 2012
Yashpal Singh Lomas Vs. Vinod Yadav
1
IN THE COURT OF SH. SANJIV JAIN : PRESIDING OFFICER : MACT 02
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In Suit No. : 452/10
1. Sh. Yashpal Singh Lomas
S/o Late Sh. Prem Chand
2. Smt. Veer Vati
W/o Sh. Yashpal Singh Lomas
Both Residents of
Q. No. 601, TypeII
SectorII, Sadiq Nagar,
New Delhi - 110 049
In Suit No. : 87/10
1. Smt. Anguri Devi
W/o Late Sh. Horam
R/o 1852, Basti Ravi Dass,
Kotla Mubarakpur, New Delhi.
In Suit No. : 453/10
1. Sh. Ravi Kumar
S/o Late Tara Chand
R/o 1855, Basti Ravi Dass,
Kotla Mubarakpur, New Delhi. ...... Petitioners
Versus
1. Sh. Vinod Yadav
S/o Sh. Moti Lal Yadav
R/o Jhuggi No. D272, Railway Colony,
Shakur Basti, Rani Bagh,
Delhi
Suit No. : 1/34
Yashpal Singh Lomas Vs. Vinod Yadav
2
Also at :
Village Ghogera, P.O. Bamkipur,
P.S. Ghogera, Distt. Sultanpur, U.P.
2. Sh. Bal Kishan Malik
S/o Sh. Gopi Chand
R/o WZ2170, Rani Bagh, New Delhi
3. Future Generali India Insurance Co. Ltd.
M10, Deep Sons Building,
South Ext. PartII
New Delhi.
......Respondents
Date of Institution : 06.10.2009 (Petition No. 452/10)
29.07.2009 (Petition No. 87/10)
29.07.2009 (Petition No. 453/10)
Date of reserving of judgment/order : 22.12.2011
Date of pronouncement : 13.01.2012
J U D G M E N T :
1. Vide this common judgment, I shall dispose off the above stated petitions filed under Section 166 and 140 of Motor Vehicle Act, 1988, as amended upto date (herein after referred to as Act), as the same have emerged out of Suit No. : 2/34 Yashpal Singh Lomas Vs. Vinod Yadav 3 the road accident which occurred on 15.06.09 at about 10.30 PM in front of Eros showroom, Ring Road, NDSE PartI, Kotla Mubarakpur, Delhi whereby the petitioners have claimed compensation for the injuries on the person of Ravi Kumar and untimely death of Sh. Madan Singh and Labh Singh.
2. Adumbrated in brief, the facts leading to the above stated petitions are that on 15.06.09 at about 10.30 PM, the deceased Madan Singh was going on a motorcycle DL 3S Q 9718 to his house at Kotla Mubarakpur from South Extension. The deceased Labh Singh and the injured Ravi Kumar were the pillion riders. When they reached in front of Eros showroom Ring Road, NDSE PartI, a truck bearing no. DL 1G B 4454 came at a high speed being driven in a rash and negligent manner and hit their motorcycle from behind. As a result of the forceful impact, both the deceased and the injured fell down on the road and sustained injuries. They were removed to the hospital where Madan Singh and Labh Singh succumbed to the injuries. Ravi Kumar sustained multiple abrasions and head injuries. A case vide FIR 156/09 was registered at the police station Kotla Mubarakpur. The deceased Madan Singh was 29 years of age, unmarried and earning Rs. 8,000/ p.m. It was stated that there is a longevity of life in the family of the deceased Madan Singh. Had he not died in the accident he would have lived upto the age of 90 years. The deceased Labh Singh was 21 years of age and unmarried. Suit No. : 3/34
Yashpal Singh Lomas Vs. Vinod Yadav 4 He had passed his intermediate examination and was planning to get admission in a graduation course. He was working as supervisor and getting a salary of Rs.8000/ p.m. Besides he was giving tuitions and earning Rs. 4000/ p.m. The injured Ravi Kumar was 21 years of age. He had been working in a readymade garment shop on a salary of Rs. 4500/ p.m. It was stated that the respondent no. 1 was driving the offending truck and it was owned by respondent no.2 and insured with respondent no.3.
3. Notice of the petitions was given to the respondents.
4. In the written statement filed by respondent no.1 and 2 it was stated that the respondent no.1 had a valid and effective driving license and the offending vehicle was insured with respondent no.3. It was stated that it is a case of triple riding on the motorcycle which itself shows the negligence and rashness of the motorcycle riders. It was alleged that the respondent no.1 was falsely involved in this case as no accident took place with the offending truck. The respondent no.3 also filed its written statement denying its liability. However, it admitted that the offending vehicle was insured with it vide policy no. V 0067587 in the name of respondent no.2 for the period from 08.08.08 to 07.08.09.
Suit No. : 4/34
Yashpal Singh Lomas Vs. Vinod Yadav 5
5. Vide order dated 23.04.10 all the three petitions were consolidated and the case titled "Yashpal Singh Vs. Vinod Yadav" was taken as a lead case.
6. The parties were thereafter, called upon to substantiate their case by leading their evidence.
7. The petitioners tendered their affidavits and the documents Ex.PW3/A1 and Ex.PW3/1 to 3 and mark "E", (Yashpal Singh) in petition no. 452/10 Ex.PW2/A and Ex.PW2/12 (Anguri Devi) in petition no. 87/10 and Ex.PW1/A and Ex.PW1/1 to Ex.PW1/16 (Ravi Kumar) in petition no. 453/10 wherein they reiterated the facts as stated in the petitions. The petitioner Ravi Kumar stated that on 15.06.09 at about 10.30 PM he was going on a motorcycle DL 3SQ 9718 as a pillion rider from his house at Kotla Mubarakpur. Madan Singh was driving the motorcycle. When they reached in front of Eros Showroom ring road, NDSE partI, a truck no. DL 1G B 4454 being driven at a fast speed in a rash and negligent manner came from behind and hit their motorcycle. He stated that due to the forceful impact, they fell down and sustained injuries. They were removed to the hospital and a case vide FIR 156/09 at police station Kotla Mubarak Pur was registered. He placed on record his discharge summary Ex.PW1/1, OPD card and the bills. He stated that he was discharged on the next day of accident. He denied that the accident took place due to the negligence of the deceased Madan Singh. Suit No. : 5/34
Yashpal Singh Lomas Vs. Vinod Yadav 6
8. The respondents also examined Ms. Rakhi Anand, Dy. Manager (Legal) as R3W1 and Sh. V Narayan Singh, Dealing Asstt. State Transport Authority, Rajpur road as R3W2. R3W1 stated that the driving license of the respondent no.1 was got verified from the Licensing Authority, Allahabad and as per the report it was found fake. She proved the report Ex.R3W1/E (colly.). She stated that there was no valid permit in respect of the offending vehicle as on the date of accident. She also placed on record a permit verification report Ex.R3W1/F and stated that the owner/driver was given notice U/o 12 R 8 CPC Ex.R3W1/A but despite that they did not respond nor submitted the valid license or the permit. R3W2 brought the record as per which the permit in respect to the offending vehicle was valid for a period from 25.01.2000 to 24.01.05 and thereafter it was renewed from 18.05.11 to 24.01.15. He stated that the permit was not valid as on date of accident. He proved the certificate Ex.R3W2/A.
9. I have heard the arguments advanced by Ld. counsel Ms. Meena Gupta for the petitioners Ravi Kumar and Anguri Devi, Sh. Rajeev Budhiraja for the petitioner Yashpal and ors., Sh. Vishwa Ranjan Kumar for respondent no.1 and 2 and Sh. Girish Khanna for the insurance company/respondent no.3 and perused the record.
Suit No. : 6/34
Yashpal Singh Lomas Vs. Vinod Yadav 7
10. Ld. counsel for the petitioners in their contentions reiterated the facts as stated in the petition and the affidavit. They stated that the truck had hit the motorcycle from behind and the respondent no.1 was solely responsible for the accident as he was driving the truck in a manner so rash and negligent. Ld. counsel for the insurance company stated that the respondent no.1 was driving the truck using the fake driving license and no permit was existing in respect of the offending vehicle on the day of accident. Ld. counsel for respondent no.1 and 2 filed his written submissions stating that the respondent no.1 had an effective and valid driving license which was valid from 11.04.09 to 10.04.12. Ld. counsel further stated that as per the FIR three persons were riding on the motorcycle which itself shows the negligence and rashness of the motorcycle riders. Ld. counsel stated that the offending vehicle was falsely involved in this case and no accident took place with the offending vehicle.
11. I have considered the arguments and perused the record.
12. It is well settled law that where a petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict Suit No. : 7/34 Yashpal Singh Lomas Vs. Vinod Yadav 8 rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs New India Assurance Co. Ltd. 2001 ACJ 421 SC.
13. PW Ravi Kumar has stated that on 15.06.09 at about 10.30 PM he was going on a motorcycle DL 3SQ 9718 as a pillion rider from his house at Kotla Mubarakpur. Madan Singh was driving the motorcycle. When they reached in front of Eros Showroom ring road, NDSE partI, a truck no. DL 1G B 4454 being driven at a fast speed in a rash and negligent manner came from behind and hit their motorcycle. Due to the forceful impact, they fell down and sustained injuries. They were removed to the hospital. He also filed the documents including the copy of the FIR of the case registered vide no. 156/09 at the police station Kotla Mubarak Pur. Perusal of the site plan reveals that there were skid marks on the road. The truck after hitting the motorcycle stopped at point D i.e. ahead of the motorcycle. It had hit the motorcycle from behind. The skid marks and the place where the truck stopped itself show that the truck was coming at a high speed. It after hitting Suit No. : 8/34 Yashpal Singh Lomas Vs. Vinod Yadav 9 the motorcycle did not stop then and there. Even otherwise, the truck had hit the motorcycle from behind which perse amounts to negligence. I do not agree with the contention of Ld. counsel for respondent no.1 and 2 that it is a case of contributory negligence. There is nothing on record to indicate that the motorcycle rider lost the balance of the motorcycle or was driving in a manner so rash and negligent. It was not a head on collision, rather the truck had hit the motorcycle from behind. Triple riding is violation of Motor Vehicle Act but from the evidence and the documents nothing can be inferred that the triple riding had contributed to the cause of accident. As per the postmortem report of the deceased Labh Singh, he had multiple injuries and abrasions. The cause of death was the injuries to the chest due to blunt force impact. Madan Singh also had the multiple injuries which resulted his death. Nothing material came in the crossexamination of the petitioner witnesses to draw an inference that the accident took place due to the negligence of deceased Madan Singh as alleged in the petition. Facts and circumstances rather show that respondent no.1 was driving the offending truck in a manner so rash and negligent and hit the motorcycle of the deceased and the injured from behind. Hon'ble High Court of Delhi in case titled ''National Insurance Company Limited V/s Pushpa Rana'' reported as 2009 ACJ 287 has held that whenever criminal proceedings are placed on record on completion of investigation by the police, then that in itself is Suit No. : 9/34 Yashpal Singh Lomas Vs. Vinod Yadav 10 sufficient proof of the negligent driving of driver of the offending vehicle involved in the accident.
14. It is therefore primafacie established that the offending vehicle i.e. DL 1G B 4454 was involved in the accident which led to the untimely death of Labh Singh and Madan Singh and injuries on the person of Ravi Kumar. It is also established that the respondent no.1 was driving the offending vehicle at the time of the accident in a manner so rash and negligent. It is an admitted position on record that the offending vehicle was owned by respondent no.2 and it was insured with respondent no.3.
In Petition No. 87/10 and 452/10
15. In N.K.V.Bros(P) Ltd. V/s M.Karumai Ammal & Others, (1980) 3 SCC 457, Hon'ble Supreme Court has observed as under: "Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt Suit No. : 10/34 Yashpal Singh Lomas Vs. Vinod Yadav 11 here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their 'neighbour'. Indeed, the State must seriously consider no fault liability by legislation."
16. It has been held in a catena of judgments that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. General principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. The amount of compensation no doubt cannot bring back the dead but it certainly helps the LR's and dependents to live life with dignity and comfort as they were living during the lifetime of the deceased. The amount of compensation is awarded on the basis of age, the earning capacity and other liabilities of the deceased. The Suit No. : 11/34 Yashpal Singh Lomas Vs. Vinod Yadav 12 appropriate method of calculating compensation in fatal cases is multiplier method. The Hon'ble Supreme Court in plethora of judgments has laid down that in India, the multiplier method is proper for calculation of compensation.
17. Starting point for calculating the amount of compensation to be paid to the dependents of the deceased in a motor accident claim is the amount of monthly income which the deceased was earning and the choice of multiplier is ascertained by the age of the deceased.
In Petition No. 87/10
18. Petitioner Anguri Devi has stated that her son was 29 years of age at the time of accident and earning Rs. 8,000/ p.m. However, no documentary proof of income has been filed by petitioner with respect to the income of the deceased. In the absence of any documentary evidence on record, regard is to be had to the minimum wages prevailing at the time of accident with respect to a "skilled worker" as the deceased was a driver.
19. Although, there is no evidence on record with respect to future prospects, however, Hon'ble High Court of Delhi in case titled "Narender Bishal & Another V/s Sh. Ramit Singh & Ors." bearing MAC.App. No. 100708/2006 decided on 20th February 2008 had considered the law laid Suit No. : 12/34 Yashpal Singh Lomas Vs. Vinod Yadav 13 down by Hon'ble Supreme Court in "General Manager Kerala Transport Road Corporation V/s. Susamma Thomas" reported as 1994 ACJ 1 (SC) as well as in Smt. Sarla Dixit & Ors. V/s Balwant Yadav & Ors. Reported as AIR 1996, SC1274" and held :
"As would be evident from catena of judgments of the Supreme Court, the future prospects have no correlation with the price index, inflation or denunciation of currency value. The future prospects would necessarily mean advancement in future career, earnings and progression in one's life. It could be considered by seeing, from which post a person began his career, what avenues or prospects he has while being in a particular avocation and what targets he/she would finally achieve at the end of his career. The promotional avenues, career progression, grant of selection grades etc. are some of the broad features for considering one's future prospects in one's career.
The minimum wage, in the very context of economy has a correlation with the growth and development of the nation's economy, postulating increase in the price index, reduction of purchasing power with the denunciation of currency value and consequent fixation of minimum wages giving some periodical increase so as to ensure sustenance and survival of the workman class. Keeping this in view, under no circumstance the revision of minimum wages can be treated on the same footing with the factor of future prospects.
For instance, minimum wages of unskilled Suit No. : 13/34 Yashpal Singh Lomas Vs. Vinod Yadav 14 workman in the year 2000 were Rs.2524/ under the Minimum Wages Act. The said minimum wages in the year 2007 for the same class of unskilled workman came to be Rs.3470/ under the Act. This increase is not due to any promotion of unskilled workman or any kind of advancement in his career but the same are due to increase in price index and cost of living which are the determining factors taken into consideration for increasing the wages under the Minimum Wages Act. The nature of the job of unskilled workman will not change as the same shall remain unchanged. The same principle may be true even in the case of business or trade or other such allied activities where the future prospects of the deceased can be considered on the basis of his assets, income tax return, wealth tax return, balance sheet etc. But as far as the increase in the minimum wages is concerned the same takes into consideration the price index and the inflationary trends and the same have no correlation with the future prospects of a skilled, semiskilled or an unskilled workman."
20. In view of above and considering the fact that minimum wages gets doubled in a ten years time, therefore for the purposes of calculation of the average gross income of the deceased, the criteria laid down by Hon'ble Supreme Court in "Smt. Sarla Dixit & Ors. V/s. Balwant Yadav & Ors. Case (supra) is to be applied.
Suit No. : 14/34
Yashpal Singh Lomas Vs. Vinod Yadav 15
21. In the present case, minimum wage prevailing at the time of accident with respect to a "skilled person" was Rs. 4,358/. Taking into account the denunciation in the value of currency, and the fact that the deceased was below 40 years at the time of accident so, the future prospects @ 50% are taken. Thus, the gross monthly income of the deceased comes to Rs. 4,358 + Rs. 8,716 = Rs. 13,074 : 2 = Rs. 6,537/. So the total annual income comes to Rs. 12 x 6,537 = Rs. 78,444/.
22. The deceased was a bachelor and the claimant is the mother. It was held in the case of Sarla Verma Vs. DTC 2009 Scale 129 that in regard to the bachelor, normally 50 per cent is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there was a possibility of his getting marriage in a short time, in which time the contribution to the parents would be cut drastically. It was also held that even if the deceased is survived by parents, only the mother would be considered as dependent and 50% would be treated as personal and living expenses of the bachelor and 50% as the contribution to the family. It was also held that while calculating the dependency, the multiplier is to be applied with reference to the age of the mother in the case of a bachelor. In the present case, the age of the mother of the deceased at the time of accident was 60 years. So the multiplier of '9' is taken for Suit No. : 15/34 Yashpal Singh Lomas Vs. Vinod Yadav 16 calculating the loss of dependency. So, the total loss of dependency after deducting personal and living expenses of the deceased comes to (Rs. 78,444 50% x 78,444) x 9 = Rs. 3,52,998/ which is rounded off to Rs. 3,53,000/.
23. I therefore, award a sum of Rs. 3,53,000/ to the petitioner towards "Loss of Dependency".
In Petition no. 452/10
24. Petitioner Yashpal has stated that his son was 21 years of age at the time of accident and earning Rs. 8,000/ p.m. He was also taking tuitions and earning Rs. 4,000/ p.m. He had passed his 12th class examination. He placed on record the Sr. Secondary School Certificate of the deceased. Considering the fact that no documentary proof of income has been filed by petitioner with respect to the income of the deceased, in the absence thereof, regard is to be had to the minimum wages prevailing at the time of accident with respect to a "Matriculate" as the deceased was doing the job of supervisor in a private company.
25. In the present case, minimum wage prevailing at the time of accident with respect to a "Matriculate" was Rs. 4,382/. Taking into account the Suit No. : 16/34 Yashpal Singh Lomas Vs. Vinod Yadav 17 denunciation in the value of currency as stated above in the case of Narender Bishal & Anrs. (Supra) and the fact that the deceased was below 40 years at the time of accident so, the future prospects @ 50% are taken. Thus, the gross monthly income of the deceased comes to Rs. 4,382 + Rs. 8,764 = Rs. 13,146 : 2 = Rs. 6,573/. So the total annual income comes to Rs. 12 x 6,573 = Rs. 78,876/.
26. The deceased was a bachelor and the claimants are the parents. It was held in the case of Sarla Verma (Supra) that in regard to the bachelor, normally 50 per cent is deducted as personal and living expenses. In the present case, as evident from the record, the age of the mother of the deceased at the time of accident was 38 years. So the multiplier of '15' is taken for calculating the loss of dependency. So, the total loss of dependency after deducting personal and living expenses of the deceased comes to (Rs. 78,876 50% x 78,876) x 15 = Rs. 5,91,570/ which is rounded off to Rs. 5,91,600/.
27. I therefore, award a sum of Rs. 5,91,600/ to the petitioners towards "Loss of Dependency".
Suit No. : 17/34
Yashpal Singh Lomas Vs. Vinod Yadav 18 In Petition no. 87/10 and 452/10 COMPENSATION TOWARDS LOSS OF LOVE AND AFFECTION
28. The petitioners at this stage of their life lost their son. The loss of love and affection which the mother/parents would have got from the deceased can not be quantified in terms of money. It has been held by Hon'ble High Court of Delhi in the case titled as Kailash Kaur vs. New India Insurance Company bearing M.A.C. Pet.. No. 318/08 decided on 24.03.2009 that compensation towards loss of love and affection should be granted at the rate of Rs. 25,000/ per petitioner.
29. I therefore award a sum of Rs. 25,000/ each to the petitioner Anguri Devi (Petition no. 87/10) and Rs. 50,000/ to the petitioners (Petition no. 452/10) towards "Loss of Love and Affection".
COMPENSATION TOWARDS FUNERAL EXPENSES
30. I award a sum of Rs. 10,000/ to the petitioners on account of "Funeral Expenses" .
COMPENSATION TOWARDS LOSS OF ESTATE
31. I award a sum of Rs. 10,000/ to the petitioners towards Loss of Estate. Suit No. : 18/34
Yashpal Singh Lomas Vs. Vinod Yadav 19
32. Thus, the total compensation awarded in favour of the petitioners is assessed as under : Petition No. 87/10 452/10 LOSS OF DEPENDENCY : Rs. 3,53,000/ 5,91,600/ LOSS OF LOVE & AFFECTION : Rs. 25,000/ 50,000/ FUNERAL EXPENSES : Rs. 10,000/ 10,000/ LOSS OF ESTATE : Rs. 10,000/ 10,000/ : =========== ======== Total : Rs. 3,98,000/ 6,61,600/ =========== ======== Petition no. 453/10
33. The petitioner Ravi Kumar has claimed a compensation in respect of the injuries sustained by him. It is true that when a person is injured in a road accident, he is entitled to the compensation for the pecuniary and nonpecuniary damages.
34. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of Suit No. : 19/34 Yashpal Singh Lomas Vs. Vinod Yadav 20 being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance;
(ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters ie. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of expectation of life, ie. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
COMPENSATION FOR EXPENSES INCURRED ON MEDICAL TREATMENT :
35. The petitioner Ravi Kumar has stated that due to the accident he sustained injuries on his right Scapula, head, ribs, waist and face. He was removed to Safdarjung hospital after the accident where he remained for one day. He visited the hospital number of times for his routine checkup. He has taken the treatment from Dr. Mehta. He has a scar on his right eye. He filed the discharge summary Ex.PW1/1 and OPD Cards. He has filed the medical bills for Rs. 1291/. However, looking into the injuries, I am of the view that he might have spent much more on his treatment. I therefore, a sum of Rs. 5,000/ to the petitioner towards medical expenses. Suit No. : 20/34
Yashpal Singh Lomas Vs. Vinod Yadav 21 COMPENSATION FOR PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
36. The medical record of the petitioner indicates that he was hale and hearty before the accident. He was working as a salesman in a Readymade Garments shop. He sustained injuries on his right Scapula, head, ribs, waist and face. He remained admitted in Safdarjung hospital for one day. He visited the hospital number of times for his routine checkup. He has taken the treatment from Dr. Mehta. He has a scar on the right eye due to the accident. The injuries had given him lot of pain and agony. Taking into consideration his multiple injuries, I award a sum of Rs. 15,000/ to the petitioner towards pain and suffering and enjoyment of life. COMPENSATION FOR SPECIAL DIET, ATTENDANT CHARGES AND CONVEYANCE CHARGES :
37. The petitioner has stated that after the accident she was taken to Safdarjung hospital. He sustained injuries on his right Scapula, head, ribs, waist and face. He remained admitted in Safdarjung hospital for one day. He visited the hospital number of times as an OPD patient for his routine checkup. He has taken the treatment from Dr. Mehta. He has a scar on the right eye due to the accident. He had to take the help of an attendant in his day to day Suit No. : 21/34 Yashpal Singh Lomas Vs. Vinod Yadav 22 activities and other work. Taking into consideration all these facts, I award a sum of Rs. 10,000/ towards special diet, conveyance and attendant charges.
COMPENSATION FOR LOSS OF INCOME :
38. The petitioner has stated that he had been working as a salesman in a Readymade garment shop and was getting a salary of Rs. 4,500/ p.m. Due to the injuries he could not go to his office for six weeks. The accident made him bed ridden for six weeks. In this case, the petitioner did not place any proof of income nor called his employer to prove his salary, so minimum wages have to be taken for calculating of loss of income which on the date of accident was Rs. 4,358/ p.m. for an "skilled worker". Thus the total loss of income comes to Rs. 4,358 x 2 = Rs. 8,716/ which is rounded off to Rs. 8,800/.
39. I, therefore, award a sum of Rs. 8,800/ to the petitioner towards Loss of Income.
40. Thus, the total compensation awarded in favour of the petitioner Ravi Kumar is assessed as under : Suit No. : 22/34 Yashpal Singh Lomas Vs. Vinod Yadav 23 MEDICAL EXPENSES : Rs. 5,000/ PAIN AND SUFFERINGS & ENJOYMENT OF LIFE : Rs. 15,000/ SPECIAL DIET, ATTENDANT & CONVEYANCE CHARGES : Rs. 10,000/ LOSS OF INCOME : Rs. 8,800/ ========== TOTAL : Rs. 38,800/ ========== L I A B I L I T Y
41. As regards the liability, the offending vehicle was being driven by respondent no.1, therefore primary liability to compensate the petitioners is that of respondent no.1. As the offending vehicle was owned by respondent no.2, therefore, he becomes vicariously liable to compensate the petitioners. It is an admitted position on record that the offending vehicle was insured with respondent no.3, therefore, respondent no.3 becomes contractually liable to compensate the petitioners.
42. Ld. Counsel for the Insurance company, however, in his quest to have the Insurance company exonerated of its contractual obligation contended that the offending vehicle was being driven by the driver using the fake licence Suit No. : 23/34 Yashpal Singh Lomas Vs. Vinod Yadav 24 and without a valid permit. He relied on the testimony of R3W1 and R3W2.
43. I have considered the submissions and perused the record.
44.It has been held by Hon'ble Apex Court in the case titled as Lal Chand Vs. Oriental Insurance Company Ltd. reported as 2006 (3) TAC321 SC that Insurance Company has to show and prove on record that due and adequate care was not taken by the owner or owner had the knowledge that driver was not holding a valid driving license. Only in that eventuality the Insurance Company can be absolved of its contractual obligation, not otherwise.
45. On going through the report of the investigator Ex.R3W1/E, insurance policy Ex.R3W1/D and the testimony of R3W1, I find that the respondent no. 1 was driving the vehicle using the fake licence as from the record collected from the Licencing Authority, Allahabad, no such licence was issued by the authority in the name of respondent no. 1. R3W2 Sh. Veer Narayan Singh, Dealing Asstt. STA, Delhi has placed on record the permit certificate Ex.R3W2/A as per which no permit was in existence in respect of the offending vehicle as on the day of accident. Nothing has come in the cross examination of R3W1 and R3W2 to disbelieve them. No evidence is led by the respondent no.2 to prove that he had verified the genuineness of license Suit No. : 24/34 Yashpal Singh Lomas Vs. Vinod Yadav 25 allegedly in possession of respondent no. 1 before giving him the truck to drive. Nor there is any evidence to show that he got himself satisfied about the competency and the capability of respondent no. 1 to drive the offending vehicle before he was deputed on it. As per the terms of the policy, any person must hold an effective driving licence and is not disqualified from holding or obtaining such a licence. This very act on the part of respondent no. 2 amounts to breach of the insurance policy. It was held in the case of Kamala Mangalal Vayani & Ors. Vs. United India Insurance Co. Ltd. and others (2010) 12 SCC 488 that once a comprehensive insurance policy is admitted on or so proving any breach of insurance conditions, is on the insurer and not claimants. In the present case, the insurance company i.e. respondent no. 3 has been able to establish that the vehicle was not plying on the road in consonance with the terms of the policy. Thus, the liability to compensate the petitioners would remain with that of respondent no. 1 and respondent no. 2 i.e. driver /owner of the offending vehicle jointly and severally.
46. Legislature being conscious of the magnitude of the plight of the victims of road accident have introduced the present beneficial provisions to protect the interest of third parties i.e. victims of road accident so as to enable them to claim compensation from the driver/ owner of the vehicle. Legislature in Suit No. : 25/34 Yashpal Singh Lomas Vs. Vinod Yadav 26 its wisdom has made it a statutory obligation of every owner to have his vehicle insured against third party risks. This has been made mandatory so that victims of road accident even after being granted compensation from the court, should not run from pillar to post to have the orders of the court executed and to facilitate them to get the same from the Insurance Company. It was held in the case of "National Insurance Co. Ltd. Vs. Vasdev Kukreja & Ors II (2010) ACC 148" that primary liability to pay the award amount is of insurance company. In that case there was a breach of terms and conditions of the policy as there was violation as to the category of the vehicle which the driver was authorised to drive. The Hon'ble High Court directed the insurance company to pay the award and granted the recovery rights in its favour to recover the award amount from the owner of the offending vehicle.
47. Balancing the "twin interest" of the Insurance Company at one hand and that of the third party i.e. petitioner for whose benefit the present legislation was brought on the statute book, it is directed that the Insurance Company shall pay the compensation awarded to the petitioner within the time given in this award and shall have the right to recover the same from respondent No. 1 and respondent No. 2 jointly and severally.
Suit No. : 26/34
Yashpal Singh Lomas Vs. Vinod Yadav 27
48. For the foregoing reasons, the respondent no. 3 is directed to pay compensation awarded to the petitioner within the time given in the award and shall have the right to recover the same from respondent no. 1 and 2 jointly and severally.
R E L I E F In Petition no. 87/10
49. In view of my findings, I award a sum of Rs. 3,98,000/ to the petitioner Anguri Devi as compensation with interest @ 9% per annum from the date of filing of the petition till realization of the amount.
50. Out of this awarded amount, a sum of Rs. 2,50,000/ be deposited in the form of FDR in the name of petitioner in the following phased manner :
(a) A sum of Rs. 50,000/ for a period of 2 years.
(b) A sum of Rs. 50,000/ for a period of 3 years.
(c) A sum of Rs. 50,000/ for a period of 4 years.
(d) A sum of Rs. 50,000/ for a period of 5 years.
(e) A sum of Rs. 50,000/ for a period of 6 years.
In Petition no. 452/10
51. I award a sum of Rs. 6,61,600/ to the petitioners as compensation with interest @ 9% per annum from the date of filing of the petition till realization of the amount.
Suit No. : 27/34
Yashpal Singh Lomas Vs. Vinod Yadav 28 Out of this awarded amount of Rs. 6,36,000/, a sum of Rs. 3,18,000/ each is awarded to petitioners, along with proportionate interest thereon, being parents of deceased.
52. Out of this awarded amount, a sum of Rs. 2,50,000/ each be kept in the form of FDR in the names of the petitioners for a period of five years. In Petition no. 453/10
53. I award a sum of Rs. 53,800/ to the petitioner Ravi Kumar as compensation with interest @ 9% per annum from the date of filing of the petition till realization of the amount.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
54. In terms of the directions given by Hon'ble High Court in case titled " Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.20009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
55. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal Suit No. : 28/34 Yashpal Singh Lomas Vs. Vinod Yadav 29 No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
56. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, Insurance Company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners.
within a period of 30 days from today, failing which respondent No. 3 Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
57. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :
(i) The interest on the fixed deposit be paid to the petitioners / claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimants / petitioners after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
(iii) No cheque book be issued to claimants / petitioners without the permission of this Court.
Suit No. : 29/34
Yashpal Singh Lomas Vs. Vinod Yadav 30
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimants / petitioners alongwith the photocopy of the FDR's .
(v) The original fixed deposit receipts shall be handed over to claimants / petitioners at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii) Half yearly statement of account be filed by the Bank in this Court.
(viii)On the request of claimants / petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimants / petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi DIRECTIONS FOR THE INSURANCE COMPANY
58. The Insurance company is directed to file the compliance report of their having deposited the awarded amount with State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
59. The Insurance Company is directed to furnish a copy of this award alongwith the cheques of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimants/ petitioners in whose favour the award has been passed.
Suit No. : 30/34
Yashpal Singh Lomas Vs. Vinod Yadav 31
60. The Insurance Company is further directed to furnish the claim petition number and name of the parties at the back side of the cheques of the awarded amount, so that the same be not misplaced.
61. The Insurance Company shall intimate to the claimants / petitioners about their having deposited the cheques in favor of the petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
62. Copy of this award / judgment be given to the petitioners who are directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after their having received the notice of the deposit of awarded amount from the Insurance company.
63. Copy of this Award / Judgment be given to counsel for the Insurance Company for necessary compliance.
64. File be consigned to record room after receipt of the compliance report from the Insurance company.
Announced in the open court
th
On 13 Day of January, 2012 (SANJIV JAIN )
P.O. : MACTII : SOUTH DISTT.
SAKET COURTS : NEW DELHI
13.01.2012
Suit No. : 31/34
Yashpal Singh Lomas Vs. Vinod Yadav
32
Yashpal Singh Lomas Vs. Vinod Yadav
13.01.12
Present : Ld. counsel for the parties.
Vide common judgment dictated in the petition 452/10 all the three petitions i.e. 452/10, 87/10 and 453/10 have been disposed off.
Copy of the award be given to the parties.
File be consigned to Record Room.
(SANJIV JAIN ) P.O. : MACTII : SOUTH DISTT.
SAKET COURTS : NEW DELHI 13.01.2012 Suit No. : 32/34 Yashpal Singh Lomas Vs. Vinod Yadav 33 Anguri Devi Vs. Vinod Yadav 13.01.12 Present : Ld. counsel for the parties.
Vide common judgment dictated in the petition 452/10 all the three petitions i.e. 452/10, 87/10 and 453/10 have been disposed off.
Copy of the award be given to the parties.
File be consigned to Record Room.
(SANJIV JAIN ) P.O. : MACTII : SOUTH DISTT.
SAKET COURTS : NEW DELHI 13.01.2012 Suit No. : 33/34 Yashpal Singh Lomas Vs. Vinod Yadav 34 Ravi Kumar Vs. Vinod Yadav 13.01.12 Present : Ld. counsel for the parties.
Vide common judgment dictated in the petition 452/10 all the three petitions i.e. 452/10, 87/10 and 453/10 have been disposed off.
Copy of the award be given to the parties.
File be consigned to Record Room.
(SANJIV JAIN ) P.O. : MACTII : SOUTH DISTT.
SAKET COURTS : NEW DELHI 13.01.2012 Suit No. : 34/34