Delhi District Court
Smt. Rimpi Gupta W/O Late Sh. Sudhir ... vs Eslam S/O Ekbal on 15 April, 2015
IN THE COURT OF SH. SANJEEV KR. SINGH:
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL:02
(CENTRAL):DELHI.
Case No. 354/14
Unique ID No. 02401C0137862011
1. Smt. Rimpi Gupta W/o Late Sh. Sudhir Kumar,
2. Khushi Gupta D/o Late Sh. Sudhir Kumar,
3. Harsh Gupta D/o Late Sh. Sudhir Kumar,
4. Smt. Ram Payari Devi W/o Sh. Panna Lal Prasad,
5. Sh. Panna Lal Prasad S/o Late Sh. Shankar Prasad,
R/o:H.No.3, Village-Rajpur, Anchal-Begusarai,
District Begusarai-851134.
(Petitioner No.2 & 3 being minor they are presented through
their mother Smt. Rimpi Gupta/Natural Guardian/Petitioner No.1)
...........Petitioners in the First petition.
Case No. 355/14
Unique ID No. 02401C0358352013
Jainendra Bhandari S/o M S Bhandari
R/o 416, Sec-9 R.K. Puram New Delhi.
.......Petitioner in the Second Petition
VERSUS
1. Eslam S/o Ekbal
R/o Mohar Pur Fatehgarh, Farukhabad, U.P.
2nd Add. Holambi Kalan, Delhi. (Driver)
2. Mrs. Priyanka W/o Sh. Sanjay Kumar,
R/o S-383, School Block Shakarpur, Delhi. (Owner)
3. Universal Sampo General Insurance Company Ltd.
A-15, Shop No. 9 & 10 First Floor,
Sect-44 Noida, UP.201301 ( Insurer)
.......... Respondents in both the petitions
Consolidated cases bearing Page No.1/20
Suits No. 354/14 & 355/14 Date of institution of petitions : 21/03/2011 (DAR) Date of pronouncement : 15/04/2015 CONSOLIDATED AWARD:
1. These are claims for compensation arising out of Detailed Accident Report u/s 158 (6) MV Act filed by P.S. I.P. Estate in respect of fatal injuries suffered by the deceased in the first petition and the injuries suffered by the petitioner in the second petition respectively in the road traffic accident on 18/12/2010 and same are treated as petitions u/s 166 MV Act, 1988.
2. Vide this judgment cum award, I shall dispose off both these petitions bearing suit no. 354/14 & 355/14 .Initially, three petitions bearing Suit No. 354/14, 347/14 & 355/14 were filed. It is pertinent to mention here that the petition bearing Suit No. 347/14 titled as Mangal Prasad Vs Islam was adjourned sine die vide orders dated 13/01/2015 passed by this Court. Since, both these petitions arise out of the same motor vehicle accident, they can be conveniently disposed off together.
3. All these cases were consolidated vide orders dated 23/08/2014. The Suit No. 354/14 was ordered to be treated as lead case.
4. The case of the petitioners is that on 18/12/2010 at about 05.00 a.m. while the deceased Sudhir Kumar in the first petition and alongiwith the other laborers and Jainendra Bhandari (who is the petitioner in the second petition) were going to Yamuna Bank, Metro Station from Rajeev Chowk, Metro Station by Tempo No. DL-1LN-3217, loaded with two Trollies. The said Tempo was being driven by the it's driver/ respondent No.1 at a very high speed, rashly and negligently and in a zig-zag manner. The driver was warned successively by the supervisor and labourers not to drive the tempo in such a manner but he did not pay any heed and continued on their whims and fancies. When they reached at ITO Chowk, Delhi suddenly the driver of the tempo took a sharp turn and lost the balance and the tempo was overturned on the road due to which the deceased in the first petition and the labourers including the petitioner in the second petition fell down Consolidated cases bearing Page No.2/20 Suits No. 354/14 & 355/14 on the road and sustained grievous injuries. They were taken to JPN, Hospital, New Delhi by the police where the deceased in the first petition died during the course of treatment on 24/12/2010.
5. The written statement was not filed by Respondent No. 1.
6. The written statement was not filed by Respondent No. 2 in which she has denied the contents of the petition to be false one.
7. The written statement was filed by Respondent No.3/insurance company wherein it was admitted that the offending vehicle was insured with it as on the date and time of accident. It has been contended by the insurance company in the written statement that the deceased/Sh. Sudhir Kumar was travelling in the vehicle as unauthorized & gratuitous passenger since as per Registration Certificate and Insurance Policy (contract of insurance) the seating capacity of the insured vehicle is two persons including driver and as per chargesheet and FIR more than five persons namely Mr. Gaurav Kumar, Mr. Islam, Mr. Gynendra, Mr. Sudhir, and Mr. Mangal and other labourer were travelling in alleged vehicle. Therefore, there was violation of provisions of Motor Vehicle Act and terms and conditions of insurance policy. The insurance policy has been issued in the name of the Respondent No.2/Ms. Priyanka and under these circumstances the owner/insured herself is solely liable to pay compensation to the claimants and insurance company is not liable to pay any compensation.
8. On the pleadings of the parties following consolidated issues arose for consideration on 25/04/2011:-
1. Whether the deceased Shri Sudhir Kumar had died and Jainendra Bhandari & Mangal Prasad had sustained injuries in an accident which took place on 18.12.2010 because of rash and negligent driving of vehicle bearing registration no. DL-1LN-3217 by respondent no.1?
2. Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
3. Relief.Consolidated cases bearing Page No.3/20
Suits No. 354/14 & 355/14
9. In order to establish the case, the wife of the deceased in First petition examined herself as PW1 and the petitioner in second petition examined himself as PW2.
10. The Respondent No.3/insurer examined its officer as R3-W-1 in its defence.
11. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the parties.
My findings on aforementioned issues are as under :
ISSUE NO.1 IN FIRST & SECOND PETITIONS
12. The present petitions are under Section 166 of M V Act, it was the bounden duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
13. The police has filed the Detailed Accident Report (DAR) on record pertaining to the case on record i. e the copy of FIR etc. bearing No. 301/10 P.S. I.P Estate u/s 279/337/304-A IPC including chargesheet etc.
14. PW-1, the wife of the deceased in the first petition explained the mode and manner of the accident in her affidavit, Ex. PW1/A to the effect that on the date of accident while the deceased Sudhir Kumar in the first petition and alongiwith the other laborers and Jainendra Bhandari (who is the petitioner in the second petition)were going to Yamuna Bank, Metro Station from Rajeev Chowk, Metro Station by tempo No. DL-1LN-3217, loaded with two Trollies. The said Tempo was being driven by the it's driver/ respondent No.1 at a very high speed, rashly and negligently and in a zig-zag manner. The driver was warned successively by the supervisor and labourers not to drive the tempo in such a manner but he did not pay any heed and continued on his whims and fancies. When they reached at ITO Chowk, Delhi suddenly the driver of the Consolidated cases bearing Page No.4/20 Suits No. 354/14 & 355/14 tempo took a sharp turn and lost the balance and the tempo was overturned on the road due to which the deceased in the first petition and the labourers including the petitioner in the second petition fell down on the road and sustained grievous injuries. They were taken to JPN, Hospital, New Delhi by the police where the deceased in the first petition died during the cause of treatment on 24/12/2010. PW-2 ( Jainendra Bhandari) i.e the petitioner in the second petition has also deposed on the same lines. The cross- examinations carried on by the Respondent No. 3 is not suggestive of anything which may discard the claim of the petitioners.
15. While determining the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of 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 injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act.
16. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
Consolidated cases bearing Page No.5/20Suits No. 354/14 & 355/14
17. Further recently the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble High Court of Delhi held as under:-
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
18. Therefore, after considering all the documents filed by the petitioners in both the petitions as a whole it is clear that respondent No.1 was driving the vehicle in a rash and negligent manner.
19. The issue No:1 therefore, goes in favour of the petitioners in first petition, the second petition and the third petition and against the respondents.
COMPENSATON IN THE PETITION BEARING SUIT NO. 347/14 Vide orders dated 13/01/2015, the petition bearing Suit No. 347/14 was adjourned sine die as the petitioner Mangal Parsad was not appearing for the last so many dates. Hence, no compensation is being awarded to the petitioner in the petition bearing Suit No. 347/14.
Consolidated cases bearing Page No.6/20Suits No. 354/14 & 355/14 COMPENSATION IN THE FIRST PETITION (Suit No. 354/14)
20. As per copy of School Leaving Certificate duly verified by the IO alongwith the DAR, the date of birth of the deceased is 02/03/1977. The date of accident is 18.12.2010. Accordingly, the deceased was 33 years as on accident.
21. The deceased in the First petition was stated to be working as labourer and was stated to be earning Rs. 12,500/-, but no income proof filed or proved on record. In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 18/12/2010 on which the minimum wages for Matriculate Persons were Rs.6,448/-. In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act.
22. In 'Santosh Devi Vs National Insurance Company Ltd. & Ors' in Civil Appeal No. 3723 of 2012 decided on 23/04/2012, the Hon'ble Supreme Court of India has held as under:-
"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death a departure from this rule should be made only in rare and exceptional cases involving special circumstance. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self- employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life.
15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families.
16. The salaries of those employed employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. 17.Although, the wages/income of those employed in Consolidated cases bearing Page No.7/20 Suits No. 354/14 & 355/14 unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of this fact that with a view to meet the challenges posed by high cost of living, the persons falling on the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc.
18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserved to be applied for calculating the amount of compensation".
23. In a recent case decided by Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563" wherein three Hon'ble Judges bench bench held vide para nos. 11, 20 & 21 as under :-
11. Since, the court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (Supra) and to make it applicable also to self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 % always; it will also have a reference to the age.
In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50 % to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30 % in case the deceased was in age group of 40 to 50 years.
20.The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 25,00/- to Rs. 10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held that compensation for loss of consortium should be in the range of Rs. 5,000/- to Rs.10,000/-. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly Consolidated cases bearing Page No.8/20 Suits No. 354/14 & 355/14 understood by our Courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rupees One Lakh for loss of consortium.
21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses'. The 'Price Index', it is a fact, has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/-.
24. Since the deceased was 33 years of age as on the date of accident, 50% of income towards the future prospects is required to be added in terms of aforesaid judgment in Rajesh's case(supra). Hence after averaging out, the income of deceased comes out to be Rs. 9,672( Rs. 6,448/- + 50% of Rs. 6,448/).
25. For the purpose of determining the multiplier in case of death, the petitioners cited the judgment of Hon'ble Supreme Court in case titled as Amrit Bhanu Shali & ors Vs. National Insurance Co. Ltd. & Ors, reported in 2012 VI AD(S.C.) 399 wherein it was held as under:-
"13. Learned Counsel appearing on behalf of the respondents- Insurance Company submitted that the deceased-Ritesh Bhanu Shali was unmarried boy aged about
26 years and the High Court rightly applied the multiplier of 13 as per the age of the claimants, i.e. Parents. According to the respondents, the multiplier is to be applied as per the age of the deceased or as per the age of the claimant, whichever is higher but aforesaid submission cannot be accepted in view of the finding of this Court in the case of Sarla Verma(supra).
Consolidated cases bearing Page No.9/20Suits No. 354/14 & 355/14
14. We have considered the respective arguments and perused the record. The questions which arise for consideration are:
(i) What should be the deduction for the 'personal and living expenses of the deceased-
Ritesh Bhanu shali to decide the question of the contribution of the dependent members of the family; and
(ii) What is the proper selection of multiplier for deciding the claim.
17. The Selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent.
There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation. 18. In the case of Sarla Verma(supra) this court held that the multiplier to be used should be as mentioned in column(4) of the table of the said judgment which starts with an operative multiplier of
18. As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and bringing it down to the multiplier of 13.
26. However, in the latest directions of the Hon'ble High Court of Delhi in MAC.APP. 196/2013 received vide circular number 719/11585-598-I/Genl./HCS/2014 Dated, Delhi the 11 Apl 2014, it has been opined that Tribunal should take the multiplier as per the age of the deceased while calculating the compensation.
27. It can very well be presumed in terms of the judgment of the Hon'ble Supreme Court of India in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 that the deceased might have been spending one- fourth of Rs. 9,672/- on his personal expenses as he had left behind five dependents. Therefore, after deducting one-fourth towards personal expenses, the loss of dependency per annum comes out to be Rs.9,672/- less 2,418/- = Rs.7,254/-. The appropriate multiplier applicable is 16, as mentioned in Sarla Verma's judgment (Supra). The total loss of dependency comes out to Rs. 13,92,768/-. (Rs. 7,254/- x 12 x 16).
Consolidated cases bearing Page No.10/20Suits No. 354/14 & 355/14
28. In terms of the aforesaid judgment in Rajesh's case(supra), the Hon'ble Supreme Court of India has granted Rs. 25000/- towards funeral charges, Rs. 1,00,000/- towards loss of consortium, and Rs. 1,00,000/- towards love and affection of minor children. Accordingly, I award Rs. 1,00,000/- towards loss of consortium; Rs. 25,000/- towards funeral expenses and Rs. 1,00,000/- towards love and affection of minor children. I also award Rs. 10,000/- towards loss of estate. Therefore, in total, I hereby award a sum of Rs.16,27,768/- in favour of the petitioners.
RELIEF:
29. I award Rs. 16,27,768/-( Rupees Sixteen Lac Twenty Seven Thousand Seven Hundred Sixty Eight Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 21.03.2011 (DAR) in favour of the petitioners and against the respondents on account of their liability being joint and several. The Petitioner No.1 shall have 60% share in the award amount whereas the Petitioners No. 2 to 5 shall have 10% each share in the award amount.
30. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S. Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent (50%) of the amount awarded to aforementioned Petitioners shall be kept in 5 FDRs of almost equal amount in a Nationalized Bank for a period of 1,2,3,4 & 5 years. In case any petitioner/petitioners is/ are minor/minors, the entire amount awarded to petitioner/ petitioners shall be kept in FDRs in a nationalized bank till he/she attain/ attains the age of majority or for a period of five years whichever is later. No loan or advance shall be allowed against the said fixed deposit. Petitioners can withdraw the interest quarterly from the said FDRs. The minor petitioners, if any can withdraw the interest quarterly through their mother/ petitioner No.1 respectively.
Consolidated cases bearing Page No.11/20Suits No. 354/14 & 355/14 COMPENSATION IN THE SECOND PETITION (Suit No. 355/14)
31. As per the copy of MLC, the petitioner in the second petition has suffered simple injuries. The petitioner has filed the medical bills to the tune of Rs 43,555/-. but same are not supported with any prescriptions and same are hereby rejected.
PAIN AND SUFFERINGS :
32. It is settled law that a particular amount can not be fixed on pain and sufferings for all cases as is varies from case to case. Judicial notice can be taken on the fact that since the petitioner had suffered aforementioned injuries, he might have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy dose of anti-biotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision: 2.2.2007, Delhi High Court by Hon'ble Mr. Justice Pradeep Nandrajog wherein it was held that:-
"On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
© Duration of the treatment."
33. Keeping in view the said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs. 5,000/- towards pain and sufferings and loss of amenities of life. Besides this, I hereby award a sum of Rs. 3,000/- towards special diet and conveyance.
COMPENSATION ON ACCOUNT OF LOSS OF INCOME DURING TREATMENT PERIOD
34. The petitioner in the second petition was stated to be working as Supervisor with M/s The Modern Construction Co. Pvt Ltd. and was stated to be earning Rs. 15,000 Consolidated cases bearing Page No.12/20 Suits No. 354/14 & 355/14 per month. In the cross examination the petitioner in the second petition has admitted that he had received full salary for the period of his leaves from the Office. Accordingly, no amount is being awarded to the petitioner in the second petition towards loss of income during treatment period.
The total compensation is assessed as under:-
Treatment expenses: --------NIL------
Pain and sufferings: Rs. 5,000/-
Special diet and
conveyance : Rs. 3,000/-
Compensation on account
of income during treatment
period --------NIL------
_____ ____________
Total: Rs. 8,000 /-
RELIEF:
35. I award Rs. 8,000/- ( Rupees Eight Thousand Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 21.03.2011 (DAR) till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several.
APPORTIONMENT OF LIABILITY
36. Ld. Counsel for the petitioner has placed reliance upon Syed Sadiq Etc. Vs. United India Assurance Company, I (2014) ACC 206 (SC), Vimal Kanwar and others Vs. Kishore Dan and another, 2013 ACJ 1441, (Supreme Court of India), Jiju Kuruvila and others Vs. Kunjujamma Mohan and others 2013 ACJ 2141, (Supreme Court of India), New India Assurance Co. Ltd. Vs. Gopali and others, 2012 ACJ 2131 (Supreme Court of India), National Insurance Co. Ltd. Vs. Baljit Kaur and others, 2004 ACJ 428 (Supreme court of India) at New Delhi = 2004 II AD (S.C.)285, and National Insurance Co. Ltv Vs Cholleti Bharatamma and others 2008 ACJ 268.
Consolidated cases bearing Page No.13/20Suits No. 354/14 & 355/14
37. Ld. Counsel for the Insurance Company has placed reliance upon (2007) 2 MAC 1125 (P&H) (Punjab and Haryana High Court) titled as National Insurance Company Ltd. Vs. Phool Singh and Anr., MAC.A. 36/2012 titled as Bajaj Allianz General Insurance co. Ltd. Vs. Ram Avtar Yadav & Ors., Manager, National Insurance Co. Ltd. Vs. Saju P. Paul and another in Civil Appeal No. 5/2013 decided by (Supreme Court of India).
38. The insurance company has taken the plea that besides the deceased, four other persons were unauthorizedly travelling in the Tempo.
39. I have taken the note of the submissions of the Ld. Counsel for insurer for recovery rights for the breach of the terms and condition of the policy. I have also perused the record.
40. The R3-W-1 has also deposed on the same lines as averred in the written statement of the insurance company/Respondent No. 3 that the deceased/Sh. Sudhir Kumar was travelling in the vehicle as unauthorized & gratuitous passenger since as per Registration Certificate and Insurance Policy (contract of insurance) the seating capacity of the insured vehicle is two persons including driver and as per chargesheet and FIR more than five persons namely Mr. Gaurva Kumar, Mr. Islam, Mr. Gynendra, Mr. Sudhir, and Mr. Mangal and other labourer were travelling in alleged vehicle. Therefore, there was violation of provisions of Motor Vehicle Act and terms and conditions of insurance policy. The insurance policy has been issued in the name of the Respondent No.2/Ms. Priyanka and under these circumstances the owner/insured herself is solely liable to pay compensation to the claimants and insurance company is not liable to pay any compensation. He has proved the certified copy of Final report Ex. R3-W-1/1 , Certified copy of FIR Ex R3-W-1/2, Copy of RC of Tempo Ex R3-W-1/3 and the copy of insurance policy and terms and conditions Ex.R3-W-1/4 respectively.
Consolidated cases bearing Page No.14/20Suits No. 354/14 & 355/14
41. In National Insurance Co. Ltd. Vs. Baljit Kaur and others, 2004 II AD (S.C.)285 = (2004) 2SCC1 , wherein it is held that:-
"the deceased being the representative of the owner of the goods being transported at the time of accident in an offending truck, Insurance Company cannot be absolved of its liability to pay.''
42. It was further held vide aforementioned judgment in paras no. 17, 18, 19 & 20 as follows:-
"17. By reason of the 1994 Amendment what was added is 'including the owner of the goods or his authorised representative carried in the vehicle." The liability of the owner of the vehicle to ensure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of the Parliament, therefore, could not have been that the words 'any person' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of the Parliament to carry but an amendment inasmuch as expression 'any person' contained in Sub- clause (i) of Clause (b) of Sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise.
18. The observations made in this connection by the Court in Asha Rani case (supra) to which one of us, Sinha, J, was a party, however, bear repetition:
"26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act we are of the opinion that the meaning of the words ''any person'' must also be attributed having regard to the context in which they have been used i.e ''a third party''.Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefore.''
19. In Asha Rani (supra), it has been noticed that Sub- clause (i) of Clause (b) of Sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the Consolidated cases bearing Page No.15/20 Suits No. 354/14 & 355/14 passengers travelling in the vehicle. The premium in view of the 1994 Amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.
20. It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people."
43. In 2013 IV AD (DELHI) 642 titled as New India Assurance Co. Ltd. Vs Vauki Devi & Ors, it was observed by the Hon'ble High Court of Delhi in paras no. 31, 32 & 33 as follows:-
31.However, practice in our country is that whenever goods vehicle is engaged for loading and unloading and the distance is short, then the labourers are deputed for both the purposes, mentioned above. They get their payment only after the goods reaches to that particular place.
32. It is important to note that, in the present case the owner of the goods was not travelling with goods in the offending vehicle. In a case where the owner of the goods is travelling with, then the other persons travelling in the offending vehicle would not be considered as his representative. The concept is clear as regards the liability arising in respect of death or bodily injury of owner of the goods or his authorised representative carried in the vehicles. As per Section 147 (1) (b) (i) of M.V.Act 1988, the policy of insurance covers and includes, either the owner of the goods or the authorised representative carried in the vehicle.Therefore, the irresistible conclusion would be either the owner of the goods or his authorised representatives are entitled for the compensation; not both.
33. In the present case, the owner of goods was not travelling with the goods in the offending vehicle and the charges were paid only after the goods reaches at the place of the owner of the goods. Therefore, it can be safely presume that, once the goods are loaded in the offending vehicle the possession of goods was in the hands of the Consolidated cases bearing Page No.16/20 Suits No. 354/14 & 355/14 deceased-labour, till it unloaded from the vehicle. I note, one of the attribute of the ownership of the goods is the possession of the same. Actual possession is prima facie evidence of a title in the possessor. Therefore, this Court is taking inference that the deceased was accompanying in the offending vehicle as authorised representative of the owner of the goods.
44. Let us consider the status of the deceased in the first petition and the petitioner in the second petition in the vehicle. In the cross examination of PW-2, Jainender Bhandari i.e. petitioner in the second petition has deposed that he was directed by his employer to carry the goods in the vehicle, but he had nothing in writing with him to prove the same. He has also deposed in his examination in chief that he alongwith the deceased/Sh. Sudhir Kumar in the first petition alongwith other labourers were travelling in the vehicle at the time of accident. In cross examination, he has also deposed that he had received full salary for the period of his leaves from the office during his treatment. It is not necessary that every time the owner of the goods would give written authority and it can be inferred from the facts and circumstances of each case. In the present case it has not been disputed that that Tempo in which the deceased in the first petition and the petitioner in the second petitioner were sitting in the Tempo was carrying goods and two trollies were loaded in the said Tempo. Therefore, I am of the considered view that the petitioner in the second petition i.e Jainendra Bhandari was authorized representative of the owner of the goods and not the gratuitous or unauthorized passenger in the vehicle because in cross examination no suggestion has been put that he was not authorized representative of the owner of the goods. So far as, the status of the deceased in the first petition is concerned, the petitioner in the second petition namely Jainendra Bhandari has deposed in his examination in chief that he was travelling in the said Tempo alongwith deceased/Sh. Sudhir Kumar and other labourers and no suggestion has also been put to the said witness that the deceased was not travelling in the vehicle as labourer. Even, in the cross examination of R3-W-1 (witness of the insurance company) has admitted that the person who died in the accident in question was representative of the owner of the Consolidated cases bearing Page No.17/20 Suits No. 354/14 & 355/14 goods. Therefore, I am of the considered view that the deceased/Sh. Sudhir Kumar was sitting in the vehicle as a labourer and not as an unauthorized/gratuitous passenger, but to unload the goods on reaching the destination. Consequently, the contention of the Ld. Counsel for the insurance company that the petitioner in the second petition and the deceased in the first petition were unauthorized/gratuitous passengers is hereby rejected.
45. The Respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, Respondent No. 3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
46. The Hon'ble High Court of Delhi in its judgment in Union of India and Another Vs. Nanisari and Others MACA 682/2005 decided on 13.1.2010 have given certain guidelines and directions to the Motor Accident Tribunals to the effect that henceforth the Tribunals shall direct the insurance companies to deposit the award amount in the bank within 30 days with further direction as to the disbursement of the same in terms of the award and case be kept pending till the compliance is placed on record. The directions given by Hon'ble High Court of Delhi as mentioned and endorsed in the said order has already been re affirmed by Hon;ble Supreme Court of India in order dated 17.12.2009 in SLP (C) No. 11801-11804/2005 which contains certain schemes initiated for the benefit of the victims of the road accidents after the award amount is passed. The para no.18 of the judgment of the Hon'ble High court of Delhi runs as under:-
"19. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the insurance companies in consultation with the Life Insurance Corporation of India, State Bank of India or any other Nationalized Banks under which the compensation is kept in fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for claimants having to approach either the Court or their counsel or the Bank Consolidated cases bearing Page No.18/20 Suits No. 354/14 & 355/14 for that purpose. The scheme should ensure that the amount of compensation is utilized only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family. We extract below the particulars of a special Scheme offered by a nationalized Bank at the instance of the Delhi High Court:
(i) The fixed deposit shall be automatically renewed till the period prescribed by the Court.
(ii) The interest on the fixed deposit shall be paid monthly.
(iii) The monthly interest shall be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt shall be retained by the Bank in safe custody.
However, the original pass book shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the Court.
(ix) The claimant can operated the saving bank account from the nearest branch of UCO Bank on the request of the claimant, the bank shall provide the said facility."
47. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its Nodal Officer Mr. Chandra Mohan Ojha (Mb: 09412341376) Relationship Manager, Tis Hazari Branch, Tis Hazari or to UCO Bank through Mr. M M Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the Consolidated cases bearing Page No.19/20 Suits No. 354/14 & 355/14 convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
48. In terms of the order of the Hon'ble High Court of Delhi the insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Court Complex Branch, Delhi in the name of the petitioner/ petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
49. The copy of this award be given to the insurance company as well as to the petitioners free of cost. The petitioners shall approach the State Bank of India, Tis Hazari Court Complex Branch, Delhi for opening the account.
50. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 16/07/2015 to be fixed by insurance company.
Announced in the open court
on 15th April day of 2015 (SANJEEV KR. SINGH)
PO: MACT02 (CENTRAL): DELHI
Consolidated cases bearing Page No.20/20
Suits No. 354/14 & 355/14
Suit No. 354/14 ( The copy be also placed in Suit bearing No. 355/14) 15/04/2015 Present: None.
Consolidated Judgments in Suits No. 354/14 & 355/14 are announced vide separate sheets of even date.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 16/07/2015, to be fixed by insurance company.
(SANJEEV KR. SINGH) PO: MACT-02(Central) : DELHI Consolidated cases bearing Page No.21/20 Suits No. 354/14 & 355/14