Delhi District Court
Manju Tiwari vs Vijay Kumar Sharma S/O Sh Laturia Ram on 17 September, 2013
IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI c
M.A.C.P. NO. 109/11/04
1. Manju Tiwari
W/o Late Sh. Parveen Kumar Tiwari
2. Master Anket Tiwari
S/o Late Sh. Parveen Kumar Tiwari
Both R/o R6, Ext, Vani Vihar, Uttam Nagar, New Delhi.
... Petitioners
Through: Advocate Vikas Sharma,
Dwarka Bar Room, New Delhi.
Versus
1. Vijay Kumar Sharma S/o Sh Laturia Ram
R/o 53 A, Block A, Ishwar Colony, Arjun Park,
Najafgarh Road, New Delhi. (Driver)
2. Ratnesh Kumar S/o Sh. S. M. Dutta
R/o 329, Drruv Appts., I.P. Extn. Delhi92 (Owner)
3. National Insurance Co. Ltd.
(Janakpuri Branch) B18, Ist Floor,
Community Centre, Janakpuri, Delhi 02 (Insurer)
... Respondents
1. Date of institution :23.02.2004
2. Date of framing of issues :21.01.2008
3.Date of hearing arguments :10.09.2013
4. Date of decision : 17.09.2013
MACP No. 109/11/04 Manju Tiwari v/s Vijay Kumar 1 of 14
AWARD/ JUDGEMENT:
(FATAL CASE)
1. The present petition has been filed by the widow (petitioners no.1) and minor son (petitioner no.2) by invoking the jurisdiction of this Tribunal claiming compensation on account of accidental death of Parveen Kumar Tiwari with the involvement of the vehicle/driven & owned by Respondent no1 ( in short R1) and insured with respondent no3 ( in short R3).
2. As per the petitioners that on 22.10.2003 Parveen Kumar Tiwari (hereinafter the deceased) was a pillion rider on the scooter bearing No. DL5S K6674 being driven by the respondent no.1 (in short R1). At about 3:25 AM on that day when they reached at Kariyappa Marg near Arjan Vihar, Main Gate, R1 lost the control over the scooter due to bursting of tyre. As a result thereof, both the riders including the deceased fell down on the road. R1 received minor injuries whereas Praveen Kumar sustained grievous injuries which ultimately proved to be fatal.
3. Pursuant to the service of the notice, R2 chose to remain absent from the proceedings and he was proceeded exparte vide order dated 01.12.2006. R1 in its written statement denied the factum and manner of accident pleading that the vehicle in question, in fact, was being driven by MACP No. 109/11/04 Manju Tiwari v/s Vijay Kumar 2 of 14 the deceased himself at the time of accident and he was the pillion rider thereof. PS Delhi Cantt has already filed the cancellation report in respect of the FIR 376/03 u/s 279/ 337/ 304 A IPC before the concerned MM. It is also pleaded that vehicle was fully insured with R3 covering the date of accident and liability, if any, is of the insurer.
4. A separate written statement has been filed by the insurance company wherein pleaded that deceased was himself negligent while driving the vehicle bearing No. DL5S K6674 belonging to R1 and hence, insurance company had no liability. However, it has been admitted that the offending vehicle was insured vide policy number 360302/31/03/6204971 in the name of R1 during the period w.e.f. 03.09.2003 to 02.09.2004 subject to the terms and conditions of the policy. An amount claimed is illusory, highly excessive and exaggerated.
5. After completion of pleadings, issues were framed vide order dated 21.01.2008. Subsequently, the petition was sought to be converted into petition u/s 163 A from the provisions of section 166 M.V Act which was allowed vide order dated 27.08.2013 by framing the issues as per the provisions of Section 163 A MV Act. An amended petition accordingly filed. This petition was dismissed in default on 15.12.2008 which was restored with the findings that petitioner would not be entitled to get the interest from the date of dismissal in default till date i.e. 15.12.2008 MACP No. 109/11/04 Manju Tiwari v/s Vijay Kumar 3 of 14 to 10.12.2009.
6. I have heard the rival contentions advanced on behalf of both the sides and after perusal the evidence on record, my issue wise findings are as under: ISSUES No. 1 (framed on 27.08.2013) Whether Sh. Praveen Tiwari sustained fatal injuries in a motor vehicle accident dated 22.10.2003 due to use and involvement of vehicle no. DL5S K6674 by R1? ......OPP
7. The onus to prove the issue was on the petitioners. Considering the fact that the present petition was under Section 163A of Motor Vehicles Act 1988, therefore petitioners were only required to establish on record that the accident had taken place due to ''involvement'' of the Scooter bearing Registration No. DL5S K6674 as the aspect of ''negligence'' was not required to be proved.
8. To prove the said issue the petitioners had examined Smt. Manju Tiwari (PW1) who filed her examination in chief by way of affidavit Ex. PW1/A and averred the details of the accident in paragraph 2 of her affidavit to show the manner of the accident. Besides this, the petitioners have marked the criminal documents as X1 to X15 which remained unassailed/ unrebutted and uncontroverted.
9. From the evidence available on record, it stands established MACP No. 109/11/04 Manju Tiwari v/s Vijay Kumar 4 of 14 that the accident did take place at the given time, date and place with the involvement of the offending vehicle and hence, issue no. 1 is accordingly decided in favour of the petitioner and against the respondents. ISSUE NO. 2
If issue no.1 is proved in affirmative, whether petitioners are entitled to claim compensation, if yes from whom and to what amount? ....OPP
10. As issue No. 1 is decided in affirmative and now the question arises as to how much compensation has to be awarded. It is evident that the deceased was married and having age of 34 years at the time of his accidental death leaving behind his wife and minor son. It is specifically averred that there is no other legal heir except the petitioners. I find no reason to disbelieve the aforesaid statement as nothing contrary has either been proved or shown.
11. In so far the selection of multiplier is concerned, the law as stands today that the choice of multiplier shall be determined by the age of the deceased or that of claimant whichever is higher. Since the deceased was married of 34 years old therefore, the age of the deceased has to be taken into consideration in that regard. The petitioners have relied upon the passport of the deceased. photostaste copy thereof is Ex. PW 1/4 wherein the date of birth of the deceased is mentioned as 08.10.1970. If the age of MACP No. 109/11/04 Manju Tiwari v/s Vijay Kumar 5 of 14 the deceased is calculated on that basis, then it came to be about 33 years on the date of accident. An operative multiplier shall be 16 as per the judgment of the Apex Court passed in Sarla Verma Vs. DTC & Another: (2009) 6 SCC 121.
12. As regards the income of the deceased is concerned, the IInd schedule of the Motor vehicle Act 1988 inserted in the statue along with section 163 MV Act restricts Rs.40,000/ as maximum limit of annual income of the deceased. The petitioners had pleaded and specifically averred that the deceased used to earn Rs. 40,000/ per annum. I do not find any reason to disbelieve the testimony of PW1 as the same remained unassailed /uncontroverted and hence, the income of the deceased can be taken as Rs. 40,000/ per annum for the determination under the heads of loss of income. 1/3rd deductions have to be made towards personal living expenses as the petitioners had invoked the jurisdiction under section 163A of the Motor Vehicle Act.
13. Keeping in view, the evidence available on record, the following sum shall be just compensation:
1) Loss of dependency Rs. 26,667X16 Rs. 4,26,672/
2) For Funeral Expenses Rs. 2,000.00
3) For Loss of Consortium Rs. 5,000.00
4) For Loss of Estate Rs. 2,500.00 _____________________________________________________________ MACP No. 109/11/04 Manju Tiwari v/s Vijay Kumar 6 of 14 Total Rs. 4,36,172.00 (Rupees Four Lakhs, thirty six Thousand, one Hundred and seventy two only) INTEREST 14 This petition was dismissed in default on 15.12.2008 which was restored with the findings that petitioner would not be entitled to get the interest from the date of dismissal in default till date i.e. during the period 15.12.2008 to 10.12.2009. The petitioners are awarded interest @ 7.5% per annum from the date of filing of petition i.e. 23.02.2004 till the date of realization except the period w.e.f. 15.12.2008 to 10.12.2009. APPORTIONMENT
15. Petitioner no.1 shall be entitled to Rs.3,36, 172/ with interest whereas the petitioner no.2 shall be given the Rupees One lakh with interest. LIABILITY 16 No evidence has been led on behalf of the respondents including the insurance company.
17 The contention of the insurance company is that the deceased himself was a tortfeasor and hence, he cannot be termed as a victim u/s 163 A of the MV Act. She has placed reliance on the following judgment: 2008 ACJ 1280 M/s HDFC CHUBB General Insurance MACP No. 109/11/04 Manju Tiwari v/s Vijay Kumar 7 of 14 Company Ltd. Vs. Shanti Devi, Rajbalsingh Thakur & Anr. as follows:
1. "Motor Vehicles Act, 1988, Section 163A and 147 (1) Motor Insurance -
Death of son of insured - Liability of insurance company - Motor cycle skidded resulting in death of motorcyclist mother of deceased filed claim U/s 163A against father of the deceased who is owner of motor cycle and its insurance company contending that negligence is not to be enquired into and deceased as a victim is a third party mandatorily covered under the Act.
Insurance company seeks to avoid its liability on the plea that deceased was not a victim" U/s 163A or 'any person' under section 147 but a tort feasor - Contract of insurance covered the ownerdriver, pillion rider and mandatory third party risk but not 'other named person' or paid driver - A tort feasor who because of his own negligence met with death can not be equated with a victim of the accident - Whether insurance company is liable to indemnity the owner for the death of gratuitous driver of insured motorcycle as a victimHeld: No."
18 Per contra Ld. Counsel for the petitioner has refuted the aforesaid line of arguments submitting that under section 163A MV Act negligence is not required to be proved as it was the duty of the R1/ owner to keep its vehicle in a perfect good condition which he was failed to do so. MACP No. 109/11/04 Manju Tiwari v/s Vijay Kumar 8 of 14 He has not led any evidence to establish that he had taken all the care and precautions to keep his vehicle in good condition. To support his contentions, he has placed reliance upon his judgment Hon'ble High Court of Kerala at Ernakulam bench titled as Oriental Fire General Insurance Co. Ltd. & Ors vs. P.P Mishri & Ors. decided on 11.10.1991 wherein observed that owner of the vehicle insured and insurer were jointly liable for compensation to the representatives of the deceased when it is proved that accident occurred on account of mechanical failure in vehicle. In another judgment., Muthu Swamy & Anr. vs. Periasamy & Ors. reported in II (2000) ACC 501( Hon'ble Madras High Court), it has held that when a fatal accident due to bursting of tyre takes place the burden is on the owner of the vehicle to prove that the defect was latent despite his reasonable care and in the absence of the material for the same, it cannot be held that the drive or the owner is liable to pay the compensation.
19. It is the admitted position of the fact that the tyre of the scooter suddenly got burst resulting in the imbalance and occurrence took place and as such, the driver cannot be held responsible for any negligence. It is not evident by the owner of the vehicle that defect was latent despite his reasonable care and caution. It can be well said that the vehicle was not road worthy. The owner has got an obligation to put his vehicle on a public road only if it is roadworthy. The evidence also indicates that the accident MACP No. 109/11/04 Manju Tiwari v/s Vijay Kumar 9 of 14 did take place only on account of bad condition of the tyre of the vehicle and not on account of the negligence or rashness on the part of the driver. 20 In Smt. Kaushnuma Begum and Ors. Vs. The New India Assurance Co. Ltd. and Ors. Appeal (civil) 6 of 2001 Special Leave Petitioner (Civil ) 1431 of 2000 decided on 03/01/2001, by the Apex Court, the vehicle involved was a Jeep. It capsized while it was in motion and its front wheel suddenly got burst and in the process of capsizing it hit against one Hazi Mohamman who was walking on the road and consequently that pedestrian was crushed and subsequently succumbed to the injuries sustained in the accident. The owner of the Jeep is claimed the liability by denying even the fact of the accident in which his Jeep was involved. The claims tribunal dismissed the claim for compensation on the ground that rash and negligence of alleged Jeep is not established, however, insurance company was directed to pay Rs. 50,000/ to the claimants by way of no fault liability as envisaged in Section 140 of the MV Act. A Division Bench of Hon'ble Allahabad High Court dismissed the appeal vide order dated 28/4/1999 by holding that there is no error in the order. The Hon'ble Supreme Court allowed the appeal of the claimants with the observations that the Tribunal and the High Court have gone into error in divesting the claimants of the compensation payable to them.
MACP No. 109/11/04 Manju Tiwari v/s Vijay Kumar 10 of 14 21 Here, I may refer, the judgment of our own Hon'ble High Court bearing MAC Appeal no. 727/2011 decided on 03.01.2012 titled as Bajaj Allianz General Insurance Co. Ltd. vs. Bhikhari Yadav & Ors. Relevant paragraphs of the judgments is reproduced as under : In National Insurance Co. Ltd. V. Swaran Singh & Ors., 2004 (3) SCC 297, a three udges Bench of the Supreme Court held as under : "84. We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving licence.
The owner of a motor vehicle in terms of Section 5 of the Act has responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle admittedly did not hold any licence and th same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle many not have any hand at all, e.g a case where an accident MACP No. 109/11/04 Manju Tiwari v/s Vijay Kumar 11 of 14 takes place owing to a mechanical fault or vis major."
22. Following the judgments (SUPRA), I am of the considered view that the case of the petitioners is squarely covered and mechanical fault of the vehicle cannot allow the insurance company to avoid the liability. Hence, R1 & R3 are jointly and severally liable to pay the awarded amount. Since the vehicle was insured with the R3, therefore it shall pay the awarded amount with interest.
ISSUE No. 3 : Relief.
23. In view of the findings on issues no. 1 and 2 the petitioners are awarded Rs. 4,36,172/ (Rupees Four Lakhs thirty six Thousand one Hundred and seventy two only) with the interest.
24. The awarded amount be deposited by R3 with State Bank of India, Dwarka Court Complex Branch, Sector10, New Delhi within 30 days from today with intimation to the Nazir of this Court also. Upon the aforesaid amount being deposited, SBI Branch is directed to release the half of the amount of petitioner no.1 with interest by transferring the same to their Saving Bank Account after retaining the remaining half in the shape of FDR in her name for a period of 2 year. The amount of petitioner no.2 shall be kept in FDR till he attains the age of 18 years.
25. The beneficiaries shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account. MACP No. 109/11/04 Manju Tiwari v/s Vijay Kumar 12 of 14
26. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Account of the beneficiaries.
27. Withdrawal from the aforesaid account shall be permitted to the beneficiaries after due verification and the Bank shall issue photo Identity Card to the beneficiaries to facilitate identity. 28 No cheque book shall be issued to the beneficiaries without the permission of this Court.
29. The original fixed deposit receipts shall be retained by the Bank in the safe custody. However, the original Pass Book shall be given to the beneficiaries along with the photocopy of the FDRs. Upon the expiry of the period of each FDR, the Bank shall automatically credit the maturity amount in the Savings Account of the beneficiaries.
30 No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court.
31. On the request of the beneficiaries, Bank shall transfer the Savings Account to any other branch according to their convenience. 32 R3 shall inform the petitioner through registered post that the cheque of the awarded amount are being deposited so as to facilitate the petitioners to collect their cheques.
33 Copy of the award be supplied to both the parties at free of cost. MACP No. 109/11/04 Manju Tiwari v/s Vijay Kumar 13 of 14
34. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED: 17.09.2013 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
(1+1)
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