Delhi District Court
) Smt. Rekha Devi @ Shakshi Wd/O Late Sh. ... vs ) Sh. Ridmal Singh S/O Sh. Bhawar Singh ... on 3 May, 2012
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IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT &
SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT
CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
(MACT Case No. 902/10/09)
1) Smt. Rekha Devi @ Shakshi Wd/o Late Sh. Vijay Pal (aged 28 years)
2) Baby Payal D/o Late Sh. Vijay Pal (aged 4 years)
3) Manish Kumar S/o Late Sh. Vijay Pal (aged 4 months)
(petitioner no. 2 & 3 being minors represented through their
mother natural guardian Smt. Rekha Devi petitioner no.1)
All R/o A-39, Prem Nagar-III, Mubarakpur Road
Agra Nagar, Nangloi, Delhi-110041 ----Petitioners/Claimants
Versus
1) Sh. Ridmal Singh S/o Sh. Bhawar Singh (Driver)
R/o Village & P.O. Dhundha, Teh. Baitu,
Distt. Barmer, Rajasthan.
Also C/o Mrs. Jamnaben Kanabhai Ahir
A-345 Apana Nagar, Gandhidham (Gandhigram),
Distt. Kachha, Gujarat-370201
2) Mrs. Jamnaben Kanabhai Ahir W/o Sh. Kanabhai Ahir (Owner)
R/o A-345 Apana Nagar, Gandhidham (Gandhigram),
Distt. Kachha, Gujarat-370201
3) M/s ICICI Lombard General Insurance Company Ltd. (Through Manager)
5th Floor, Birla Tower, Barakhamba Road,
New Delhi -----------Respondents
Date of institution--09.01.2009
Date of decision-----03.05.2012
(Application u/s 166 and 140 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:-
As per the averments made in the petition, deceased Sh. Vijay Pal (hereinafter referred to as deceased) aged about 34 years was driver by -2- occupation under the employment of transport company and used to go on long travel tours on trucks in course of his employment. It is the case of the LRs of the deceased Sh. Vijay Pal that on 22.10.2008 the deceased alongwith Sh. Neetu s/o Sh. Raghuraj Singh was coming back to Delhi from Gandhidham, Gujarat, in vehicle No. HR-69A-1061 (truck), loaded by salt, via High Way Road, Radhanpur, Distt. Patan, Gujarat. The truck was being driven by Sh. Neetu carefully and vigilantly and at about 6.00 am when his vehicle i.e. truck bearing no. HR-69A-1061 reached near Ramdev Chaudhary Hotel, Highway Road, Radhanpur, Distt. Patan, Gujarat, then all of sudden the offending vehicle no. GJ-12Z-0921 (tanker) being driven by its driver respondent no. 1 with a high speed, rashly, negligently, violating the traffic rules, zig-zag manner and without indication applied the brakes, it was ahead of the deceased. Due to this impact, the front portion of vehicle No. HR-69A-1061 (truck) hit into the back of offending vehicle No. GJ-12Z-0921 (tanker) and the deceased sustained fatal injuries. The deceased was taken to C.H.C. Radhanpur (Civil Hospital), Distt. Patan, Gujarat in precarious condition, by the police, where he was declared brought dead due to the injuries sustained in the accident in question. A criminal case under section 279/337/304-A IPC was registered against respondent no. 1 vide FIR No. 175/08 in police station Radhanpur, Distt. Patan, Gujarat. It is further stated that the accident took place due to rash and negligent driving on the part of respondent no. 1 of offending vehicle bearing no. GJ-12Z-0921 (tanker).
Petitioner no. 1 being widow, petitioners no. 2 & 3 being minor children of the deceased alleged that the deceased was a driver by profession and was earning approximately Rs. 9,000/- per month. It is further stated that the parents of the deceased are pre-deceased. The deceased used to spend his income on his family. The petitioners have incurred about Rs. 50,000/- on last rites, funeral ceremony and -3- transportation of dead body of the deceased. They claimed sum of Rs. 40 lakhs as compensation alongwith interest @18% p.a. from respondents no. 1 to 3 being driver, owner and insurance company of the offending vehicle jointly and severally.
Respondents no. 1 & 2 did not appear despite service and not filed written statements, so they were proceeded exparte vide order dated 21.07.2009. Respondent no. 3 insurance company admitted that offending vehicle no. GJ-12Z-0921 (tanker) was insured with it but it tried to avoid its liability on some routine technical grounds. It is stated that the present petition is bad for mis-joinder and non-joinder of necessary party as the driver, owner and insurance company of the vehicle i.e. truck bearing no. HR-69A-1061 has not been impleaded as one of the respondent in the present case. It is further stated that the driver of the offending vehicle bearing no. GJ-12Z-0921 was not holding valid and effective driving licence, permit and fitness certificate. The accident, if any, took place only due to the negligence on the part of driver of truck.
Petitioners during pendency of the case were paid interim compensation of Rs. 50,000/- along with interest u/s 140 of Motor Vehicles Act on account of no fault liability. On the basis of pleadings of the parties, following issues were framed on 21.04.2010 by my ld. Predecessor:
1) Whether the deceased Sh. Vijay Pal s/o late Sh. Ganga Saran expired due to the fatal injuries received in the roadside accident occurred on 22.10.2008 at about 6.00 a.m. near Ramdev Chaudhary Hotel, Highway Road, Radhanpur, Distt. Patan, Gujarat due to rash and negligent driving of R-1/driver of offending vehicle No. GJ-12Z-0921?
OPP -4-
2) Whether the petitioners are entitled to compensation as prayed for, if so, to what extent and from which of the respondents? OPP
3) Relief.
In order to prove their case, petitioners examined widow of the deceased as PW-1 and eye witness Sh. Neetu @ Mohit as PW-2. Respondent no. 3 Insurance company examined its official Ms. Sunanda Nimisha, Manager (Legal) as R3W1.
PW-1 Smt. Rekha Devi (wife of the deceased) in her examination tendered her affidavit in evidence as Ex.PW1/A and reiterated the facts as stated in the petition and proved the copy of postmortem report as Mark-A, copy of D/L of deceased as Mark-B, copy of ration card as Mark-C, copy of Election I-card of the deceased as Ex.PW1/2, copy of her Election I-card as Ex.PW1/3, date of birth certificate of petitioner no. 3 as Ex.PW1/4, certified copies of criminal case i.e. FIR with translated copy and charge sheet as Ex.P-1 to P-2. In cross examination, PW-1 stated that she was not present at the spot at the time of accident. She has not filed any bill regarding transportation and last rites of her deceased husband nor filed any income proof of her deceased husband. She denied the suggestion that the accident took place due to the negligence of driver of vehicle bearing HR-69A-1061, who was driving the vehicle at the time of accident. She further stated that she has not filed any claim against the owner and insurance company of vehicle bearing HR-69A-1061, which was being driven by Neetu at the time of accident. She admitted the suggestion that the eye witness Neetu belongs to their village. She further admitted that she has not impleaded owner and insurance company of vehicle bearing HR-69A-1061 in the array of parties.
-5-Petitioners further examined Sh. Neetu @ Mohit, who reiterated the facts as stated in the petition. He further stated that he is an eye witness of the accident. He further stated that the accident took place due to rash and negligent driving of offending vehicle no. GJ-12Z-0921 (tanker) and a case bearing FIR No. 175/08, U/s 279/337/304A IPC has been registered at P.S. Radhanpur, Distt. Patan, Gujarat on 22.10.2008 and the concerned criminal case is pending against the driver Ridmal Singh. He further stated that he made a call to the police and police came at the spot and recorded his statement regarding the accident in question. They were taken to C.H.C. Civil Hospital, Radhanpur, Distt. Patan, Gujarat by the police, where the doctors declared the deceased as dead. The police arrested the respondent no. 1 driver in his presence and also seized the offending vehicle. He proved the copies of criminal case documents i.e. Panchnama with translated copy, D/L of driver Ridmal Singh, R/C, National Permit as collectively Mark X-1 to X-4. In cross examination, PW-2 stated that he is not a summoned witness. He admitted that the deceased Vijay Pal belongs to their village and he was driving the vehicle bearing HR-69A-1061 at the time of accident. He further stated that he hit against the offending vehicle from behind which was going ahead of his vehicle. He had not told the police that offending vehicle came from behind by overtaking him and applied the brakes in front of his vehicle. The distance between his vehicle and the offending vehicle was about 10-15 feet when it came in front of his vehicle. He denied the suggestion that he had applied brakes and hit the offending vehicle. Normally he used to maintain a distance of about 50-60 feet from the vehicle going in front of him. He was driving his vehicle at the speed of about 50 km/hour. He was not in possession of any document to show that he was known as Neetu @ Mohit. He was not carrying any driving license at the time of accident, as it was lying in his house. He denied the suggestion that the accident had taken place due to his own negligence and he lodged false FIR against the driver -6- of offending vehicle to save himself, as he was not holding any D/L at that time.
Respondent no. 3 insurance company examined its official Ms. Sunanda Nimisha, Manager (Legal) as R3W1, who stated that the vehicle no. GJ-12Z-0921 insured in the name of Smt. Jamnaben Kanabhai Ahir vide policy no. 3003/52692275/01/000 for the period commencing from 16.10.2008 to 15.10.2009. A notice U/o XII Rule 8 CPC was got issued through their advocate Sh. S.K. Tyagi on 30.10.2010 through registered post on the last known address of owner and driver to produce the original policy, valid permit of vehicle on the date of accident and D/L of driver. She proved the copy of insurance policy as Ex.R3W1/1, office copy of notice u/o XII Rule 8 CPC as Ex.R3W1/2, postal receipts as Ex.R3W1/3 & Ex.R3W1/4. She further stated that the copy of D/L of the driver was obtained from the criminal record and as per the copy of D/L No. RJ04/DLC/5/19771 dated 21.07.2008 was valid upto 21.07.2011 to drive transport vehicle whereas the vehicle in question is a gas/oil tanker. Therefore, no endorsement of dangerous/hazardous on the said D/L of the driver and the said D/L was not valid to drive the offending vehicle. She proved the copy of DL as Mark-A and the verification report of D/L as Ex.R3W1/5. She further stated that the owner failed to produce the valid permit of the offending vehicle. She further stated that as the driver/owner was not following the motor vehicle rules, framed for driving the vehicle, therefore, there is a breach of terms and conditions of the policy, so the insurance company is not liable to pay any compensation to the petitioners. No cross examination of the said witness was conducted.
I have heard ld. counsel for the parties and gone through the record. My decision on the above mentioned issues is as under:
-7-Issue no. 1:-
The onus of proving this issue was upon the petitioners. The principles to be followed in the case of motor accident claim have been laid down by Hon'ble Guwahati High Court in case cited as Renu Bala Paul and Ors. vs. Bani Chakraborty and Ors. 1999 ACJ 634 wherein it is held that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
In N.K.V. Bros (P) Ltd. vs. M. Karumai Ammal & Ors. (1980) 3 SCC 475, Mr. Justice V.R. Krishna Iyer and Mr. Justice D.A. Desai, Division Bench of Hon'ble Supreme Court has observed as under:-
"In Road accidents are one of the top killers in our country, especially 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 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 -8- exercise sufficient disciplinary control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
PW-2 an eye witness of the accident in his affidavit of evidence disclosed how and in which manner accident took place. He stated that he alongwith the deceased was coming back to Delhi from Gandhidham, Gujarat, in vehicle No. HR-69A-1061 (truck), loaded by salt, via High Way Road, Radhanpur, Distt. Patan, Gujarat. The truck was being driven by him carefully and vigilantly and at about 6.00 am when his vehicle i.e. truck bearing no. HR-69A-1061 reached near Ramdev Chaudhary Hotel, Highway Road, Radhanpur, Distt. Patan, Gujarat, then all of sudden the offending vehicle no. GJ-12Z-0921 (tanker) being driven by its driver respondent no. 1 with a high speed, rashly, negligently, violating the traffic rules, zig-zag manner and without indication applied the brakes. Due to this impact, the front portion of vehicle No. HR-69A-1061 (truck) hit into the back of offending vehicle No. GJ-12Z-0921 (tanker) and the deceased sustained fatal injuries. He also received injuries in the said accident. He further stated that the accident took place due to rash and negligent driving of respondent no. 1 of offending vehicle bearing no. GJ-12Z-0921 (tanker). The statement of this witness is trustworthy and reliable as no effective cross examination of this witness was done. The chances of this witness to depose falsely are otherwise very remote as he himself was present alongwith the deceased at the time of accident.
Investigating officer of the criminal case after investigation found that accident took place due to rash and negligent driving of the offending tanker by respondent no. 1 and charge sheeted him. Copy of the criminal case record is on record which confirms the deposition of PW-2.
-9-There is no dispute that respondent no. 1 was arrested by the police and offending tanker was seized by the police.
Respondents no. 1 and 2 did not cross examine the eye witness PW-2. Respondent no. 1 & 2 did not lead any evidence which draws an adverse inference against both respondents no. 1 & 2 and leads to the conclusion that version of eye witness regarding manner of accident is correct. It is not the case of the respondents no. 1 and 2 that they had made any complaint to any authority against the alleged false implication of respondent no. 1 in criminal case or there was any enmity with the legal heirs of deceased or eye witness or IO which facilitated them to involve him in the false case. I could not find from the cross examination of PW-2 eye evidence which point out that deceased was an instrumental or facilitator in causing the accident so possibility of existence of any contributory negligence is also ruled out. The statement of PW-2 is trustworthy and reliable so it is held that the accident had taken place with the offending tanker being driven by respondent no. 1.
As far as fact of accident in question is concerned, all the parties agree with the accident as taken place by vehicle no. GJ-12Z-0921 (tanker) which was made an offending vehicle in the FIR lodged by the police of which the respondent no. 1 was driving in high speed, rashly, negligently, violating the traffic rules, zig-zag manner and without indication applied the brakes. It is argued by counsel for the respondent no. 3 insurance company that there was contributory negligence on the part of driver of truck bearing No. HR-69A-1061 who was also negligent in driving the truck and contended that 50% of the compensation amount should be deducted due to contributory negligence. In support of his contention, he has relied upon the judgment titled Raj Rani & Ors. vs. Oriental Insurance Co. Ltd. & Ors., IV (2009) ACC 910 (SC) and
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Oriental Insurance Company Ltd. vs. Meena Variyal & Ors., IV(2007) ACC 355 (SC). He further placed reliance upon Section 9 and 132(5) of the Central Motor Vehicles Rule, 1989 in which it is averred that some qualification is required for drivers of goods carriages carrying dangerous or hazardous goods. In this section it is further written that the licencing authority, on receipt of the application referred to in sub-rule (2), shall make an endorsement in the driving licence of the applicant to the effect that he is authorised to drive a goods carriage carrying goods of dangerous or hazardous nature to human life. It is shall be the duty of the owner to ensure that the driver of the goods carriage carrying dangerous or hazardous goods holds a driving licence as per provisions of Rule 9 of these rules.
Counsel for the petitioner has brought to notice the judgment of Hon'ble Supreme Court reported as III (2003) ACC 551 (SC) titled Municipal Corporation of Greater Bombay vs. Laxman Iyer & Anr. wherein concept of negligence was clearly held that:
"Though there is no statutory definition, in common parlance negligence is categorized as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly
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measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act".
This is a case of composite negligence on the part of truck driver of which the deceased was traveling and the offending tanker in question as per the judgment of Hon'ble Supreme Court reported in III (2003) ACC 551 (SC) titled Municipal Corporation of Greater Bombay vs. Laxman Iyer & Anr., 1(2001) ACC 615 of Hon'ble Delhi High Court titled Arun Sondhi vs. Delhi Transport Corporation, 91 (2001) DLT 184 (DB) titled Om Wati & Ors. vs. Mohd. Din & Ors., 1(2004) ACC 698 titled Balwanti Devi & Ors. vs. Surjit Singh & Ors. and in view of the judgment of Hon'ble Supreme Court in III (2003) ACC 551 which has discussed the distinction between contributory negligence and composite negligence and it was held that:
"Though there is no statutory definition, in common parlance negligence is categorized as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of degree, precaution and vigilance which the circumstances justly demand, whereby such other person
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suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act.
But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence."
In case titled T.O. Antony v. Karvarnan & Ors., 1(2008) ACC 706 SC it is held that:
"Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong- doer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the Court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then negligence of the part of injured which contributed to the accident is referred to
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as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
Hence in view of the facts and circumstances of the case as the deceased died due to composite negligence of respondent no. 1 and 2 and the vehicle driven by respondent no. 1 owned by respondent no. 2 was insured with respondent no. 3 insurance company, which is a valid insurance, hence liability of respondent no. 1 & 2 is composite and joint and several and it is the option of the petitioners to sue either one or all the persons responsible due to composite negligence on part of driver of the vehicle to whom deceased had died. Hence it is proved on record that the accident took place due to rash and negligence of respondent no. 1. In view of the above discussions, this issue is decided in favour of petitioners and against the respondents.
Issue no. 2:-
Deceased expired on 22.10.2008 before reaching the hospital and there is no expenses incurred on his medical treatment. He had left behind his wife and two minor children i.e. one daughter and one minor son. It is alleged that the deceased was a driver by profession and was earning approximately Rs. 9,000/- per month but there is no proof of his income on record. In the absence of any proof of income of the deceased, there remains no other option except to take the help of schedule of minimum wages to presume the monthly income of the deceased by treating him falling in skilled worker category and as per minimum wages chart, an skilled person was presumed to be earning sum of Rs. 4,107/- per month. Accordingly, I am of the view that the amount of Rs. 4,107/- per
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month has to be taken into consideration while counting monthly income of the deceased.
As per the postmortem report, the deceased was 35 years of age. But as per the copy of D/L of deceased Mark-B, his date of birth was 10.02.1973, so his age was approximately 35 years 8 months. Hence in view of the judgment of Hon'ble Supreme Court given in Sarla Verma vs. DTC 2009 ACJ 1298, multiplier of 15 has to be applied upon the income of the deceased.
Hon'ble Delhi High Court in Sajha vs. National Insurance Co. 2010 ACJ 627 and New India Assurance Co. vs. Raja Ram MAC. APP. No. 175/06 decided on 25-8-2009 held that keeping in view the trend of increase of minimum wages from time to time and rises in price index and inflation, it can be said that minimum wages would get almost double over a period of next 10 years and thus future prospects should be given in minimum wages also. Thus applying the formula given in these judgments, the monthly income of the deceased can be held as Rs. 6,160.5 paisa (Rs. 4,107 + 50%).
Deceased had left behind his wife and two minor children i.e. one minor daughter and one minor son. Thus as per the decision of Hon'ble Supreme Court given in Sarla Verma's case, by treating three dependents upon the deceased, the deduction of 1/4th from income of deceased has to be made upon his personal expenses. Hence after deducting 1/3rd of the amount from monthly income of Rs. 6,160.5 paisa, the net amount of dependency per month comes to Rs. 4,107/-. Accordingly, in this case, loss of dependency is assessed at Rs. 7,39,260/- in round figure (Rs. 4,107 x 12 x 15).
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Petitioners have stated in their petition that they have incurred about Rs. 50,000/- on last rites, funeral ceremony and transportation of dead body of the deceased. But they have not brought on record any document regarding the expenses incurred on cremation and last rites of the deceased nor have alleged about it in the affidavit of PW-1. It is a judicial noticeable fact that normally some expenses are incurred upon cremation, Chotha or Theharvin ceremonies etc. Hence, I award an amount of Rs. 10,000/- as funeral charges.
Petitioners in my view are also required to be awarded sum of Rs. 75,000/- towards loss of estate (Rs. 25,000/- each to three petitioners) and Petitioner no. 1 is also entitled to sum of Rs. 50,000/- towards loss of consortium in view of the decision of Hon'ble High Court in Bedo Devi & Ors. Vs Jagat Singh & Others, reported in 2010 ACJ 2249. Another sum of Rs. 1,00,000/- towards loss of love and affection, loss of company, parental guidance and encouragement, trauma and loss of other discomfort is awarded to all the petitioners after relying upon the judgment of Hon'ble Supreme Court in Radhika Gupta & Ors Vs Oriental Insurance Co. Ltd. & Others reported in 2010 ACJ 758 and the judgment of Hon'ble High Court in Bedo Devi & Others Vs Jagat Singh & Others reported in 2010 ACJ 2249.
Now onus to prove this issue was upon the insurance company that there was willful default on the part of driver of the vehicle in employing a driver not having special endorsement on his driving licence for driving tanker. The insurance company has failed to discharge the onus of the fact as to the defence that there is willful default on the part of the driver and owner of the offending vehicle which was having special endorsement on the driving licence of the driver for driving the tanker as
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per the judgment of Hon'ble Mr. Justice J.R. Midha titled as Krishan Kumar vs. Chander Pal & Ors., 2011 ACJ 1125 and Dalvinder Kaur & Ors. vs. United India Insurance Co. Ltd., 2011 ACJ 2133. Reliance is also placed upon the authority of Hon'ble Mr. Justice G.P. Mittal in Oriental Insurance Co. Ltd. vs. Balwant Singh Negi & Ors., MAC. APP. 157/10. Reliance can also be placed upon the judgment of Ms. Justice Reva Khetrapal in Mukesh Kumar vs. Kamlesh Devi & Ors., 2011(4) T.A.C. 858 (Del.) and of Hon'ble Supreme Court in case titled Sardari & Ors. vs. Sushil Kumar & Ors., III (2008) SLT 605. As the insurance company has failed to discharge its onus and there is willful default on the part of owner and driver of the offending vehicle in not having any endorsement after training for driving a crane, hence insurance company has failed to prove its defence that there is violation of terms and conditions of insurance policy by the owner and driver of offending vehicle and they are not liable to pay the compensation.
Respondent no. 3 insurance company could not bring on record any other evidence to point out that it is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured or it has any limited liability. Keeping in view the existence of valid insurance policy, respondent no. 3 alone becomes entitled to pay entire compensation amount.
Accordingly, this issue is decided in favour of the petitioners by holding that they are entitled to get the following total compensation from the respondent no. 3 only:
1) Loss of dependency================== Rs. 7,39,260/-
2) Funeral charges ==================== Rs. 10,000/-
3) Loss of estate======================Rs. 75,000/-
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4) Loss of consortium===================Rs. 50,000/-
5) Loss of love and affection etc.============ Rs. 1,00,000/-
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Total Rs. 9,74,260/-
Record shows that interim compensation of Rs. 50,000/- is already paid to the petitioners so this amount is liable to be deducted from the compensation amount assessed above. Hence petitioners are entitled to get Rs. 9,24,260/- as compensation from the respondent no. 3 alongwith interest at the rate of 9% p.a. from the date of institution of the petition i.e. 09.01.2009 till realization, as per the judgment titled as New India Assurance Co. Ltd. vs. Bhudhia Devi & others, 2010 ACJ 2045.
Issue no. 3 (Relief):-
On the basis of findings given above, present petition is disposed off. Respondent no. 3 insurance company is directed to pay sum of Rs. 9,24,260/- to the petitioners along with interest at the rate of 9% p.a. from 09.01.2009 till this amount is fully realized.
It is further ordered that out of the compensation amount, petitioner no. 2 being minor daughter of the deceased be paid Rs. 2,50,000/- which be deposited in her name in FDR with right to withdraw monthly interest by her mother petitioner no. 1 through her saving bank account, with liberty to get them encashed at the time of her marriage.
Petitioner no. 3 being the minor son of the deceased be paid Rs. 2,50,000/- which be deposited in his name in FDR for the period till he attain the age of majority with right to withdraw monthly interest by his mother petitioner no. 1 through her saving bank account.
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Remaining amount alongwith accrued interest on the award amount shall be deposited in the name of petitioner no. 1 in FDR for a period of five years with right to withdraw monthly interest. These FDRs be got prepared from State Bank of India, Rohini Courts, Delhi branch and shall not be encashed without permission of the court. No loan or advance shall allow to be taken on these FDRs. Respondent no. 3 Insurance company to pay further sum of Rs. 50,000/- as counsel fee and Rs. 10,000/- as out of pocket expenses to counsel for petitioner Sh. Pankaj Kumar Dewal, Adv. by preparing separate cheque in the name of counsel as per the judgment of Hon'ble Mr. Justice J.R. Midha titled as Sat Prakash vs. Jagdish, II (2010) ACC 194.
Respondent no. 3 insurance company is directed to prepare the separate cheques of the compensation amount as per above order. Copy of this judgment be given to petitioners and counsel for respondent no. 3 insurance company for compliance. File be consigned to record room.
Announced in the open (D.K. MALHOTRA)
Court on 03.05.2012 JUDGE, MACT (OUTER-II)
DELHI