Delhi District Court
Anita And Others vs . Surender Singh Deshwal And Anothers on 26 February, 2011
-:1:-
IN THE COURT OF SH. H. S. SHARMA
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
TRIBUNAL,DWARKA COURTS, NEW DELHI
(I)
IN THE MATTER OF :
Anita and others Vs. Surender Singh Deshwal and anothers
M.A.C.P NO :733/08
1 Anita w/o Late Sh Moni Singh
2 Tina d/o Late Sh Moni Singh
3 Sumitra w/o Late Rishi Singh
4 Nikhil s/o Late Sh Moni Singh
( Petitioner no 2 and 4 are minor through mother and natural
guardian petitioner no 1 Anita)
r/o village Isher Heri,
Post Bahadurgarh,
Distt Jhajjar ( Haryana)
........Petitioners
Versus
1 Sh Surender Singh Deshwal s/o Sh Attar Singh
r/o Village & PO Dulhera,
Distt Jhajjar (Haryana)
Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08
Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09
(Page no 1 to page no 36 )
-:2:-
2 Mr Davinder Kumar,
r/o village and Post Neelwal,
New Delhi41
3 IFFICO Tokio General Insurance Co. Ltd
rd
Iffico House, 3 Floor, 34, Nehru Place,
New Delhi
.......Respondents
1. Date of institution:21/11/2008
2. Date of framing of issues: 20/7/2009
3.Date of hearing arguments :21/2/2011
4. Date of decision:26/2/2011
5. Police Station :Najafgarh 6. FIR No 593/08 (II) AND IN THE MATTER OF :
Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and anothers M.A.C.P NO :59/09 Anil Kumar @ Anit Mann s/o Sh Badam Singh, r/o Village Ishreri , Post Bahadurgarh, Jhajjar ( Haryana) ........Petitioner Versus Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:3:- 1 Sh Surender Singh Deshwal s/o Sh Attar Singh r/o Village & PO Dulhera, Distt Jhajjar (Haryana) 2 Mr Davinder Kumar, r/o village and Post Neelwal, New Delhi41 3 IFFICO Tokio General Insurance Co. Ltd rd Iffico House, 3 Floor, 34, Nehru Place, New Delhi .......Respondents
1. Date of institution:5/2/2009
2. Date of framing of issues: 20/7/2009
3.Date of hearing arguments :21/2/2011
4. Date of decision:26/2/2011
5. Police Station :Najafgarh 6. FIR No 593/08
1. Sh R K Singh advocate advocate for petitioners
2. Sh Raju Vijay advocate for respondents no 1 and 2 3 Ms Neha Khattar advocate for Respondent no 3 AWARD:
1. Vide this judgement I shall dispose of two petitions bearing Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:4:- nos 733/08 titled as ''Anita and others Vs. Surender Singh and anothers'' and 59/09 titled as ''Anit Kumar @ Anit Maan Vs. Surender Singh and anothers''. Since, both these petitions were found to have arisen from the same accident dtd 12/10/2008, therefore, vide order dtd 30/9/2010 these petitions were ordered to be consolidated. Evidence was ordered to be recorded in petition no 733/08 titled as ''Anita and others Vs. Surender Singh and anothers''.
2. The case of the petitioners (in both the petitions) is that on 12/10/2008 Sh Moni Singh ( hereinafter 'the deceased' ) was going on the motorcycle driven by him . One Mahender Singh was sitting on the pillion seat. Anit (petitioner in petition no 59/09) was going on another motorcycle driven by Harish. He ( Anit) was sitting on the pillion seat. At about 6.55 a.m when these two motorcycles had reached Bahadurgarh Najafgarh road, near tube well of Satya Prakash, a tata 407 bearing registration no HR46A4496 (hereinafter the offending vehicle) driven in a negligent manner by respondent no 1 ( in short R1) came from the side of Bahadurgarh. It had come on the wrong side and hit the two motorcycles. The injuries sustained by Moni Singh proved fatal. Anit also sustained serious injuries.
3. Petition no 733/08 has been filed by the widow ( petitioner no
1), minor children ( petitioners no 2 and 4) and mother ( petitioner no 3) of Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:5:- the deceased.
4. Petitioner no 59/09 has been filed by the injured Anit.
5. The offending vehicle was owned by respondent no 2 ( in short R2)and insured with respondent no 3 (in short R3).
6. Notice of the petitions was issued to the respondents. R1 and R2 did appear through their counsel. However, initially they did not file their written statement. They were proceeded Ex parte on 20/7/2009.
7. R3 admitted that the offending vehicle had been insured with it in the name of R2. However, the cheque of the premium had been dishonored by the banker. The policy was accordingly cancelled. R2 and the authorities were informed about it.
8. Issues were framed on 20.7.2009 . After conclusion of evidence of the petitioners and R3, arguments were heard. When it was pointed out to the court that the cheque of the premium issued by R2 had been dishonored and the policy had been cancelled , I deemed it proper to issue court notices to R1 and R2 ,as earlier they had appeared through their counsel. It has been experienced that in all those cases in which the driver and the owner appear through their lawyer and are proceeded Ex parte , they, later on, move application u/o 9 Rule 13 CPC to get the exparte award set aside primarily on the ground that their previous lawyer was negligent. It was for this reason alone that the court notices were sent Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:6:- to R1 to R2
9. In response to the court notices , R1 and R2 appeared through their counsel . The Ex parte proceedings against them were set aside subject to payment of cost. They were allowed to file their written statement .
10. The defence of R1 and R2 , as unfolded by them in their written statement , is that the accident had taken place solely due to negligent driving of the motorcycles by their respective drivers. The offending vehicle was insured.
11. Since R1 and R2 were allowed to file the WS , therefore, the issues were reframed on 30/9/2010.
12. I have heard ld. Counsels for the parties and have gone through the file as well as the judgements cited by them.
13. My issue wise findings are as under : ISSUE NO 1 Whether Sh Moni Singh died due to rash and negligent driving of vehicle no HR 46A 4496 by R1?
....OPP ISSUE NO 2 Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:7:- Whether Anit Kumar @ Anit Mann sustained injuries due to rash and negligent driving of vehicle no HR 46A 4496 by R1?
.....OPP
14. Both these issues are interlinked , therefore, the same are being taken together.
15. Sh Anit Kumar , who had also sustained the injuries in this very accident, has appeared as PW2 and in his affidavit Ex PW2/A he has reiterated the manner of accident , as mentioned in para 2 of the award. His statement was recorded on 20/11/2009. On that date R1 and R2 were Ex parte. Although the Ex parte proceedings against R1 and R2 were set aside and they were allowed to file the written statement yet their counsel had stated at bar on 30/9/2010 that so far as issues no 1 and 2 are concerned , he would not like to recall the witnesses of the petitioners already examined , for their cross examination. It was also stated at bar that statements of Smt Anita ( PW1) and Sh Anit (PW2) recorded earlier be taken into account .
16. Thus, no cross examination with regard to the manner of accident had been conducted on behalf of the respondents no 1 and 2. So far as the cross examination conducted on behalf of R3 is concerned , not even a single question with regard to manner of accident was put to Anit (PW2). It is now well settled that if a witness is not cross examined on Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:8:- material points stated by him in his examination in chief, the necessary inference is that the opposite party does not intend to challenge the version of the witness and the version of the witness must be accepted as truthful. Reliance can be place on K K Jain Vs. Mansur Anwar 1990 ACJ 299 ( MP) .
17. Statement of PW2 finds necessary corroboration from FIR no 593/08 copy of which is Ex PW2/4. Infact this FIR is based on the statement of PW2.
18. R1 and R2 in their written statement have averred that the accident had taken place due to negligent driving of the motorcycles as the motorcyclists had suddenly come from the wrong side. It has also been averred that he ( R1) had driven the offending vehicle in a proper manner. He had followed the rules and regulations. He had applied emergency brakes to stop the offending vehicle but in vain.
19. Although R1 has appeared as R2W3 and in his affidavit Ex R2W3/A , has , in para 3 , reiterated his above defence yet the same cannot be given any weight in view of the fact that this particular defence had never been suggested to PW2. Further, after the investigation R1 has been challaned to face the trial.
20. A photostat copy of the site plan is available on the file. It had been filed by the investigating officer alongwith the accident information Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:9:- report. It is now exhibited as Ex C1 for the purpose of identification. This site plan shows that the motorcyclist were on the left side . The offending vehicle had come from the opposite side. In these circumstances, principles of Res Ipsa Loquitur can be pressed into service.
21. The standard of proof, in a claim petition, is not as rigid and as high , as is in a criminal case. In a criminal case proof beyond reasonable doubt is required . However, in a claim petition it is not so. 22 In N K V Brothers ( P) Ltd Vs. M Karumai 1980 ACJ 435 ( Supreme Court),it was held as under: '' The requirement of culpable rashness of 304A IPC is more drastic than negligence sufficient under law of torts to create liability . Merely because accused was acquitted in criminal case is no ground to reject claim petition. The tribunals must take special care to see that the innocent victims do not suffer and drivers and owners do not escape liability, merely because of some doubts here and 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 the niceties, technicalities and mystic 'may be' . Presumption be drawn from doctrine of res ipsa loquitur."
23. In view of the above discussion both these issues are decided Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:10:- in favour of the petitioners and against the respondents.
ISSUE NO 3
Whether the offending vehicle was
insured on the date of accident.
.....OPR
24. The defence of R3 is that the offending vehicle was got insured 16/2/2008 on the basis of the cheque Ex R3W1/A dtd 16/2/2008. This cheque of Rs 7993/ , on presentation , had been dishonored by the banker vide memo Ex R3W1/B. The policy was therefore, cancelled vide notice dtd 28/3/2008 ( Ex R3W1/C). This notice had been sent to R2 vide postal receipt Ex R3W1/D dt 1/4/2008.
25. The defence of R1 and R2 is that the cheque Ex R3W1/A had not been issued by R2. The amount of the premium had been paid in cash to the agent Parmod . No notice of cancellation of the policy had been received.
26 In view of the pleadings of the respondents and the evidence produced by them, the following questions are required to be decided:
a) Whether R2 had made the payment of the premium in cash, as asserted by him?
b) Whether notice of cancellation of policy had been duly served on R2, as asserted by R3?
Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:11:-
27. R2 has appeared as R2W1 and in his affidavit Ex R2W1/A he has asserted that the cheque in question (i.e. ExR3W1/A) had not been issued by him. He had paid the premium in cash to Pramod in the presence of his cousin Jaswant (R2W4) and R1 (R2W3) . R1 (R2W3) and Jaswant ( R2W4) have also , in their respective affidavits, reiterated the above facts.
28. R3 has examined Sh Amit Kumar ( R3W1), Sh Abhinav Mahajan ( R3W2) and Sh Sameer Gupta ( R3W3) to substantiate the fact that the cheque in question had been dishonored and the policy had been cancelled vide letter dtd 28/3/2008 sent through registered letter vide postal receipt Ex R3W1/D.
29. Sh Abhinav Mahajan (R3W2), has, in his affidavit Ex R3W2/A, averred that he was an agent of R3. The cover note in question had been issued from his Bahadurgarh Office, to R2. R2 had paid the premium amount through the cheque in question. It was handed over in his office. Subsequently, he was informed by R3 that the cheque in question had been dishonored and thus no policy came into existence. This fact was intimated by R3 to owner of the vehicle. A copy of the letter dtd 28/3/2008 sent to R2 about cancellation of policy had also been sent to his ( witness's) office.
30 Sh Sameer Gupta (R3W3) in his affidavit Ex R3W3/A has Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:12:- averred that Abhinav Mahajan was their agent in Gurgaon ( Haryana). To the best of his (witness's) knowledge, the cover note in question had been issued by Dinesh Kumar , Assistant in the office of Abhinav Mahajan after receiving the cheque from Sh Pramod on behalf of Sh Devender Kumar ( R2) . The said cheque was sent to the office of R2 by Sh Abhinav Mahajan. Because of dishonoring of the cheque, the policy had been cancelled vide notice dtd 28/3/2008.
31. There is no dispute with regard to the fact that the cover note had been issued on behalf of R3 on 16/2/2008 in respect of the offending vehicle by the office of Sh Abhinav Mahajan ( R3W2) , an agent of R3. There is no dispute that copy of the cover note is Ex R2W1/1. When it had been pointed out to me that the cheque in question had been dishonoured , I directed the SHO PS Najafgarh to depute a special messenger to find out as to in whose name the account , the number of which was found mentioned on the cheque in question, stood. As per the written report of the officer of Allahabad Bank, Bahadurgarh, the account no 700410 which was mentioned on the cheque Ex R2W1/A was in the name of Pramod Kumar Dral. The report of the bank officer is now exhibited as Ex C2 for the purpose of identification of the document. Thus, the cheque Ex R3W1/A had been issued by Pramod Kumar Dral. Although Sh Abhinav Mahajan ( R3W2) in his cross examination has Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:13:- deposed that Pramod had never worked him either as an agent nor as an employee and he does not know any Pramod yet Sh Sameer Gupta ( R3W3), in his affidavit Ex R3W3/A has averred that the cover note was issued by Sh Dinesh after receiving the cheque from Pramod. The cover note Ex R2W1/1 has the initial of the authorized signatory. If the initials appearing on Ex R2W1/1 are compared with the signature appearing on the cheque Ex R3W1/A it would be clear that both these signature/ initial are of the same person.
32. Now so far as the statements of R1(R2W3) , R2 ( R2W1) and Jaswant ( R2W4) are concerned, the same are contradictory to such an extent that no reliance with regard to their claim that the amount of premium had been paid in cash, can be placed on them.
33. Devender Kumar (R2W1 ) in his cross examination has deposed that he , his driver Surender ( R2W3) and Jaswant ( R2W4) had gone to the office in a tempo at about 9 a.m. They had reached the office at about 9 a.m. They had hardly stayed there for 15 minutes.
34. Surender ( R2W3) in his cross examination has deposed that they had gone in a Tata 407 and had reached there at about 2.30 p.m. He had kept on sitting in the vehicle . In his presence a pronote was prepared and issued. He had stayed for two minutes inside the office. In his presence no payment had been made to the two persons who were in the Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:14:- office.
35. Jaswant (R2W4) in his cross examination has deposed that they had left their office for going to the office at about 9 p.m. He had studied upto 10th class. They had gone in the Tempo.
36. The timings of going to the office of Pramod , given by these three witnesses cannot be reconciled. The statements of these three witnesses, therefore, do not inspire confidence. It can be said that the amount had not been paid in cash.
37. In the cover note Ex R2W1/1 mode of payment of the premium - cash or through cheque - has not been mentioned. 38 The defence of R1 and R2 is that the cover note had been issued by Pramod. As mentioned earlier the cheque Ex R3W1/A had been issued by Pramod Kumar Dral. The cover note bears his initials. No other mode of payment of premium other than in cash or through cheque has been asserted by the parties. Once, it is held that the amount of premium had not been paid in cash , as asserted by R1 and R2, as a necessary corollary it can be said that the premium had been paid through cheque Ex R3W1/A. The payment of the premium even by the agent or by a known person of the agent or a known person of the owner / insured is not uncommon. People get their vehicles insured through agents and at times they give instructions to the agent to make the payment of the Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:15:- premium on their behalf and to collect the amount later on. The agents also oblige their customers. They believe their customers . They trust them. This is what appears to have happened in the present case.
39. R3 claims to have sent a notice dtd 28/3/2008 ( R3W1/X) to R2 vide postal receipt dtd 1/4/2008 ( Ex R3W1/D). In the notice , the address of R2 is mentioned as Devender Kumar village and PO Neelwal, New Delhi. In the postal receipt (Ex R3W1/D) Mr D Kumar is mentioned. R2 could have obtained a certificate from the postal authorities that the registered letter sent vide post receipt (Ex R3W1/D) had not been delivered to the addressee.
40. In the cover note Ex R2W1/1 the address of R2 is mentioned as Mr Devender Kumar village and post office Neelwal, New Delhi110041. In the petition address of R2 is mentioned as Devender Kumar r/o village and PO Neelwal, Delhi. Notice of the petition was sent to R2 on this very address for 5/5/2009. His counsel had appeared on 5/5/2009 and filed the vakalatnama on behalf of R1 and R2 . In the vakalatnama address of R1 and R2 has been mentioned as Devender and Surender ,Village and PO 61, Neelwal, Delhi.
41. The court notice to R2 had been sent at Village and PO 61, Neelwal Delhi as well as at village and PO Neelwal New Delhi, for 6/8/2010. It was duly served on R2. An application for exemption on Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:16:- behalf of R2 was filed by his counsel on 7/8/2010. A medical certificate dtd 5/8/2010 was attached with the application . In the medical certificate dtd 5/8/2010 the address of R2 was mentioned as Devender Kumar s/o Bhim Singh, Village and PO Neelwal, Delhi 41. In the affidavit filed alongwith the written statement, address of R2 was mentioned as Devender Kumar s/o Bhim Singh village and Post office Neelwal Delhi.
42. In the affidavit Ex R2W1/A, the address of R2 was mentioned as Old resident of village and PO Neelwal Delhi. When the statement of R2 was recorded as R2W1, he disclosed his address as Village Neelwal and PO Tikri Kalan, New Delhi. His statement was recorded on 29/10/2010. Thus , the complete address of R2 even according to R2 had consistently been Village and PO Neelwal, Delhi. 43 In view of the above discussion it is held that the notice of cancellation of policy ( Ex R3W1/C) had been duly served on R2.
44. R3 was also required to send a notice of cancellation of policy to the Regional Transport Authority. Reliance in this regard can be placed on National Insurance Company limited Vs. Jitender Kumar and another 2010 ACJ 739 ( Allahabad). In this particular judgment the earlier judgements of the Hon'ble Supreme court dealing with the cases of cancellation of the policy because of dishonouring of cheque of premium has been discussed in detail.
Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:17:-
45. The Hon'ble High Court, after incorporating sections 146 M V Act and 149 M V Act and section 64V B of the Insurance Act, in their entirety, observed , in para 10, as under: " From the plain reading of several provisions of the Act, it appears to us that insurance of the vehicle to run it in public places is mandatory in nature. Therefore, it is implied that the insurance company will inform all concerned inclusive of the Regional Transport Authority and also the appropriate policy authority dealing with traffic simultaneously with the information of cancellation of the insurance coverage to the owner - insured . Insurance is an assurance . As per the scheme of the Act such assurance is to be given not only to the insured but also to the third parties who sustained injury or succumbed to death due road accident and their legal representatives. They are not aware about the cover period and extent of the contract between the insure and insured. They are also not aware about any default. They presupposed that when a vehicle runs in the public place, it has all valid documents to run. One of such valid documents is contract of insurance between the insurer and insured to cover the third party risk. In that way , knowledge or information for not having valid insurance coverage by the insurance company to the Regional Transport Authority and appropriate police authority which deals with traffic is mandatory in nature. Insurers cannot be allowed to Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:18:- wait and watch like usual commercial enterprises and take defence of not having insurance coverage only after the accident when the claim will arise. As soon as an insurer enters into a contract with insured under the Act, it becomes statutorily liable to the third parties. On the other hand the act itself is beneficial piece of legislation for the third parties. Therefore, whenever, we sit in this jurisdiction, we should not be forgetful about predominant effect of such Act. Interest of the affected persons will be considered at first. Equity follows law by applying the maxim of acquitas sequitur legem but sometimes law follows equity by the maxim of Lex aliquando sequitur aequitatem particularly when equity emerges into the law relevant for the purpose. Therefore, it is essential for the insurer to take a defence before the Tribunal that it had not only cancelled the insurance coverage and informed the insured but also simultaneously intimated all concerned to prevent the vehicle from plying on the road othewise it cannot avoid the liability to pay compensation to the third parties specifically in the form of stopgap arrangement and recover from the owner i.e insured. When the insurance coverage under the Act is compulsory , it has twofold duties, i.e. Prevention and compensation. When they have discharged their duty of prevention in absence of coverage by notice to the appropriate authorities, their liability can be extinguished and the authorities will be strictly liable to ensure seizure of such vehicle from the Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:19:- public place for not having insurance coverage. Notice to them means notice to public. In absence of the same an insurance company cannot be discharged from their liability to make payment of compensation to third party even as a stopgap arrangement. Facilities under the statue cannot be frustrated by means of solitary intimation of the insurer to the insured about cancellation of insurance contract for dishonour of the requisite cheque(s) . It is 'strict liability' of the insurer under the law. An insurance company is doing business about risk as per its own policy. Therefore, if the insurance company is allowed to avoid the risk, the same will go against their own policy of business particularly when they are entitled to get back their money even by way of land revenue in case the contract does not seem to be in existence for any reason. There is, in general no duty for the sufferer to anticipate that another will be negligence and to avoid the effects of that negligence by anticipation . The position of a sufferer and the position of an insurer cannot be equated at all''.
46. It is the case of R3 that it had sent a copy of the notice of cancellation of policy to the Regional Transport Authority. However, no postal receipt has been produced.
47. It is not the case of R2 that on receipt of notice of cancellation of policy , he had paid the premium either in cash or Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:20:- through cheque or through pay order, before the accident.
48. In view of the above discussion , it is held that the policy issued by R3 on 16/2/2008 had been validly cancelled. However, the interest of the petitioners , who fall in the category of third party does not get affected due to cancellation of the policy.
49. This issue is therefore decided accordingly. ISSUE NO 4 Whether the petitioners in petition no 733/08 and the petitioner in petition no 59/09 are entitled to claim compensation if so, what amount and from whom?
50. I shall take up this issue petition wise.
In petition no 733/08 titled as "Anita and others Vs. Surender Singh Deshwal and others"
51. The petitioners claim that Sh Moni Singh ( the deceased) was aged around 23 years and was earning Rs 5500/ per month.
52. Petitioner no 1 in her affidavit Ex PW1/A has averred that petitioners are the only LRs of the deceased.
53 Ex PW1/1 is the certificate dtd 30/10/2008 issued on behalf Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:21:- of M/s Kapoor Filling Station . In this certificate it is mentioned that the deceased was earning Rs 5500/ per month. However, no one from Kapoor Filling Station has been examined. During arguments Ld. counsel for the petitioners submitted that the income of the deceased be taken as per the schedule of minimum wages.
54 The Hon'ble Supreme Court in Sarla Verma Vs. DTC and another (2009) 6 SCC 121 has crystallized the manner of calculating compensation in a fatal accident case involving a motor vehicle.
55. The Hon'ble Supreme Court, after taking into account all earlier judgments on this subject rendered by it including UPSRTC Vs. Trilok Chandra 1996 ACJ 831 & Sarla Dixit Vs. Balwant Yadav AIR 1996 (1) S.C. 1274, had in Sarla Verma Vs. Delhi Transport Corporation & Anr. 2009 (6) SCC 121 observed as Under: "Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation through involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:22:- decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation. In Susamma Thomas, this Court stated "So the proper method of computation is the multiplier method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability, for the assessment of compensation."
Para 8 Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/ deductions to be make for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:23:- also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceases and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multiplier with reference to the age has been identified by this Court. The multipliers should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family. Thereafter, a conventional Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:24:- amount in the range of Rs. 5,000/ to Rs. 10,000/ may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/ to 10,000/ should be added under the head of loss of consortium. But no amount is to be legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added.
Para 9 In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceases had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was selfemployed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:25:- should be made only in rare and exceptional cases involving special circumstances.
Para 11 Having considered several subsequent decisions of the is court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one third (1/3rd) where the number of dependent family members is 2 to 3, oneforth (1/4th) where the number of dependant family members is 4 to 6, and onefifth (1/5th ) where the number of dependant family members exceed six.
Para 14 Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which events the contribution to the parents and siblings is likely to be cut drastically. Further, subject to evidence tot he contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:26:- and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non earning sisters or brothers, his personal and living expenses may be restricted to onethird and contribution to the family will be taken as twothird.
Para 15
Age of Multiplierscale
the in Trilok
deceased 2 3 Chandra as
1 clarified in
Charlie
4
Upto 15yrs.
15 to20yrs. 18
21 to 25yrs. 18
26 to 30 yrs. 17
31 to 35 yrs. 16
36 to 40 yrs. 15
41 to 45 yrs 14
46 to 50 yrs 13
51 to 55 yrs 11
Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08
Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09
(Page no 1 to page no 36 )
-:27:-
56 to 60 yrs 09
61 to 65 yrs 07
Above 65 yrs. 05
Para 19
We agree with the contention that the
deduction on account of personal living expenses cannot be at a fixed onethird in all cases (unless the calculation is under section 163 A read with Second Schedule to the MV Act). The percentage of deduction on account personal and living expenses can certainly vary with reference to the number of dependant members in the family. But as noticed earlier, the personal living expenses of the deceased need not exactly correspond to the number of dependants. As an earning member, the deceased would have spent more on himself than the other members of the family apart from the fact that he would have incurred expenditure on traveling/transportation and other needs. Therefore we are of the view that interest of justice would be met if onefifth is deducted as the personal and living expenses of the deceased.
Para 25 In addition, the claimants will be entitled to a sum of RS. 5,000/ under the head of 'loss of estate' and Rs. 5000/ towards funeral expenses. The widow will be entitled to Rs. 10,000/ as loss of consortium.
Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:28:- Para 26
56. In the present case, the date of birth of the deceased, as per the copy of the matriculation certificate (Ex PW1/4) , is 15/9/1985. The accident had taken place on 12/10/2008. Therefore, the age of the deceased on the date of accident was 23 years.
57 The minimum wages of a matriculate, effective from 1/8/2008 , as per the schedule , were Rs 4131 per month. The minimum wages also increase with the passage of time. This is evident from the fact that in 2000 the minimum wages of a matriculate were Rs 2972/ and in 2008 the same were Rs 4131/. Reliance in this regard can be placed on Kumari Chunni Vs. Balwant and others II (2010) ACC 156 ( Delhi High Court), wherein it was observed that ''the court should take judicial notice of increase in minimum wages to meet the increase in price index and inflation rate''.
58 The average income of the deceased can be taken as Rs 4131/ Plus 50 % of 4131/. It comes to Rs 6196.50/. The petition has been filed by the widow and three children, therefore, 1/4th deduction towards the personal expenses of the deceased is to be made in view of Sarla Verma's case ( supra) . The loss of dependency of the petitioner thus comes to Rs 4647.37/. Rounded off to Rs 4648/.
59 Keeping in view the age of the deceased, the proper Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:29:- multiplier, as per Sarla Verma's case ( Supra) would be '18'. 60 Keeping in view the above discussion , following sum shall be just compensation:
1 Loss of dependency (4648X12X18) =Rs. 10,03,968/ 2 Loss of Consortium =Rs. 10,000 3 Loss of Love and affection* =Rs. 1,00,000/ 4 For funeral expenses =Rs. 10,000/ 5 Loss of estate =Rs. 10,000/ ____________________________________________________________ Total Rs. 11,33,968/ (Rupees Eleven lacs thirty three thousand nine hundred sixty eight Only) ___________________________________________________________ *In view of the law laid down by the Hon'ble Supreme Court in case titled as Baby Radhika Gupta Vs. OIC Ltd. & Others 2010 ACJ 758 followed by our own Hon'ble High Court in New India Assurance Company Ltd. Vs. Bali Ram Bansals and Others, In MAC appeal no. 257 of 2010 and CM appeal no. 74637464 of 2010 decided on 26/4/10.
61 It includes the Interim Award of Rs. 50,000/ paid to the petitioners vide order dt 20/11/2009 APPORTIONMENT 62 Petitioner no. 1 shall get Rs. 7,83,968/ with interest. Petitioners no. 2 to 4 shall get Rs. 1,00,000/ each, with interest. RELEASE
63. From out of the amount awarded to petitioner no 1 , a sum of Rs 25,000/ with interest is ordered to be released. The balance amount is ordered to be kept in her FD for the following period: Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:30:- a Amount of Rs. 1,58,968/ in FD for a period of three years. b Amount of Rs. 2,00,000/ in FD for a period of five years. c Amount of Rs. 2,00,000/ in FD for a period of seven years. d Amount of Rs. 2,00,000/ in FD for a period of nine years.
64. No loan or advance to be given against FDRs without permission of the tribunal. However, Petitioner no. 1 can withdraw monthly/quarterly interest, if she so wishes.
65. The amount awarded to petitioners no. 2 and 4 is ordered to be kept in their FD till they attain the age of 18 years.
66. The amount awarded to petitioner no 3 is ordered to be released.
In petition no 59/09 titled as " Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and others"
67 The petitioner ( Sh Anit Kumar) in his affidavit Ex PW2/A has averred that he had suffered a fracture on his right foot. He had also suffered head injury and multiple injuries all over his body. He was removed to Government Hospital, Bahadurgarh, where he had remained admitted. After his discharge, he remained under treatment for six months. He was again admitted on 14/11/2008 and was discharged on 17/11/2009. He claims to have spent Rs 50,000/ on his treatment, Rs Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:31:- 20,000 on special diet and Rs 10,000/ on conveyance. He was earning Rs 5000/ per month. He cannot work with the same efficiency. 68 However, the petitioner (Sh Anit Kumar) has not produced any corroborative evidence to prove that he was earning Rs 5000/ per month and had spent Rs 50,000/ on treatment, Rs 20,000/ on special diet and Rs 10,000/ on his conveyance. His MLC Ex PW2/3 shows that he had multiple bruises/ abrasions on the fore head. He was having abrasions on the lower part of his back. He was having multiple abrasions on part of left hand . He was having abrasion on the right leg . He was having bruises and abrasions on the left ankle.
69 Ex PW2/2 is the bill/ discharge slip of Rs 7150/ issued by Hira Hospital. Ex PW2/1 is the prescription slip dtd 17/10/2008 . On both these documents there is over writing on the date 17/10/2008 . It appears that the date has been changed from 14/11/2008 / 17/11/2008 to 14/10/2008 and 17/10/2008. The accident had taken place on 12/10/2008. In the prescription slip Ex PW2/1 as well as in the discharge slip Ex PW2/2 nothing has been mentioned about the ailment or the injuries. No X Ray report has been produced to show that he ( Sh Anit Kumar ) had sustained factures /grievous injuries. He has not suffered any disability. There is no corroborative evidence that he had suffered fracture.
70. Keeping in view the nature of injuries and nature of evidence , Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:32:- a sum of Rs 10,000/ with interest is awarded to Anit Kumar . RELEASE
71. The awarded amount is ordered to be released . INTEREST IN BOTH THE PETITIONS:
72. In both the petitions , the petitioners are awarded interest @ Rs. 7.5% per annum from the date of filing of petitions till realization. The petition bearing no 733/08 titled as Anita Vs. Surender was filed on 21/11/2008. The petition bearing no 59/09 titled as Anit Kumar Vs. Surender was filed on 5/2/2009.
LIABLITITY IN BOTH THE CASES
73. Ld. counsel for the petitioners has placed reliance on NIC Vs Abhay Singh 2008 ACJ 2697. In that case the accident had taken place on 27/1/1995. The cheque dtd 23/1/1995 was dishonoured. The insured had paid the premium in cash on 30/1/1995. It was accepted by the insurance company. No notice of cancellation of policy had been issued . In those circumstances the insurance company was held liable. It was held that the cover note remains valid till it is cancelled. 74 ld. counsel for petitioners has also placed reliance on OIC Vs. Inderjeet kaur 1998 ACJ 123 . In that case the policy had been issued on 30/11/1989. The cheque of premium had been dishonoured. The Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:33:- insured was informed about dishonouring of cheque vide letter dtd 23/1/1990. The premium was paid in cash on 2/5/1990. The accident had take place on 9/4/1990 . The insurance company was held liable. It was held that its remedy was against the insurer and not against the third party. 75 Ld. counsel for R3 has relied upon Deddappa and others Vs. Branch Manager NIC (2008) 2 SCC 595. In that case the accident had taken place on 6/2/1998. The policy was issued from 17/10/1997 to 16/10/1998. Since the cheque of the premium had been dishonoured, therefore, notice of cancellation of policy was sent to the insured and the RTO on 6/11/1997. In this particular judgment reference had also been made to OIC Vs. Inderjeet Kaur ( supra) . After discussion the law on the subject, the Hon'ble Supreme court had held that the insurance company was not liable. However, the Hon'ble Supreme Court had exercised its power under Article 142 of the Constitution of the India and directed the insurance company to pay the amount to the claimants and to recover the same from the owner.
76 Deddappa's case ( supra) and OIC Vs, Inderjeet Kaur ( Supra) had been referred in NIC Vs. Jitender Kumar ( supra). 77 OIC Vs. Inderjeet Kaur is a judgement delivered by three Hon'ble Judges of the Apex. In para 9 of this judgement it was observed as under: Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:34:- '' The policy of insurance that the appellant issued was a representation upon which the authorities and third parties were entitled to act. The appellant was not absolved of its obligations to third parties under the policy because it did not receive the premium . Its remedies in this behalf lay against the insured. ''
78. R3, therefore, cannot escape liability. However, it is given the right to recover the awarded amount from R2, the insured.
79. In view of the above discussion issue no. 4 is decided in favour petitioners and against the respondents. ISSUE NO. 5
Relief.
80 In view of the findings on issues no 1,2,3 and 4 in petition no 733/08 , the petition titled as Anita Vs. Surender Singh etc an amount of Rs 11,33,968/ ( Rupees eleven lacs thirty three thousand nine hundred sixty eight eight only) with interest is awarded in favour of petitioners and against the respondents.
81. In view of the findings on issues no 1,2,3 and 4 in petition no 59/09 , the petition titled as Anit Kumar Vs. Surender Singh etc an amount of Rs 10,000/ ( Rupees Ten thousand only) with interest is Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:35:- awarded in favour of petitioners and against the respondents.
82. The R3 is directed to deposit the awarded amount within 30 days from today failing which interest @ Rs 12 % per annum shall be charged from 31/3/2011 till realization. R3 to file the calculation of the amount deposited. A copy of the calculation be sent to the petitioners.
83. Petitioners are directed to place on record their photograph, copy of election Icard or any other document (if not filed earlier) to establish their identity.
84. Copy of the award be given to both the parties (free of cost).
85. The original award is being kept on the file of petition " Anita Vs. Surender Singh etc ( Petition no733/08 )" being the leading case. An attested copy of the award is being kept on the file of petition " Anit Kumar Vs. Surender Singh Deshwal ( Petition no59/09 )"
86. Ahlmad to keep the photostat copy of the first and last page of the award and to put up the same on 11/4/2011 to find out as to whether the order has been complied with or not. In case, the amount is found to have been deposited before 11/4/11, he need not put up the papers on 11/4/2011.
87. Petitioner no 1(Anita widow of Late Sh Moni Singh ) should supply PAN number directly to R3 within 10 days from today failing which it shall be taken that she does not have any PAN number. Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08 Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09 (Page no 1 to page no 36 ) -:36:-
88. Nazir to calculate the amount of compensation and attach the calculation with the award.
89. Files be consigned to record room.
ANNOUNCED IN OPEN COURT (H. S. SHARMA)
DATED:26/2/2011 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL01,
DWARKA COURTS, NEW DELHI.
ALL PAGES SIGNED
Anita and others Vs. Surender Singh Deshwal and another M.A.C.P NO :733/08
Anit Kumar @ Anit Mann Vs. Surender Singh Deshwal and another M.A.C.P NO :59/09
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