IN THE COURT OF [ENTITY] : PRESIDING OFFICER MOTOR ACCIDENTS CLAIMS TRIBUNAL KARKARDOOMA COURTS : EAST DISTRICT DELHI Date of Institution : 25.08.2010. Date of arguments : 04.08.2011. Date of Award : 06.08.2011. [CASE NUMBER] 1. Smt. [ENTITY] W/o Late Sh. [ENTITY] 2. [ENTITY] S/o Late Sh. [ENTITY] 3. Smt. [ENTITY] W/o Sh. [ENTITY] 4. [ENTITY] S/o Hari Shankar All R/o Vill. Partapur, Pilakhua, Teh. Hapur, Distt. Ghaziabad (U.P.) Petitioners VERSUS 1. [ENTITY] S/o Sadhu Ram Singhal R/o C-44, Ganesh Nagar Complex, Delhi-92 2. [ENTITY] S/o Usman Khan 27/74, Trilok Puri, Delhi 3. M/s [ENTITY] 60, Okhala Ind. Area, Phase-III, Opposite SBI, New Delhi Respondents [CASE NUMBER] 1/14 AWARD 1. This order will dispose of this claim petition filed u/[SECTION] [ACT]. The date of accident is 2.7.2010. On that day deceased [ENTITY] young boy 26 years of age was going on his motorcycle which was hit by one truck bearing no. HR-38J-2405 driven by [ENTITY] R2 and owned by R1 [ENTITY]. The truck was insured with Reliance General Ins. Co impleaded as R3 in the claim petition. The young widow with a minor son of three months and parents of deceased have brought this claim petition. 2. The proceedings were initially under DAR format and since matter could not have been settled in that proceeding, a claim petition was filed. A separate written statement has been filed by and on behalf of all the respondents. 3. Based on the pleadings following issues were framed on 13.10.2010 . ISSUES 1. Whether petitioners proved that they are the legal heirs of deceased [ENTITY]? 2. Whether [ENTITY] suffered fatal injuries in a road accident on 02.07.2010 involving vehicle No. HR-38J-2405 allegedly being driven in a rash and negligent manner by R2? 3. To what amount of compensation, if any the petitioners are [CASE NUMBER] entitled to and from whom? 4. Relief. 4. Petitioners have examined four witnesses. As per the claim of the petitioners deceased [ENTITY] at the time of accident was working as a driver and petitioners have examined [ENTITY] employer of the deceased as PW-1. PW-2 [ENTITY] is one of the petitioner and father of the deceased. PW-3 [ENTITY] is the Uncle of the deceased. He was riding as a pillion on the motorcycle of deceased at the time of the accident. PW-4 [ENTITY] is the widow of deceased [ENTITY]. 5. The owner and driver have also filed their affidavit of evidence. Owner [ENTITY] has been examined as R1W1. Driver [ENTITY] has been examined as R2W1. The owner has produced one driving license of [ENTITY] driver issued from Fatehgarh Licensing Authority alongwith the verification report which confirms to the genuineness of this driving license. To the similar effect is the statement of [ENTITY] who has filed his affidavit Ex.R2 and has been examined as R2W1. 6. The Insurance Company is disputing and denying the liability of payment. The Insurance Company in support has examined one witness [ENTITY] Assistant Manager Legal. His affidavit of evidence is Ex.R3W1/1. 7. Heard. Issue wise disposal of the inquiry is as under. [CASE NUMBER] 3/14 ISSUE NO.1 8. The wife of the deceased has been examined as PW-4. She has filed copy of her Election I Card in order to prove her relationship with the deceased [ENTITY]. Copy of birth certificate of son of deceased who is P2 [ENTITY] has also been placed on record in which name of his parents has been mentioned as [ENTITY] i.e. deceased and Petitioner no.1 [ENTITY]. Copy of election I card of the parents alongwith copy of the ration card of deceased are also on record. All these documents are sufficient to hold that petitioners are related to deceased [ENTITY]. No other person has been coming forward to claim any right, title or interest in the property of the deceased. As such it is held that all the four petitioners are the only surviving legal heirs of deceased [ENTITY]. Even the respondents are not disputing that there is any other legal heirs tot he deceased [ENTITY] other than these petitioners. Issue no.1 is disposed of accordingly. ISSUE NO.2 9. The testimony of PW-3 [ENTITY] is relevant for this issue. [ENTITY] is the uncle of the deceased. FIR has been recorded on the statement of PW-3 [ENTITY]. At the time of the accident [ENTITY] was sitting with deceased [ENTITY] on his motorcycle as pillion and both were moving towards Gurgaon. As per PW-3 when they reached at NH-24 Pandav Nagar the offending truck came from behind and hit the motorcycle. [ENTITY] died at the spot. The accident is of 4.30 p.m. At that time it is supposed that there must be sufficient natural light. The driver of the truck has not been vigilant and careful in driving of the [CASE NUMBER] 4/14 offending truck. He was driving a heavy vehicle and he should have maintained a proper distance from the other vehicles on road by keeping the speed of the truck under his control. The deceased [ENTITY] is another victim of a road accident because of careless driving of the truck driver R2. It is a case of res-ipse-loquitor. The driver of the truck has been arrested at the spot itself. His name also figures in the FIR. In [PRECEDENT] it was held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Accordingly issue no.2 is disposed of holding that petitioners have brought sufficient material on record proving that this accident has been caused because of rash and negligent driving of the driver [ENTITY] of the truck taking away a young life who was hardly married for more than a year's time and was father of a three months old son. The loss is tragic and irreparable to the family of the deceased. ISSUE NO.3 10. The copy of educational certificate of the deceased has been placed on record. It shows that deceased was a Matriculate and his date of birth was 5.8.1984. Date of accident is 2.7.2010. At the time of the accident age of the deceased [ENTITY] was 25 plus. According to the petitioners, deceased was working as a driver and was drawing salary of Rs. 9250/- p.m. In order to prove this fact petitioners have examined [ENTITY] proprietor R.P. Tempo Service. According to PW-1 deceased was working with him as a driver and he was being paid Rs. [CASE NUMBER] 5/14 9000/- as salary and Rs. 250/- as mobile charges. PW-1 has proved the salary certificate of deceased as Mark A. 11. The fact of salary of the deceased being Rs. 9250/- p.m. has been disputed and denied by the counsel for the insurance company submitting that salary certificate Mark A proved by PW-1 cannot be relied upon in absence of any other supportive material produced by PW-1 like attendance register, payment register, mode of payment or the income tax record. 12. For the reason of deficiencies pointed out by the counsel for the Insurance Company it is difficult to rely upon on the document Mark A of salary proved by PW-1. The compensation under the head of loss of dependency has to be assessed on the basis of the minimum wages for a matriculate as deceased was a matriculate as per the document of education filed on record. The school certificate shown to have been issued from the Board of Secondary Education, Haryana. The minimum wages for a matriculate on the date of accident were Rs. 6448/-. Considering the increase in minimum wages due to price index and inflation rate the average of minimum wage of Rs. 6448/- and its double be taken it comes to Rs. 9672/-. Since the family of the deceased consist of wife, parents and one son 1/4th has to be deducted on account of personal expenses. The multiplier of 17 be applied according to the judgment of the Hon'ble Supreme Court in the matter of [PRECEDENT]. The total loss of dependency comes to Rs. 7254 X 12 X 17 = Rs. 14,79,816/-. [CASE NUMBER] 6/14 13 Petitioners are also awarded a compensation of the amount of Rs. 40,000/- under the conventional heads of loss of consortium for petitioner no.1, loss of love and affection, loss of estate and also for meeting out the funeral charges for all the petitioners. 14. Keeping in view all the relevant factors and evidence on record this Tribunal is of the view that the petitioners are entitled for compensation as per following details. 1. Loss of dependency : Rs. 14,79,816/- 2. Loss of consortium, loss of love & affection, : Rs. 40,000/- Loss of estate & Funeral expenses
Total : Rs. 15,19,816/- LIABILITY
15. The Insurance Company in this case has been denying its liability of payment for the reason that driver [ENTITY] was having more than two licenses which is prohibited under [SECTION] of the [ACT]. According to the counsel the driver [ENTITY] has produced one driving license to the police issued from Mathura Licensing Authority which on verification was found fake by the police and as such the second license produced by him thereafter issued from Fatehgarh Authority even if verified by the police and found to be genuine is only to be rejected for the reason that the driver has not produced anything on record to show that he was ever a resident of the area of Fatehgarh or was running his business in the jurisdiction of that Authority which is the condition precedent for the purpose of issuing of a license under [SECTION] of the Act. In support the counsel has been relying upon the following judgments.
1. [ENTITY] New India Assurance Co. Ltd. & Ors. MANU/PH/0328/2009 ( P & H )
16. It was a case of fatal road accident. The liability of the company was disputed by placing reliance on [SECTION]. The Tribunal directed the Insurance Company to pay the compensation and recover the same from the owner of the vehicle on ground that driver of the said vehicle not possess a valid heavy traffic license (HTV). In revision filed by the owner a plea was taken that driver has second driving license authorizing him to drive HTV. It was held that [SECTION] of the Act strictly prohibits holding of two driving licenses and contention as such of the driver holding second driving license is not acceptable. The Hon'ble High Court did not find any infirmity in the order of the Tribunal.
2. [PRECEDENT] The United India Insurance Co. Ltd.
passed by National Consumer Disputes Redressal Commission against an order dated 29.09.09 in [CASE NUMBER].
17. It was observed in this judgment that "when holding of two licenses is prohibited under the law and is an offence, we fail to understand as to how and why the same cannot be pressed into service for rejecting a claim since holding of two licenses at the same time would not only be in contravention of [SECTION] 1988 [ACT] but the effect of [SECTION] would be that the second driving license obtained by a person would be invalid for all practical purposes as the same was obtained in contravention of [SECTION] of the said Act".
It is only a typed uncertified copy of the judgment and no reliance can be placed upon it.
3. Oriental Insurance Co. Ltd. [ENTITY]. [ENTITY] & Ors. [PRECEDENT] Allahabad High Court.
It was held in this case that the certificate issued by RTA is a public documents and requires no proof.
This judgment is not of any significance in the facts of the present case.
4. Order dated 6.2.2007 passed in FAO No. 255/2003.
It is only a photostat copy of the judgment and no reliance can be placed upon it.
5. [PRECEDENT] [CASE NUMBER] /2007 (Bombay)
18. In this case the Tribunal directed the Insurance Company to pay the compensation and recover the same from the owner. The plea of the Insurance Company was that it was a case of gratuitous passengers and as such Tribunal has no statutory power to direct the Insurance Company to pay the compensation in view of fundamental breach of the policy conditions. It was held that purposive interpretation of [SECTION] of the Act would make it manifest that the provision relates to power of the Tribunal to determine the question of justness of the award and quantum of compensation but it does not empower the Tribunal to issue to issue direction to the insurer to pay the amount of compensation though a finding is reached that the insurer is not liable to pay such amount on account of fundamental breach of the terms of insurance policy.
19. On the other hand counsel for the owner submits that driver [ENTITY] R2 since was having a valid driving license which has been produced by the owner genuineness of which is not in dispute and the insured/owner was admittedly having a valid insurance policy as such the responsibility of payment is of Insurance Company alone. He has been relying upon the following two judgments.
(i) Libra Bus Service Pvt. Ltd. V. Pushpa Devi and Ors.
2010 ACJ 547 Punjab and Haryana.
(ii) [PRECEDENT].
20. In the first judgment relied upon by the counsel of the owner the driver of the offending vehicle like the facts in case in hand was having two driving license with him one of which was fake and other was found genuine. The Hon'ble High Court upheld the responsibility of the Insurance of payment of the compensation amount to the victim holding that insured has not committed any willful breach of policy and due care was taken by him while employing the driver.
21 In second judgment relied upon in the matter of [ENTITY] (Supra) the Insurance Company was disputing the liability on the plea that driver was authorized to driver only a light motor vehicle and he was driving passenger vehicle at the time of the accident. The Insurance Company did not lead any evidence that accident was caused due to the negligence of the driver or cause of the accident was disqualification of the driver to drive passenger vehicle. There was no evidence to prove that owner has not taken care before the vehicle was given to the driver to drive it or owner was guilty of negligence and failed to exercise reasonable care. The responsibility of payment was continued by the Apex Court with the Insurance Company.
22. Under [SECTION] of the [ACT] Insurance Company has a statutory liability to indemnify the third party. In the judgment of the Hon'ble Supreme Court of India entitled [PRECEDENT] it has been held that:
"In order to avoid liability under [SECTION] it is not sufficient to show that the person driving at the time of accident was not duly licensed. The insurance company must establish that the breach was on the part of the insured, the burden of proof being on the insurance company to establish the breach. When an owner after verification has satisfied himself that the driver has a valid license and was driving the vehicle in question competently at the time of the accident there would be no breach of [SECTION], in that event, the insurance company would not then be absolved of liability. Mere absence of, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. Even in the case that the licence was fake, the insurance company would continue to remain liable unless it proves that the owner was aware or noticed that the licence was fake and still permitted him to drive. The concept of purposive interpretation has no application to cases relatable to [SECTION] of the Act."
23. In view of this preposition as laid down in the above said case of the Apex Court and applying the same to the instant case, it may be noted that offending vehicle in the case in hand was admittedly insured with R3 Reliance General Ins. Co. Insurance company did not produce any evidence to show that the owner [ENTITY] R1 was aware of the fake driving license of driver [ENTITY] R2. The owner has produced one driving license of driver [ENTITY] issued from Fatehgarh License Authority genuineness of which is not in dispute. The plea of the Insurance Company that the driver cannot posses more than one license is not available to the Insurance Company against owner unless the Insurance Company is able to bring on record to show that the owner is aware of the fact of the two licenses or more with the driver. No such evidence has been brought on record by the Insurance Company. In cross examination by the Insurance Company the owner appearing as R1W1 has specifically denied of his having knowledge of any other license other than the one produced by him. In cross examination owner R1W1 has stated that [ENTITY] was driver with him from last about 7 years and according to him he did not find anything suspicious either with his driving or about his driving license. There is no evidence brought by the Insurance Company on record to prove that the owner has knowingly given the vehicle to drive to driver [ENTITY] despite his having knowledge that he is not properly authorized to drive the same or was having a fake license.
24. In view of this position it is to be held that neither there is any breach of the terms and conditions of the insurance policy nor there is any violation of [SECTION] of the Act and since the offending vehicle was insured with Insurance Company R3 the responsibility of payment shall be of the Insurance Company alone.
25. An award of the sum of Rs.15,19,816/- is passed in favour of the petitioners and against the respondents alongwith interest @ 7.5%. from the date of filing of the petition till realization of the amount minus the amount of interim compensation if any and interest excepted if any with responsibility of Insurance Company R3 to make the payment.
26. Out of this award amount the two parents of the deceased are awarded a sum of Rs. 2 lac each and balance amount is apportioned in the ratio of 70% to the mother petitioner no.1 and 30% to the minor child. Out of the share of the mother 50% be released to her and 50% be kept in [ENTITY] for a period of 10 years with release of periodical interest to her account and entire amount of the share of the minor son [ENTITY] be kept in [ENTITY] till he attains the age of 18 years with release of periodical interest to him for the purpose of meeting out the expenses of his education and other needs.
27. The Insurance Company is hereby directed to deposit the award amount with up to date interest in UCO Bank, Branch Karkardooma under intimation to this Court and Bank would keep this amount in an account in the name of Judge [ENTITY].
28. An attested copy of this award alongwith a recent photograph of all the petitioners with Court Stamp be also sent to the Bank for facilitating the compliance. Put up for compliance on 14.9.2011.
Dictated and announced in the open Court on 6.8.2011.
( [ENTITY] ) PRESIDING OFFICER MOTOR ACCIDENT CLAIMS TRIBUNAL EAST DISTRICT KKD COURTS: DELHI