IN THE COURT OF MS. [ENTITY]: PO-MACT (SOUTH-01) SAKET COURTS, NEW DELHI FATAL CASE Suit no. : 337/10 Unique Case ID no. : 02406C0400432010 IN THE MATTER OF :- 1. Sh. [ENTITY] S/o Late Sh. [ENTITY] R/o. House No. S-II, K. D. Colony, R. K. Puram , Sector-12, New Delhi Petitioner Versus 1. [ENTITY] S/o. Late Sh. Sewa Singh R/o. House No.3170, Mohindra Park, Rani Bagh, New Delhi Driver 2. [ENTITY] R/o. 69, Apna Ghar Apartments Pitampura, New Delhi Owner 3. IFFCO Tokio General Insurance Co. Ltd. FAI Building, 10, Saheed Jeet Singh Marg, Qutub Institutional Area, New Delhi Insurance Co Respondents
Appearance: Sh. [ENTITY] and Sh. [ENTITY], counsel for petitioner.
None for respondent nos. 1 and 2.
Sh. [ENTITY] and Sh. [ENTITY], counsel for respondent no.3 Date of first institution : 23.11.2010 Date of institution in the present court : 23.11.2010 Date of final arguments : 20.03.2012 Date of order : 03.04.2012 JUDGEMENT/AWARD
1. The present claim petition u/[SECTION] & [SECTION] [ACT] has been filed by the petitioner/s for claiming compensation for Rs.15,00,000/-on account of death of Late Smt. [ENTITY] w/o Late Sh. [ENTITY] in an accident which took place on 03.10.2010 at about 10.00 AM. On the fateful day, the victim was crossing the road as pillion rider along with his son Sh. [ENTITY] in a motorcycle. When they reached at Ring Road Sarojini Nagar Flyover opposite CNG petrol pump, one TSR bearing registration number DL-1RH-1803 being driven by respondent no.1 in rash and negligent manner took sharp left turn. The driver of motorcycle tried to avoid the collusion but the turned was so shaph that TSR forcefully hit the motorcycle, claimant and deceased. As a result of which victim sustained injuries she was removed to Safdarjung Hospital where she succumbed to the injury on 08.10.2010. An FIR no.221/10 was registered at police station Safdarjung Enclave, against the driver of the offending vehicle.
2. It is significant to mention here that a detailed accident information report was filed by investigating officer on 27.11.2010 after filing of aforesaid petition and notice of this fact was given to opposite parties (driver, owner and insurer of offending vehicle).
3. In response to notice of petition, the driver and owner subsequently neither appeared nor filed written statement. When the matter was at the stage of respondent evidence respondents (driver and Owner ) appeared and filed their joint written statement denying the liability to pay compensation to the claimant.
4. From the pleadings on record the following issues were framed on 23.08.2011:-
Issues:
1. Whether the deceased suffered fatal injuries in an accident which took place on 03.10.2010 involving TSR bearing No. DL-1RH-1803 due to rash and negligent driving of respondent No.1, owned by respondent No.2 and insured with respondent No.3? OPP
2. Whether petitioners are entitled to compensation? If so, what amount of compensation, petitioner is entitled to and from whom?
3. Relief.
5. In support of this case, petitioner got examined himself as PW1 who proved his affidavit by way of evidence as Ex.PW1/A and stated that her mother sustained fatal injuries because of rash and negligent driving of drive of offending TSR.
6. No evidence was led in defence by respondent nos.1 and 2.
7. Insurance company in its defence examined Sh. [ENTITY] Head Clerk from Transport Department ARU, Borari, Delhi who stated that as per their computer record the permit of vehicle no. DL-1RH-1803 was valid from 15.06.2005 to 14.06.2010 and further valid from 08.12.2010 to 13.06.2015. As per the computer record the permit of the vehicle was not valid with effect from 15.06.2010 to 07.12.2010.
8. R3W2 SH. [ENTITY]. Marketing Executive, IFFCO Tokio General Insurance co. Ltd. proved insurance policy and stated that there was a violation the terms and conditions of the policy i.e. the insured did not have a valid permit to drive the vehicle on the date of accident.
9. I have heard the arguments advanced by the counsel for parties and gone through the case file and my findings on the issues are as under:-
10. This is the petition under [SECTION] and [SECTION] of the [ACT], as such petitioner is required to prove the rash and negligent driving by the driver of the offending vehicle. A certified copy of an FIR has also been placed on record along with other relevant documents including site plan seizure memo , arrest memo, MLC, driving licence, registration certificate, report from Department of Forensic Medicine & Toxicology, death summary etc. In the case of [PRECEDENT], it was observed that registration of criminal case against driver of offending vehicle is enough to record finding that the driver of the offending vehicle is responsible for causing the accident. Moreover in the case of [PRECEDENT], it was observed by Hon'ble Supreme Court that the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under [SECTION] and [SECTION] of the [ACT]. Herein in the present case, from the documentary evidence, it is proved on record that the victim has sustained injuries on account of negligent driving of respondent no.1 which resulted into her death. Hence, issue no. 1 is proved in favour of the petitioner and against respondent.
Issue no. 2:
11. Since issues No. 1 has been decided in favour of the petitioner, he is entitled to compensation in the following manner:-
Loss of dependency:
12. In the claim petition the deceased aged about 54 years claimed to be housewife. The petitioner has claimed his dependency on deceased. The petitioner has also not adduced any evidence to support that he was actually dependent upon her.
13. Hon'ble Supreme Court of India in the case of [PRECEDENT], had an occasion to examine a similar issue in a claim petition of a married daughter filed for claiming compensation for death of her father. The Hon'ble Court elaborately discussed the relevant provisions of [ACT].
14. The provision of [ACT], in the event of injury and death in a motor accident, recognizes a right to apply for compensation and also entitlement for compensation. There are three stages for assessing the question of entitlement of compensation. Firstly, who (the person) is liable and then who is to indemnify the liability, if any. Next is the quantification which entails application of multiplier system to ascertain deprivation of dependency. In other words, multiplier is a measure of just compensation as prescribed under the Act. The Tribunal after arriving at the amount of compensation which is just and proper, lastly has to specify the person or persons to whom such compensation would be paid.
15. The liability under the other provisions of the Act may be measurable in the terms of Loss of dependency, but, in the cases under [SECTION] of the Act entitlement of compensation does not cease merely because there is no dependency.
Judged in that background, where a legal representative who is not dependent who as per provisions discussed above competent to file an application for compensation, the quantum cannot be less than the liability referable to [SECTION] of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from [SECTION] of the Act.
16. Respectfully following the ratio of the case laid down by Hon'ble Supreme Court of India in the case of [PRECEDENT], I am inclined to agree with the arguments advanced by the respondents that the petitioner is entitled to an amount of Rs.50,000/- (Fifty Thousands) as laid down in [SECTION] of [ACT] and is accordingly awarded.
Love and affection:
17. Loss of life cannot be compensated in any manner but, in token of this relief, petitioners are awarded Rs.25,000/- towards love and affection.
Funeral expenses:
18. A further sum of Rs.10,000/- is awarded under the head of funeral expenses.
19. As such petitioners are awarded a sum of Rs.50,000/- plus Rs.25,000/- and plus Rs.10,000/-making total compensation of Rs.85,000/- (eighty five thousands only).
Relief:-
20. Accordingly, a compensation of Rs.85,000/- (eighty five thousands only) (inclusive of interim award, if any) is awarded to petitioners with interest @ 7.5% per annum from the date of filing of petition till its realisation.
LIABILITY:-
21. On the question of liability, it is submitted by counsel for insurance company that vehicle was not holding valid permit on the date of accident. This amounts to fundamental breach of condition of policy, thus insurance company is not liable to pay compensation. In support of its defence, the insurance company got examined, Sh.
[ENTITY], Head Clerk from Transport Department as R3W1 who stated that as per their record permit of vehicle no. DL-1RH-1803 was not valid w.e.f. 15.06.2010 to 07.12.2010. From the testimony of aforesaid witness it is clear that offending vehicle was not having a valid permit at the time of accident occurred on 03.10.2010. Moreover the owner has failed to produce permit and further he did not step into witness box to assert that he was having valid permit, in such circumstances, drawing of an adverse inference against him is imperative. The policy issued for the offending vehicle was subject to a condition that vehicle should be driven under a valid permit. However, the owner has failed to produce valid permit hence, there is breach of a fundamental conditions and terms of policy. In view of the settled law that insurance company is liable qua third party and it shall however, vest with a right to recover the amount of liability from insured after depositing the compensation awarded to third party. Accordingly, insurance company shall deposit the amount of compensation and then after depositing shall have right to recover from respondent no. 2 in whose name vehicle is registered.
22. Respondent no.3/insurance company is directed to directly deposit the cheques with SBI, Saket Court branch within 30 days from today and in case of default, penal interest @ 12 % per annum shall be given from the date of filing of delay till deposit of the awarded amount on the account of petitioner.
23. Let for the identification of the petitioner, the first copy of the petition wherein photograph of the petitioner is affixed, be annexed with the award.
24. Award is passed accordingly.
25. File be consigned to record room only after compliance by insurance company by depositing the award in the manner as stated above. Be awaited for compliance for 15.05.2011.
Pronounced in the open court on 03.04.2012 [ENTITY] PO : MACT (SOUTH-01) 03.04.2012