In the court of [ENTITY], Addl. District & Sessions Judge cum Judge, Motor Accident Claim Tribunal, Rohini Courts, Delhi. (MACT Case no. 70/10/07) 1) Smt. [ENTITY] W/o Sh. [ENTITY] 2) Sh. [ENTITY] S/o Sh. Nathu Ram R/o Village Tola, PS Khudhila Distt. Tikam Garh (MP) Also at E-148, Sector-2, DSIDC, Bawana And also at 63-B, Metro Vihar Phase-2, Village Haulambi Kalan, Delhi Petitioners/Claimants Vs. 1) Sh. [ENTITY] (Driver) S/o Sh. [ENTITY] 2) Sh. [ENTITY] (Owner) S/o Sh. Badle Ram Both R/o 288, Village Saidpur Tehsil & Distt. Sonepat (Haryana) 3) The [ENTITY] A-25/27, Asif Ali Road, Delhi-02 Respondents Date of institution 2-7-2007 Date of decision 4-10-2010 (Application u/s 140 and 166 of [ACT] for grant of compensation) JUDGMENT:
Master [ENTITY] (herein after referred to deceased) aged about 9/10 years and student of 4th standard was paddling the cycle on footpath (Kacha Rasta) on 11-5-2007 at about 1.40 p.m. near round crossing, E-block, Sector-2, DSIDC, Bawana when a tractor bearing no. HR-10-H-6260 with trolley came from behind at high speed and being driven by respondent no. 1 in rash and dangerous manner and hit the cycle due to which deceased died. Respondent no. 1 was caught at the spot with the offending vehicle and a criminal case under section [SECTION] [ACT] was registered against him vide FIR no. 238/07 in police station Bawana. Petitioners being the parents of the deceased claimed sum of Rs. 20 lakhs with 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 and 2 in their written statement denied happening of accident with their tractor by taking plea that deceased while playing with cycle collided with the footpath and died due to head injuries. Respondent no. 3 insurance company though admitted that tractor was insured with it under Kisan Package Policy but stated that trolley was not insured. It is also stated that tractor was not being used for agricultural purposes at the time of accident so there is a violation of terms of policy and it is not liable to pay any compensation.
Petitioners during pendency of the case got interim compensation of Rs. 50,000/- along with interest under [SECTION] of [ACT] on account of no fault liability. On the basis of pleadings of the parties, following issues were framed on 29-3-2008 by my ld. Predecessor;
1) Whether on 11-5-2007 at about 1.40 p.m. near E-block, Sector-2, DSIDC Bawana, tractor no. HR-10-H-6260 which was being driven in rash and negligent manner hit bicycle of the deceased [ENTITY] and caused his death? OPP
2) Whether the vehicle was being driven in contravention of Kisan Policy Package, if so its effect? OPR-3
3) Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP
4) Relief.
In order to prove their case, petitioner no. 2 examined himself only as PW-1 whereas on behalf of respondent no. 3 insurance company, one witness R3W1 Sh. [ENTITY], Assistant was examined. I have heard counsel for the petitioner and respondent no. 3 and gone through the record as well as case laws cited. I have also taken out a print out from the Website of respondent no.3 Insurance Company pertaining to "Kisan Package Policy" containing the terms of insurance. I also taken out a print from website of Hero Cycles Company giving details regarding the guidelines for size selection of the cycles for kids, male, female etc. The print outs taken from these websites are placed on record. My decision on the above mentioned issues is as under;
Issues no. 1:-
Respondents no. 1 and 2 took a plea that accident had not taken place with their offending tractor but deceased while playing with the cycle struck against footpath and died but none of them appeared in the witness box to prove this defence. Even no such suggestion was given to PW-1 who is also an eye witness of the incident and had lodged FIR Ex. PW1/B. There is no dispute that respondent no. 1 is facing criminal prosecution for causing death of child due to rash and negligent driving of tractor-trolley. As per police charge-sheet, tractor was caught along with respondent no. 1 at the spot of accident itself. Respondent no. 2 got the same released from the court on superdari lateron.
FIR was lodged by the PW-1 in which he stated that wheel of the trolley crushed the deceased but in the court he stated that wheel of the tractor dashed against the cycle and deceased. This contradiction in my view itself is not sufficient to exonerate the rashness or negligence of the respondent no. 1.
Respondents no. 1 and 2 have failed to explain why their tractor was falsely involved in the accident. The deposition of PW-1 regarding rash, negligent, dangerous zig-zag manner driving of tractor by respondent no. 1 is not virtually disputed in his cross examination and thus has to be believed as correct. MLC and Post mortem report of the deceased Ex.PW1/1 and PW1/J also proves that instant death had taken place due to road accident. Tractor was coming from behind and could look the small child from a distance but even then continuing to run the tractor at fast speed shows negligence of the respondent no. 1.
From the cross examination of PW-1, some contributory negligence on the part of deceased child as well as on the part of his father also is appearing. A small child of 9 years was given a new cycle of 22 inches for plying as admitted by PW-1 in his cross examination. This big and high cycle of 22 inches is not suitable at all for a small kid of 9 years as such type of cycle is meant only for a grown up man. Keeping in view the judicial notice of the average height of 9 year child as well as guidelines about size selection of cycles taken from the website of Hero Cycles Company, it can be said that cycle of 22 inches was not possible to be driven by a small child of this age easily. It is not the case of petitioners that their child was earlier also plying the cycle and it had not come in his hand first time. FIR shows that it was a new cycle which means and leads to the inference that the child was not used to ply the same. Such like small child of 9 years cannot ply such big cycle effectively and properly and his foot would not touch the ground in any circumstances while plying the same. PW-1 was not accompanying with the deceased or was not helping him in plying the cycle but admittedly was sitting at a distance of 100-150 feet away from the spot. He was also clearly negligent in handing over the big size cycle to his small son and not supervising his driving the same by remaining along with him. In such circumstances, I am of the view that due to contributory negligence, at least 50% compensation has to be reduced.
In such circumstances, it is held that offending vehicle bearing no. HR-10-H-6260 had caused the accident which was being driven by respondent no.1 in rash and negligent manner and due to accident, deceased expired. There was also negligence of the part of the deceased and his father which contributed and facilitated the accident. In view of the above discussions, issue no. 1 is decided accordingly.
Issue no. 2:-
Respondent no. 3 has taken a defence that only tractor was insured with it under Kisan Package Policy for agricultural use and trolley was not insured. It is also stated that at the time of accident, tractor was not being used for agricultural purposes and thus due to violation of policy, it is not liable to pay any compensation. It is not disputed fact that respondent no. 1 was competent to drive the tractor as per license which was verified by the concerned transport department vide Ex. R3W1/6.
Admittedly tractor was being driven along with trolley which was attached to it. Punjab & Haryana High Court in [PRECEDENT] held that tractor itself is not able to carry any load without any trolley so trolley attached to the tractor is to be treated as part of tractor and deem to be covered under the insurance policy.
The case law [PRECEDENT] decided by Supreme Court and relied upon by counsel for respondent no. 3 is not applicable to the present facts and circumstances as in this case, Supreme Court dealt with issue of tax and permit when tractor and trolley are combined for transport and commercial purposes and comes within the purview of goods carriage vehicle.
In another judgment [ENTITY] vs. Brij Mohan 2007 ACJ 1909 before Supreme Court, similar type of defence was raised by the insurance company as is raised in the present case but Supreme Court as per paragraph no. 3 of this judgment did not dealt with the question whether tractor and trolley both were to be treated as insured or not. Supreme Court in this case only found that use of the tractor was not for agricultural purposes so had given recovery rights to the insurance company. No benefit of this judgment can be given to the respondent no. 3 in the present facts and circumstances of the case.
Respondent no. 3 had issued notice under [SECTION] [ACT] to the respondents no. 1 and 2 to produce the original policy but they failed. In that situation, insurance company produced another computerized copy of this policy Ex. R3W1/5. The whole of this policy does not specify anywhere or contain any term that only tractor was insured and not the trolley or any other attachment. The encircled portion at point A on the policy does not mention the word 'only' to show that only tractor was insured and nothing else including attachment or trolley. The policy was issued under "Kisan Package Policy" and respondent no. 3 has not brought rules and regulations of this policy on record to show that only tractor could be insured under this policy and trolley could not be. In that situation, this court suo moto searched the website of Insurance company and taken out a print out of the such policy, which is placed on record. Clause XV of the terms and conditions of this policy does not say that tractor would not include trolley. No word "only" has been used alongwith the word "tractor" in this clause. Thus, when the terms and conditions of the policy does not restrict the inclusion of trolley alongwith the tractor, then in that circumstances it has to be held that the trolley was also deemed to be insured alongwith the tractor.
Respondent no. 3 tried to rely upon one fax message Mark- X to show that under this policy, only tractor was covered but in absence of any such condition in the policy as well as guidelines framed by the company itself, the submission made by counsel for respondent no.3 that insurance company is not liable to indemnify the owner and driver, is liable to be rejected. Insurance Company thus becomes fully liable to pay the compensation amount as assessed by the court.
Witness R3W1 could not explain how and on which basis he was deposing that terms and conditions of policy were violated. He had no knowledge of terms and conditions of such type of policies. He had no knowledge whether the copy of such terms and conditions were supplied to insured or not. The burden to prove this issue was upon the respondent no. 3 but it failed to establish that at the time of accident, tractor was not being used for agricultural purposes. Even in the policy it is not written that tractor cannot be used for purpose other then agricultural. R3W1 had no knowledge for what purpose tractor was being used at the time of accident and what was loaded in it. In the cross examination, R3W1 shown possibility that in the village Bawana tractor trolley is used for agricultural works. Thus the version of this witness that tractor was not being used for agricultural purpose is not reliable, supported by any evidence and is acceptable. Respondent no. 3 has thus failed to prove this issue and accordingly it is decided against it and in favour of petitioners.
Issue no. 3:-
Deceased was aged about 9/10 years at the time of death as per petition but in cross examination, PW-1 described his age at 9 years only. Admittedly deceased being a small child was not earning any thing. Petitioners have stated that he was student of 4th class but PW-1 in his cross examination stated that he was studying in 3rd standard only. Name of school in which deceased was studying is not given. Petitioners have not brought on record any school certificate etc. to show that their deceased child was attending any school or was studying. In absence of any income, only a notional income of deceased has to be presumed.
In case of death of a child, the law is almost settled as per judgments [PRECEDENT], [PRECEDENT] and [PRECEDENT] wherein it is held that notional income has to be taken at Rs. 15,000/- per annum in case of child and multiplier of 15 has to be applied. Courts in these cases also allowed sum of Rs. 75,000/- towards future prospectus and Rs. 75,000/- towards loss of company of the child.
Counsel for petitioner cited case law [PRECEDENT] and argued that notional income at Rs. 40,000/- per annum has to be treated as Delhi High Court in this matter upheld this much amount in case of a death of 8 years girl in the school. Petitioner cannot take benefit of this cited judgment as insurance company had not challenged the quantum of compensation in the High Court and in absence of any appeal in this regard, the assessment of notional income at Rs.40,000/- by Tribunal was upheld in this cited case. But in the present case in hand, respondent no. 3 insurance company is opposing this request as well as grant of notional income at Rs. 15,000/- also. Accordingly, petitioner is not entitled to benefit of this cited judgment.
The case law cited by counsel for respondent no. 3 [PRECEDENT] decided on 24-5-2010 by Delhi High Court regarding making of deductions of 1/3rd is not applicable in the present facts and circumstances of the case as that case was relating to [SECTION] of [ACT] wherein trial court assessed notional income beyond the outer limit of Rs. 40,000/- per annum and no 1/3rd deduction was allowed. High Court in this judgment restricted the notional income to Rs. 40,000/- and allowed deductions. Thus no reliance upon this judgment can be made being distinguishable one from the present facts and circumstances.
Accordingly on basis of above mentioned settled judgments, after taking notional income at Rs. 15,000/- per annum and by applying multiplier of 15, the compensation which petitioners are entitled comes to Rs. 2,25,000/- (15000 x 15). Petitioners shall also be entitled to Rs. 75,000/- on account of loss of company of their child and Rs. 75,000/- on account of future prospectus. Thus total sum of Rs. 3,75,000/- are to be granted as compensation to the petitioners. Sum of Rs. 50,000/- paid as interim relief is ordered to be deducted from this amount.
However, due to establishment of contributory negligence, 50% amount has to be deducted from the total compensation amount as held above. After making all deductions, now the net amount payable to petitioner is only Rs. 1,62,500/-. They are entitled to interest at the rate of 7.5% p.a. on this amount from the date of institution of the petition i.e. 2-7-2007 till realization. In view of the above discussions, this issue is decided in favour of petitioners by holding that they are entitled to get Rs. 1,62,500/- from the respondent no. 3 only with interest @ 7.5% per annum from 2-7-2007 till it is paid.
Issue no. 4 (Relief):-
On the basis of findings given above, present petition is disposed off. Respondent no. 3 insurance company is directed to pay total sum of Rs. 1,62,500/- to the petitioners along with interest at the rate of 7.5 % p.a. from 2-7-2007 till this amount is fully realized. This amount shall be payable to both the petitioners in equal proportions.
Keeping in view the fact that petitioners are not so educated and belong to poor and lower class of the society so in order to safeguard their money and to avoid its misuse by any third person, it is further ordered that out of the award amount, sum of 62,500/- be paid in cash along with total interest accrued on award amount till the date of payment to both the petitioners in equal proportions and remaining Rs. 1,00,000/- be deposited in two FDRs of Rs. 50,000/- each for a period of three years in the name of both petitioners. These FDRs be prepared from State Bank of India, Rohini Courts Branch and originals shall be kept by the manager of the bank in safe custody but duly attested photocopy be given to petitioners.
Petitioners shall be allowed to withdraw quarterly interest on these FDRs. Bank shall also open one saving account in the name of petitioners (subject to completion of necessary formalities) in which quarterly interest shall be automatically credited. Pass book of this saving account shall be handed over to the petitioners. No premature encashment of FDRs is permissible without permission of the court. No loan or advance shall be allowed to be taken on these FDRs. No cheque book or ATM facility shall be given to the petitioners. On maturity of FDRs, its amount shall be credited in the saving bank account of the petitioners, if they do not consent for its further renewal. Bank manager shall allow the withdrawal from saving account only on personal appearance of petitioners before him after due verification and for this purpose, a special kind of photo identity card can be issued to petitioners to facilitate his identity.
Copy of this judgment be given to petitioners and counsel for respondent no. 3 and one copy be sent to Bank Manager, SBI, Rohini Court, Delhi for information and compliance. File be consigned to record room.
([ENTITY]) Dt. 4-10-2010 Judge, MACT