1 IN THE COURT OF SH. [ENTITY] PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL01,DWARKA COURTS, NEW DELHI IN THE MATTER OF : SH. CHAND SINGH V/S SH. ROTHAAS SINGH M.A.C.P NO :928/08 1 Sh. [ENTITY] S/o Sh. Karan Singh 2 Smt. [ENTITY] W/o Sh. [ENTITY], All R/o House no. 291, Village Mitroan, P.S Nazafgarh, Delhi 110043 Petitioners Versus 1 Sh. [ENTITY] S/o Sh. Nafe Singh, R/o Village Mitraon, P.S Najafgarh, Delhi 110043 2 ICICI Lombard General Insurance Company Ltd. Birla Tower, 5th Floor, 25 Bara Khamba Road, Connaught Place, New Delhi. (Cover Note NO. 6109018 for the period 29.07.2007 to 28.07.2008) Respondents
AND IN THE MATTER OF :
SH. KHEM CHAND VS. ROTHAAS SINGH & ORS.
1. Shri [ENTITY] s/o Late Sh. Sulhdi.
2. Smt. [ENTITY] W/o Sh. [ENTITY], All R/o House No. 313, Pool No. 96, [ENTITY] vs. [ENTITY] 1 of 17 [ENTITY] vs. [ENTITY] Village Mitraon, P.S Najafgarh.
Delhi 110043 Petitioner.
VERSUS 1 Sh. [ENTITY] S/o Sh. Nafe Singh, R/o Village Mitraon, P.S Najafgarh, Delhi 110043 2 ICICI Lombard General Insurance Company Ltd.
Birla Tower, 5th Floor, 25 Bara Khamba Road, Connaught Place, New Delhi.
(Cover Note NO. 6109018 for the period 29.07.2007 to 28.07.2008) Respondents
1. Date of institution:22/04/2008
2. Date of framing of issues: 26/07/2008
3.Date of hearing arguments :01/02/2013
4. Date of decision: 01/02/2013 AWARD:
1. [CASE NUMBER] was initially filed u/[SECTION] of the Act but the same was converted into u/[SECTION] of the Act. Now both the petitions for claiming compensation were filed by the parents of the respective deceased by invoking the provisions of [SECTION] [ACT] on account of accidental death with use of the vehicle bearing no. DL8SAH 6903 (hereinafter offending vehicle). The offending was owned by respondent no1( in short R1) and insured with respondent no2 ( in short R2).
[ENTITY] vs. [ENTITY] 2 of 17 [ENTITY] vs. [ENTITY] 2. This judgment disposes of both the petitions bearing no 928/08 titled as "[ENTITY] vs. [ENTITY] & another." and petition no.
947/08 titled as "[ENTITY] vs. Rohtaas Singh & another" . Since both these petitions had arisen out from the accident occurred on 18.01.2008, therefore, the same were consolidated vide order dtd 26/07/2008 with the direction to record the evidence in [CASE NUMBER] titled as "[ENTITY] vs. [ENTITY]." by treating the same as leading case.
3. Brief facts of the petition are that on 18.01.2008, the deceased [ENTITY] in [CASE NUMBER]) was pillion rider on Motorcycle bearing no. DL8SAH6903 ( hereinafter the offending vehicle) which was being driven by his friend [ENTITY] (deceased in the petition no.
947/08/07) and was proceedings towards Kair Village from Village Mitroan Delhi. At about 10.30 p.m, when they reached near Main Kair Road, the driver of the offending vehicle had dashed against a tree causing the death of both the riders (driver and pillion rider).
4. Pursuant to service of notice, R1 and R2 appeared and filed their separate written statement .
5. R1 in his written statement has averred that claim petition is not maintainable as no cause of action has ever arisen. It is pleaded that the deceased [ENTITY] had borrowed the motorcycle from him for one day and claimed unawareness about the alleged accident and hence, he cannot be made liable for any amount of compensation.
6. R2 in his written statement has pleaded that deceased [ENTITY] was himself negligent while driving the vehicle bearing no DL8SAH6903 [ENTITY] vs. [ENTITY] 3 of 17 [ENTITY] vs. [ENTITY] belonging to his known person and hence, insurance company had no liability. However, it has been admitted that the offending vehicle was insured with it in the name of R1 vide policy no. 3005/5227 8284/ 00/000 valid from 29.07.2007 to 28.07.2008 subject to terms and condition of the policy.
7. On the basis of the pleadings of parties , issues were framed on 26/7/2008 by the then presiding officer. After completion of evidence on behalf of both the parties, the case was fixed for hearing of final arguments.
8. Having heard the arguments on behalf of both the sides and after perusal of the material including the evidence on record , my issue wise findings are as under: Amended ISSUE NO 1 Whether the son of the petitioners in [CASE NUMBER] name [ENTITY] sustained fatal injury in the road accident on 18.01.08 at about 10.30 p.m due to use and involving motor vehicle no. DL 8S AH 6903(motorcycle) being driven by [ENTITY] ( since deceased) ? OPP Whether the son of the petitioner in suit no.
199/08 named [ENTITY] sustained fatal injury in the accident on 18.01.08 while driving the motorcycle himself, if so, to what affect? OPP
9. Both the aforesaid issues being interconnected are tried together for disposal. The onus to prove these issue was on the petitioners. Considering the fact that the both the petitions were filed under [SECTION] of [ACT], therefore, the petitioners were only required to establish on [ENTITY] vs. [ENTITY] 4 of 17 [ENTITY] vs. [ENTITY] record that the accident had taken place due to involvement of the Motorcycle bearing Registration No. DL8SAH6903 as the aspect of negligence was not required to be proved.
10. In support of the claim, PW 1 [ENTITY] and PW 2 [ENTITY] had averred in their respective affidavits Ex. PW 1/A and Ex. PW 2/A about the facts relating to the occurrence of accident. Copy of FIR no 33/08 shows that it was an accidental case. A case u/s [SECTION] registered with the P.S Najafgarh. Copy of the RC of vehicle no DL8S AH6903 shows that it was registered in the name of [ENTITY] ( in short R1). From the evidence available on record, it stands established that the deceased had suffered injuries in vehicular accident which proved fatal, thus, I have no hesitation to hold that death of both the deceased was due to an accident arising out of the use of motor vehicle on the given date, time and place. Issue no.1 is accordingly decided in favour of the petitioners and against the respondents.
ISSUE NO 3 Whether petitioners are entitled for compensation, if succeed to prove above issues no. 1 & 2 in affirmative as claimed, if so, what amount and from whom? OPP I shall take this issue petition wise.
[CASE NUMBER] titled as [ENTITY] vs. [ENTITY] & anr.
11. As Issue No. 1 is decided in affirmative and now the question remains to decide the quantum of compensation. To prove the issue no2, it is evident that the deceased was 25 years and had left behind his parents. It is specifically averred that there is no other legal heir except the petitioners. I [ENTITY] vs. [ENTITY] 5 of 17 [ENTITY] vs. [ENTITY] find no reason to disbelieve the aforesaid statement as nothing contrary has been produced or shown.
12. In so far the selection of multiplier is concerned, the law as stands today that the choice of multiplier shall be determined by the age of the deceased or that of claimant whichever is higher. Ld. Counsel for the petitioner has laid a great stress while contending that the choice of the multiplier while assessing the loss of dependency shall be strictly as per the structured formula laid down in the [SECTION] of the Act with the IInd schedule of the Act.
1. In [PRECEDENT], wherein it has been observed: [ACT], [SECTION] read with [SECTION] QuantumFatal accident deceased aged 34, a street hawker, earning Rs. 3,300 p.m claimants : widow and others Tribunal assessed income at Rs.3,165 p.m and awarded Rs.8,14,000 Appellate court assessed dependency at Rs.2,110 p.m, adopted multiplier of 17 and allowed Rs.4,30,440/ plus Rs.2,000/ for funeral expenses, Rs.5000/ towards loss of consortium and Rs.2500/ towards loss to estate Award of Rs.8,14,000/ reduced to Rs.4,40,000/.
2. In [PRECEDENT], wherein it has been observed : [ACT], [SECTION] QuantumFatal accident Deceased earning more than Rs.40,000 p.aclaimant: widow Tribunal awarded Rs.10,21,260/ Appellate court [ENTITY] vs. [ENTITY] 6 of 17 [ENTITY] vs. [ENTITY] restricted the income to Rs.40,000/ p.a, deducted 1/3rd for personal expenses of the deceased, adopted multiplier of 13 and allowed Rs.
4,80,000/ plus Rs.5,000/ towards loss of consortium, Rs.2000/ for funeral expenses and Rs.2,500/ for loss to estateAward of Rs.
10,21,260 reduced to Rs.4,89,500/ .
Hon'ble High Court went to state in the Judgment(s) [PRECEDENT]. The Judgment is in consonance with the Law laid down in [PRECEDENT], [PRECEDENT] and [PRECEDENT] shall be taken as a binding precedent.
13. In the instant case, the deceased was a unmarried person of 25 years. The born year of the mother of the deceased is 1941 as per the Ration Card Ex. PW 2/1. If the age of the mother of the deceased is calculated on that basis then it came to 67 on the date of accident i.e. 18.01.2008. An operative multiplier shall be 5 as per II Schedule of the Act.
14. As regards the income of the deceased is concerned, the IInd schedule of the [ACT] which was inserted in the stature alongwith [SECTION] [ACT] restricts Rs.40,000/ as maximum limit of annual income of the deceased. The petitioners had pleaded and specifically averred that the deceased used to earn Rs. 7,000/ per month but the said earning has not been substantiated with any cogent documentary evidence and hence, the income of the deceased can be taken as Rs. 40,000/ per annum for the determination under the heads of loss of dependency as per the [ENTITY] vs. [ENTITY] 7 of 17 [ENTITY] vs. [ENTITY] structured formula of [SECTION] of the [ACT].
15. Since the deceased was unmarried at the time of accident and had left behind parents only. 1/3rd deductions have to be made towards personal living expenses in view of the structured formula which comes to Rs. 26,667/ per annum as the petitioners had invoked the [SECTION] of the [ACT].
16. Keeping in view, the evidence available on record, the following sum shall be just compensation:
1) Loss of dependency Rs. 26,667X5 Rs. 1,33,335.00
2) For Funeral Expenses Rs. 2,000.00
3) For Loss of Estate Rs. 2,500.00 Total Rs. 1,37,835.00 (Rupees One Lakh,thirty seven thousand eight hundred thirty five only) INTEREST
17. There is no material on record to with hold the interest. The petitioners are awarded interest @ 7.5% per annum from the date of filing of petition i.e. 22.04.2008 till its realization.
APPORTIONMENT
18. Both the petitioners shall be entitled to the awarded amount with interest in equal proportion.
LIABILITY [ENTITY] vs. [ENTITY] 8 of 17 [ENTITY] vs. [ENTITY]
19. It has been argued by the counsel for the Insurance company that since the insured has failed to produce the valid driving license of the driver of the offending vehicle despite the service of notice u/[SECTION] [ACT], thus, the court can presume that the offending vehicle was being driven without a valid and effective driving license on the date of accident. [ENTITY] was not having a valid D/L to drive the vehicle, therefore, he fell in the category of insured and hence, he was not a third party. To support his contention, he has examined R2W1 Ms. [ENTITY], Manager Legal, [ENTITY] has proved office copy of the notice u/[SECTION] [ACT] sent to insured and driver as Ex.R2W1/A. The postal receipts of the same are Ex. R2W1/B and Ex. R2W1/C. He has also proved the attested copy of the Insurance policy as Ex.R2W1/D. It is further averred that since the offending vehicle was being driven in breach of the terms and conditions of the insurance policy and accordingly, the insurance company can not be held liable for payment of any amount of compensation.
20. On the other hand, Respondent no.1 has taken a stand that deceased [ENTITY] had borrowed the offending vehicle for one day after showing his D/L and as such, he is not liable to pay any amount of compensation more particularly when the vehicle was insured covering the date of accident. I find no substance in his submission simply for the reason as D/L was not produced. Furthermore, his defence seems to be an after thought as the fact of seeing D/L of the deceased driver [ENTITY] while handing over the vehicle to him has not been mentioned in the written statement and hence, the same is rejected.
[ENTITY] vs. [ENTITY] 9 of 17 [ENTITY] vs. [ENTITY]
21. In [PRECEDENT], three Hon'ble Judges of the Apex Court after taking into account all earlier judgments have held that " in a case, where the driver of the vehicle admittedly did not hold any license and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability."
23. In [PRECEDENT] , it was held as under: Regular driver engaged by owner entrusted the vehicle to mechanic who after carrying out repairs took the vehicle for test drive and caused accident - Insurance company disputed its liability on the ground that mechanic had no valid licence - Whether insurance company is liable to pay compensation to third parties and then recover the amount from the owner - Held: yes. [[CASE NUMBER] [CASE NUMBER] followed]
24. In [PRECEDENT], their lordships were pleased to make following observations : [ACT], [SECTION] Contributory negligenceMotorcycle belonging to petitioner was being driven by minorIssue limited regarding liability to pay compensation on account of contributory negligence of deceased who was riding scooterMotorcyclist came from behind and hit scooter of deceased from behindResponsibility in causing accident was found to be solely that of motorcyclistsince motorcyclist was minor it was responsibility of petitioner to ensure that his motorcycle was not misused and that to by minor who had no licence to drive the sameTribunal [ENTITY] vs. [ENTITY] 10 of 17 [ENTITY] vs. [ENTITY] rightly saddled liability for payment on petitioner - Insurance Company directed to pay awarded amount to the awardees and to recover the same from petitioner - Story of defence that keys of motorcycle were taken by minor without knowledge of petitioner difficult to be accepted - Case of contributory negligence on part of deceased not accepted - No reason found to interfere with impugned award of Tribunal as affirmed by High Court.
25. After applying the ratio of judgments (supra), the defence sought to be raised by the insurance company u/[SECTION] of [ACT] stands established that the offending vehicle was being driven in violation of the terms of the contract as the driver did not have any license to drive the vehicle in question.
26. Having regard the twin interest of petitioner who is a third party in this case and that of the insurance company and coupled with the fact that the vehicle involved in the accident was insured with respondent no. 2, it would be appropriate to direct the insurance company/R2 to compensate the petitioner in terms of awarded amount with the liberty to recover subsequently from respondents no 1.
27. Recovery rights are, accordingly, granted to insurance company against respondent no 1.
28. In view of the above discussions, issue no. 2 & 3 are decided in favour of the petitioners and against the respondents.
[ENTITY] vs. [ENTITY] 11 of 17 [ENTITY] vs. [ENTITY] ISSUE No. 5 : Relief.
29. In view of the findings on issues no. 1 and 2 the petitioners are awarded Rs. 1,37,835/(Rupees One Lakh, thirty seven thousand eight hundred thirty five only) with the interest.
30. The awarded amount be deposited by R2 with State Bank of India, Dwarka Court Complex Branch, Sector10, New Delhi within 30 days from today with intimation to the [ENTITY] of this Court also. Upon the aforesaid amount being deposited, SBI Branch is directed to release the amount of petitioner no.1 and 2 with interest by transferring the same to their Saving Bank Account.
31. Withdrawal from the aforesaid account shall be permitted to the beneficiaries after due verification and the Bank shall issue photo Identity Card to the beneficiaries to facilitate identity.
32. No cheque book shall be issued to the beneficiaries without the permission of this Court.
33. R2 shall inform the petitioner through registered post that the cheque of the awarded amount are being deposited so as to facilitate the petitioner to collect their cheque.
[CASE NUMBER] titled as [ENTITY] vs. [ENTITY] & Anr.
[ENTITY] vs. [ENTITY] 12 of 17 [ENTITY] vs. [ENTITY] Issue no. 3
Whether petitioners are entitled for compensation, if succeed to prove above issue no,1 & 2 in affirmative as claimed, if so what amount and from whom? OPP & Issue no.4 Whether this [CASE NUMBER] is not maintainable u/[SECTION] of [ACT] as stated in preliminary Objection 1 & 2 in WS of R3 ? OPD
34. Both the aforesaid issues being interconnected are tried together for disposal. The contention of the insurance company is that the deceased himself was a tort feasor and hence , he cannot be termed as a victim under [SECTION] of the [ACT].
35. Before proceeding further, let me examine [SECTION] [ACT] which runs as under: (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law , the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle , compensation, as indicated in the [SECTION], to the legal heirs or the victim, as the case may be.
Explanation For the purpose s of this sub section , "
permanent disability" shall hae the same meaning and [ENTITY] vs. [ENTITY] 13 of 17 [ENTITY] vs. [ENTITY] extent as in the [ACT].
(2) In any claim for compensation under sub -
section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person .
(3) The Central Government may, keeping in view the cost of living by notification in the official Gazette, from time to time amend the [SECTION].
36. [SECTION] B [ACT] reads as under: Where a person is entitled to claim compensation under [SECTION] and [SECTION] , he shall file the claim under either of the said sections and not under both.
37. If the facts of the present case are examined in the light of sections referred to above, it appears that as per the averments of the petition, the deceased was driving the Motorcycle and had met with an accident. Under a policy of insurance the owner must be insured against any liability arises against him. If the liability arises due to negligence of another, the owner would not incur vicarious liability. Consequently, the insurance company cannot be said to indemnify such owner. A careful reading of [SECTION] & [SECTION] [ACT] would show that these sections were not intended to provide reliefs to those persons who self suffer the injuries or the death. A person cannot be allowed to take the benefits of his own wrong. If such a person , who himself suffers permanent disability by driving a motor vehicle in a rash or negligent manner, or for that matter even cautiously is allowed to claim compensation u/[SECTION] [ACT] or u/[SECTION] [ACT], it would lead to an [ENTITY] vs. [ENTITY] 14 of 17 [ENTITY] vs. [ENTITY] anomaly which the legislature had never intended. If the claim of a person who had himself sustained permanent disability in the motor vehicle accident because of his own fault or otherwise ( not involving any other person) cannot justify the petition there on the same analogy , in my view, the LR's of such a person who had received fatal injuries due to his own fault, cannot justify the claim.
38. What has been dispensed with u/[SECTION] [ACT] is the requirement of plea and proof of the wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any person (emphasis supplied) . The words " any person" , by any stretch of imagination be not taken to mean the injured or the deceased himself, as the case may be. One cannot be made to indemnify the loss suffered by any individual due to his own fault.
39. I find force in the contention that a tort feasor, who because of his own negligence, met with death, however, unfortunately, cannot be equated with a victim of accident. In [PRECEDENT] , it was held that the driver who was the employee of the owner of the car was also not covered under the Statutory third part risk. Hence, no driver can claim compensation for the accident de son tort.
40. Further more, the matter is no longer res integra , in view of the law laid down in [PRECEDENT] . In that case the deceased had hired a [ENTITY] vs. [ENTITY] 15 of 17 [ENTITY] vs. [ENTITY] motorcycle. He had dashed against a bullockcart and sustained serious injuries. He was removed to hospital where he succumbed to the injuries. His widow and son filed claim petition u/[SECTION] [ACT]. The Tribunal gave the award in their favour. The insurance company challenged the award. The Hon'ble Karnataka High Court accepted the appeal on the ground that the accident occurred due to the fault of the deceased and claim petition was not maintainable because of non applicability of [SECTION] [ACT]. A review petition filed by the claimants before the Hon'ble High Court was dismissed with cost. The claimants then challenged both the orders passed by the Hon'ble High Court. In Para 19 & 20 the following observations were made by the Apex Court: " 19. We have already extracted [SECTION] of the [ACT] hereinbefore. A bare perusal of th said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the Insurance Company or the owner , as the case may be as provided under [SECTION] But if it is proved that the driver is the owner of the motor vehicle , in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of [SECTION] of the [ACT] . Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under [SECTION] of the [ACT].
20. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under [SECTION] [ACT] and to that extent the High Court was justified in coming to the [ENTITY] vs. [ENTITY] 16 of 17 [ENTITY] vs. [ENTITY] conclusion that the said provision is not applicable to the facts and circumstances of the present case
41. In view of the above discussions, both the issues no. 3 & 4 are decided against the petitioners and in favour of the respondents . ISSUE NO 5 Relief
42. In view of findings on issue no 3 & 4 , the petition fails and the same is dismissed.
43. Copy of the award be given to both the parties ( free of costs).
44. File be consigned to record room.
ANNOUNCED IN OPEN COURT ([ENTITY]) DATED:01/02/2013 PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL, DWARKA COURTS, NEW DELHI. [ENTITY] vs. [ENTITY] 17 of 17 [ENTITY] vs. [ENTITY]