New India Assurance Co. Ltd. vs Pushpa Kakkar and Others

Santosh Duggal, J.

(1) Smt. Pushpa Kakkar and other legal heirs of the deceased Surender Mohan Kakkar has filed the petition u/Sec. I 10-A of the M.V.A. claiming compensation amount of Rs. 21,00,000.00 from the respondents on account of the death caused due to the motor vehicle accident.

(2) The short facts of the case as per the petitioners are that Sh.Surender Mohan Kakkar deceased aged about 42 years was working as Section Officer of the Govt. of India, Ministry of Home Affairs on a monthly salary of Rs. 4,200.00p.m. The petitioner No. 1 is the widow of the deceased and petitioner No. 2 is the minor son and petitioners No. 3 & 4 are the parents of the deceased who were all dependent on the deceased. On 21-10-88 at about3.40 p.m. the deceased was going on his two wheeler scooter No. Dbk 491from his office towards his home at Vikaspuri and when he reached near Kirby Place opposite police station a police picket was installed by the police authorities for the purpose of routine checking and in the meantime it is alleged a truck bearing No. Dhg 909 owned and driven by Gopal Singh respondent No. 1 and insured with respondent No. 2 came in a fast speed driven in a rash and negligent manner and hit truck No. Dhg 909 from behind the scooter. It is stated that the truck driver inspire of hitting the scooter from its back did not slow down the vehicle nor gave any horn struck his truck with full force from behind the scooter with the result Surender Mohan Kakkar fell down from the scooter .and front tyre of the truck crushed and ran over the left part of the body with the result Surender Mohan Kakkar. died instantly who was immediately removed to Safdarjang Hospital in a P.C.R. van but was declared dead. IT is stated that the accident was caused due to the rash and negligent driving of truck No. Dhg 909 driven by Respondent No. 1.

(3) According to the petitioners the deceased was a young man of 42years with sober habits and non-smoker and non-drinker and because of his untimely death his wife aged about 42 years and minor son aged about 15 years and the parents have all been deprived of his who were all dependent on him. The deceased was earning Rs. 4,200.00 p.m. and was due for promotion and would have retire at least as Director in the Govt. of India on the scale of Rs. 8,000.00 p.m. and would have worked up to the age of 58 years. It is stated that there was history of longevity in the family of the deceased as the father of the deceased was still alive at the age of 66 years. It is prayed that the compensation amount of Rs.21,00,000.00 Along with interim amount as provided ./Sec. 92-A of the M.V.A. with interest @ 18% p.a. may be passed in favor of the petitioners against the respondents.

(4) After the registration of the petition notice of the petition was given to the respondents who has contented the petition and have filed their written statements.

(5) In the written statement filed by respondents No. 1 factum of accident is not denied. However, it is denied that the respondent No. 1 had hit the scooter from behind while driving the truck in a rash and negligent manner. According to respondent No, 1 the deceased himself was negligent in driving the scooter .According to respondent No. 1 it is denied .that the deceased was driving the scooter .in a slow speed due to the police barrier. In fact, the deceased came from behind the respondent truck and wanted to pass early, the respondent truck was absolutely in a slow speed and was passing carefully and it was the deceased who came from behind and wanted to pass the barrier without waiting for side driving his scooter negligently. It is stated that since the accident was not caused due to the fault of respondent No. 1, as such the petition is not maintainable and be rejected.

(6) A .separate written statement was also filed on behalf of respondent No. 2. A preliminary objection was raised that respondent No. 2 had no knowledge about the alleged accident as the insured has not informed the Insurance Company. It was also stated that the liability of the answering respondent ;if any, is limited to Rs. 1,50,000.00 as per the terms & conditions of the policy. It is however admitted that the truck No. Dhg 909 was insured with respondent No. 2 vide a policy from 22-7-88 to 21-7-89 with a limited liability to the extent of Rs.1,50,000.00. It has been denied that death of Surender Mohan Kakkar was caused due to the rash and negligent driving of respondent No. 1 and that the petitioners are entitled to any compensation or interest @ 18% p.a and as such the petition should be dismissed.

(7) On the pleadings of the parties, following issues were framed :

(1)Whether the accident took place due to the rash and negligent driving on the part of the driver of vehicle No. Dhg 909 ?(2) To what amount of compensation, if any, are the petitioners entitled and from whom ?(3) Whether the liability of the respondent No. 2 is limited as claimed in the preliminary objections ?(4) Relief.

(8) The petitioners in support of their case have examined PW-1 K.P.Koshy from the Office of Ministry of Home Affairs to prove the salary and service record of the deceased, PW-2 Dr. B. Swain has conducted the postmortem on the body of the deceased, PW-3 A.S.I, Om Parkash has taken the photographs of the place of accident, PW-4 Constable Pardeep Kumar andPW-5 Charan Jeet Lal, PW-4 is the witness of accident, PW-5 is the father of the deceased, PW-6 S.I. Kishan Singh has investigated the criminal case which was registered about this accident. Respondents on the other hand have examined S.K. Malhotra of respondent No. 2 Insurance Company and driver owner respondent No. 1 himself has come to the witness box as RW-2.

(9) I have heard the learned Counsels for the parties and have gone through the case file Along with documents and evidences produced on record. My findings on the issues are as follows :Issue No. 1

(10) As per the case of the petitioners the accident was caused due to the rash and negligent driving of truck No. DHG909 by respondent No.1.The respondent No. 1 has filed the written statement wherein factum of accident has not been disputed. However, according to the defense raised by the respondent No. 1 the accident was caused due to the rash and negligent driving of the deceased himself and respondent No. 1 was not at fault. To prove this fact that the respondent No. 1 was not fault, he himself has also come to the witness box and the stated that the truck was driven by him in a slow speed whereas the scooter came from behind while passing from the side of his truck the scooterist struck against the D.T.C. bus and that D.T.C. bus went ahead and he was involved in false case. According to him the tyre of his truck never crushed the deceased and he had no knowledge whether the deceased died at the spot. The perusal of the statement made by respondent No. 1 when examined an RW-2 goes to show that whatever statement he has made no such defense was taken by respondent No. 1 when he filed the written statement. At the stage of filing of the written statement the defense raised was that the scooterist himself was responsible for the negligent driving and met with the accident whereas when he himself come to the witness box as RW-2 he has raised a new defense that the scooterist struck with the D.T.C. bus. However, it is admitted by RW-2 Gopal Singh that the public at that place got hold of him and he surrendered it before the police. No explanation has been given by respondent No. 1 as to which is not responsible for this accident, when the public got hold of him and he himself surrendered it before the police. At the same time the version given by respondent No. 1 (RW-2) is further belied from the way in which he has deposed that in the photographs also his "struck" has not crushed the scooter. The photographs of the place of accident has been placed on record by the petitioners which were taken by PW-3 Asi Om ParkashPW-3/1 to 3/4 and from these photographs it is quite clearly be seen that the scooter No. Dbk 491 driven by the deceased was lying under .the wheels of the truck No. Dhg 909. It is very well applicable here that a person can lie in order to save himself but not the circumstances and the documents.

(11) In addition to this fact that the deceased was crushed by the wheels of the truck is further establish from the testimony of PW-2 Dr. B. Swain whois the Medical Officer of Safdarjang Hospital on and conducted post mortem on the body of the deceased and has proved his report as Ex. PW-2/1. Wherein he has opined that all the injuries were anti mortem and the cause of death in this case was haemorrhass and shock following multiple injuries and were possible by blunt force impact possible by R.T.A. In addition to this the tyre mark has also been found on the body of the deceased which have clearly been given in the post mortem report Ex. PW-2/1 which supports the case of the petitioners and the witness of the accident examined by the petitioners as PW-4. According to Pardeep Kumar PW-4 on 21-10-88 he was on duty at picket Kirby Place and he saw the accident when the scooter was driven in a slow speed and at that time a truck No. Dhg 909 came from Daula Kuan side at a fast speed IN a rash and negligent manner and struck against the scooter from behind due to which the scooterist fell down and left front wheel of the truck passed over the body of the deceased at about 3.40 p.m. and to his estimation the injured died at the spot who was removed to the hospital also. According to him the accident was caused as the truck did not observe the traffic moving ahead and came at a fast speed knowing well that there was a picket ahead and the traffic was slow. Though the witness has been cross-examined at length but nothing material has come out on the basis of which statement made by this witness can be doubted.

(12) The site plan Ex. PW-6/1 has also been placed on record and has duly been proved by S.I. Kishan Singh who has investigated the criminal case about this accident. Perusal of the statement of Public Witness 16 also goes to show that mechanical inspection of the vehicle was also got done in this case and the report of the mechanical inspection of the truck No. Dho 909 has been placed on record as Ex. PW-6/2. The perusal of this mechanical inspection report of the truck goes to show that there was fresh damage noticed on the front bumper which was bent inside radiator grill and water pump were also found damaged .From this report of mechanical inspection of the truck it is established that the front portion of the truck has hit the scooter and no Explanation has been given by the respondent No. 1 driver owner of the truck as to how his truck got damaged from the front side if no accident was caused by him. Rather it is established from the evidence on record beyond doubt that the truck was in a very fast speed and the front portion of the truck has hit the scooter with such a force that it has resulted into fresh damages to its radiator grill water pump and front bumper in the truck and even after the accident the truck did not stop and it is suggestive of the fact that it was not under the control of its driver and with the result it not only crushed the scooter with its front but also Surinder Mohan Kakkar which resulted into his death .

(13) In view of the facts and circumstances discussed above I hold that the accident was caused by respondent No. 1 while driving truck No. Dho 909in a rash and negligent manner which resulted into the death of Surinder MohanKakkar and this issue is decided against the respondents and in favor of the petitioners. Issue No. 2

(14) As per the case of the petitioners the deceased was working as Section Officer in Ministry of Home Affairs on a monthly salary of Rs. 4,200.00p.m. and was aged 42 years. The learned Counsel for the petitioner has argued that the deceased would have continued in the service up to the age of 58 years and even after retirement he would have worked up to the age of 70 years and even beyond since there was a history of longevity in the family of the deceased. To prove this fact Public Witness 11 K.P. Koshy Assistant from the Office of-Ministry ofHome Affairs has been examined who has brought the salary record of the deceased and has stated that Sh. Surinder Mohan Kakkar was working as Sec.Officer in the office. He has proved that the date of birth as per the record of the office was shown as 11-4-46 and since the accident took place on 21-10-88,as such it is established that Surinder Mohan Kakkar at the time of death was about 42" years of age.

(15) The salary certificate of the deceased has also been placed on record as Ex. PW-1/1 which goes to show that the deceased was getting a basic salary of Rs. 2,900.00 with a total salary of Rs. 4,267.00 p.m. According to the father of the deceased PW-5 the deceased used to give Rs. 3,500.00 for household expenses .The widow of the deceased petitioner No. 1 has not come to the witness box. However, father of the deceased as PW-5 has stated that petitioner No. 1 was working even before the death of the deceased as stenographer. Since the total salary of the deceased was Rs. 4,267.00 as per Ex. PW-1/1, as such he must be paying income tax and certain other deductions must also be effected from the salary taken by the deceased which have not been given in the pay certificate. Though PW-1 has sought to place on record certain pay struct of the deceased that if he would continued in service he would have been promoted as Under Secretary and Deputy Secretary which is not signed or authenticated by any person and seems to be based on hypothecation since no rules and procedure to this effect has been proved.

(16) Keeping in view the salary certificate of the deceased and the fact that he was promoted as Section Officer which post he was holding at the time of death and also keeping in view the facts that the wife of the deceased was also working and also keeping in view the uncertainties of life and the fact thata lump sum amount is paid by way of just and reasonable compensation and also keeping in view that the wife of the deceased was also in service even prior to the death of her husband and is still in service I take the dependency of the petitioners on the deceased to be Rs. 2,000.00 p.m. Keeping in view the age of the deceased which was around 42" years at the time of accident and also keeping in view the future prospects promotional avenues and the fact that he was to continue in the service up to the age of 58 years and also keeping in view the history of longevity in the family of the deceased and also keeping in view the fact that a lump sum amount is being made to the petitioners a multiplier of14 would bring us to just and reasonable compensation in this case which should be awarded to the petitioners.

(17) In view of the discussions made above a sum of Rs. 3,36 000.00 (Rupees three lakhs thirty six thousand only) including Rs. 15,000.00 awarded u/Sec. 92-A of the M.V.A. is awarded to the petitioners as compensation amount u/s 110-A of the M.V.A.

(18) A prayer has also been made by the petitioners for the award of interest on this amount of compensation. I have considered the submissions made by both the parties in this respect and in view of the provisions of Section110-CC of the M.V.A. and also keeping in view the fact that the petition in this case was filed on 2-12-88 and the petitioners have concluded their evidence immediately after framing of the issues within two hearings and have taken all reasonable steps in concluding the case at the earliest, as such in view of the judgment of our own High Court: in the case of Vidhya Kakkar v. D.T.C., F.A.O.126/88 I am of the considered view that the simple interest @ 10% p.a. should be awarded to the petitioner on this amount of compensation of Rs. 3,21,000.00from the date of petition i.e. 2-12-88 till date of this order.

(19) So far as the liability to pay the compensation amount Along with interest is concerned, since at the time of accident the truck was owned and driven by respondent No. 1, as such liability to pay the compensation amount shall be that of respondent No. 1. However, in view of the written statement filed by respondent Nos.1 &2 the truck No. Dhg 909 was insured with respondent No. 2, as such the liability to pay the compensation amount shall be that of respondent No. 2 being the insurer of the vehicle.

(20) On behalf of the respondent No. 2 it was contended that the liability of respondent No. 2 was limited to the extent of Rs. 1,50,000.00in view of the terms and conditions of the policy and in support of its case respondent No. 2 has examined RW-1 S.K. Malhotra, Legal Asstt.From the perusal of the statement of RW-I it is nowhere stated that the liability of the Insurance Company was limited. It is also submitted that the premium charged by respondent No. 2 in this case was Rs. 240.00 covering third-party risk which amount is more than the ''act only'' policy for which premiums Rs. 200.00 is charged. It is submitted that since instead of Rs. 200.00a sum of Rs. 240.00 has been paid by the respondent No. 1, as such entire liability in regard to the third party claim would be that of respondent No. 2.

(21) I have considered the submissions made by both the parties in this respect and has also carefully perused the case file and have noticed that in this case original policy of insurance has not been placed on record and on behalf of respondent No. 2 carbon copy of the policy Ex. RW-1/2 Along with tariff (photocopy) Ex. RW-1/1 has been placed on record. I have perused the statement of RW-I who has appeared on behalf of respondent No. 2 but the perusal of the statement of this witness does not got to show that the liability of the insurance Company in this case was limited since no such thing has been so specifically stated by the witness when he appeared as RW-I that the liability of the Insurance Company was limited to the extent of Rs. 1,50,000.00. According to this witness the company has charged a premium of Rs. 240.00covering third-party risk and in addition to placing on record the carbon copy of the policy''s Ex. RW-1/2 photo copy of the tariff RW-I/I has also been placed on record. I have perused the tariff Ex. RW- 1/1 wherein two schedules of premium have been given-one is the liable to public risk and another is ''Act Only Liability'' ''For ''Act Only'' policy a sum of Rs. 200.00 has been prescribed to be the premium and in case of liability to third party public risk a sum of Rs. 240.00 has-been provided. Since as per the carbon copy of the policy Ex. RW-1/2 a sum of Rs. 240.00 has been charged by the Insurance Company respondent No. 2 to cover third party liability which premium is more than the "Act Only" premium of Rs. 200.00, as such I find force in the arguments of the learned Counsel for the petitioners that the liability of Insurance Company would not be as per the act which is Rs. 1,50,000.00 but would be unlimited .In view of the discussions made above I hold that since the vehicle was insured with respondent No. 2 to meet out all third party liability claims, as such liability to pay the awarded amount Along with interest is that of the respondent No. 2 and as such respondent No. 2 is directed to make the payment of the awarded amount Along with interest within two months from the date of this order.

(22) In view of the above said findings and discussions an award .in the sum of Rs. 3,36,000.00 (Rupees three lakhs thirty six thousand only) including .Rs. 15,000.00 passed u/Sec. 92-A of the M.V.A. with cost and simple interest @10% p.a. from the date of filing of the petition i.e. 2-12-1988 till the date of this order is passed in favor of the petitioners against the respondents. . Since the awarded amount Along with interest is to be shared by the petitioners, as such the amount of Rs. 3,21,000.00 Along with interest is disposed of in favor of the petitioner as under : A sum, of Rs. 1,65,000.00 Along with proportionate interest is awarded to petitioner No. 1 out of which a sum of Rs. 1,00,000.00 shall remaining F.D. for a period of five years with permission to draw the interest monthly or quarterly, if so desire. A sum of Rs. 1,10,000.00 is awarded to petitioner No .2 Nitin Kakkar minor son of the deceased who is about 16-17 years of age. This amount awarded shall be kept in F.D. with some nationalised bank in the name of the minor for a period of seven years and shall be payable to him after seven years Along with interest. A sum of Rs.23,000.00 each is awarded to petitioners No. 3 & 4 Krishna Kakkar and Sh. C.L. Kakkar, parents of the deceased .No loan can be sanctioned against the F.D. without the permission of the Court. Respondent No. 2 is given two months time to satisfy the awarded amount by way of crossed cheque direct in the name of the petitioners through the Court failing which they are liable to pay it Along with interest @12% p.a. from the date of order till its realization. Lawyers fee is assessed tors. 440.00.

(23) File be consigned to the Record Room after due compliance.