Delhi High Court
Anshul vs Mandeep Shokeen And Ors on 28 February, 2016
Author: R. K. Gauba
$~11, 12, 17, 18, 19 & 20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 28th January, 2016
+ MAC.APP. 1163/2011
ANSHUL ..... Appellant
Through: Mr. Ikrant Sharma, Adv.
versus
MANDEEP SHOKEEN AND ORS ..... Respondents
Through: Mr. Murari Tiwari & Mr. Rahul
Kumar, Advs. for R-1 & 2.
Mr. K. L. Nandwani & Mr.
Sameer Nandwani, Advs. for R-3.
+ MAC.APP. 1179/2011
ANGAN LAL & ORS ..... Appellants
Through: Mr. Ikrant Sharma, Adv.
versus
MANDEEP SHOKEEN & ORS ..... Respondents
Through: Mr. Murari Tiwari & Mr. Rahul
Kumar, Advs. for R-1 & 2.
Mr. K. L. Nandwani & Mr.
Sameer Nandwani, Advs. for R-3.
+ MACA No.19/2012
MUKESH GARG AND ANR ..... Appellants
Through: Mr. Ikrant Sharma, Adv.
versus
MANDEEP SHOKEEN AND ORS ..... Respondents
MACA Nos.1163/2011, 1179/2011, 19/2012 etc. Page 1 of 16
Through: Mr. Murari Tiwari & Mr. Rahul
Kumar, Advs. for R-1 & 2.
Mr. K. L. Nandwani & Mr.
Sameer Nandwani, Advs. for R-3.
+ MAC.APP. 1293/2012
MANDEEP SHOKEEN & ANR ..... Appellants
Through: Mr. Murari Tiwari & Mr. Rahul
Kumar, Advs.
versus
ANSHUL & ANR ..... Respondents
Through: Mr. Ikrant Sharma, Adv. for R-1.
Mr. K. L. Nandwani & Mr.
Sameer Nandwani, Advs. for R-2.
+ MAC.APP. 1294/2012
MANDEEP SHOKEEN & ANR ..... Appellants
Through: Mr. Murari Tiwari & Mr. Rahul
Kumar, Advs.
versus
ANGAN LAL & ORS ..... Respondents
Through: Mr. Ikrant Sharma, Adv. for R-1.
Mr. K. L. Nandwani & Mr.
Sameer Nandwani, Advs. for R-2.
+ MAC.APP. 1299/2012
MANDEEP SHOKEEN & ANR ..... Appellants
Through: Mr. Murari Tiwari & Mr. Rahul
Kumar, Advs.
versus
ANSHUL & ANR ..... Respondents
MACA Nos.1163/2011, 1179/2011, 19/2012 etc. Page 2 of 16
Through: Mr. Ikrant Sharma, Adv. for R-1.
Mr. K. L. Nandwani & Mr.
Sameer Nandwani, Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 12.12.2008 at about 12:50 AM at Tri Nagar, Road no.37, near
Kanhaiya Nagar, Delhi, an accident occurred involving two motor
vehicles, viz. a maruti car bearing registration no.DL-2C-AG-3179
(hereinafter referred to as "the car") and a scorpio jeep bearing
registration no.DL-8CJ-5582 (hereinafter referred to as "the jeep" or
"the offending vehicle"). The car, at the time of the collision, was
driven by Rakesh Garg. His wife Uma and two sons Mukul and
Rishabh were travelling with him. The passengers in the car also
included Tanvi, daughter of Mukesh Garg (brother of Rakesh Kumar).
The jeep, the vehicle admittedly owned by Braham Prakash, on the other
hand, was statedly driven by his son Mandeep Shokeen. As a result of
the collision Rakesh, Uma, Mukul, Rishabh & Tanvi suffered injuries
and died in the consequence.
2. Five claim petitions under Section 166 read with Section 140 of
Motor vehicles Act, 1988 ("the MV Act") came to be filed, they having
been registered as MACT case nos.178/09, 180/09, 181/09, 182/09 &
183/09. In each of said claim cases, presented before the motor accident
claims tribunal ("the tribunal"), Mandeep Shokeen and his father
Braham Prakash were impleaded as the first and second respondent
respectively.
3. Concededly, the jeep was insured with Reliance General
Insurance Company against the third party risk and, thus, the insurer
was impleaded as third respondent in each claim case.
4. The claim cases were contested by the said second respondent
(hereinafter referred to as "the owner of the offending vehicle") on the
plea that the jeep was driven not by his son Mandeep Shokeen but by
one Vijay Singh who was holding a valid license.
5. The claim cases were inquired into by the tribunal and decided by
separate judgments passed on 30.09.2011.
6. It is submitted by the learned counsel for both sides at bar, at the
hearing on these appeals, that the evidence adduced before the tribunal
was commonly led. The pleadings with regard to the involvement of the
jeep and, particularly of the driver (first respondent in claim petition)
were common in each case. The tribunal, by identical reasoning set out
in each judgment, rejected the contention and evidence adduced by the
owner of the offending vehicle about the jeep having been driven by
Vijay Singh rather than by his son Mandeep Shokeen. The findings to
the effect that the accident had occurred due to rash/negligent driving on
the part of Mandeep Shokeen were returned thus holding him to be the
principal tort-feasor and consequently holding his father Braham
Prakash (owner of the offending vehicle) vicariously liable. Since
Mandeep Shokeen was admittedly a minor - his age is stated by his
counsel to be 16 years old at the relevant point of time - the tribunal held
that there was breach of conditions of the insurance company and, thus,
absolved the insurer of any liability.
7. On the basis of material placed on record with regard to the age,
proof of avocation and income, and the dependency loss, compensation
was awarded in favour of the claimants in each case.
8. On account of death of Rakesh Kumar, his parents and third son
Anshul were awarded compensation in the sum of `9,28,818/-. On
account of death of Uma, her son Anshul was awarded compensation in
the sum of `9,82,250/-. On account of death of Mukul and Rishabh,
their surviving brother Anshul was awarded `2,59,200/- and `50,000/-
respectively as compensation.
9. In each case, interim awards on the principle of no fault liability
in the sum of `50,000/- had been earlier granted in the claim petitions
under Section 140 of MV Act. While passing the final awards, the
tribunal directed the said amounts of `50,000/- that had been earlier
paid, to be adjusted against the amounts now made payable. It may be
added here that said interim award were honoured at that stage by the
insurance company. Since, in final reckoning, it was held not liable to
pay on account of breach of the policy condition, the insurer has been
granted the right to recover the same from the principal tort-feasor and
the person held vicariously liable, jointly and severally.
10. The claimants of the four above mentioned cases (respecting
deaths of Rakesh, Uma, Rishabh and Tanvi) felt aggrieved with the
amounts of compensation awarded. They came by way of separate
appeals under Section 173 of the MV Act to this court seeking
enhancement. It may be added here that the MAC Appeal no.1161/11
seeking enhancement of compensation on account of death of Uma, as
granted in MACT case no.180/09, however, has been withdrawn by the
said appellant/claimant.
11. The persons held liable (Mandeep Shokeen and Braham Prakash)
have also felt aggrieved against the direction to pay compensation
contending that the findings returned by the tribunal in these cases
holding Mandeep Shokeen to be the driver and not accepting the
evidence that the jeep was driven by Vijay Singh are perverse and
against the record. It has further been submitted that since Vijay Singh
was holding a valid driving license, the insurance could not have been
absolved from its liability under the insurance policy. Thus, MACA
no.1293/12 (in case of death of Uma), MACA no.1294/12 (in case of
death of Rakesh), MACA no.1299/12 (in case of death of Mukul) were
filed seeking the judgments of the tribunal to be set aside in so far as the
findings were returned against the contention of Vijay Singh being the
driver of the jeep and absolving the insurance company of its liability.
12. The arguments on all sides have been heard and the records have
been perused.
13. As noted earlier, per the submission of counsel on all sides, the
contention of the parties herein and the evidence led thereupon was
common and has received similar consideration by the tribunal in the
impugned judgments. During the arguments, learned counsel referred to
the judgment of the tribunal in claim case no.181/09 respecting the
death of Rakesh, treating it as the lead case.
14. The relevant portion of the judgment of the tribunal on the
question of liability of the owner of the offending vehicle and his son
has been discussed in (paragraph nos.25 to 28 of) the said judgment
which may be extracted as under:-
" It is submitted by counsel for R1 and R2 that R1 has been
falsely implicated by the police while one Sh. Vijay Singh was
driving the vehicle. He further submits that R2 Sh. Brahm
Prakash has filed his affidavit to prove this fact. It is further
submitted that one Mohd. Alam was the eye witness of the case
and was examined before Juvenile Justice Board who has not
identified the driver of the offending vehicle. Certified copy of
statement of Mohd. Alam recorded before Juvenile Justice Board
has been filed. It is further submitted that the said Vijay was
having DL Ex. RWl/1 and therefore, R1 and R2 are not liable to
pay compensation.
I considered the submission of counsel for R1 and R2 has
submitted above. Certified copy of criminal record has been filed.
It is revealed from the record that offending vehicle was found at
the spot by the police and taken into possession. It is also
revealed that driver of the offending vehicle had fled away from
the spot living the offending vehicle at the spot. It also revealed
that notice U/s 133 of M.V. Act was given to Sh. Brahm Prakash
on 12.12.08 and R2 has given in writing that his son Mandeep
Shokeen had taken the vehicle Scorpio No. DL-8CJ-5582 on
11.12.08 and accident had taken place. He had also informed that
his son was driving the offending vehicle at the time of accident
and he had also produced Mandeep Shokeen on 13.12.08 before
the police. Mandeep Shokeen-Rl was arrested by the police and
was medically examined on 14.12.08 in Bhagwan Mahavir
hospital. On his examination, Dr. found multiple old small
abrasion over his left hand, over right knee and swelling on right
foot. It shows that Sh. Mandeep Shokeen -R1 had sustained
injuries in the accident. If Rl- Mandeep Shokeen had not been
driving the offending vehicle on the date of accident and one Sh.
Vijay had been driving the same, R2 owner of the offending
vehicle would have produced said Vijay as the driver of the
offending vehicle in response to notice given U/s 133 of M.V. Act
and not Sh. Mandeep Shokeen. R2 had voluntarily given in
writing that his son was driving the offending vehicle on the date
of accident. His signature on the notice U/s 133 of M.V. Act and
on the foot of his writing and his affidavit filed in the court and on
the cross examination recorded on 15.02.11 are similar. The plea
taken by R2 before this tribunal later is false. If eye witness
Mohd. Alam had not identified Sh. Mandeep Shokeen during trial
before Juvenile Justice Board, it does not mean that he was not
driving the offending vehicle at the time of accident since
immediately after the accident, persons who were in the offending
vehicle i.e. Scorpio fled away from the spot living the vehicle then
and there and it was not possible for Mohd. Alam to see them
properly and he was not in a position to identify Sh. Mandeep
Shokeen during trial. Therefore, I do not agree with the
submissions of counsel for R1 and R2 that since Mohd. Alam had
not identified Mandeep Shokeen in the trial before Juvenile
Justice Board, so he was not driving the offending vehicle on the
date of accident.
R-2 has stated in his affidavit that son of deponent (R-2)
was falsely implicated by the police under the pressure of media. I
fail to understand as to why police was interested to falsely
implicate, Mandeep Shokeen-Rl, son of deponent-R2. No reason
has shown by R1 and R2 to prove the fact that police was
interested to falsely implicate the son of deponent. Even if it is
accepted that police was under pressure to solve the case, why R2
had not produced said Vijay Singh before the police in response
to notice U/s 133 of M.V. Act and why he had produced his son
before them. There is no allegations on behalf of R2 that he was
forced to give statement in writing that his son was driving the
vehicle at the time of accident. He had given in writing that his
son was driving the offending vehicle at the time of accident.
Therefore, it can not be accepted that R1 was falsely implicated
by the police under any pressure. R2 had given in writing before
the police in response to notice u/s 133 of M,V. Act that his son
Mandeep Shokeen was driving the offending vehicle at the time of
accident and his son had taken the offending vehicle in his
absence, while during cross-examination, he has stated that on
the day of accident Sh. Vijay Singh had taken the vehicle. It shows
that he has falsely stated so just to avoid liability to pay
compensation. In my view, his testimony is false and cannot be
believed.
In the light of discussions and reasons therein. I hold that
R1 was driving the offending vehicle on the date of accident and
not one Vijay Singh as claimed by R1 and R2. Since R1 was minor
and offending vehicle was being driven by him without DL, I am
of the view that R1 and R2 are jointly and severally liable to pay
compensation and R-3 is not liable to pay any compensation. This
issue is decided accordingly. "
15. The learned counsel for the appellants in MACA nos. 1293-1294
and 1299 of 2012 was at pains to argue that the evidence was not
properly appreciated by the tribunal while recording the above views.
He sought to point out that Mukesh Garg, father of Tanvi (claimant in
MACT case no.182/09) had submitted a complaint to DCP (North-
West) on 19.12.2008, inter-alia, stating that the jeep at the time of the
accident was driven by a person who was adult and under the influence
of alcohol. He referred in this context to a copy of such purported
complaint (at page 70 of the paper book) in MACA no. 1293/12. He
further argued that Agan Lal, father of Rakesh Kumar, one of the
claimants in MACT case no.181/09, had preferred a criminal complaint
under Section 200 of Code of Criminal Procedure, 1973 ("Cr.P.C") in
the court of Chief Metropolitan Magistrate, Rohini in May 2009 alleging
that offences punishable under Section 279/304/304-A of Indian Penal
Code, 1860 ("IPC") had been committed impleading Braham Prakash
(the owner of the offending vehicle) and one Mukesh, nephew of
Braham Prakash as the prospective accused, inter-alia, alleging the
accident had been caused by the jeep at the time when it was driven by
said Mukesh, nephew of Braham Prakash. A copy of the said purported
criminal complaint is available (page nos.62 to 69 of the paper book) in
file of MACA no.1293/12.
16. The argument of the counsel for Mandeep Shokeen and Braham
Prakash essentially is that the abovenoted material, though submitted on
the file of the each of claim cases before the tribunal, was overlooked
and not considered in the impugned judgment. On being asked, the
learned counsel, however, fairly conceded that the criminal complaint of
May 2009 purportedly preferred by Agan Lal did not result in any
further action in the nature of Braham Prakash or the person named
Mukesh being summoned as accused for the offences punishable under
Sections 279/304/304-A IPC. He would not know whether any pre-
summoning inquiry was held or whether any evidence was adduced at
the stage of said pre-summoning inquiry into the said complaint under
the provisions of Sections 200/202 Cr.P.C, at any stage.
17. The learned counsel, on being further asked, conceded that no
evidence to prove the purported complaint dated 19.12.2008 of Mukesh
or the purported criminal complaint of May 2009 in the name of Agan
Lal was adduced during the inquiries before the tribunal into the claim
petitions. If this were the position, it does not lie in the mouth of the
appellants in MACA nos.1293-1294 and 1299 of 2012 to contend or
argue that the evidence on their behalf has been overlooked. When no
evidence worth the name was submitted in accordance with law, no
perversity can be alleged.
18. It is further conceded that aside from the word of Braham Prakash
at the inquiry that the claim that vehicle was driven by Vijay Singh, and
not Mandeep Shokeen, does not find support from any further material.
The acquittal of Mandeep Shokeen by the Juvenile Justice Board where
he was prosecuted on the charge for offences punishable under Sections
279/304-A IPC in the corresponding criminal case is inconsequential. It
may be that the eye witness Mohd. Alam relied upon by the
investigating police and prosecution in the said case was unable to
identify Mandeep Shokeen as driver of the offending vehicle at the time
of accident. But, his mere inability cannot mean that Mandeep Shokeen
has proved conclusively that he was not the driver.
19. Neither Mukesh nor Agan Lal whose purported complaints were
adduced during the inquiry before the tribunal, were present at the scene
at the time of accident. Thus, they were not in a position to say that the
vehicle in question was driven by a person other than Mandeep.
20. As observed by the tribunal in the impugned judgments, the
revelation as to the involvement of Mandeep Shokeen as the driver of
the offending vehicle was made by no one but Braham Prakash, the
owner of the offending vehicle himself. He made a submission to this
effect in writing under his own signatures in answer to the notice which
was served upon him by the investigation police in the corresponding
criminal case under the provision of Section 133 of MV Act. Braham
Prakash has not explained in any manner the said report to the police. In
these circumstances, he cannot now be allowed to wriggle out of the
said admission that his own minor son was at the wheels of the
offending vehicle at the time it met with an accident causing the
aforementioned five deaths.
21. For the foregoing reasons, the arguments on behalf of appellants
in MACA no.1293-94 and 1299 of 2012 are devoid of substance and
must be rejected.
22. The claimants in MACT case no.181/09 respecting the death of
Rakesh Kumar are in appeal MACA no.1179/11 only on the question of
computation of loss of dependency. The submission of the counsel on
their behalf is that the deceased was engaged in embroidery business
with his wife Uma (also deceased) and though in the case of Uma
income has been assessed in the sum of `1,36,750/- per annum, income
of Rakesh Kumar has been assessed in the sum of `1,01,980/-.
23. On perusal of the record, it is found that the claimants in the case
at hand themselves pleaded that the deceased Rakesh Kumar was
earning `1,01,980/- per annum. This was supported by the income tax
return for the assessment year 2006-07, immediately preceding the
death. The tribunal has accepted not only the pleading in the claim
petition but also the evidence submitted in its support. It does appear
that income shown in the income tax return for the assessment year
2005-06 was on higher side. But then, there seems to be a fluctuation in
income in as much as in the income tax return for the assessment year
2004-05 the income was much lower. In these circumstances, when the
claimants themselves pleaded the income which has been accepted,
grievances cannot be allowed to be raised. There is, thus, no case made
out for any enhancement in the said matter.
24. The claimants in the case of death of Rishabh in MACA
no.1163/11 seek enhancement on the ground that the award in the lump
sum of `50,000/- was deficient. It is also submitted that the finding that
there was no loss of dependency is perverse.
25. Rishabh was 11 years old when he died. The claim petition was
filed by his elder brother Anshul who was 19 years old at the time of
death. Indeed, both the deceased and the claimant were themselves still
students and dependant on their father, Rakesh Garg who along with his
wife died in the same accident. No evidence was adduced to prove the
academic record of Rishabh or to show his prospective income in future.
An elder brother cannot concededly be treated as dependant on the
junior sibling (deceased) even in the future for financial support. While
there is no scope for any further compensation to be awarded on the
score of dependency, there is a case made out for enhancement in the
non-pecuniary damages on account of loss of love & affection and
funeral expenses which were not awarded. Given the facts and
circumstances, further compensation in the sum of `25,000/- each on the
said two counts deserves to be awarded. Ordered accordingly.
26. The compensation in the case of death of Rishabh, thus, stands
increased from `50,000/- to `1,00,000/-, with interest as levied by the
tribunal.
27. In the case of death of Tanvi, the claimants in MACT case
no.182/09 are in MACA no.19/12 mainly to argue that the evidence as
to her engagement as a teacher in private institute has been wrongly
rejected.
28. The tribunal dealt with the issue in (paragraph nos.21 to 23 of) the
judgment in MACT case no.182/09 as under:-
"It has been claimed in the petition that deceased Tanvi was
teacher in private institution and was earning `3000/- per month. In his
affidavit, his father Mukesh Garg has stated that deceased was
unmarried and was working as private teacher in computer centre and
was getting `3000/- per month. Neither in the claim petition nor in the
affidavit of Mukesh Garg has been mentioned as to where deceased was
serving as teacher. Even the name and address of the employer of the
deceased has also not been mentioned in the petition or in the affidavit
of Mukesh Garg. Certificate regarding employment and salary of
deceased Tanvi has been filed on 13.10.2010. I fail to understand if
deceased was working with CCMT and was getting `3000/- per month
from August 2008 why this fact was not mentioned in the claim petition
in the column of name and address of employer and why this fact was
not mentioned in the affidavit of Sh. Mukesh Garg her father.
Moreover, why this certificate was not filed with the claim petition.
Moreover, no one has been examined on behalf of the petitioners from
CCMT to prove the fat that such certificate was issued.
In view of the above discussions and reasons therein, I am of the
view that certificate Ex.PW1/9 is a procured document after filing the
petition and the same has also not been proved. Therefore, it is held
that petitioners have failed to prove the fact that deceased Tanvi was
working as private teacher and was earning `3000/- per month.
It has come during cross-examination of PW Mukesh that her
daughter was studying through correspondence from Delhi University.
In view of my finding that deceased was not working as private teacher
and was earning nothing, I am of the view that she was only student and
was financially dependent upon the petitioners at the time of accident.
In case, she would have married, she would have been dependent on her
husband. In my view, petitioners cannot be held to be financially
dependent on the deceased and therefore, I am of the considered
opinion that there is no loss of dependency towards them. Therefore,
petitioners are not entitled to compensation on account of loss of
dependency. However, they are entitled to the loss of estate. Loss of
estate is computed by taking of the savings of the deceased and the
quantum of savings can be taken as 1/3 of the income of the deceased.
In the present case, since deceased was earning nothing and was rather
financially dependent upon the petitioners, loss of estate comes to nil.
At the most, petitioners are entitled to compensation only of `50,000/- in
view of case law namely Manjuri Bera vs. OIC and Anr. (supra).
Therefore, an award of `50,000/- is passed in favour of petitioners. ".
29. Whilst this court agrees that salary certificate of the private
institute cannot be accepted as good evidence, particularly as there was
no foundation led in the pleadings about the said earnings of Tanvi, it is
not correct to say that there was no loss of dependency. In case of
Manjuri Bera vs. Oriental Insurance Company, (2007) 10 SCC 643
referred to, by the tribunal in the afore-extracted observations,
compensation had been claimed by a married daughter not dependent on
the deceased. The fact situation at hand is different. Tanvi was 17 years
old at the time of accident. She was a student and would have evolved
into a self-reliant woman to be gainfully employed. It is true that there
was no formal evidence led as to her academic track record. The
evidence showing that she was pursuing a corresponding degree course
from Delhi University, however, indicates that she was aspiring to
become a useful member of the family. Assuming that she would have
secured some employment and started earning so as to contribute to the
family income and further assuming that, in due course, she would have
got married, there was indeed a loss of some dependency.
30. The claim was filed by parents of Tanvi. Assuming that she
would have been in a position to earn minimum wages payable to a
matriculate after she had turned 21, her notional income is assessed
`8,528/- per month as was prevalent w.e.f 01.04.2012. After deducting
50% on account of personal and living expenses, the loss of dependency
comes to `4,264/- per month. Applying the multiplier of 4, the total loss
of dependency is calculated at `2,04,672/-, rounded off to `2,05,000/-.
To this, non-pecuniary damages on account of love & affection and
funeral expenses at `25,000/- each deserve to be added on the same
lines as held in the case of death of Rishabh.
31. Thus, the total compensation payable in the case of death of Tanvi
is worked out to `2,55,000/-. Awarded accordingly, with interest as
levied by the tribunal.
32. Needless to add that the amounts of `50,000/- as already received
by the claimants under the principle of no fault liability would have to
be adjusted. The amounts, if paid - received in terms of the impugned
judgment shall also be suitably adjusted.
33. In the result, MACA nos.1293/12, 1294/12 & 1299/12 of
Mandeep Shokeen and Braham Prakash and MACA no.1179/11 of
Agan Lal and others are dismissed.
34. The other appeals, MACA nos.1163/11 and 19/12, stand disposed
of in above terms.
35. It is stated by the learned Counsel for the claimants and the
driver/registered owner of the offending vehicle that in terms of some
interim orders passed in these appeals, 50% of the amount awarded by
the tribunal in the impugned judgment has already been paid. The
persons held liable shall pay the balance in terms of the above directions
within 30 days of this order.
36. The interim orders passed in these appeals are vacated.
37. The claimants are at liberty to take out appropriate execution
proceedings before the tribunal.
R.K. GAUBA
(JUDGE)
JANUARY 28, 2016/ssc
