JUDGMENT
Santosh Duggal, J.
(1) Smt. Pushpa Kakkar and other legal heirs ofthe deceased Surender Mohan Kakkar has filed the petition u/Sec. I 10-A of theM.V.A. claiming compensation amount of Rs. 21,00,000.00 from the respondentson 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 SectionOfficer of the Govt. of India, Ministry of Home Affairs on a monthly salary ofRs. 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 thedeceased 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 KirbyPlace 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 atruck 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 rashand negligent manner and hit truck No. Dhg 909 from behind the scooter.It is stated that the truck driver inspite of hitting the scooter from its back didnot slow down the vehicle nor gave any horn struck his truck with full forcefrom 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 thebody with the result Surender Mohan Kakkar. died instantly who was immediaately 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 oftruck 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 hisuntimely death his wife aged about 42 years and minor son aged about 15 yearsand 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 andwould have retire at least as Director in the Govt. of India on the scale ofRs. 8,000.00 p.m. and would have worked up to the age of 58 years. It is statedthat there was history of longevity in the family of the deceased as the father ofthe 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 providedu/Sec. 92-A of the M.V.A. with interest @ 18% p.a. may be passed in favorof the petitioners against the respondents.
(4) After the registration of the petition notice of the petition wasgiven to the respondents who has contented the petition and have filed theirwritten 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 thescooter from behind while driving the truck in a rash and negligent manner.According to respondent No, 1 the deceased himself was negligent in driving thescooter. According to respondent No. 1 it is denied .that the deceased wasdriving the scooter .in a slow speed due to the police barrier. In fact, thedeceased came from behind the respondent truck and wanted to pass early, therespondent truck was absolutely in a slow speed and was passing carefully andit 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 theaccident 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 noknowledge about the alleged accident as the insured has not informed theInsurance Company. It was also stated that the liability of the answeringrespondent; if any, is limited to Rs. 1,50,000.00 as per the terms & conditions ofthe policy. It is however admitted that the truck No. Dhg 909 was insuredwith respondent No. 2 vide a policy from 22-7-88 to 21-7-89 with a limitedliability to the extent of Rs.1,50,000.00. It has been denied that death ofSurender Mohan Kakkar was caused due to the rash and negligent driving ofrespondent No. 1 and that the petitioners are entitled to any compensation orinterest @ 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 negligentdriving on the part of the driver of vehicle No. Dhg 909 ?(2) To what amount of compensation, if any, are the petitionersentitled 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 andservice 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 thephotographs 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 ofthe deceased, PW-6 S.I. Kishan Singh has investigated the criminal case whichwas registered about this accident. Respondents on the other hand have examied S.K. Malhotra of respondent No. 2 Insurance Company and driver ownerrespondent No. 1 himself has come to the witness box as RW-2.
(9) I have heard the learned Counsels for the parties and have gonethrough 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 tothe 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 therespondent No. 1 the accident was caused due to the rash and negligent drivingof the deceased himself and respondent No. 1 was not at fault. To prove thisfact that the respondent No. 1 was not fault, he himself has also come to thewitness box and the stated that the truck was driven by him in a slow speedwhereas the scooter came from behind while passing from the side of his truckthe scooterist struck against the D.T.C. bus and that D.T.C. bus went aheadand he was involved in false case. According to him the tyre of his truck nevercrushed the deceased and he had no knowledge whether the deceased died atthe 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 suchdefense was taken by respondent No. 1 when he filed the written statement. Atthe stage of filing of the written statement the defense raised was that thescooterist himself was responsible for the negligent driving and met with theaccident whereas when he himself come to the witness box as RW-2 he hasraised 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 holdof him and he surrendered it before the police. No explaination has been givenby respondent No. 1 as to which is not responsible for this accident, when thepublic got hold of him and he himself surrendered it before the police. At thesame 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” hasnot crushed the scooter. The photographs of the place of accident has beenplaced 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 thescooter No. Dbk 491 driven by the deceased was lying under .the wheels of thetruck No. Dhg 909. It is very well applicable here that a person can lie inorder to save himself but not the circumstances and the documents.
(11) In addition to this fact that the deceased was crushed by the wheelsof 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 mortemon the body of the deceased and has proved his report as Ex. PW-2/1. Whereinhe has opined that all the injuries were anti mortem and the cause of death inthis case was haemorrhass and shock following multiple injuries and were possibleby blunt force impact possible by R.T.A. In addition to this the tyre mark hasalso been found on the body of the deceased which have clearly been given inthe post mortem report Ex. PW-2/1 which supports the case of the petitionersand the witness ofthe accident examined by the petitioners as PW-4. Accordingto Pardeep Kumar PW-4 on 21-10-88 he was on duty at picket Kirby Placeand he saw the accident when the scooter was driven in a slow speed and atthat 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 towhich the scooterist fell down and left front wheel of the truck passed over thebody of the deceased at about 3.40 p.m. and to his estimation the injured diedat the spot who was removed to the hospital also. According to him theaccident was caused as the truck did not observe the traffic moving ahead andcame at a fast speed knowing well that there was a picket ahead and the trafficwas slow. Though the witness has been cross-examined at length but nothingmaterial has come out on the basis of which statement made by this witnesscan be doubted.
(12) The site plan Ex. PW-6/1 has also been placed on record and hasduly been proved by S.I. Kishan Singh who has investigated the criminal caseabout this accident. Perusal of the statement of Public Witness 16 also goes to show thatmechanical inspection of the vehicle was also got done in this case and thereport ofthe mechanical inspection ofthe truck No. Dho 909 has been placedon record as Ex. PW-6/2. The perusal of this mechanical inspection report ofthe truck goes to show that there was fresh damage noticed on the front bumperwhich was bent inside radiator grill and water pump were also founddamaged. From this report of mechanical inspection of the truck it isestablished that the front portion of the truck has hit the scooter andno explanation has been given by the respondent No. 1 driver owner of thetruck as to how his truck got damaged from the front side if no accident wascaused by him. Rather it is established from the evidence on record beyonddoubt that the truck was in a very fast speed and the front portion of the truckhas hit the scooter with such a force that it has resulted into fresh damages toits radiator grill water pump and front bumper in the truck and even afterthe accident the truck did not stop and it is suggestive of the fact that it wasnot under the control of its driver and with the result it not only crushed thescooter with its front but also Surinder Mohan Kakkar which resulted into hisdeath.
(13) In view of the facts and circumstances discussed above I hold thatthe 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 asSection 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 arguedthat the deceased would have continued in the service up to the age of 58 yearsand even after retirement he would have worked up to the age of 70 years andeven 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 thedeceased 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 ofthe 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 wasabout 42″ years of age.
(15) The salary certificate of the deceased has also been placed onrecord as Ex. PW-1/1 which goes to show that the deceased was getting a basicsalary of Rs. 2,900.00 with a total salary of Rs. 4,267.00 p.m. According to thefather of the deceased PW-5 the deceased used to give Rs. 3,500.00 for householdexpenses. The widow of the deceased petitioner No. 1 has not come to thewitness 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, assuch he must be paying income tax and certain other deductions mustalso be effected from the salary taken by the deceased which have not beengiven 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 wouldhave been promoted as Under Secretary and Deputy Secretary which is notsigned or authenticated by any person and seems to be based on hypothecationsince no rules and procedure to this effect has been proved.
(16) Keeping in view the salary certificate of the deceased and the factthat he was promoted as Section Officer which post he was holding at the timeof death and also keeping in view the facts that the wife of the deceased wasalso 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 andalso keeping in view that the wife of the deceased was also in service even priorto 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 ofthe deceased which was around 42″ years at the time of accident and alsokeeping inview the future prospects promotional avenues and the fact that hewas to continue in the service up to the age of 58 years and also keeping in viewthe history of longevity in the family of the deceased and also keeping in viewthe 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 shouldbe awarded to the petitioners.
(17) Inview 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 under Section 110-A of the M.V.A.
(18) A prayer has also been made by the petitioners for the award ofinterest on this amount of compensation. I have considered the submissionsmade 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 inthis case was filed on 2-12-88 and the petitioners have concluded their evidenceimmediately after framing of the issues within two hearings and have taken allreasonable steps in concluding the case at the earliest, as such in view of thejudgment 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. shouldbe 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 withinterest is concerned, since at the time of accident the truck was owned anddriven by respondent No. 1, as such liability to pay the compensation amountshall be that of respondent No. 1. However, in view of the written statementfiled by respondent Nos.1 &2 the truck No. Dhg 909 was insured withrespondent No. 2, as such the liability to pay the compensation amount shall bethat of respondent No. 2 being the insurer of the vehicle.
(20) On behalf of the respondent No. 2 it was contended thatthe 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 itscase 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 theliability of the Insurance Company was limited. It is also submitted that thepremium charged by respondent No. 2 in this case was Rs. 240.00 covering thirdparty risk which amount is more than the ‘act only’ policy for which premiumis 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 entireliability in regard to the third party claim would be that of respondent No. 2.
(21) I have considered the submissions made by both the partips in thisrespect and has also carefully perused the case file and have noticed that in thiscase original policy of insurance has not been placed on record and on behalf ofrespondent 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 ofRW-I who has appeared on behalf of respondent No. 2 but the perusal of thestatement of this witness does not got to show that the liability of the insuranceCompany in this case was limited since no such thing has been so specificallystated by the witness when he appeared as RW-I that the liability of theInsurance Company was limited to the extent of Rs. 1,50,000.00. According tothis witness the company has charged a premium of Rs. 240.00covering thirdparty risk and in addition to placing on record the carbon copy of the policyas 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 havebeen 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 hasbeen provided. Since as per the carbon copy of the policy Ex. RW-1/2 a sumof Rs. 240.00 has been charged by the Insurance Company respondent No. 2 tocover 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 Counselfor the petitioners that the liability of Insurance Company would not be as perthe act which is Rs. 1,50,000.00 but would beunlimited. 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 theawarded amount Along with interest is that of the respondent No. 2 and as suchrespondent No. 2 is directed to make the payment of the awarded amountAlong with interest within two months from the date of this order.
(22) In view of the above said findings and discussions an award .in thesum of Rs. 3,36,000.00 (Rupees three lakhs thirty six thousand only) includingRs. 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 ofthis order is passed in favor of the petitioners against the respondents. . Sincethe awarded amount Along with interest is to be shared by the petitioners, as suchthe 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 isawarded to petitioner No. 1 out of which a sum of Rs. 1,00,000.00 shall remainin F.D. for a period of five years with permission to draw the interest monthlyor quarterly, if so desire. A sum of Rs. 1,10,000.00 is awarded to petitionerNo. 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 thename of the minor for a period of seven years and shall be payable to him afterseven years Along with interest. A sum of Rs.23,000.00 each is awarded topetitioners No. 3 & 4 Krishna Kakkar and Sh. C.L. Kakkar, parents of thedeceased. No loan can be sanctioned against the F.D. without the permissionof the Court. Respondent No. 2 is given two months time to satisfy theawarded amount by way of crossed cheque direct in the name of the petitionersthrough 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.