DHARMA DEVI v. PADAM SINGH — 1982 DIGILAW 343 (DEL)

JUDGMENT : M.L. Jain, J. 1. The facts as per the last amended petition are that on 29.6.1971 at 9.00 p.m. deceased Badri Prasad aged 25 years was going towards Hanuman lane on a bicycle. The truck DLL 4812 was coming from the opposite direction and it overran Badri Prasad with the result that he died on the spot. He was an employee in New Delhi Court Canteen. His mother, father and two brothers filed a claim in the Motor Accidents Claims Tribunal against the driver Padam Singh, owner of the truck, Madari s/o Ajmeri, Thaili and the Insurer for a claim of Rs. 20,000/-. 2. The learned Tribunal by its award dated 6.2.80 awarded ex-parte a sum of Rs. 10,800/- only in favour of the mother of the deceased and against the driver Padam Singh, with costs and interest at the rate of 6% per annum from 22.1.1972. Hence, this appeal by the claimants. 3. Notices of the appeal were sent to the driver, the owner and the insurer. None appeared for the owner and the driver. Some counsel appeared for the insurer once or twice. So the appeal was heard ex-parte. 4. The learned Tribunal had thought that u/s 8 of the Hindu Succession Act, 1956 only the mother could claim compensation. It also held that no evidence was led to prove that Madari was the owner of the truck. As regards insurer, the Transport Authority first certified on 16.3.1973 that New India Assurance Company was the insurer. Subsequently, it was discovered that the vehicle was insured with Devakaran Nanji Insurance Company which later on merged into the Oriental Fire and General Insurance Company The policy number was 3978. The last one was impleaded as Respondent but they did not file any written statement and insisted upon particulars. Ultimately, on 18.9.1978 the advocate of the claimants gave up the claim against the Respondent insurer. The learned Tribunal found that the deceased used to send about Rs. 100/- per month to the mother. But he could continue to send this amount only for 5 years more until the deceased should have married. After marriage the dependency was further likely to be reduced to Rs. 50/- per month and would have continued only for ten years more. Calculating on this basis the learned Tribunal came to the conclusion that the value of dependency will be Rs. 12,000/-. After marriage the dependency was further likely to be reduced to Rs. 50/- per month and would have continued only for ten years more. Calculating on this basis the learned Tribunal came to the conclusion that the value of dependency will be Rs. 12,000/-. Out of this amount, he deducted 10% on account of lump-sum payment and uncertainties of life and that is how he arrived at a figure of Rs. 10,800/-. 5. By my judgment dated 12.8.1981, I accepted the appeal and modified the impugned order and awarded sum of Rs. 20,000/- to the parents against all the Respondents including the insurer. 6. On 16.9.1981 Mr. V.P. Chaudhry filed CM. 3188/81 on behalf of the insurer Respondent No. 3 praying for rehearing of the appeal By my order dated 12.2.1982, the order dated 12.8.1981 was recalled. Mr. Chaudhry was allowed to file a rejoinder to the reply dated 17.4.1978 filed in the lower court by the Appellant and the matter was heard over again. 7. As regards the claimants, according to Section 1-A of the Indian Fatal Accidents Act 1855, the action will be for the benefit of the parents. Therefore, both the parents were entitled to receive compensation. The brothers of course do not seem to have any such claim. 8. As far as the amount of compensation is concerned, the learned Tribunal was not correct in reducing the dependency both in amount and in years on the conjecture that the boy should have married and after marriage would have ceased to support the aged parents altogether. At the same time it also failed to take into consideration that the boy would have increased his capacity to earn. It has said nothing about the life expectancy of the deceased and the parents. Normally, the age up to which the boy should have lived should be around 60 years. Evidence was led to show that the members of the family used to live for quite long. Father Mahesh was 60 years and mother Dharma Devi was 50 years of age. The purchase value of the annuity should have been calculated at Rs. 24,000/- on the basis of 20 years dependency. But the claimants have claimed only Rs. 20,000/- which is quite reasonable and should have been awarded. 9. Father Mahesh was 60 years and mother Dharma Devi was 50 years of age. The purchase value of the annuity should have been calculated at Rs. 24,000/- on the basis of 20 years dependency. But the claimants have claimed only Rs. 20,000/- which is quite reasonable and should have been awarded. 9. Owner of the truck has been traced and one Shri R.P. Kapur appeared in the beginning but later on he did not care to appear in this Court. So, the claim must be decreed against him as well. 10. The contention of the insurer is that the policy could not be traced out unless the code number and the prefix and suffix numbers of the policy are given and as such it is not possible to say that the insurance policy was issued by M/s. Dev Karan Nanji Insurance Company for the period in question. But this contention in this case has ceased to have any meaning because the insurer has stated that it has already destroyed its record in July, 1979. When they knew that the case was pending, they should not have destroyed the record of the year 1971. They should have searched the record in 1978. In that situation of the matter, the insurer cannot escape the liability. It is true that the insurer was discharged in the Tribunal below but that does not affect the statutory liability of the insurer. As a matter of fact after the insurer is served, the Tribunal cannot delete the insurer. So long as the claimant does not give up his claim against the owner of the vehicle involved in the accident, insurer cannot be relieved of the liability even where there is no specific direction in the decree making the insurer liable to satisfy it: B. Srinivasa Reddy and Another Vs. Khatumbi and Others. The insurers did not care to say in this case here or below that the policy number was not correct or that the vehicle was not insured with them. They cannot, therefore, be allowed to shirk their burden. The Learned Counsel pointed out that the aforesaid case has no application here because in that case the insurer was known while in the case before me, insurer was not known. I do not think that it can be said that the insurer was not known. Both the insurer and the policy number were known. The Learned Counsel pointed out that the aforesaid case has no application here because in that case the insurer was known while in the case before me, insurer was not known. I do not think that it can be said that the insurer was not known. Both the insurer and the policy number were known. The case is, therefore, not distinguishable. The Learned Counsel then urged that the matter can at best be remanded so that the insurer could file a written statement and could not (sic. could) takeover the defence against the claim u/s 110 C(2 A) of the Motor Vehicles Act, 1939. I do not think that the remand will be conducive in the interest of justice nor will it serve any useful purpose. The claimants will certainly be adversely affected. It also is not possible to say that the driver or the owner has failed to contest the claim. They were served and chose not to contest the claim, obviously because there was nothing to contest. Consequently, I reject the contentions of the insurer. 11. I, therefore, accept this appeal and direct as follows: (1) The award of compensation shall be Rs. 20,000/- payable with interest at the rate of 6% per annum from 22.1.1972, i.e. the date of the application and with costs here and below. (2) The decree shall be in favour of both the parents of the deceased Mahesh and Dharma Devi. (3) The entire amount shall be payable by all the three Respondents.