Delhi District Court
Smt. Kitabo (Mother Of Deceased) vs Sh. Rajesh Kumar on 27 April, 2018
MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018
IN THE COURT OF SH . VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5318/16 (Old No.1288/08)
1. Smt. Kitabo (mother of deceased),
W/o Sh. Om Prakash
R/o V.P.O Jonti,
Delhi - 81.
2. Sh. Om Prakash (father of deceased)
S/o Late Sh. Chhotey Lal
(Deleted from the array of parties vide order dated 15.12.2016 on
account of his death)
.........Petitioner
VERSUS
1. Sh. Rajesh Kumar
S/o Sh. Ram Phal
R/o Parwa Pana,
Village Karala, Delhi (Driver)
2. Sh. Bhagwan Singh
S/o Sh. Manse Ram
R/o V.P.O Pelpa,
District Jhajjar, Haryana(Owner)
3. The National Insurance Company Ltd.
SCO 41,42,43, Sector - 31,
Market above Corporation Bank,
Gurgaon, Haryana(Insurance co.)
4. Sh. Jagdish Chand,
S/o Sh. Ram Lal,
R/o V.P.O Sikanderpur Badha,
Gurgaon, Haryana(Insured)
...........Respondents
Kitabo Devi Vs. Rajesh Kumar & Ors. Page 1 of 22
MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 Date of Institution : 05.07.2008 Date of Arguments : 12.04.2018 Date of Decision : 27.04.2018 APPEARANCES: Sh. Sudesh Yadav, adv for petitioner.
Sh. Anil Dagar, adv for respondents no. 1 & 2.
Sh. V.K. Gupta, Adv for respondent no.3.
None for respondent no. 4.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioners are the legal heirs i.e. parents of deceased Sh. Sandeep, who had sustained fatal injuries in Motor Vehicular Accident which occurred on 18.03.2008 at about 2:30 pm at Shiv Mandir, Kanoda Road, Village Jounti, Delhi, falling within the jurisdiction of PS. Kanjhawala, involving vehicle bearing registration no. HR26AN3927 (alleged offending vehicle) being driven in rash and negligent manner by its driver/respondent no. 1.
2. The petitioners filed the present claim petition U/s 166/140 M.V Act seeking compensation to the tune of Rs. 10,00,000/ alongwith interest from the date of filing of claim petition till its realization, on the averments that their deceased son namely Sandeep was 20 years old; he was self employed and was doing the work of Electrician and he was earning Rs. 4,200/per month at the time of accident. On 18.03.08 at about 2:30 pm, Sandeep alongwith his friend were going on motorcycle no. DL8SAN8194. Sandeep was sitting as pillion rider on the said motorcycle. When they reached at Shiv Mandir, Kanoda Road, Village Jounti, Delhi, one Tractor with Trolley bearing registration No. HR26AN3927, which was being driven by its driver/respondent no. 1 at very high speed, rashly, negligently, without Kitabo Devi Vs. Rajesh Kumar & Ors. Page 2 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 taking necessary precautions, without proper lookouts while violating the traffic rules and without blowing any horn, came from Jounti village side and hit against the aforesaid motorcycle. As a result thereof, they both fell down on the road and sustained multiple grievous injuries on their body parts. Sandeep (since expired) became unconscious and PCR Van removed him to SGM Hospital, where doctor declared him "brought dead". FIR No. 42/08 u/s. 279/337/304A IPC was registered at PS. Kanjhawala with regard to the said accident.
3. The respondents no. 1 & 2 have filed separate but identical WS, wherein they have disputed the factum of accident as well as the factum of involvement of vehicle no. HR26AN3927 in the said accident. Alternatively, they have claimed that the said vehicle was insured with respondent no. 3 at the time of accident. On merits, they have simply denied the averments made in the claim petition. They have also denied the claim for compensation raised by the petitioners and have prayed for dismissal of the claim petition.
4. In its WS, the insurance company/respondent no.3 has raised preliminary objection that the petition is bad for nonjoinder of owner and insurer of motorcycle no. DL8SAH8194. It has raised statutory defence as provided in Section 149(2) M.V. Act by claiming that driver of alleged offending vehicle was not holding valid and effective DL at the time of alleged accident and the alleged offending vehicle was being used without valid permit. It has further claimed that respondent no. 2 was not the insured as on the date of accident and thus, it is not liable to indemnify him. It is claimed that the alleged offending vehicle was insured in the name of respondent no. 4, who had no insurable interest in Tractor No. HR26AN 3927 as on the date of accident, which is 18.03.08. Thus, there was no Kitabo Devi Vs. Rajesh Kumar & Ors. Page 3 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 contractual obligations between insurance company and respondent no. 2 and the contractual obligations with respondent no. 4 ceased on 13.11.07 when the alleged offending vehicle was sold to respondent no. 2. On merits, the averments made in the claim petition have been simply denied for want of knowledge and prayer has been made for dismissal of the claim petition.
5. The respondent no. 4 has filed his separate WS, wherein he has also disputed the factum of accident as well as the factum of involvement of vehicle no. HR26AN3927 in the said accident. Alternatively, he has claimed that the said vehicle was insured with respondent no. 3 at the time of accident. He has further claimed that he is not liable to pay the compensation amount as he had already sold the Tractor bearing registration no. HR26AN3927 to Sh. Bhagwan Singh /R2. On merits, he has simply denied the averments made in the claim petition and has prayed for dismissal of the claim petition.
6. It is pertinent to mention here that petitioner no. 2 namely Sh. Om Prakash died during pendency of the matter on 24.10.2015 and his name was deleted from the array of parties vide order dated 15.12.2016, in view of application u/o. 22 Rule 2 CPC r/w section 151 CPC moved in this regard.
7. From pleadings of the parties, the following issues were framed on 04.08.2009:
1) Whether deceased Sandeep S/o Om Prakash received fatal injuries in the motor vehicle (vehicular) accident caused by offending vehicle occurred on 18/03/08 at 2:30 pm at Kanonda road, near Shiv Mandir, Village Jounti, Kitabo Devi Vs. Rajesh Kumar & Ors. Page 4 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 Delhi due to rash and negligent driving of R1/driver of offending vehicle no. HR26AN 3927?OPP
2) Whether the petitioner is entitled to compensation and if so to what extent and from which of the respondents?OPP
3) Relief.
8. It is pertinent to note that due to inadvertence, similar issues were again framed in the present case by my Ld. Predecessor vide order dated 17.02.2010. It may also be noted here that the petitioners had moved an amendment application u/o 6 Rule 17 r/w Section 151 CPC with proposed amended petition on 09.11.2011, whereby they sought amendment in para 23 of the petition in respect of the registration number of the offending truck. The amendment application was allowed vide order dated 09.11.2011 passed by my Ld. Predecessor. Accordingly, the amended claim petition was taken on record and all the four respondents relied upon their WS previously filed on record as the amendment did not alter the nature of averments made in the claim petition.
9. In support of their claim, the petitioners have examined two witnesses i.e. PW1 Smt. Kitabo (mother of deceased) and PW2 Sh. Hari Kant(alleged eyewitness) and their evidence was closed on 16.08.13. On the other hand, the respondents no. 1 & 2 preferred not to lead any evidence towards RE. Respondent no. 3/insurance company has, however, examined three witnesses i.e. R3W1 Sh. Ram, Assistant Manager, National Insurance Company Ltd., R3W2 i.e. IO/SI Ishwar Singh and R3W3 Sh. Gulshan, Clerk from Licencing Authority. Respondents closed their evidence on 01.09.16 through their respective counsels.
Kitabo Devi Vs. Rajesh Kumar & Ors. Page 5 of 22MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018
10. I have already heard the arguments advanced by Ld counsels for the parties. Both the sides were directed to submit their respective submissions in Form IV A vide order dated 02.02.2018 but they have not submitted the same on record till date. My findings on the issues are as under: Issue No. 1
11. For the purpose of this issue, the testimony of PW2 Sh. Hari Kant(alleged eyewitness) is relevant. He has deposed in his evidence by way of affidavit (Ex. PW2/A) that on 18.03.2008 at about 2:30 pm, he alongwith his friend namely Sandeep(since deceased), were coming from Village Kanaunda to Village Jounti on motorcycle no. DL8SAH8194. He was driving the said and deceased Sandeep was sitting as pillion rider on it. When they reached near Shiv Mandir, Kanaunda Road, Jounti, Delhi, one Tractor with trolley bearing registration no. HR26AN3927, which was being driven by respondent no. 1 at very high speed, rashly, negligently and in zigzag manner, came from Jounti Village side and struck against their aforesaid motorcycle. As a result thereof, they both fell down on the road and sustained multiple grievous injuries. He further deposed that in the accident, his friend Sandeep had sustained injury on his head. After the accident, he requested respondent no. 1 to drop them to SGM Hospital, to which respondent no. 1 replied that he would come after dropping the trolley at Toll Tax Barrier and he fled away from the spot. The PCR Van took them to SGM Hospital, Mangolpuri. On the next morning, he came to know that his friend Sandeep succumbed to those injuries. IO had met him in the hospital and had recorded his statement. Thereafter, on 24.04.08, he alongwith IO went to Kanjhawala Chowk, where on his instance, IO apprehended the accused and seized the tractor and also prepared the site plan. He also deposed that accident was caused due to rash and negligent Kitabo Devi Vs. Rajesh Kumar & Ors. Page 6 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 driving on the part of driver of Tractor No. HR26AN3927. He has relied upon copy of his DL as Ex. PW2/1. During his cross examination on behalf of respondents, he deposed that the motorcycle on which deceased was travelling, was being driven by him. He was holding vaild DL on the date of accident. He deposed that he was driving the motorcycle on left side of the road. He as well as deceased were wearing helmets. The offending vehicle came from opposite direction. The right front portion of the tractor had struck against right portion of his motorcycle. The tractor was alongwith trolly which was empty. The motorcycle was struck by the tractor. There was no divider on the said road and width of the road was about 20 ft. He deposed that he had seen the tractor coming to his side from the distance of 1520 meters. He was on extreme left side of the road at the time of accident. He further deposed that number of the tractor was HR26AN3927 and it was of blue colour. He also deposed that police had recorded his statement on next day of the accident. He denied the suggestion that no such accident took place with Tractor no. HR26AN3927. He further denied the suggestion that the said tractor has been falsely implicated in this case.
12. It is quite evident from the testimony of the aforesaid witness that the respondents, more particularly the insurance company, failed to impeach his testimony on the aspect of accident being caused due to rash and negligent driving of Tractor no. HR26AN3927 by respondent no. 1, during his crossexamination.
13. Not only this, respondent no. 1/driver of the alleged offending vehicle, preferred not to enter into witness box during the course of enquiry. He was the other material witness apart from PW2 Sh. Hari Kant, who could have thrown sufficient light as to how and under what circumstances, the accident in question took place. Thus, an adverse inference is liable to be Kitabo Devi Vs. Rajesh Kumar & Ors. Page 7 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 drawn against him for not entering into the witness box, to the effect that the accident occurred due to his rash and negligent driving of offending vehicle i.e. Tractor bearing registration no. HR26AN3927.
14. R3W2 SI (Retd.) Ishwar Singh deposed that he was IO of the criminal case registered at PS. Kanjhawala with regard to the accident in question. He has deposed about the sequence of facts investigated by him and during the course of investigation, by testifying that on receipt of accidental call on 18.03.08, he found one motorcycle lying in an accidental condition in farm land nearby road when he reached over there. Injured Sandeep had been declared brought dead at SGM Hospital and the other injured was declared not fit for statement. Thereafter, said injured namely Hari Kant had been removed to some other hospital and despite his best efforts, he could not meet said injured, who could meet him only on 24.04.08 and gave statement(Ex. R3W2/A/A) before him. He also deposed regarding seizure of Tractor and arrest of accused. In response to Court question, he deposed that mechanical inspection of offending tractor was got conducted by him but no fresh damage was found on it. He volunteered that since tractor was seized after more than 1 month, the driver/owner would have got the same repaired. He denied the suggestion that no such accident took place with tractor no. HR26AN3927 or that he got the said tractor falsely implicated in connivance with petitioners, driver and owner of the said vehicle, in order to favour the petitioners in getting claim from insurance company or that he did not properly investigate the case. During his cross examination on behalf of petitioner, he admitted that criminal case was pending against driver of the offending tractor and also that he had no personal grudge against the said driver. He also admitted that the driver and registered owner did not make any complaint against him regarding false implication of respondent no. 1 in the criminal case.
Kitabo Devi Vs. Rajesh Kumar & Ors. Page 8 of 22MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018
15. It is quite evident from the bare perusal of the testimony of aforesaid witness that even as per the conclusion arrived by the investigating agency after collecting the evidence during investigation of criminal case, the accident in question was caused due to rash and negligent driving of tractor no. HR26AN3927 by respondent no. 1. It is important to note that the aforesaid witness has been examined by none other than but by the insurance company and the witness has rather deposed against the defence raised by the respondents in so far as they have disputed the factum of accident and the involvement of tractor no. HR26AN3927 in the accident. In fact, the testimony of this witness corroborates the ocular testimony of PW2 Hari Kant as discussed in the preceding paras.
16. It is also pertinent to note that FIR no. 42/08 u/s 279/337/304A IPC (which is part of criminal case record Ex. PW1/5 colly) was registered at PS. Kanjhawala with regard to accident in question on 18.03.2008 i.e. on the date of accident itself. Thus, FIR in question was promptly lodged with regard to the accident in question on same day of the accident which had occurred on 18.03.2008. Not only this, the respondent no. 1 namely Rajesh Kumar (accused in State case) has been charge sheeted for offences punishable U/s 279/337/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending Tractor No. HR26AN3927 by him. PW2 Sh. Hari Kant is also cited as prosecution witness, as per list of witnesses filed alongwith the charge sheet. Same would also point out towards the rash and negligent driving of offending vehicle by respondent no. 1.
17. Apart from above, the MLC (which is part of criminal case record Ex. PW1/5 colly) of deceased prepared at SGM Hospital, Mangol Puri, would Kitabo Devi Vs. Rajesh Kumar & Ors. Page 9 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 show that he had been removed to said hospital by PCR with alleged history of RTA. He was unconscious, his pulse was not palpable and his BP was also not recordable at that time. He was found to have sustained multiple injuries as mentioned therein. Said injuries are consistent with the injuries which are sustained in Motor Vehicular Accident. Said document has not been disputed from the side of respondents and it corroborates the ocular testimony of PW2 as discussed above.
18. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of preponderance of probabilities that Sandeep had sustained fatal injuries in road accident which took place on 18.03.2008 at about 2:30 pm near Shiv Mandir, Kanaunda Road, Village Jounti, due to rash and negligent driving of Tractor No. HR26AN3927 by respondent no.1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 219. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
LOSS OF DEPENDENCY
20. As already stated above, the claimant is the mother of deceased. PW1 Smt. Kitabo has deposed in her evidence by way of affidavit (Ex. PW1/A) that deceased was aged about 20 years; he was unmarried and Kitabo Devi Vs. Rajesh Kumar & Ors. Page 10 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 he was working as Electrician and was earning Rs. 4,200/ per month at the time of accident. She has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copy of her Voter I Card Ex PW1/1
2. Copy of Voter I Card of father Ex. PW1/2 of deceased 3. Copy of Ration Card Ex PW1/3
4. Copy of Death Certificate of Ex. PW1/4 deceased
5. Certified copies of criminal Ex. PW1/5(colly) case record.
21. During her cross examination, she deposed that she did not remember the date, month and year of birth of deceased. She further deposed that she did not remember her date of birth, however, she was 65 years of age. She again deposed that she was 47 years old. She deposed that father of deceased was 52 years of age at the time of accident. She further deposed that deceased was not having any educational qualification certificate with regard to his occupation as Electrician. She denied the suggestion that deceased was not working as Electrician or that he was not earning Rs. 4,200/ per month. She deposed that father of deceased was Raj Mistri. She denied the suggestion that the petitioners were not financially dependent upon the deceased. She further denied the suggestion that no such accident had taken place.
22. Counsel for petitioner fairly conceded during the course of arguments that for want of cogent evidence being led with regard to monthly income of deceased, his monthly income should be taken as per Minimum Wages Act applicable during the period in question. As already noted above, Kitabo Devi Vs. Rajesh Kumar & Ors. Page 11 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 PW1 Smt. Kitabo has admitted during her cross examination that she was not having any educational qualification certificate of deceased with regard to his occupation as electrician. Mere bald statement made by PW1 in this regard, cannot be accepted under the law. No document concerning educational qualification of deceased has been placed on record by the petitioner. For want of any definite evidence regarding monthly income of deceased being led by the petitioner, his monthly income has to be assessed as that of an unskilled worker as per Minimum Wages Act applicable in Delhi during the relevant period. The Minimum Wages of an unskilled worker under Minimum Wages Act applicable in Delhi as on 18.03.08, were Rs. 3,633/ per month.
23. In copy of Ration Card (which is part of criminal case record Ex. PW1/5 colly), the year of birth of deceased Sandeep is mentioned as 1988. The date of issuance of Ration Card is 08.10.02. The date of accident is 18.03.08. Thus, he was aged about 20 years at the time of accident in question. Hence, the multiplier of 18 would be applicable in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
24. In view of the fact that there was one dependent upon deceased at the time of accident, there has to be deduction of one half as held in the case of Pranay Sethi mentioned supra. Considering the fact that deceased is claimed to be self employed and there being no cogent evidence that he was having permanent job, future prospects @ 40% has to be awarded in favour of petitioner in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, as Kitabo Devi Vs. Rajesh Kumar & Ors. Page 12 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17. Thus, the total of loss of dependency would come out to Rs. 5,49,309.60 paise (Rs. 3,633/ X 1/2 X 140/100 X 12 X 18). Hence, a sum of Rs. 5,49,310/(rounded off) is awarded under this head in favour of the petitioner.
LOSS OF LOVE & AFFECTION
25. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra, has been pleased to observe in para 18 of the judgment that the constitution bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
26. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 5,49,310/
2. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 5,79,310/ Rounded Off to Rs. 5,80,000/ Kitabo Devi Vs. Rajesh Kumar & Ors. Page 13 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018
27. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company tried to avoid the liability of insurance company on the ground that there was breach of terms and conditions of insurance policy in this case inasmuch as tractor was attached with trolley and thus, same was being used for commercial purposes. He further submitted that respondent no. 1 namely Sh Rajesh Kumar was not having valid and effective DL in respect of commercial category for LMV at the time of accident. Thus, insurance company is not liable to indemnify the insured and is not liable to pay any compensation to the petitioner. In support of his aforesaid contentions, he heavily relied upon the testimonies of R3W1 to R3W3 examined on behalf of insurance company during the course of inquiry. In order to buttress these arguments, he also placed reliance upon decision dated 21.04.16 in the matter titled as " Bharti Axa General Insurance Company Limited & Anr. Vs. Annasaheb Bapurao Ghandure" in Revision Petition No. 4863/2013 delivered by National Consumer Disputes Redressal Commission.
28. Per contra, counsel for respondents no. 1 & 2 vehemently argued that trolley is an essential part and parcel of tractor and one can not effectively use tractor without trolley being attached to it. He further argued that the tractor and trolley was being used for agricultural purposes and respondent no. 1 was having DL in respect of LMV vehicles. Therefore, the insurance company is liable to pay the compensation amount, being contractually and statutorily bound to indemnify the insured. In support of his submissions, he also placed reliance upon decision of Hon'ble Delhi High Court in the case titled as " Rajender Singh & Anr. Vs. Santosh Devi & Ors.", III(2014) ACC 775 (DEL.) and another decision of Punjab and Kitabo Devi Vs. Rajesh Kumar & Ors. Page 14 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 Haryana High Court in the case titled as " United India Insurance Company Limited Vs. Surender & Ors.", 2006 ACJ 1285.
29. In order to appreciate the aforesaid submissions, it would be relevant to refer to the relevant documents i.e. DL (Ex. R3W3/P1) in the name of respondent no. 1 and the insurance policy (Ex. R3W1/E)in respect of TractorTrolley in question. The perusal of copy of DL (Ex. R3W3/P1) of respondent no. 1 Sh. Rajesh Kumar, would show that said DL was issued in respect of Tractor/Scooter/Motorcycle/CarJeep having validity upto 07.04.2023.
30. R3W3 i.e. the concerned official of Licencing Authority, Jhajjar (Haryana) produced the relevant record i.e. DL register containing relevant entry regarding DL issued to respondent no.1. The copy of relevant record thereof was exhibited as Ex. R3W3/1. He categorically deposed that the category " Tractor" had been inserted in the driving licence through pen and clarified that said category was inadvertently not mentioned through computer and later on, same was rectified through pen. During his cross examination on behalf of respondents no. 1 & 2, he deposed that licence for tractor is issued for agricultural purpose and no separate DL is issued for category of Trolley. He further deposed that the trolley, Cultivator etc are generally used alongwith Tractor for agricultural purpose. On being shown the original DL in favour of respondent no. 1 Rajesh Kumar, he reiterated that said DL had been issued from their office.
31. In view of the testimony of R3W3 and copy of DL(Ex. R3W3/P1), it cannot be said that respondent no. 1 was not holding valid or effective driving license to drive the tractor at the time of accident in question. It is an admitted fact on record that the offending tractor was attached with trolley Kitabo Devi Vs. Rajesh Kumar & Ors. Page 15 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 and it had caused the accident in the agricultural field. Same is also writ large from the contents of FIR No. 42/08 (which is part of criminal case record Ex. PW1/5 colly.), wherein it is specifically mentioned that motorcycle of the victims, was found lying in accidental condition in agriculture field when SI Ishwar Singh alongwith Ct. Kuldeep rushed to the place of accident on receipt of DD No. 15A dated 18.03.08 recorded in PS. Kanjhawala.
32. The perusal of insurance policy (Ex. R3W1/E), which is an undisputed document even from the side of insurance company, would show that same had been issued in respect of Farm Tractor having validity from 15.10.07 till midnight of 14.10.08 It is relevant to note that insurance company has nowhere taken the plea in its written statement that tractor was being used for commercial purpose. It is only at the time of final arguments, this submission was made by counsel for insurance company. Even otherwise, it was the duty of insurance company to prove that the offending tractortrolley was being used for commercial purpose. However, no evidence whatsoever has been led by insurance company to prove the same. Instead, the only relevant witness i.e. R3W1 namely Mr. Shri Ram, Assistant Manager of National Insurance Company Limited examined by Insurance Company / R3 has simply deposed in his evidence by way of affidavit (Ex. R3W1/X) that the risk of trolley was not covered under the insurance policy and once the trolley was attached with the tractor, the driver must hold valid DL for commercial category for LMV but in this case, the driver was holding DL for LMV(NT).
33. Now, the question arises as to whether in a fact situation like the present one, where tractor is attached with trolley being used in agricultural field, it can be said that the vehicle was being used for commercial purpose. The answer to this question, in my opinion, has to be in negative.
Kitabo Devi Vs. Rajesh Kumar & Ors. Page 16 of 22MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018
34. Similar question came up for consideration before Punjab & Haryana High Court in the case of "Bajaj Allianz General Insurance Company Ltd Vs. Tarun Kaura & Ors.," FAO No. 2887/08 decided on 02.03.2010. Hon'ble High Court of Punjab & Haryana High Court has held in the said decision that a person who has a valid license for driving a tractor, can also drive a trolley attached to it, as a trolley is an agricultural equipment.
35. Our own High Court in the case of "New India Assurance Company Ltd. Vs. Sanjay Singh & Ors." MAC.APP No. 561/12 decided on 08.05.14, has held that a tractor is a LMV and also that no separate endorsement is required on the DL for driving a tractor which is being used for agricultural purposes and a person having a DL for driving LMV (non transport) can drive a tractor. Similar view has been taken by our own High Court in the matters titled as "Satish Chand Kasana & Anr Vs. Chandra Shekhar Yadav & Anr" in MAC.APP No. 203/14 decided on 25.08.14 and "Rajinder Singh & Anr. Vs. Satnosh Devi & Ors." MAC.APP No.554/12 decided on 31.07.14.
36. Now turning back to the facts of the present case. It is an undisputed position on record that the offending tractortrolley was being used in agricultural field at the time of accident and thus, the purpose of its use cannot be termed as commercial. There is no substance in the argument raised on behalf of insurance company that merely because trolley was not expressly insured in the insurance policy (Ex. R3W1/E), it can be allowed to avoid its liability. The identical question arose before Hon'ble High Court of Andhra Pradesh in the case titled as "Asari Pothalingam & Ors., Vs. Lambadi Mamji & Anr, 2012 ACJ 2117(A.P). In the said case also, only tractor was insured but the said tractor was attached with trolley at the time Kitabo Devi Vs. Rajesh Kumar & Ors. Page 17 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 of accident which led to death of one labourer travelling therein. Similar contention was made on behalf of insurance company that since trolley was not insured, it is not liable to pay any compensation for damage caused to third party by trolley. While rejecting the said contention, it was held in para 17 of the judgment, after referring to previous decision delivered by Division Bench of A.P. High Court reported at 2009 ACJ 514(A.P), that no separate insurance is contemplated for a trailor and when the trailor is attached to the tractor, which is insured, it becomes a part of the tractor. Similar view has been taken by Division Bench of Punjab and Haryana High Court in case of Surender mentioned supra as also by Division Bench of Andhra Pradesh High Court reported at 2008 (2) Transport and Accidents Cases 582 (A.P). The decision relied by counsel for insurance company, is entirely distinguishable from the facts and circumstances of the case inasmuchas the offending tractor in cited case, was attached with two trolleys and that too for the purpose of loading the sugarcane, which is meant for being used for commercial purpose. Moreover, the driver of tractor was possessing licence to drive motorcycle and tractor in the said matter.
37. Even otherwise, the position in law has been settled by Hon'ble Supreme Court of India in "Mukund Dewangan Vs. Oriental Insurance Company Ltd.", 2017 (7) SCALE 731, wherein it has been held that even where the driver was holding a driving licence which was vallid for LMV, whereas the vehicle involved is light goods vehicle (LGV), the insurance company is not entitled to any recovery rights. Similar view has been taken by Hon'ble Delhi High Court in "New India Assurance Company Limited Vs. Subhash Rastogi & Ors.", MAC APP No. 438/2009 decided on 25.07.17 and in another decision in the case of " Ram Narayan Verma Vs. Rajani & Ors. (Reliance General Insurance Company Ltd.), MAC APP No. 478/2017 decided on 27.07.17.
Kitabo Devi Vs. Rajesh Kumar & Ors. Page 18 of 22MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018
38. Furthermore, the difference between the category of LMV(NT) and that of LMV (Commercial) has been done away with by Ministry of Road Transport and Highways, Government of India vide its Circular No. RT 11021/44/2017MVL dated 16.04.2018, while following the dictum of law laid down by Hon'ble Apex Court in Mukund Dewangan's case (supra). That being so, the insurance company is held liable to pay the compensation amount to the petitioner. It cannot be allowed to escape from its liability to indemnify the insured so far as payment of compensation amount is concerned.
39. This brings me down to the next limb of argument raised on behalf of insurance company that it is not liable to pay the compensation amount as the insurance policy was issued in the name of Jagdish i.e. insured (R4), whereas R2 namely Sh. Bhagwan Singh is the registered owner of the offending vehicle. In other words, counsel for insurance company argued that insured (R4) did not have any insurable interest in the offending vehicle and thus, there was as such no contractual obligation between respondent no. 2(registered owner) and the insurance company.
40. The aforesaid submission raised on behalf of insurance company is again liable to be rejected in view of the provision contained in section 157 of Motor Vehicle Act. The said provision clearly stipulates that in the event of ownership of any motor vehicle in respect of which insurance was taken, is transferred to another person then the certificate of insurance and the policy described in the certificate, shall be deemed to have been transferred in favour of the person to whom such motor vehicle is transferred with effect from the date of its transfer.
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41. In the case in hand, it is an undisputed fact that the offending vehicle was previously owned by respondent no. 4(insured) and the said respondent had sold the said vehicle to respondent no. 2 during existence of the insurance policy and prior to the date of accident. Hence, the insurance policy shall be deemed to have been transferred in favour of respondent no. 2 by virtue of section 157(1) M.V. Act and insurance company is still held liable to pay the compensation amount. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF:
42. In view of my findings on issues no. 1 and 2, I award a compensation of Rs. 5,80,000/ alongwith interest @ 9% per annum in favour of petitioner and against respondent no. 3 / National Insurance Co. Ltd. w.e.f. date of filing of the petition i.e. 05.07.08 till the date of its realization in favour of Lr of deceased/petitioner and against the respondents jointly and severally (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors" bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
43. Statement of petitioner in terms of Clause 26 MCTAP was recorded on 04.10.2016. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the award amount, a sum of Rs. 1,00,000/ (Rupees one lakh only) shall be immediately released to the petitioner through her saving bank account no. 65006305492 with State Bank of India, Village Jounti Branch, Delhi, having IFSC Code SBIN0050467 and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 10,000/ each for Kitabo Devi Vs. Rajesh Kumar & Ors. Page 20 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 a period of one month, two months, three months and so on and so forth, having cumulative interest and subject to the following directions:
(i) The interest on the fixed deposits be paid monthly to the claimant/petitioner.
(ii) The monthly interest be credited automatically in the saving account of the claimant/petitioner.
(iii) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs be given to the claimant/petitioner alongwith the photocopy of the FDRs be given to claimant/petitioner. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant/petitioner.
(iv) No cheque book/Debit Card be issued to the claimant/petitioner without permission of the Court.
(v) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the Court.
(Vi) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim.
(viii) Half yearly statement of account be filed by the Bank before the Tribunal.
44. During the course of hearing final arguments, claimant was examined in order to ascertain as to whether she was entitled to exemption from deduction of TDS or not. She made statement on oath that she was entitled to exemption from deduction of TDS and also furnished Form No. 15G on record.
45. Respondent no. 3, being insurer of offending vehicle is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the amount of Rs. 1,00,000/ in Kitabo Devi Vs. Rajesh Kumar & Ors. Page 21 of 22 MACP No. 5318/16 (old No. 1288/08) FIR No. 42/08.; PS. Kanjhawala DOD: 27.04.2018 the aforesaid saving bank account mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of award be given dasti alongwith Form 15G in original of claimant (after retaining photocopy thereof on record) to counsel for insurance company for compliance. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form V in terms of MCTAP is annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in open Court on 27.04.2018 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Kitabo Devi Vs. Rajesh Kumar & Ors. Page 22 of 22